U.S. v. Stacy, Case No. 09cr3695 BTM

• Decision Date: 12 July 2010
• Docket Number: Case No. 09cr3695 BTM
• Citation: 734 F.Supp.2d 1074
• Parties: UNITED STATES of America, Plaintiff, v. James Dean STACY, Defendant.
• Court: U.S. District Court — Southern District of California

734 F.Supp.2d 1074

UNITED STATES of America, Plaintiff,

v.James Dean STACY, Defendant.

Case No. 09cr3695 BTM.

United States District Court, S.D. California.

July 12, 2010.

ORDER DENYING DEFENDANT'S MOTION TO PRESENT CERTAIN DEFENSES AND GRANTING UNITED STATES' MOTIONS IN LIMINE TO PRECLUDE DEFENSES

BARRY TED MOSKOWITZ, District Judge.

Defendant James Dean Stacy has filed a motion to allow him to present an entrapment-by-estoppel defense at trial, or, in the alternative, a public authority defense. The United States has filed motions in limine to preclude an entrapment defense, advice of counsel defense, "medical marijuana" defense, medical necessity defense, and public authority defense. For the reasons discussed below, the Court DENIES Defendant's motion and GRANTS the United States' motions in limine.

I. BACKGROUND

From June 2009 until September 2009, Defendant operated what he claims was a "medical marijuana collective" called "Movement in Action," located at 1050 South Santa Fe Avenue, Vista, California. According to Defendant, he took great care to make sure that his cooperative was formed and operated in compliance with California law, specifically the Compassionate Use Act ("CUA") and the Medical Marijuana Program Act ("MMPA"), Cal. Health & Safety Code § 11362.5 et seq.

In July and August of 2009, Defendant sold marijuana on three separate occasions to an undercover detective from the San Diego Sheriff's Office. Each time, Defendant charged $60 for an eighth of an ounce of marijuana.

On September 9, 2009, there was a county-wide raid, which resulted in the arrests of Defendant and thirteen other individuals who operated "marijuana collectives" in San Diego. DEA agents executed search warrants at Defendant's home and business, seizing 96 marijuana plants, marijuana-laced food products, marijuana-related equipment and paraphernalia, business records, and a fully-loaded FEG semi-automatic pistol.

In an Indictment filed on October 7, 2009, Defendant was charged with (1) conspiracy to manufacture and distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) manufacturing 96 marijuana plants in violation of 21 U.S.C. § 841(a)(1); and (3) possessing a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1).

On December 9, 2009, Defendant filed (1) a motion to dismiss the Indictment on the ground that it violated the TenthAmendment; (2) a motion to dismiss the Indictment as a violation of due process; and (3) a motion to dismiss the Indictment because the prosecutor was acting in direct conflict with the U.S. Department of Justice policy. In an order filed on March 2, 2010, 696 F.Supp.2d 1141 (S.D.Cal.2010), the Court denied Defendant's motions to dismiss the Indictment. However, the Court deferred ruling on Defendant's request to present an entrapment-by-estoppel defense so that the Court could consider all of the evidence that Defendant may wish to offer on this proposed defense closer to trial.

On June 17, 2010, a Superseding Indictment was filed in the case. The Superseding Indictment charges separate counts for each sale to the undercover detective (21 U.S.C. § 841(a)(1)), in addition to counts for possession with intent to distribute (21 U.S.C. § 841(a)(1)), manufacture of 50 marijuana plants and more (21 U.S.C. § 841(a)(1)), and possession of a firearm in furtherance of drug-trafficking crimes (18 U.S.C. § 924(c)(1)).

II. DISCUSSION

A. Entrapment by Estoppel

Defendant's primary argument is that he is entitled to present an entrapment by estoppel defense. Upon review of the evidence submitted by Defendant in support of his motion, the Court concludes that the evidence is insufficient to support a defense of entrapment by estoppel. See United States v. Brebner, 951 F.2d 1017, 1024 (9th Cir.1991) (explaining that a district court's determination that there exists no evidence sufficient to raise a valid defense is analogous to a determination that a jury instruction relating a defendant's theory of the case is not warranted by the evidence).

