United States v. Washington

• Decision Date: 22 August 2012
• Docket Number: No. CR 11–61–M–DLC.,CR 11–61–M–DLC.
• Citation: 887 F.Supp.2d 1077
• Parties: UNITED STATES of America, Plaintiff, v. Jason WASHINGTON, Darin Mower, Gregory Zuckert, Steven Sann, Lisa Fleming, Jesse Shewalter, and Christopher Cronshaw, Defendants.
• Court: U.S. District Court — District of Montana

887 F.Supp.2d 1077

UNITED STATES of America, Plaintiff,

v.Jason WASHINGTON, Darin Mower, Gregory Zuckert, Steven Sann, Lisa Fleming, Jesse Shewalter, and Christopher Cronshaw, Defendants.

No. CR 11–61–M–DLC.

United States District Court,

D. Montana,

Missoula Division.

Aug. 22, 2012.

Tara J. Elliott, Office of the U.S. Attorney, Missoula, MT, Justin Bishop Grewell, Office of the U.S. Attorney, Billings, MT, for Plaintiff.

Joshua S. Van De Wetering, Van De Wetering & Baffa, Missoula, MT, Kwame J. Manley, Patton Boggs LLP, John E. Smith, Smith & Stephens, Timothy M. Bechtold, Bechtold Law Firm, Dwight J. Schulte, Schulte Law Firm, Craig Shannon, Shannon Law Office, Michael J. Sherwood, Michael J. Sherwood, P.C., Milton Datsopoulos, Peter F. Lacny, Datsopoulos MacDonald & Lind, Missoula, MT, Ean Vizzi, Attorney At Law, J. Tony Serra, Attorney At Law, San Francisco, CA, Palmer A. Hoovestal, Hoovestal Law Firm, Helena, MT, for Defendants.

ORDER

DANA L. CHRISTENSEN, District Judge.

I. Introduction

This Opinion and Order resolves the many outstanding pretrial motions filed in this matter by Defendants Jason Washington, Lisa Fleming, and Steven Sann. The three are charged, along with four other co-defendants, with offenses related to the manufacture and distribution of marijuana. Defendant Washington also faces a gun charge. The charges allege conduct that occurred at least in part in the context of a medical marijuana dispensary established during the effective period of the Montana Medical Marijuana Act (“MMMA”), which was passed by voter initiative in 2004 and superseded by a revised law, known as the Montana Marijuana Act (“MMA”), in 2011. As the Court has previously stated, it will assume, for purposes of deciding the pending motions to dismiss only, that the Defendants' conduct was in full compliance with the Montana Medical Marijuana Act and later the Montana Marijuana Act. Despite that assumption in the Defendants' favor, nearly all of their motions are denied. The Court takes this opportunity, prior to undertaking an analysis of the legal merits of each of the pending motions, to explain in general terms the reasons why it believes the law compels this outcome.

Marijuana is a prohibited Schedule I substance under the Controlled Substances Act, 21 U.S.C. § 801, et seq., a statutory classification that has been in place since 1970, and persisted throughout the time frame of the events alleged in the Indictment. Nonetheless, beginning in 2009 various officials in the executive branch of the United States government made public statements suggesting that it is the policy of the federal government to refrain from prosecuting participants in a state-authorized medical marijuana program, provided those participants acted in compliance with state law. These statements by federal officials were nebulous, equivocal, and heavily qualified. However, it is clear that no federal official has ever stated that the cultivation, sale, or use of medical marijuana is legal under federal law. Still, when taken in the aggregate, particularly through the filter of the news media, the words of federal officials were enough to convince those who were considering entry into the medical marijuana business that they could engage in that enterprise without fear of federal criminal consequences. They began cultivating and selling medical marijuana under the assumption that they could become legitimate providers under state law and not be selectively arrested and prosecuted under federal law. Regardless of the wisdom of that choice, it is a choice many Montanans have made.

That choice has now proven very costly for those providers, including the Defendants in this case, whose medical marijuana businesses have been raided by federal agents, and who are now facing federal felony marijuana distribution charges, many of which carry mandatory minimum sentences of five years or more in federal prison, notwithstanding the fact that many of these same individuals have non-existent or minimal criminal histories. While a few have been prosecuted by the federal government, thousands of Montanans continue to use medical marijuana pursuant to a state statutory scheme that was originally endorsed by 62 percent of Montana voters. Thus, there is a strongly held belief among those in the medical marijuana community that the federal government has not treated them fairly. This sense of injustice has been well articulated in the Defendants' briefing and oral argument, and the Court understands and acknowledges their position.

