« California state judge finds more problems with state's lethal injection plans | Main | Barry Bonds sentenced to two years of probation and is grounded for a month »

December 16, 2011

"Three men get 1-year sentences for medical marijuana operations"

As helpful reader sent me this local article from Montana, which has the headline that serves as the title of this post.   I am quoting extensively from this piece, in part because there are so many notable elements to this story:

Three men who openly operated medical marijuana businesses in Helena and Great Falls were sentenced in federal court Thursday to a year in prison.

In an emotionally charged hearing, Senior U.S. District Court Judge Charles Lovell handed down the prison terms to Joshua Schultz, Jesse Leland and Jason Burns.  About 75 friends and family members who packed into the federal courthouse in Helena were hoping the judge would take the recommendation of probation made by the men’s attorneys, but also feared that the judge might impose a mandatory minimum sentence of five years or even the maximum of 40 years.

Yet judges are allowed discretion when it comes to sentencing, even with mandatory minimums.  Since the men had admitted their guilt, cooperated with the U.S. Attorney’s Office, had minimal if any criminal records and believed they were in compliance with state laws governing medical marijuana, court officials recommended a guideline sentencing range of 24 to 30 months.

But Lovell lowered the sentences even further, noting that this was a highly unusual case, pitting state against federal laws regarding marijuana.   “The sentencing range that established the guidelines has been, in the judgment of the court, excessive for utilization in this particular case under what I find to be very unusual circumstances,” Lovell said. “While it is true that the law was violated and while it is true that the computation set forward by the U.S. Probation Office complies with the guidelines in an ordinary case, this is not an ordinary case as to each of the three defendants.”...

Still, the 12-month sentences to a federal penitentiary shook the courtroom, with mothers, wives and friends breaking into tears, sighs of “no” ringing out and men dropping their heads into their hands....

In 2004, 62 percent of Montana voters passed an initiative removing criminal penalties under Montana state law related to the medicinal use, possessing and cultivation of marijuana for qualifying patients and registered caregivers.

Few people registered with the state as patients or caregivers until 2009, when the “Ogden Memo” was issued to federal prosecutors by then U.S. Deputy Attorney General David Ogden.  Generally, it said prosecution of marijuana cases in states with medical marijuana laws should be low on the priority list.

But many people who read the memo thought it said the federal government wouldn’t prosecute medical marijuana cases, and the number of caregivers and patients skyrocketed in Montana. Leland, 28, and Burns, 40, formed Queen City Caregivers LLC and registered the business with the Secretary of State’s office.

The men maintained records regarding the eligible patients for which they could manufacture marijuana under the state law and even met with local law enforcement officials, who counted 749 plants growing at their nursery on Westhaven Road in Helena.

The officials determined that Burns and Leland were in compliance with state laws and didn’t issue any citations.   Meanwhile, Schultz, 38, opened Natural Medicine of Great Falls, which operated like a broker, buying and selling marijuana among caregivers.

“As (Schultz’s) character letters attest, he is a good family man and a productive member of the community,” defense attorney Michael Donahoe wrote on behalf of his client in court documents. “Absent the government’s publication of the Ogden Memo, there is no evidence to support the conclusion that (Schultz) would have engaged in the business of selling marijuana. “… And under the Ogden Memo it was more than reasonable for (Schultz) to assume that he would not be targeted for federal prosecution, so long as he was making a good faith effort to remain in compliance with Montana’s medical marijuana laws.”

But in March, the federal government carried out dozens of raids in Montana, including at the three men’s businesses.  They were arrested and jailed on about 25 charges each including manufacturing and distributing marijuana and money laundering.

In court Thursday, Assistant U.S. Attorney Joseph Thaggard reiterated that the Ogden Memo only spoke about prioritization of crimes, and federal prosecutors in Montana felt a need to corral the state’s exploding medical marijuana industry.  He added that the memo also said people wouldn’t be prosecuted when there was “clear and unambiguous compliance” with state law, and the three men didn’t fall into that category....

“The memo didn’t say sort of comply or try to comply or attempt to comply … and the use and distribution of medical marijuana is still against federal law,” Thaggard said. “So it’s a little disingenuous for these defendants to come forward saying they didn’t believe they would be fair game for prosecution.”

The court received dozens of letters from supporters of all three men, who noted that they were upstanding fathers, uncles and friends, as well as caring individuals who were only trying to help people who were ill.  Thaggard noted that while that may be true, the men also made quite a bit of money — around $1.3 million by the government’s accounting.

Burns, who also owns a construction business in Helena, pleaded guilty in September to growing marijuana and money laundering.  Leland pleaded guilty to manufacturing marijuana and Schultz pleaded guilty to distribution of marijuana. In exchange for the guilty pleas, the other charges were dropped Thursday and the defendants agreed not to appeal the sentences.

