Archive for December, 2012

Sacramento federal attorneys should follow this medical marijuana case

Judge tosses two Vallejo marijuana dispensary raid cases

Ruling regarding state law may affect other pending prosecutions

By Tony Burchyns/Times-Herald staff writer

Published By Times Herald
Posted:   12/20/2012 02:38:42 PM PST


Two Vallejo dispensary operators charged with illegally selling marijuana had their cases thrown out by a judge Thursday.

The cases involved the embattled Better Health Group collective, which was raided by Vallejo police in February, March and June. The dispensary at 3611 Sonoma Blvd. was shut down after a third raid on June 22.

Defendants Jorge Espinoza, 25, and Jonathan Linares, 22, both of Vallejo, had been charged with marijuana possession and sale, and operating an illegal dispensary.

But visiting Solano County Superior Court Judge William Harrison dismissed all charges following a preliminary hearing held Wednesday at the Vallejo courthouse.

After the ruling, Harrison said that while not everyone sees eye to eye on the law, dispensaries that comply with the Compassionate Use Act and the Medical Marijuana Program Act are allowed to operate.

“Our Legislature has said you can have this kind of business if you do it right,” Harrison said. “I don’t think there is sufficient evidence that Jorge Espinoza has committed a crime.”

Afterward, Solano County Deputy Public Defender Cheryl McLandrich, who represented Linares, said the court “did the right thing.”

“We are pleased with the court’s ruling,” McLandrich said. “These gentlemen were paying taxes and attempting to comply with state law in running their cooperative. It would have been a waste of taxpayer time and resources for the court to have bound them over for trial.”

It was unclear Thursday whether the collective plans to reopen in Vallejo.

The case was the first in a series of Vallejo dispensary cases to reach a preliminary hearing following a police crackdown earlier this year.

The raids followed a ballot initiative by Vallejo voters in November 2011 to tax medical marijuana businesses.

At the center of the case were legal and philosophical questions about what constitutes a legitimate medical marijuana cooperative under California law. A pile of conflicting court rulings has added to the confusion, but recent appellate decisions favor a broader view of the law.

During the preliminary hearing, Solano County Deputy District Attorney Jack Harris argued the dispensary did not meet the definition of a cooperative. Harris said the enterprise was not accountable to its membership, and that only a small number of patients grew the marijuana that was sold.

However, defense attorney Scot Candell of San Rafael, who represented Espinoza, argued the group had followed all applicable state and local laws. Candell said the dispensary required members to fill out membership forms and tracked members’ prescriptions to make sure they were up to date.

Candell also said the dispensary paid state and local taxes.

“This was a (registered) nonprofit organization with a board of directors,” Candell said. “There is no evidence that anyone was doing anything wrong.”

Candell also referenced two Fourth Appellate District of California rulings from earlier this year. The rulings, concerning dispensaries in San Diego and Los Angeles, said state law does not limit the number of members a dispensary can have, or require them be growers.

The rulings in the two cases, People v. Colvin and People v. Jackson, also found that storefront collectives can sell marijuana to members as long as the money is used for overhead costs and operating expenses.

Harris, however, argued the club was not a truly a “cooperative” because its roughly 15,000 members were not given a say in how it operated. State laws, however, are vague of what exactly a medical marijuana collective should look like.

“I do not agree that signing a piece of paper makes you a member of a collective,” Harris said.

Vallejo police Detective Jared Jaksch testified that three undercover officers posing as patients – including a district attorney’s investigator – had purchased marijuana at the business since April 2010.

While the first undercover officer used a “forged” prescription, Jaksch said the other two showed valid physicians’ recommendations and filled out membership forms.

Jaksch said a Vallejo detective last bought marijuana at the dispensary on Feb. 16, and the undercover DA inspector made a May 15 purchase. Other than filling out membership forms, he said the investigators were not informed of their rights or responsibilities as members.

Jaksch also said police spoke to more than a dozen individuals seen leaving the dispensary. He said one customer told police she did not possess a doctor’s recommendation at the time. Another, Jaksch said, said she had purchased marijuana at the dispensary without being a member.