"Entrapment by estoppel" is the unintentional entrapment by an official who mistakenly misleads a person into a violation of the law by telling him or her that certain conduct is legal. United States v. Tallmadge, 829 F.2d 767, 773 (9th Cir.1987); Brebner, 951 F.2d at 1025. To succeed under this theory, the defendant must show "that the government affirmatively told him the proscribed conduct was permissible, and that he reasonably relied on the government's statement." United States v. Ramirez-Valencia, 202 F.3d 1106, 1109 (9th Cir.2000) (emphasis added). The defendant is required to show reliance "either on a federal government official empowered to render the claimed erroneous advice, or on an authorized agent of the federal government who, like licensed firearms dealers, has been granted the authority from the federal government to render such advice." Brebner, 951 F.2d at 1027. A defendant's reliance is reasonable if "a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries." United States v. Lansing, 424 F.2d 225, 227 (9th Cir.1970).

None of the evidence submitted by Defendant establishes that a federal government official or authorized agent affirmatively told Defendant that his operation of a medical marijuana collective was permissible-i.e., lawful-under federal law. A review of the statements and information upon which Defendant claims he relied reveals that no federal official ever assured Defendant that compliance with California's drug laws rendered his conduct lawful under federal law.

1. Statements by Presidential Candidate Obama

Defendant points to statements made by Barack Obama when he was a presidential candidate. (Def. Ex. A, Clip Nos. 1, 3, and 4; Ex. F.) As a presidential candidate, Barack Obama expressed his openness todoctors prescribing medical marijuana as palliative medicine, subject to FDA regulation, and indicated that he would not use Justice Department resources to try to prosecute medical marijuana users or circumvent state laws regarding doctors prescribing medical marijuana because there are more pressing concerns such as terrorism and violent crime. ( Id.) In addition, a campaign spokesman reportedly said that Obama would end U.S. Drug Enforcement Administration raids on medical marijuana suppliers in states with their own laws permitting medical marijuana use. (Def. Ex. F, p. 17.) However, Obama also expressed concern regarding "mom and pop" shops and people growing their own medical marijuana because of the difficulty in regulating such conduct. (Def. Ex. A, Clip Nos. 1, 3, and 4.)

As discussed in the Court's prior order, a presidential candidate clearly is not empowered to speak for the federal government regarding the application of federal drug laws or any other matter. No reasonable person believes that campaign promises bind the candidate in the event that he or she is elected. At any rate, the statements lack specificity and do not make any representations regarding changing federal law to make the use, cultivation, and distribution of medical marijuana legal. In fact, in one of the video clips submitted by Defendant, presidential candidate Obama admits that he would probably be unwilling to use "political capital" to change federal drug laws when he must deal with issues such as healthcare reform and ending the war in Iraq. (Def. Ex. A, Clip No. 4.)

2. Statements by Federal Governmental Officials Regarding Prosecution Policy

In addition to the statements of presidential candidate Obama, Defendant also relies on the following statements made by or attributed to U.S. Attorney General Eric Holder and other federal government officials:

• Statement by Holder to reporters in January or February 2009 (as reported by CNBC): "Consistent with what the President said when he was campaigning, our focus will be on people and organizations that are growing and cultivating substantial amounts of marijuana and doing so in a way that's inconsistent with federal law and state law." (Def. Ex. A., Clip No. 5.)

• February 24, 2009 response by Holder to a question posed at a press conference regarding whether Holder expected DEA raids of medical marijuana dispensaries to continue: "[N]o ... What the president said during the campaign, you'll be surprised to know, will be consistent with what we'll be doing in law enforcement. He was my boss during the campaign. He is formally and technically and by law my boss now. What he said during the campaign is now American Policy." (Def. Ex. A, Clip No. 6.)

• February 2009 statement by White House Spokesman Nick Shapiro in response to DEA raids of medical cannabis collectives in California: "The President believes that federal resources should not be used to circumvent state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal government, he expects them to review their policies with that in mind." (Def. Ex. C, pp. 4, 7.)

• March 18, 2009 statements by Holder to the effect that the Justice Department has no plans to prosecute pot dispensaries that are operating legally under state laws, and that the priority of the new administration is to go after egregious offenders operating in violation of both federal and state law. (Def. Ex. E.)• May 20, 2009 memorandum issued by the White House stating the "general policy" of President Obama's administration that "preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption." (Def. Ex. I.) ¹

• October 19, 2009 U.S. Department of Justice Memorandum providing clarification and guidance to federal prosecutors in states that have enacted laws authorizing the medical use of marijuana: "As a general matter, pursuit of these priorities should not focus

...