Leland and Burns each forfeited $454,666 in a bank account that was seized and Schultz paid the government $110,000 prior to the sentencing. He also forfeited a 2001 Mercedes Benz.  All three men were set free Thursday, but will have to report to federal prison as soon as they’re ordered to begin their sentences. After the release, Burns will be on supervised probation for three years and Leland and Schultz will be supervised for four years.

Beyond lots of other reactions to this prosecution and sentencing, I am uniquely disappointed to read that "the defendants agreed not to appeal the sentences."  I can think of a number of important constitutional and statutory arguments that might well be made (and that I surely wish would be made) to the Ninth Circuit in an effort to overturn the prosecutions and especially the prison sentences given to these three (upstanding?) Montana businessmen.  

Because federal prosecutors are (justifiably) afraid of what might happen on appeal of a case like this (both in terms of PR and in terms of a legal ruling), I guess I am not surprised to hear that the feds sought a waiver of appeal in the plea deal.  And, I have little doubt that the prosecutors were able to used the threat of an potentially applicable mandatory minimum sentence of five years to secure such a plea term.  I sincerely hope that, if the language of the appeal waiver has any limits, these defendants will consider trying to appeal at least their federal prison term (and I will here already offer to help on any such appeal to the Ninth Circuit pro bono).

December 16, 2011 at 11:23 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2015438626362970c

Listed below are links to weblogs that reference "Three men get 1-year sentences for medical marijuana operations":

Comments

1. As long as federal law prohibits pot, anyone who does it in ANY state assumes the risk these guys took. At this late date, this is not rocket science.

2. A government memo that says the prosecution of X will be a low priority cannot possibly be read to mean that the prosecution of X will never happen.

3. Even if otherwise, almost all such memos have a savings provision to the effect that "nothing in this memo shall create or be constured to create rights for a criminal defendant."

4. The waiver of sentencing appeal is hardly and act of prosecutorial cowardice, a charge made without an iota of supporting evidence. To the contrary, such waivers are recommended in the USAM and have been standard practice nationwide at least since US v. Wiggins was handed down more than 20 years ago, http://law.justia.com/cases/federal/appellate-courts/F2/905/51/177146/ In the era of forced frugality, doing away with appeals by mutual agreement of the parties saves a boatload of money.

5. If a defendant dislikes the waiver, he can refuse it and assert his right to trial. This would have been especially attractive to this group, who, to read the article, were popular in their communities. If, however, you sign the waiver, you live with it. To do otherwise is dishonest.

6. The excerpted portions of the article do not say whether the government filed the kind of substantial assistance motion that authorizes the court to go below a statutory minimum. I assume it did. If it didn't, it has an automatic victory in the Ninth Circuit if it wants it.

7. The article refers to these fellows as "businessmen." And it seems to have been a right good business: "Leland and Burns each forfeited $454,666 in a bank account that was seized and Schultz paid the government $110,000 prior to the sentencing. He also forfeited a 2001 Mercedes Benz."

Wow. Most people would love to, but don't, do as well running a business fully compliant with federal law.

How many times does this need to be said? You don't flout the law simply because you think you're right and it's wrong. You use persuasion to CHANGE the law and THEN you can operate in the clear. That is the very meaning of "the rule of law."

Posted by: Bill Otis | Dec 16, 2011 12:16:56 PM

Prof. B,

I would certainly be interested in exactly how you think these three would have had a good case if they had refused the appeal waiver, in which case they would have also probably been saddled with far more counts, not gotten the substantial assistance motions and other benefits that accrued to them.

I agree that even under those circumstances they likely would have remained PR martyrs, but I'm not seeing grounds for legal victory. Montana isn't even in the 9th circuit (it's in the 10th instead) so they wouldn't even have had that long shot chance.

Especially with the money laundering the one pair plead too I think they were extemely fortunate to have gotten such a huge break.

Posted by: Soronel Haetir | Dec 16, 2011 12:46:38 PM

I would be curious to know if an attorney advised these businessmen on the contents of the Ogden Memo or was that more of a post hoc argument.

Posted by: hannini | Dec 16, 2011 2:02:24 PM

No, Soronel, Montana is in the 9th Cir., not the 10th.

Posted by: lawyer | Dec 16, 2011 2:03:08 PM

B.O.: The drug war is immoral, authoritarian, and destructive. When States pass/adopt medical marijuana laws, or otherwise legalize the use of marijuana, the federal government has no business interceding. It only does so via a wildly liberal construction of the Comnerce Clause. I bet you don't favor liberal applications of the Commerce Clause in other contexts, e.g., Obamacare. You're unprincipled, result-oriented, and authoritarian.