However, Morgan Hannigan, a dispensary volunteer, testified that many patients carried identification cards with medical information rather than paper copies of doctors’ recommendations. Hannigan, who volunteered at the dispensary from April until June, also said the collective kept records of members’ prescriptions on its computers.

“New patients were required to show a recommendation and a California ID,” Hannigan said. Returning patients, he added, could swipe their driver license through an electronic identification system that would verify if they had a current prescription.

Asked by Harris how the collective set the prices of its marijuana, Hannigan said the amounts charged were determined by factors such as growers’ costs, payroll and other overhead expenses.

“What’s left gets reimbursed into the business,” Hannigan said.

Prosecutors tried to paint a picture of the dispensary as a massive for-profit business, which Espinoza as the CEO and Linares as the manager. Along with pounds of marijuana, hash and edible products, police seized more than $20,000 cash from the dispensary during the raids.

“I think (Espinoza) is the owner of a business that he’s attempted to disguise as a nonprofit organization,” Jaksch said during testimony.

In his ruling, Harrison said he didn’t agree with the prosecution argument that the business was making money.

“The argument from the people’s standpoint … was because of the amount of money found (during the police raids) it was for-profit,” Harrison said. “But the evidence I have seen shows there wasn’t a profit … and I don’t think forcing them to go through a trial is the right thing to do.”

Afterward, Harris said the ruling could affect pending dispensary cases in Solano County.

“We’ll have to re-weigh everything,” Harris said. “These (appellate) cases have taken a much looser interpretation of what I think a collective ought to be.”

December 20, 2012 Posted Under: Uncategorized   Read More

Post-remand in Jones, federal judge rules cell tower data evidence can come in without a warrant because it is saved by “Leon” good faith.

udge Rules for DOJ in Dispute over Cell Tower Data

Federal agents acted in good faith in relying on court orders and not a warrant to obtain cell phone tower data associated with the target of a drug trafficking probe, a federal judge in Washington said in a ruling that marked a win for the U.S. Justice Department.

The judge, Ellen Segal Huvelle of Washington federal district court, skirted issuing a ruling on the underlying debate playing out in courts across the country: whether the authorities should be required, under the Fourth Amendment, to first get a warrant to access the location information that mobile phones transmit to towers.

Huvelle said in her ruling that she “need not resolve this vexing question of Fourth Amendment jurisprudence, since it concludes that the good-faith exception to the exclusionary rule applies.”

Numerous judges, Huvelle said, have allowed agents to review historical cell-site data via a court order and not a warrant. In the case against Antoine Jones, authorities relied on court orders in 2005 to retrieve prospective data. At the time, Huvelle said, “the state of the law was completely uncharted.”

“Given the unsettled nature of the law in 2005, which has remained the case even up to the present, it was reasonable for them to believe that the Fourth Amendment was not implicated,” Huvelle said in her decision.

The U.S. Supreme Court earlier this year voided Jones’ conviction and life sentence, saying that the authorities violated his rights by secretly tracking him via a Global Positioning System device attached to his vehicle. The high court didn’t go so far as to say a warrant is required for such tracking.

With the GPS data, prosecutors were able to link Jones to a house in Maryland where the authorities said they found $850,000 in cash and nearly 100 kilograms of cocaine.

The government, unable to tell jurors about the GPS info after the Supreme Court ruling, now wants to use cell tower location information to tie Jones, who was convicted in 2008, to the same stash house.

Jones’ defense lawyers argued that the prosecution shouldn’t be permitted to use the cell tower info without a warrant establishing sufficient cause that a crime has been committed. The privacy advocate the Electronic Frontier Foundation filed a friend-of-the-court brief in support of Jones.

Prosecutors said in response that mobile phone subscribers haveno privacy expectation in tower data kept by a third-party company.

Challenging the good-faith exception, Jones’ attorneys said a magistrate judge in Washington acted “merely as a rubber stamp for law enforcement” when he granted a court order giving agents access to tower data without a warrant.

