United States v. Lepp, CR 04-00317 WHA

• Court: U.S. District Court — Northern District of California
• Writing for the Court: WILLIAM ALSUP
• Decision Date: 09 April 2013
• Docket Number: No. C 12-05836 WHA,No. CR 04-00317 WHA,CR 04-00317 WHA,C 12-05836 WHA
• Citation: United States v. Lepp, No. C 12-05836 WHA, No. CR 04-00317 WHA (N.D. Cal. Apr 09, 2013)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. CHARLES EDWARD LEPP, Defendant.

UNITED STATES OF AMERICA, Plaintiff,

v.CHARLES EDWARD LEPP, Defendant.

No. CR 04-00317 WHA

No. C 12-05836 WHA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dated: April 9, 2013

ORDER DENYING

SECTION 2255 MOTION

INTRODUCTION

Defendant has moved to vacate, set aside, or correct his conviction, judgment, and sentence under Section 2255 and has requested an evidentiary hearing. The motion is DENIED. There is no need for an evidentiary hearing.

STATEMENT

Defendant Charles Edward Lepp, proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence for one count of conspiracy to possess with intent to distribute and distribution of marijuana in violation of 21 U.S.C. 846 and one count of manufacturing and possession with intent to distribute and distribution of marijuana in violation of 21 U.S.C. 841(a)(1). Judge Marilyn Hall Patel presided over defendant's criminal proceedings, including pre-trial motions, trial, and sentencing. The undersigned judge received this matter by way of reassignment.

On March 2, 2005, defendant Lepp was indicted and charged with conspiracy to possess with intent to distribute 1,000 plants or more of marijuana in violation of 21 U.S.C. 846 (countone), manufacturing and possessing with intent to distribute marijuana in violation of 21 U.S.C. 841(a)(1) (counts two through four), and maintaining a premises for manufacturing a controlled substance in violation of 21 U.S.C. 856(a)(1) (counts five and six). As a result of a number of pretrial rulings, defendant was tried on only two counts: (1) conspiracy to possess with intent to distribute marijuana and (2) manufacture and possession of marijuana with intent to distribute. Following a jury trial, the jury returned a guilty verdict on both counts, further finding that both counts involved 1,000 or more marijuana plants. Pursuant to the statutory mandatory minimum, defendant was sentenced to a ten-year term of imprisonment and five years of supervised release. Defendant is currently in custody, with a projected release date of January 13, 2018 (Opp. 1).

During pretrial proceedings, defendant was represented by a number of different attorneys. After replacing defendant's previously retained counsel on March 22, 2005, Attorney J. Tony Serra represented defendant pro bono. Attorneys Omar Figueroa and Shari Greenberger assisted at Attorney Serra's direction, also on a pro bono basis. Due to Attorney Serra's impending incarceration in 2006, Attorney Serra was excused. In January 2006, Attorneys Figueroa and Greenberger moved to withdraw as counsel on the ground that Attorney Serra was defendant's counsel of choice and defendant did not wish to proceed with Attorneys Figueroa and Greenberger (Dkt. No. 106). Federal Public Defender Shawn Halbert was then substituted as counsel. Prior to trial, Attorney Michael Hinckley replaced Attorney Halbert as CJA counsel in February 2007. Attorney Hinckley then represented defendant through the remaining pre-trial proceedings, trial, and sentencing.

1. PRE-TRIAL MOTIONS.

A. Motions Based on the Religious Freedom Restoration Act.

Before trial, defendant filed a number of motions based on the Religious Freedom Restoration Act ("RFRA"), contending that he was a practicing Rastafarian and that marijuana use was a necessary component of his religious practices. For example, in May 2005, Attorney Serra filed a motion to modify defendant's bail conditions to permit the use of marijuana while on pretrial release. In September 2005, Attorneys Serra, Figueroa, and Greenberger filed a motion to quash the 2004 and 2005 search warrants and suppress all evidence seized pursuant tothose warrants. Attorney Halbert subsequently moved to suppress the evidence on the additional ground that the search warrants violated RFRA, contending that the magistrate judge should have been informed of the religious nature of his marijuana possession. Judge Patel rejected defendant's argument that the warrants should be suppressed on the basis that they violated RFRA (Dkt. No. 193). Attorney Hinckley then filed a motion for reconsideration of the order denying the motion to suppress, which was denied (Dkt. Nos. 199 and 207). Judge Patel quashed the 2004 search warrant but granted the government's motion to admit evidence found in plain view during the 2004 search. Judge Patel also quashed the 2005 search warrant and suppressed the fruits of the search executed pursuant to that warrant (Dkt. No. 207).