The drug war is a lie. Marijuana has medicinal value. The federal government has a patent concerning medical use of marijuana. Yet, you and your zany fellow drug crusaders have succeeded in keeping marijuana listed as a Schedule I controlled substance.

Shame on you and those of your ilk who perpetuate this vicious drug war.

Posted by: Calif. Capital Defense Counsel | Dec 16, 2011 2:59:00 PM

Bill Otis,

The whole point of the tenth amendment and of a limited article one is to allow you to only change the law on the state level. Raich and cases of the sort upholding laws like this can't remotely be called "upholding the rule of law". When appointed by Presidents and confirmed by Senators who are biased in favor of federal power (instead of individual rights), especially when it comes to laws with overwhelming popular support, the judiciary can't be called independent when it comes to issues like this. Sending someone to prison for growing and selling in state marijuana is lawless.

Posted by: Mysterion | Dec 16, 2011 3:03:46 PM

CCDC --

If that's your version of an "argument," it's no wonder you lose most of your cases.

Mysterion --

Raich was written by Stevens, then the Court's most liberal Justice. Going along were all the Court's other liberals, Ginsburg, Breyer, and Souter, plus Kennedy and Scalia. If you think you know more about the Tenth Amendment that they do, please state your qualifications

Sornonel --

The defendant couldn't win this one even in the Ninth Circuit.

Posted by: Bill Otis | Dec 16, 2011 3:45:05 PM

Crazed crusaders like B.O. are ready and willIng to prosecute and imprison people for adultery, jaywalking, and "violations" of statutes proscribing consensual sodomy.

It's the law, don't you know.

And, of course, B.O. knows better than you what's good for you. To hell with those pesky doctors and scientists who have found that marijuana has medicinal benefits. B.O. knows better than them; he knows it is an evil weed.

Posted by: Calif. Capital Defense Counsel | Dec 16, 2011 4:31:07 PM

Capital Defense Counsel: "It only does so via a wildly liberal construction of the Comnerce Clause. I bet you don't favor liberal applications of the Commerce Clause in other contexts, e.g., Obamacare. You're unprincipled, result-oriented, and authoritarian.'

Bill Otis didn't want anything to do with responding to that, did he?


How many times has Bill "Body Odor" Otis used the Commerce Clause as an excuse?

Posted by: Huh? | Dec 16, 2011 5:18:51 PM

Hey Bill: The article reports this about SA: "Since the men had admitted their guilt, cooperated with the U.S. Attorney’s Office, had minimal if any criminal records and believed they were in compliance with state laws governing medical marijuana, court officials recommended a guideline sentencing range of 24 to 30 months." I assume the reference to "court officials" is to the PO, and in turn I think it is safe to assume that these defendants got out from under the 5-year mandatory minimum through an SA motion and/or via the statutory safety valve.

My question to you is whether you understand and/or dispute my concerns about appeal waivers violating the public policy on sentencing appeals reflected in the SRA. The SRA authorized sentencing appeals because Congress (rightly) believes that sometimes district courts will make sentencing mistakes and that it is appropriate to authorize both parties to pursue an appeal to correct any perceived federal sentencing mistake.

After a mistake has been made at sentencing, one or both parties may surely decided it is not worth exercising this statutory right of appeal. But why should one of both parties be allowed to agree BEFORE sentencing that it will make appeals of any and all sentencing mistakes impossible?

Here is a parallel hypo: do you think the parties here could have agreed to have a sentencing appeal (or even the calculation of the applicable guidelines) resolved by binding private party arbitration? I think not, becuase to do so would violate the procedural statutory sentencing structure created by Congress in the SRA. I feel the same way about appeal waivers: they may be efficient and may not even violated anyone's rights, but I think they are void as against the public policy int he SRA.

Posted by: Doug B. | Dec 16, 2011 5:37:31 PM

"How many times has Bill 'Body Odor' Otis used the Commerce Clause as an excuse?"

The druggies display for vividly than I could the "quality" of their "argument." Still, in a way you can't blame them. For forty years -- with Newt Gingrich AND Nancy Pelosi, with Bob Dole AND Harry Reid -- they've had their crack at the CSA, and for forty years they have failed. I guess it must be out of frustration that they think they're "striking back" by using fourth grade stuff like "B.O." as anonymous posters on the Internet.

Have at it, guys.

Posted by: Bill Otis | Dec 16, 2011 5:57:21 PM

Doug --

"My question to you is whether you understand and/or dispute my concerns about appeal waivers violating the public policy on sentencing appeals reflected in the SRA."

Sentencing appeal waivers have been considered and approved by every circuit in which they have been litigated, that being the heavy majority if not all of them. If they were against public policy, it's inconceivable that some circuit would not have noticed at some point in the last 20 years. But none has -- not one.

