Tuesday, November 16, 2010

Defendants Who Knew Federal Law Made Cannabis Illegal Were Not Misled by Sheriff Who Assured Them That Their Marijuana Grow Was Legal.

The Ninth Circuit Court of Appeals affirmed a judgment holding that defendants who knew that under federal law that cannabis remained illegal, and could not be prescribed by physicians, were not misled by county sheriff’s deputies who purportedly assured them that their marijuana grow operation was legal under federal law. Dale Shafer, an attorney, and Marion Fry, a physician were a married couple who operated a medical marijuana dispensary in California. The operation began after Fry was diagnosed with a condition for which marijuana was recommended to alleviate side effects of treatment. Shafer began cultivating marijuana for Fry’s use and informed the county sheriff of his operations. Sheriff’s deputies visited the operation many times and inspected the plants, even after the cultivation extended beyond personal use amounts and developed into a business.


Shafer and Fry were eventually indicted federally for conspiracy to manufacture and distribute marijuana plants. They moved to dismiss the indictment on the grounds that an entrapment-by-estoppel defense precluded their prosecution. The government opposed contending that Shafer and Fry had not relied on representations by a federal official or an authorized agent of the government. The government further contended that Shafer and Fry had given written recommendations to their patients which included a disclaimer that marijuana remained illegal under federal law; thus, they knew that federal law made their operation illegal. The district precluded an entrapment-by-estoppel defense and the jury convicted them both. On appeal, they contended that their theory of entrapment-by- estoppel was improperly dismissed. The court of appeals affirmed based on Shafer and Fry’s knowledge of federal law.

This case is United States v. Shafer, 9th Cir.; November 8. 2010; 08-10167

Tuesday, November 9, 2010

Traffic Violation Citations Counted as Arrests to Calculate Criminal History Points

The Ninth Circuit affirmed a district court judgment which included traffic violation citations as “arrests” when calculating the defendant’s criminal history under U.S.S.G. § 4A1.2(a)(2). The Court agreed with the Seventh Circuit in its application of United States v. Morgan, which treated Leal-Felix’s traffic violations as arrests with regard to the Sentencing Guidelines. United States v. Morgan, 354, F .3d 621 (7th Cir. 2003).

In February 2005 Israel Leal-Felix plead guilty to aggravated felony of possessing a firearm by a convicted felon and was deported from the United States to Mexico. In March of 2009, Leal-Felix reentered the United States without applying for readmission after his deportation. Under a plea agreement, Leal-Felix pled guilty to a single-count of violating 8 U.S.C. § 1326(a) (illegal re-entry), for which the potential prison term is 20 years. The plea agreement provided that Leal-Felix would be sentenced to at the low end of the Sentencing Guidelines range, determined by a total offence level and his calculated criminal history.

Leal-Felix’s criminal history was calculated by the Probation Office to be 14 points, including the calculation of pleading guilty to charges for burglary, importing controlled substances, methamphetamine, as well as sale and distribution. Also included were 2 points each for his arrests or citations for driving with a suspended license on November 17th and 19th, 1998. On the condition that Leal-Felix serve 180 days in the county jail for both traffic violations, he was sentenced to concurrent sentences of 36 months of probation for the traffic violations. The district court calculated, in accordance with the plea agreement, the imprisonment sentence at 21 months, the low end of the 21 to 27-month Sentencing Guidelines range. Leal-Felix’s offense level was determined to be level 9 and Criminal History Category VI.

Leal-Felix appealed on the issue of whether a citation for a traffic violation is an arrest countable for criminal history under the Sentencing Guidelines. Leal-Felix argued that because he was cited but not arrested for the November 17th, 1998 traffic violation, the two violations were not separated by an intervening arrest under U.S.S.G. § 4A1.2(a)(2), and the 2 points added for the November 19th, 1998, traffic violation should not have been counted. If these points were not counted Leal-Felix would be in Criminal History Category V, where the Sentencing Guidelines range low is 18 months rather than 21 months in Category VI.

The Ninth Circuit considered United States v. Morgan, which addressed this issue in the Seventh Circuit. In Morgan, the Seventh Circuit recognized “calling the traffic stop an ‘arrest’ implements the Sentencing Commission’s goal” and that “[a] traffic stop is an ‘arrest’ in federal parlance” as opposed to state law for purposes of § 4A1.2(a)(2). Additionally, Leal-Felix was imprisoned for 90 days per traffic violation, demonstrating that, for guidelines purposes, these violations represented more severe instances than should be disregarded when calculating criminal history. The Court of appeals ruled that the district court properly counted 2 criminal history points for each of the convictions in these traffic violations.

Notably, while Judge Goodwin wrote an eight-paragraph opinion on this sentencing guidelines case, Judge Bennett (sitting by designation from the District of Iowa) responded by authoring a twenty-page, single-spaced dissent (bolstered by a table of contents), and argued that a “citation” does not mean an “arrest.”

The case is: United States v. Leal-Felix, 9th Cir.; November 1, 2010. 09-50426.

Monday, November 1, 2010

United States v. Redlightning: Confessions Before and After Voluntary Polygraph Not Illegal as the Result of Unlawful Detention or Failure to Promptly

The Ninth Circuit Court affirmed a district court judgment of conviction on Monday, October 25th. The Court held that confessions obtained during and after a voluntary polygraph examination were not illegal as a result of unlawful detention or failure to promptly present the defendant to a magistrate.

Rita Disanjh's body was found on the Lummi Indian Reservation in August of 1987. The pathologist was not able to rule out sexual assault but did determine that the victim had been killed by manual strangulation. In 2006, Athena Swope, daughter of Henry Redlightning's deceased partner, Patricia Dubbs, told police that Redlightning had been involved in the murder of a woman and that she had learned of this from her mother in 2003, to whom Redlightning had confessed.

In October 2007 Redlightning was interviewed by FBI agents and agreed to answer questions in a polygraph examination. During the polygraph examination Redlightning was asked "Did you sexually assault and kill Rita?" to which he responded, "Yes." The following day while en route to the arraignment, the FBI agent obtained an additional confession from Redlightning. Before the trial Redlightning unsuccessfully sought to have his confessions to murdering Disanjh suppressed. A jury convicted Redlightning of killing Disanjh with premeditation and in perpetration of, or the attempt to perpetrate, aggravated sexual abuse and sentenced him to life in prison. Redlightning appealed and the court of appeals affirmed, holding that neither the first nor the second confession was illegally obtained. Redlightning had not been in custody until his confession and because the first confession had not been the result of an illegal seizure, the second confession was not the result of an unconstitutional act.

This case is: United States v. Redlightning; 9th Cir.; October 25th, 2010;09-30122