Legal arguments are not presented and decided in a vacuum, however. Appeals to the Court's sense of fairness and equity must be tethered to an applicable legal theory, and must seek a remedy that the Court is able to provide. It is against this practical measure that the Defendants' otherwise compelling arguments ultimately come up short. The facts simply do not satisfy the elements of the various theories advanced by the Defendants.

The Court is not empowered or inclined to second-guess the legitimate exercise of the prosecutorial discretion vested with the United States Attorney. And it should be emphasized that the Defendants in this case are not terminally ill cancer or HIV/AIDS patients using physician-prescribed marijuana for palliative relief in full compliance with the MMMA or MMA. As near as the Court can tell, the federal government has been true to its word and not chosen to prosecute Montana citizens who fall in that category.

Nor is this the appropriate venue in which to attempt to revolutionize and change long-standing federal drug policy as it relates to marijuana. It is the role of this Court to decide the legal issues presented in this matter without passion or prejudice. Thus, the decision that follows is what the law requires. Considerations beyond that are left to the political branches, where they may be resolved in accordance with the will of the people.

II. Background

Defendants Jason Washington, Darin Mower, Gregory Zuckert, Steven Sann, Lisa Fleming, Jesse Shewalter, and Christopher Cronshaw are charged in Count I of the Indictment with conspiracy to manufacture and distribute more than 100 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count II alleges that Defendants Washington and Cronshaw possessed with intent to distribute more than 100 marijuana plants in violation of 21 U.S.C. § 841(a)(1). Similar charges of possession with intent to distribute more than 100 marijuana plants are levied against Defendants Mower and Zuckert in Counts III and IV, respectively. Count V charges Defendant Washington with possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). The Indictment also includes forfeiture allegations against Defendants Sann, Washington, and Mower.

Each of the marijuana charges carries a five-year mandatory minimum prison sentence. The firearm charge against Washington carries a five-year mandatory minimum sentence of imprisonment consecutive to any sentence imposed on any drug charge. Defendants Mower, Zuckert, Shewalter and Cronshaw have entered guilty pleas but have not been sentenced. Defendants Mower and Shewalter pled guilty to lesser charges that do not carry mandatory minimum sentences. Defendants Cronshaw and Zuckert pled guilty to the Count I conspiracy in exchange for the government's promise to dismiss Counts II and IV against them, respectively.

The three remaining Defendants have filed dozens of motions, which can be roughly assigned to one of the following categories: motions to suppress, motions to dismiss on estoppel grounds, motions to dismiss on constitutional grounds, motions relating to discovery, motions in limine, and Defendant Sann's motion to sever. The parties presented oral argument and extensive evidence in the form of exhibits and witness testimony in support of their motions during a two-day hearing held on August 6 and 7, 2012. The Court's analysis addresses the motions collectively where possible, and individually where necessary.

III. Analysis

A. Motions to suppress evidence obtained through electronic surveillance by Defendants Fleming (Doc. No. 153) and Washington (Doc. No. 180)

The government's investigation of these Defendants included the use of electronic surveillance in the form of a wiretap on Defendant Washington's cellular telephone. A wiretap is an investigative tactic not generally available to federal agents. Permission to rely on electronic surveillance may only be obtained by court order, and requires strict adherence to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified at 18 U.S.C. §§ 2510–2522. United States v. Kalustian, 529 F.2d 585, 588 (9th Cir.1976). Among other provisions, the Title III statutes require that an application for a wiretap demonstrate the necessity of such surveillance, that the application be reviewed and approved by a statutorily qualified official within the Department of Justice, and that any recordings be immediately sealed upon expiration of the order authorizing the wiretap. The Defendants argue the government failed to meet all three of these requirements, any one of which, if unsatisfied, is grounds for suppression of all evidence obtained through or derived from electronic surveillance.

1. Necessity

Every wiretap application must contain “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). Similarly, the judge to whom a wiretap application is presented may authorize the interception only upon making a finding that, inter alia, “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” The test for measuring compliance with the necessity requirement calls...