"The SRA authorized sentencing appeals because Congress (rightly) believes that sometimes district courts will make sentencing mistakes and that it is appropriate to authorize both parties to pursue an appeal to correct any perceived federal sentencing mistake."

And the Constitution itself authorizes trials because the Framers correctly believed that allowing the government to just toss a fellow in jail will result in mistakes, and injustice, and that it's appropriate to allow the parties to go at it at trial to flesh out whether the defendant is, in fact, guilty, or whether a mistake has been made.

Notwithstanding all this, the law (Santobello) explicitly permits, and common practice encourages, waiver of the CONSTITUTIONAL RIGHT TO A TRIAL. If a person can waive the very Constitutional right upon which the imposition of ANY sentence depends, and can do so notwithstanding the ever-present possibility of error, a fortiori he can waive the statutory right to an appeal.

"After a mistake has been made at sentencing, one or both parties may surely decided it is not worth exercising this statutory right of appeal. But why should one of both parties be allowed to agree BEFORE sentencing that it will make appeals of any and all sentencing mistakes impossible?"

For the same reason a defendant who has adamantly pled not guilty may decide that, overall -- and notwithstanding the fact that he cannot know for sure that he would not have been acquitted at trial (cf., Casey Anthony) -- it's in his interest to reliquish his claim of innocence in exchange for concessions by the government.

Indeed, defendants who choose sentencing waivers are almost alway making the smart choice, because their lawyers know that the gigantic majority of sentences are either at or near the bottom of the guideline range -- except, that is, for the large number of downward departures. In almost every case, the defendant is giving up nothing that would have been of value to him in signing the waiver, and gaining things that have a high value indeed.

Nor is it necessarily the case that signing a waiver will ALWAYS result in the loss of an appeal where a clearly erroneous sentence has been handed down. In such an instance, a defendant can ask for a release from his waiver.

Any defendant who doesn't like that or any other part of the deal can, of course, refuse it and go to trial, just as can with respect to any other proposed provision he finds too onerous, or merely dislikes.

"[D]o you think the parties here could have agreed to have a sentencing appeal (or even the calculation of the applicable guidelines) resolved by binding private party arbitration?"

I sure doubt it, since, from pre-Constitutional times, private entities have been disabled from imposing criminal sanctions. But we need not resort to creative hypotheticals. We can look at 20 years of precedent. As you might imagine, the public policy/SRA policy argument has has already been raised by defendants who wanted to get out of the deal they signed. It has been rejected by every court to which it has been presented.

P.S. As you have pointed out many times, it is also public policy to conserve increasingly scarce judicial resources, and the appeal waiver helps to do just that.


Posted by: Bill Otis | Dec 16, 2011 6:46:06 PM

Actually, Bill, very few defendants have raised the SRA public policy argument effectively, especially after Booker where the remedial majority said it was retaining appeal of sentences for reasonableness "to iron out sentencing differences" (and not simply in order to retain the rights of defendants). In addition, because some (and, in some districts, many) district judges refuse to accept plea agreements with appeal waivers, I also think the anti-disparity public policy in the SRA is further undermined by allowing/enforcing appeal waivers for some defendants and not for others.

You are right that all circuits have upheld these waivers, but I fear that is largely because it gives them less to do in "crappy" cases with weak defendant appeals. notably, many circuits have construed waiver terms very narrowly if/when a panel wants to get to the merits of the appeal.

Finally, you've dodged my hardest question about parties seeking via a plea to modify statutory sentencing procedures, so I will modify the question hoping you will answer it directly: can/should a plea agreement be able to specify that a private party selected by the prosecutor (rather than a probation officer) prepare the presentence report for submission to the sentencing judge? If not, why not (especially if the prosecutor offers the defendant a huge break from an applicable mandatory minimum for agreeing to such a procedure)?

As Scalia said in Blakely, the fact that a certain process may be efficient and fair for the parties involved does not necessarily make it legal/constitutional. In this setting, I am not asserting appeal waivers are unconstitutional, I just think they violate the public policy of the SRA (as would an agreement to have a private party prepare a PSR). I hope the defendants in this case might want me to make a full-throated argument on this front to the 9th Circuit (especially if they can/will be able to assert that they only agreed to the waiver because of a threat by prosecutors to seek application of the mandatory minimum if they did not).

Posted by: Doug B. | Dec 16, 2011 7:44:52 PM

Doug --

To answer your question directly: You can't outsource exclusively sovereign power to non-sovereigns. But the power to appeal a sentence, like the power to demand a trial, BELONGS TO THE LITIGANT, NOT THE SOVEREIGN. That's why both the Constitutional right to excise error through demanding a trial, and the merely statutory right to excise sentencing error through demanding an appeal, can be waived, while the court's power to determine the sentence cannot be.