At a hearing on May 30, 2007, Attorney Hinckley raised the issue of presenting a RFRA defense. Judge Patel expressed skepticism, stating that "the amount of marijuana that was seized in this case was not consistent" with religious or sacramental use (Dkt. No. 302 at 7). Attorney Hinckley then filed a written motion to present a RFRA defense at trial. In an eighteen-page reasoned opinion, Judge Patel denied the motion (Dkt. No. 235). The order expressed concern that the high number of individuals defendant claimed were members of his church was an opportunistic fabrication. Attorney Hinckley then filed a motion for reconsideration attaching declarations from defendant and Erica Womachka stating that there were 2500 church members, each of whom grew marijuana for his or her own use on individual plots (Dkt. No. 236). The motion for reconsideration was denied.

B. Motion Regarding Outrageous Government Conduct.

Attorney Hinckley moved to dismiss the indictment based on outrageous government conduct related to a marijuana transaction the government set up after defendant was indicted and represented by counsel (Dkt. No. 198). The motion was based on a transaction dated January 19, 2005, in which a confidential government informant arranged to purchase one pound of marijuana from defendant. Judge Patel denied the motion to dismiss the indictment, but found that the undercover officer and informant who participated in the transaction had an "agency relationship" with the government such that defendant could be induced to make incriminating statements without the assistance of counsel (Dkt. No. 207 at 22). Judge Patel held that thisconstituted a violation of the right to counsel discussed in Massiah v. United States, 377 U.S. 201, 207 (1964). While the Massiah violation precluded the government from introducing evidence of the January 2005 sale charged in the original indictment, Judge Patel held the evidence was admissible as related to the "newly added distribution charge in the superseding 2005 indictment." Therefore, the counts arising from the undercover operation were severed (Dkt. No. 207 at 22-23).

2. EVIDENCE PRESENTED AT TRIAL.

The trial proceeded on counts one and two of the superseding indictment, namely conspiracy to possess with intent to distribute and manufacture and possession with intent to distribute based on the approximately 25,000 marijuana plants found on defendant's property during the search conducted on August 18, 2004.

During jury voir dire, Judge Patel instructed the panel that medical marijuana and religious marijuana were not defenses to the charges in the case. Specifically, the judge stated:

[Y]ou should understand that we're in federal court, and that the whole notion of medical marijuana, which is accepted under state law, or religious marijuana, are not at issue in this case. They're not defenses in this case.

(Dkt. No. 244 at 61-62).

A. The Government's Case.

The parties stipulated that there were 24,784 marijuana plants seized by federal DEA agents from defendant's land on August 18, 2004.

The government presented the testimony of Dave Garzoli, a detective with the Lake County Sherriff's Office. Officer Garzoli testified that he had received reports about a large marijuana growing operation. He then drove on California State Highway 20 in Upper Lake and saw a large field filled with marijuana. Later, on August 9, 2004, he drove onto the site with several other law enforcement officers, where they were confronted by several individuals. The officers, who were in plainclothes, identified themselves as law enforcement and drew their firearms. Several minutes later, defendant drove up and "took command of the situation," asking the officers what they were doing there (Dkt. No. 245 at 229). Defendant opined that there wereapproximately 18,000 marijuana plants for 2400 "patients." Other state law enforcement officers who accompanied Officer Garzoli at the August 9 visit testified similarly.

B. Defendant's Case.

Defendant called Smiley James Harris, Right Reverend for the Church of Greater Faith and Redemption. Mr. Harris testified that he had an agreement with defendant allowing Mr. Harris' church to grow 250 marijuana plants on defendant's land. According to Mr. Harris, defendant only provided the land and did not direct or participate in the planting, growing, or harvesting of those plants (Dkt. No. 246 at 319-20).

Defendant testified, stating that he was a minister for his church, "Eddy's Medicinal Gardens and Multidenominational Ministry of Cannabis and Rastafari." He testified that the use of marijuana is a key part of the Rastafarian faith. By August 2004, defendant and his wife decided to allow medicinal marijuana patients and members of their church to grow marijuana on their land. An individual could only participate if he or she had a valid California medical marijuana identification card (id. at 350-51).

Defendant said he had no role in the cultivation other than in allowing others to use his land (id. at 351). He denied ownership of the marijuana, stating that he did not plant, tend, or harvest the plants (id. at 356). He claimed, however, that as leader and founder of the church, he felt "responsible for all of the plants" (id. at 357). Defendant claimed to be a worldwide activist for the legalization of cannabis hemp. Defendant testified that he had a number of physical disabilities and ailments (id. at 356-57, 366-67).

After defendant's direct examination and outside the...