The judge, John Facciola, later changed his position and started denying similar warrantless requests for prospective cell site information. Huvelle defended Facciola. That a judge reconsiders an issue at a later date, Huvelle said, doesn’t mean the judge was acting as a “rubber stamp” in in the first place. Huvelle said “there is no evidence in the record to support such a frivolous contention.”

Ultimately, Huvelle noted, the Supreme Court may one day take up the so-called “third-party doctrine” when it comes to the Fourth Amendment and privacy.

Indeed, Justice Sonia Sotomayor said in the Jones opinion in January that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

Jones, who remains in federal custody, is scheduled to stand trial in January. Huvelle is now mulling whether to allow the drug evidence that the authorities obtained from the search of the Maryland house. She heard testimony last week but didn’t immediately rule.

December 17, 2012 Posted Under: Uncategorized   Read More

Federal criminal attorneys argue about email evidence between husband and wife being privileged. Court finds no privilege.

Husbands and wives take note: your e-mail communication isn’t always protected from the eyes of prosecutors.

Rejecting a marital communication privilege argument, the U.S. Court of Appeals for the Fourth Circuit on December 13 upheld the bribery conviction of a man named Phillip Hamilton, a former member of the Virginia House of Delegates. Hamilton was sentenced last year to a prison term of more than nine years in prison.

Hamilton, who also worked in the Newport News public school system as an administrator and then a part-time consultant, argued that his e-mail communication with his wife was protected and could not be used as evidence against him. A three-judge panel didn’t buy the argument.

Voluntary disclosure of communication between spouses, the appeals court said, can void the presumed confidentiality of communication between spouses. Prosecutors said Hamilton waived the privilege because he was using a work computer, and a work e-mail account, to transmit messages to his wife.

Fourth Circuit judges Diana Gribbon Motz and Henry Floyd, sitting with Judge Catherine Eagles of U.S. District Court for the Middle District of North Carolina, heard the case in October.

Hamilton’s lawyers, including Charles Lustig of Virginia Beach’s Shuttleworth, Ruloff, Swain, Haddad & Morecock, argued that at the time Hamilton sent the emails to his wife, in 2006, the public school system didn’t have a computer-use policy. (Lustig wasn’t immediately reached for comment Thursday evening.)

The appeals court said the school district adopted a policy before the investigation in 2009 of Hamilton. The policy, the court said, “expressly provides” that users have no privacy expectation.

Lustig said that Hamilton did not retroactively waive the spousal privilege. In court papers, Lustig called the marital communication shield a “time-honored” privilege that should have protected Hamilton’s electronic correspondence. The trial judge, Lustig said, didn’t cite “a single case to support its novel view” of a retroactive waiver of the marital privilege.

“At the time that Hamilton and his wife exchanged the emails at issue in this case, it was objectively reasonable for the Hamiltons to believe that their communications were confidential, and there is no evidence to suggest that they waived the privilege,” Lustig said in court papers.

The Electronic Privacy Information Center, which submitted a friend-of-the-court brief, called it “extreme” to require an employee to dig through archived emails to remove any that are personal and confidential every time an employer adopts a computer-use policy.

In an era in which email plays a ubiquitous role in daily communications, these arguments caution against lightly finding waiver of marital privilege by email usage,” Motz wrote. “But the district court found that Hamilton did not take any steps to protect the emails in question, even after he was on notice of his employer’s policy permitting inspection of emails stored on the system at the employer’s discretion.”

Assistant U.S. Attorney Richard Cooke in Richmond called Hamilton a “powerful member” of the Virginia legislature who served for more than two decades. Hamilton’s communication with his wife, prosecutors said, were included in the case to show motive in a scheme that financially benefited Hamilton.

“These public offices conferred on Hamilton significant power over legislation that spends public funds, especially on education,” Cooke said in a court brief. “Hamilton ultimately used this power, as a jury unanimously found, to commit bribery and extortion.”

Contact Mike Scarcella at

December 16, 2012 Posted Under: Uncategorized   Read More