And I think it unfairly accuses the courts of appeals of deciding cases out of laziness rather than law to say that they're merely giving themselves less work.

As you correctly note, the waiver of appeal has uniformly been upheld by the circuits in the 20 years it has been in force (15 of which pre-dated Booker). Precedent uniformly being on my side, before Booker and after, I feel less than an urgent need to become defensive about the enormous cost savings the taxpayers have achieved by allowing defendants, if they so choose -- and in exchange for things they find of greater value -- to waive the right to appeal.

I mean, cost savings ARE quite important, not so? And properly considered in deciding what public policy should allow? Like the cost savings from early releases? That's sure what I've been seeing here.

Now if you'll excuse me a moment, I need to take a bath, since some of your ever-so-classy pro-drug commenters have objected to my scent.

Do you love these guys? Among its other numerous virtues, your free speech policy has the advantage of allowing the vulgarity and childishness of these people to shine right on through.

Posted by: Bill Otis | Dec 16, 2011 8:32:46 PM

Did the defendants get sentenced to 12 months or 12 months, 1 day? If 12 months-no good time. If 12 months, 1 day--good time--supposedly 54 days off, in effect approx. 48 days. Add in 1/2 way house and they will probably 6 months max.

Posted by: ? | Dec 16, 2011 9:02:42 PM

I've represented people in numerous medical marijuana cases. In federal cases, I've had to explain to clients that the various California medical marijuana statues provide them no protection. Although many of these folks have a rudimentary understanding of federalism, they are blown away when I tell them that their compliance with state law will mean nothing in federal court: I tell them that their cases may be prosecuted by crazed true believers in the war on drugs, like B.O. I tell them about a drug cop who had an emotional outburst on the witness stand, pounding the witness stand and referring to marijuana as an "evil weed," during my cross-examination of him. I tell them that the Obama Administration has cowardly backed away from it's suggestion that it would leave alone those who operate in compliance with state law.

Defendants like the folks in this Montana case see news conferences in which high-ranking state officials acknowledge, and sometimes praise, state medical marijuana laws. Then, defendants like these engage in marijuana-related activities in compliance with state law. Then, armed thugs like B.O. come to their door, kick their door down, shoot their dog, cuff them, and haul them off to prison.

In the federal drug war, these non-violent defendants, whose actions were fully compliant with state law, face federal prison sentences of 40 or 50 years. In order to reduce their sentencing exposure, they have to hold their nose and cooperate with thugs like B.O. They have to rat out friends and family members. It is a disturbing, inhuman process.

Waivers of appeal and collateral attack are frequent in this unsavory process. AUSAs insist on them in many cases. Defendants have to give them, or their plea agreements are off, and they face obscenely long sentences.

In one sense, these waivers are appropriately deemed terms of a contract. In another quite real sense, however, they are the product of extortion. The max. federal sentences available for some drug offenses are so obscenely long that no rational defendant, even a factually innocent one, would refrain from seriously considering a plea bargain, even with an appeal/habeas waiver, so long has his sentencing exposure is reduced.

This is the ugly, ugly war on drugs. Those who perpetuate it are some of the truly sickest people in our society.

Posted by: Cali. Capital Defense Atty. | Dec 16, 2011 9:10:57 PM

CCDA --

How odd it is that a person who prides himself on representing REAL armed thugs should so bitterly accuse a mere commenter with the temerity to agree with Justice Stevens and President Obama of being an "armed thug."

Posted by: Bill Otis | Dec 16, 2011 10:13:53 PM

I love this discussion thread.

When will all you lawyers, DAs, Ex-DAs and/or current justices realize that this discussion is NOT about Justice. It is the current bastardized state of human rights vs. government POWER to protect us, even from ourselves.

It all accelerated with Megan's law, by the way, to take away God-given rights, not government permitted activities.

PS: A Gubermint Thug, whether liberal or conservative, is still a THUG. We have too many nowadays, from both sides.

PSS: That is why we are going broke if not already bankrupt.

Posted by: albeed | Dec 16, 2011 11:12:15 PM

seems to me if shit like this is going to continue!

in cases like this!

"Defendants like the folks in this Montana case see news conferences in which high-ranking state officials acknowledge, and sometimes praise, state medical marijuana laws. Then, defendants like these engage in marijuana-related activities in compliance with state law. Then, armed thugs like B.O. come to their door, kick their door down, shoot their dog, cuff them, and haul them off to prison."

The individual convicted in FEDERAL court has an automatic win in a civil suit againt the state govt that was retarded enough to pass a law they KNOW was illegal based on FEDERAL LAW!

