Vol. 10, No. 46	Covering Cases Published in the Advance Sheets through November 17, 2003

Supreme Court

• The Supreme Court continued its frontal assault on the Ninth Circuit by granting certiorari in still another decision from that Circuit. This time it agreed to review the Ninth Circuit’s recent decision in U.S. v. Benitez, where a divided panel held that the district court had committed plain error that affected the defendant’s substantial rights by failing to warn the defendant, as required by Rule 11 of the Fed.R.Crim.P., that he would not be permitted to withdraw his plea, even if the district court rejected the sentence recommended in the plea agreement and imposed a harsher sentence.

Guidelines

• In Laboy, the First Circuit affirmed a four-level role-in-the-offense leadership enhancement for a member of a street drug gang, rejecting the defendant’s contention that, in determining the “five or more participants” and the “otherwise extensive” elements contained in U.S.S.G. § 3B1.1, the courts are limited solely to the people directly involved in the defendant’s specific counts of conviction.
  
  
• In Hamm, Judge Heyburn of the W.D.Ky. rejected the Government’s motion to impose a two-level sentencing enhancement for unduly influencing a minor to engage in sexual misconduct when the alleged victim was an adult Federal agent posing as a 14-year old victim - making impossible the proof needed of any undue influence over a minor.
  
  
• In Landa, Judge Alsup of the N.D.Cal. held that the defendants, who were convicted of growing marijuana, were not eligible for a downward departure pursuant to the provisions of U.S.S.G. § 5K2.11 because they desired to avoid a lesser harm, namely the pain and suffering they and others would endure if they are denied medical marijuana, because such a departure would reduce the deterrent effect of the prohibitions against all forms of marijuana and thereby undermine Federal policy.

Evidence of Prior Crimes - The Different Standards for Defendants and Witnesses

• In a decision that underscores the often-disparate treatment accorded to evidence of past crimes, Judge Marrero held, in Agostini, that defense counsel would not be permitted to cross-examine the victim of an alleged assault about two recent arrests and a prior conviction of the victim, since those events were not relevant to victim’s credibility and because any probative value of such evidence was substantially outweighed by its potential for substantial prejudice.

Apprendi Rule

• In Toliver, the Ninth Circuit held that the defendants were not entitled to a judgment of acquittal based on the government's including specific drug quantities and types in the indictment and the jury's inability to determine either of those factors, since the jury’s inability to determine the quantity or type of drugs only prevented the district court from imposing a sentence that exceeded 20 years, the maximum allowable sentence under 21 U.S.C. § 841(b)(1)(C) when the offense involves an unknown quantity of drugs.

U.S. v. Landa, 281 F.Supp.2d 1139 (N.D.Cal. 2003) (Judge Alsup)

After the three defendants in this case were charged with participating in a “large-scale” marijuana-cultivation venture, they pled guilty to maintaining a place for the manufacturing of marijuana, in violation of 21 U.S.C. § 856(a)(1). Their plea agreements allowed them to seek a downward departure on the grounds that they were growing “medical marijuana.”

As support for such a departure, the defendants first cited U.S. v. Rosenthal, 266 F.Supp.2d 1091 (N.D.Cal. June 9, 2003), where Judge Breyer had sentenced a defendant, who was convicted of cultivating medical marijuana, to one day in prison, with credit for time served.

Judge Alsup held that the Rosenthal decision was inapplicable to the facts of the instant case principally because (a) the defendant in that case was eligible for a safety-valve sentence reduction, whereas all three defendants in the instance case had prior criminal narcotics records, making them ineligible for a similar sentence reduction; and (b) the defendant in that case believed (albeit wrongly) that an ordinance passed by the Oakland City Council had expressly immunized him from both state and Federal prosecution. (Id., at 1142).

The defendants also argued that their operation was lawful under Cal. Health & Safety Code § 11362.5 because all of the marijuana was grown for medicinal purposes. The Court noted that the defendants had leased a large commercial space and used it to grow more than 1,245 rooted marijuana plants, using electric grow lamps, an irrigation drip system, and chemicals and fertilizer; and it held that § 11362.5 did not immunize large-scale growing operations intended to distribute marijuana. The Court also held that, even though it found that a substantial part of the marijuana was intended to be used as medicine, a downward departure was not warranted because, given the absence of inventory controls and the absence of clear-cut distribution commitments for medicinal use of the marijuana, it was hard to conclude that all of the inventory would have found its way exclusively for medicinal purposes.

Finally, the defendants argued that they were entitled to a downward departure because they desired to avoid a “lesser harm,” namely the pain and suffering that they and others will endure if they are denied medical marijuana. (Id., at 1143, citing U.S.S.G. § 5K2.11). The Court rejected that departure ground, noting that, even if all of the marijuana was firmly destined for qualified sick patients, the conduct was still a willful violation of federal law. It then concluded: “To allow a reduced sentence for medical marijuana grown in willful violation of federal law would, by reducing the penalty, reduce the deterrent effect and thereby undermine the federal interest in eradicating all forms of marijuana, medical or otherwise. . . . To do so, however, would pose a substantial risk of encouraging the very type of conduct Congress has sought to stop. Accordingly, the policy statement [U.S.S.G. § 5K2.11] . . . specifically bars the requested departure.” (Id., at 1145).

U.S. v. Toliver, No. 01-10222 (9th Cir. 12/03/2003) (Judge Paez)

In this case, the Court considered the consequences when a district court properly complies with Apprendi v. New Jersey, 530 U.S. 466 (2000) by instructing the jury to return special findings on the quantity and type of drugs involved in the drug conspiracy at issue, but the jury, although finding the defendants guilty of conspiracy and attempted possession of a controlled substance, is unable to reach a verdict on the questions of drug type and quantity.

Under those circumstances, the defendants (who were sentenced to 168 and 152 months in prison) argued that they were entitled to a judgment of acquittal because the drug quantity and type determination were “elements” of the crime that was charged which were not proven beyond a reasonable doubt as required by Apprendi and by In re Winship, 397 U.S. 358 (1970).

The Court disagreed, stating that there is a difference between a “formal offense element” as defined in Winship and the “functional equivalent of an element” under Apprendi. It stated that drug quantity and type determinations were “the ‘functional equivalents of a greater offense,’ because they are facts that have the potential to increase the statutory maximum sentence. For purposes of Apprendi, then, these facts must be submitted to the jury, as was done here. . . . [However], attaching the label ‘element’ to a fact that may increase the maximum statutory sentence only has significance for purposes of satisfying the due process rights established by Apprendi.”

Applying those principles, the Court reasoned that the defendants were not entitled to a judgment of acquittal “merely because the government had the foresight to include specific quantities and types of drugs” in the indictment and the jury was unable to agree on those factors. It said that the jury had determined that the defendants had engaged in a conspiracy and an attempt to possess and distribute an unknown quantity of cocaine, “all that is required for a conviction under 21 U.S.C. §§ 846, 841(a) and 18 U.S.C. § 2.”

Thus, the Court concluded: “The jury’s inability to determine the quantity or type of drugs involved in the conspiracy did not justify an acquittal; it only prevented the district court from imposing a sentence that exceeded 20 years, the maximum allowable sentence under 841(b)(1)(C) when the offense involves an unknown quantity of drugs.”

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