Posted by: rodsmith | Dec 16, 2011 11:37:51 PM

Obama is clearly an armed thug. He's proven it over and over --- unilaterally ordering people killed without due process, including Anerican citizens; taking military action in Libya without Congressional approval, in derogation of his campaign promise; advocating due process free detention based on nothing more than executive decree; proclaiming Bradley Manning guilty; etc.

I doubt Stevens agrees with you on much. He and Souter were the best judges on that Court in recent times. Stevens' interpretation of the Commerce Clause in Raich was unfortunate; Scalia's was flatly hypocritical. Stevens' overall body of work on the Court was terrific.

Posted by: Calif. Capital Defense Counsel | Dec 16, 2011 11:48:32 PM

I have what is probably a naive question. Did the government also waive the right to appeal? If not, could there be an equal protection issue there that can void the plea agreement?

If someone would risk it, of course. CCDA is right. The risk of 40 years is extortion. Worse, if the fed laws are a violation of the Tenth Amendment, maybe LE is criminal in the sense of violating constitutional rights.

Most people would rather face a Rodney King like beating that face 40 years.

Posted by: Winston Smith | Dec 17, 2011 12:07:30 AM

The government did not enter a waiver; only the defendants. (I don't practice in federal court in Montana, but I do in the Northern, Eastern, and Central Districts in Calif. I assume the waivers in federal court in Montana are like our waivers in federal court in Calif.)

However, the one-sided waivers do not give rise to any Equal Protection problem. For an equal protection violation, you need unjustifiable disparate treatment of groups/individuals who only differ with respect to certain classifications, e.g., race or gender.

Posted by: Calif. Capital Defense Counsel | Dec 17, 2011 3:12:13 AM

Just because a prosecutor can obtain a conviction does not mean that the prosecutor should charge a defendant. Federal prosecutors, just like state prosecutors, set priorities and choose classes of cases to take and not take all the time. The federal prosecutors in Montana chose to prosecute these defendants for political reasons. There is no compelling federal interest in prosecuting marijuana sellers in states where marijuana can legally be sold, unless "showing who's in charge" is now a legitimate federal interest. The Montana prosecutors were sending a message to the states: don't try to reform marijuana laws. The interesting question is why? My guess is that too many entrenched interests have a stake in marijuana's continued criminalization, from law enforcement agencies who gain valuable funds for the "war" on drugs, to private prison companies, to conservative groups who imagine that marijuana poses some sort of threat to them personally. The Obama administration apparently wants to keep all these people happy.

Posted by: C.E. | Dec 17, 2011 4:08:58 AM

I'm glad to see you mention those awful appeal waivers, Prof. Berman. They are standard for most US Attorney's Offices around the country, with reservations varying from IAC and prosecutorial misconduct to no reservations at all. Without them, there is no deal; with them, there is no anti-government appeal. I think the Contracts classes can debate whether they're "terms of adhesion," but the Courts of Appeal have upheld them.

Posted by: Jay Hurst | Dec 17, 2011 11:05:05 AM

C.E.,

The fact that the one pair at least pled to money laundering makes me think there was in fact a lot more than goodness and light regarding their compliance with state law. Especially coupled with the amount of the agreed forfeiture. The other guy perhaps, but even there the amount would tend to make me think he saw it as a way to get rich rather than as a mission of mercy.

Posted by: Soronel Haetir | Dec 17, 2011 11:24:54 AM

Calif. Capital Defense Counsel, the court ruled based on the statute and not any race or gender issue.

In People v. Hofsheier, the California Supreme Court held that imposing mandatory sex offender registration on those convicted of oral copulation with a 16- or 17-year old pursuant to Penal Code Section 288(a)(b)(1), but not for those convicted “of unlawful sexual intercourse with a minor of the same age,” violated equal protection.

So I'm suggesting that the right to appeal clause should raise an equal protection issue. Why should the government retain the right to appeal when the defendant must surrender it? Doesn't the right to appeal protect both parties?

Posted by: Winston Smith | Dec 17, 2011 11:51:33 AM

http://dsc.discovery.com/tv/weed-wars/

Posted by: Winston Smith | Dec 17, 2011 12:00:43 PM

Winston Smith --

"So I'm suggesting that the right to appeal clause should raise an equal protection issue. Why should the government retain the right to appeal when the defendant must surrender it?"

For the same reason the government retains its right to avoid criminal punishment while the defendant must surrender his: The defendant sold the meth (or robbed the bank or whatever) and the government didn't. To draw a distinction based on a difference in volitional behavior is not a violation of the EPC.

If you think otherwise, you are of course free to convince the courts. Have at it.

"Doesn't the right to appeal protect both parties?"

First, one would think that is for the parties to decide. But if a point be made of it, the answer is no. It is no protection for the taxpayers -- and is instead a substantial and unnecessary cost -- to have to routinely answer a zillion defendant appeals, almost all of which are filed, not because they have any merit, but because the defendant has time on his hands, no costs that he himself must bear, and nothing to lose by trying.

I concede, however, that defense counsel has an interest in pursuing even silly appeals, since it keeps that meter running.

Posted by: Bill Otis | Dec 17, 2011 3:28:06 PM

Soronel --

A shrewd observation. Unless there is an overall change in policy (as there is, for example, in California), there was certainly some reason to pick out this particular business, while others are, so far as the article reveals, left untouched. The absolutely huge amount of cash these guys had gives a clue as to what that reason might have been.

Sometimes these MM businesses are run in good faith, and sometimes they're fronts for rampant drug dealing that has less than nothing to do with providing "medicine."

Posted by: Bill Otis | Dec 17, 2011 4:32:19 PM

Bill Otis,

Even assuming the Raich majority of 6 "know more about the tenth amendment" than the dissenting 3 (a very unfounded assumption), my point still stands. The Raich 6 surely know that the law they voted to uphold is plainly unconstitutional (at least as applied). The difference is that the majority didn't give a damn. Legal training doesn't do any good given the pro-federal power biases of the appointing presidents and confirming senates who do their best to get people in who won't often vote to keep congress to within its enumerated powers. The seventeenth federalist paper (written by the extremely pro federal govt. framer Alexander Hamilton) promises that police power will be exclusively a state domain. This is what the people voted on, not the unbounded federal govt. that people like you lobby to keep locking more people up and kill more people. Oh, and if the commerce power is really so broad, why was an amendment needed for prohibition. Interstate commerce extends to marijuana but not alcohol???

Posted by: Mysterion | Dec 17, 2011 10:33:46 PM

Mr. Bill: "For the same reason the government retains its right to avoid criminal punishment while the defendant must surrender his:" because the government has immunity.

Posted by: George | Dec 18, 2011 12:22:04 AM

In Scalia's concurrence in Raich, he posited the view that, pursuant to the Commerce Clause, Congress has plenary authority to prohibit "intrastate controlled-substances activities" in furtherance of "the legitimate end of eradicating Schedule I substances from interstate commerce." Of course, marijuana is listed as a Schedule I controlled substance, meaning that it purportedly has no legitimate medicinal value. (Never mind that doctors, biologists, and even the federal government have recognized promising medical applications for cannabinoids.) Indeed, in Thomas' opinion for the Court in Oakland Cannabis Buyers' Cooperative, which Scalia joined, Thomas noted that the provisions of the CSA "reflect[] a determination that marijuana has no medical benefits...." (By the way, Thomas filed a principled dissent from the Commerce Clause holding in Raich.)

In the upcoming Obamacare case, I don't know how Scalia will distinguish his Commerce Clause position in Raich, but it will be interesting to see him do so.

In Raich, the Court did not vote to uphold a law. Rather, in that case, Angel Raich, who was afflicted with a brain tumor and related ailments, sought a preliminary injunction to prevent the federal government from prosecuting her for following her doctor's recommendation to use marijuana to combat the nausea and pain she was experiencing as a result of her condition. Among other things, she contended the Commerce Clause did not authorize the federal government to go after her for her purely intrastate cultivation and use of marijuana; she also raised claims under the Ninth and Tenth Amendments. A Ninth Circuit panel granted the preliminary injunction, finding that her particular physician-authorized cultivation and use of marijuana did not have a cognizable effect on interstate commerce. The Supreme Court reversed. Unfortunately, although the Raich majority acknowledged "the troubling facts of th[e] case" and the likelihood, based on medical testimony, that Ms. Raich would "suffer irreparable harm" as a result of depriving her of "therapeutic" marijuana, the majority held 1) her use of marijuana did have a cognizable effect on interstate commerce, and 2) application of the CSA to her was constitutionally permissible.

Happily, I think I see in Bill Otis' comment disagreement with the Raich holding. So, unlike Scalia, Mr. Otis can maintain consistency in advocating the view (which I presume he holds, and with which I agree) that Congress exceeded the bounds of the Commerce Clause when it passed Obamacare.

Posted by: Calif. Capital Defense Counsel | Dec 18, 2011 2:03:41 AM

I don't recall anything about "goodness and light" in my original post. I don't really care if people sell marijuana to make money, just like I don't care if Anheuser-Busch or Pfizer makes money. The point is that the federal government's interest was minimal, at best. The article states, "federal prosecutors in Montana felt a need to corral the state’s exploding medical marijuana industry," which only confirms that the purpose of that prosecution was to flex the federal government's muscle.

Posted by: C.E. | Dec 18, 2011 4:38:21 AM

hmm

"Mr. Bill: "For the same reason the government retains its right to avoid criminal punishment while the defendant must surrender his:" because the government has immunity.

Posted by: George | Dec 18, 2011 12:22:04 AM"

I'm STILL trying to find ANYTHING in the constution that even remotely gives them this!

sorry we don't have a SOVERIGN govt! we have EMPLOYEES that WE hired to do a job for us. Last time i looked NO employee of mine has IMMUNITY from me!

Posted by: rodsmith | Dec 18, 2011 3:27:14 PM

Mysterion --

"The Raich 6 surely know that the law they voted to uphold is plainly unconstitutional (at least as applied)."

So Stevens and the other five were, not just wrong, but dishonest and thuggish.

Yikes. Here, ladies and gentlemen, we have the perfect example of liberal McCarthyism. To McCarthy, there were no such things as civil libertarians, just Communists. And to people like Mysterion, there is no such thing as a Justice who might hold an informed and good faith belief that the CSA is Constitutional, just a bunch of biased, lying twerps.

The truth is the opposite. In the 1950's there were BOTH civil libertarians AND Communists, and now there are both learned people who believe the CSA is Constitutional (the Raich majority, including all the Court's liberals), and learned people who believe otherwise (the Raich minority).

For those of you who like following in McCarthy's dark and malevolent footsteps, I just hope you understand what you're doing.

Posted by: Bill Otis | Dec 18, 2011 5:27:17 PM

Bill Otis:
"I concede, however, that defense counsel has an interest in pursuing even silly appeals, since it keeps that meter running.
In the SDWV appeal waivers are part of every plea "agreement". Ethically, and per the instruction of the Court, I have to file a notice of appeal if instructed by my client, many of which are CJA appointments. Max pay is $125 per hour with no benefits. I bet your meter is better than mine.

Posted by: Greg Campbell | Dec 18, 2011 6:29:40 PM

"The fact that the one pair at least pled to money laundering makes me think there was in fact a lot more than goodness and light regarding their compliance with state law. Especially coupled with the amount of the agreed forfeiture. .."

It needs to be understood that money laundering has evolved from pursuing complicated movement of dirty cash linked to certain crimes (it was originally for RICO and drug money), to ANY spending of money that the Government can even Allege is connected to a crime. I know this personally because I went through a three week Federal trial this year where I was accused of such innocuous activities as buying a boat and lending money to my sister. So it is very easy for a person who would never get involved in criminal activity to be accused of money laundering just from receiving a check (not even cash!) that in some.
be connected back to criminal activity.
As for forfeiture, that too, has become outrageous. The government can grab your assets on mere probable cause (the lowest possible standard)---and your day in court to get them back can seemingly stretch on and on forever. AND as
for the amounts forfeited in the article---there is no way to tell if that is the amount they gained---or if it is the amount that is "involved in the money laundering". For instance, forfeiture allows that if you had $10,000 in legitimate $ in an account, and deposit, say $3000 of "illicit proceeds" into the same account, the Government can forfeit ALL of the money as "involved" in the money laundering. It therefore benefits the Government to charge money laundering whenever and wherever possible to gain larger dollar amounts for forfeiture.

Posted by: folly | Dec 18, 2011 7:00:48 PM

Greg Campbell --

If the client agrees in writing, and again in open court, with you standing at his side, that he will not file a sentencing appeal in exchange for other considerations given by the government, then he is in absolutely no position to tell you to file the appeal he agreed to forego. If he wants to go back on his word, two things should happen. First, you should resign from the case, telling the court that you decline to participate in reneging on an agreement (which is of course the honorable thing to do). Second, the AUSA should set the case for trial as originally charged, no more plea deals.

In the world where I grew up, once you make an agreement, you keep it. This applies to prosecutors, defense counsel and litigants.

P.S. Obviously, when word gets around the USAO that defense counsel Smith went along with his client's reneging on the plea deal, how easy do you think it's going to be for defense counsel Smith to reach future deals with the government? Do you trust people who spin you? Then why should an AUSA?

Posted by: Bill Otis | Dec 18, 2011 9:02:33 PM

well bill i really don't have a problem with appeal waivers to get an plea bargain as long as two things happen!

first of course that ALL parties have to agree to the deal INCLUDING the judge since in any plea i was to arrange WOULD include a SPECIFIC sentence!

second! The appeal waiver would not apply in the case of NEW EVIDENCE or NEW TECHNOLOGY that could get fresh info from old evidence! you know the old i'm innocent defense....when coupled with the above only!

Posted by: rodsmith | Dec 18, 2011 11:24:13 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB