The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR VINDICTIVE PROSECUTION, MOTION TO DISMISS DUE TO UNCONSTITUTIONAL STATUTE, & MOTION TO DISMISS COUNT 8 AS UNCONSTITUTIONALLY VAGUE; DENYING GOVERNMENT'S UNDERAGE WITNESSES; AND MOTION FOR DEPOSITIONS OF GRANTING DEFENDANT'S MOTION TO BIFURCATE FORFEITURE PROCEEDINGS
Defendant has filed a motion to dismiss the Second Superseding Indictment for vindictive prosecution, a motion to dismiss the indictment due to an unconstitutional statute, a motion to dismiss Count 8 as unconstitutionally vague, and a motion to bifurcate forfeiture proceedings. The government has filed a motion for depositions of underage witnesses in lieu of trial testimony. For the reasons discussed below, Defendant's motion to dismiss the Second Superseding Indictment for vindictive prosecution is DENIED, Defendant's motion to dismiss the indictment due to an unconstitutional statute is DENIED, Defendant's motion to dismiss Count 8 as unconstitutionally vague is DENIED, Defendant's motion to bifurcate forfeiture proceedings is GRANTED, and the government's motion for depositions of underage witnesses in lieu of trial testimony is DENIED.
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 50 marijuana plants and more 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).
In a motion to dismiss the Indictment, Defendant argued that he formed and operated his medical marijuana collective in compliance with California law and that the Indictment should be dismissed because: (1) the federal government was subverting state medical marijuana laws in violation of the Tenth Amendment; (2) his prosecution is the result of entrapment by estoppel and violates his due process rights; and (3) his prosecution is in direct conflict with U.S. Department of Justice Policy. In an order filed on March 2, 2010, the Court denied Defendant's motion to dismiss the Indictment.
On June 17, 2010, the grand jury returned a Superseding Indictment, which charged Defendant with four separate counts of distribution of marijuana in violation of 21 U.S.C. § 841(a)(1), a count for the manufacture of 50 marijuana plants and more in violation of 21 U.S.C. § 841(a)(1), and a count for possessing and carrying a firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1).
In an order filed on July 12, 2010, the Court denied Defendant's motion to present an entrapment-by-estoppel defense, or, in the alternative, a public authority defense. The Court also granted motions in limine filed by the United States to preclude an entrapment defense, advice of counsel defense, "medical marijuana" defense, medical necessity defense, and public authority defense. The Court noted, however, that it might not be possible to completely exclude evidence of medical marijuana:
However, the Court expects that it may be inevitable that evidence will come out regarding the fact that Defendant was operating a purported medical marijuana dispensary and that marijuana was dispensed to individuals presenting medical marijuana cards. See United States v. Rosenthal, 2007 WL 2012734, at *3 (N.D. Cal. July 6, 2007) ("While such evidence is not a valid defense to the federal charges, evidence of medical marijuana would inevitably come up, and did come up, during the trial.") Such evidence may directly relate to the gun charge. Therefore, the Court will not issue a blanket exclusion of evidence pertaining to the fact that Defendant operated a purported medical marijuana dispensary (although no evidence should be introduced regarding whether the dispensary complied with California law) and that clients purporting to be medical marijuana users purchased marijuana from Defendant. Such evidence may be allowed if it is admissible for some purpose other than establishing one of the defenses precluded by this order. (Order of 7/12/10 at 13.)
On July 28, 2010, the Court held a status conference to discuss the Court's recent rulings. With respect to the gun charge, defense counsel argued that evidence that Defendant believed he was in compliance with state law was relevant because it tended to explain why Defendant would not use a gun for protection. The Court agreed that Defendant's belief in the legality of his actions might be relevant to the "in furtherance" element of the § 924(c) charge.
On August 19, 2010, the grand jury returned the Second Superseding Indictment, which added new charges of distributing marijuana to minors in violation of 21 U.S.C. §§ 841(a)(1) and 859 (Counts 1 and 2) and a charge of being an unlawful user of marijuana possessing in and affecting commerce a firearm in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2).
A. Motion to Dismiss for Vindictive Prosecution
Defendant contends that the Second Superseding Indictment should be dismissed because it was the result of vindictive prosecution. According to Defendant, the government brought the additional charges against him to retaliate against him for asserting a defense to the original gun charge and for bringing a motion in limine to exclude evidence of his drug use. The Court is not persuaded by Defendant's argument.
The government violates a defendant's due process rights if it punishes him for exercising a protected statutory or constitutional right. United States v. Goodwin, 457 U.S. 368, 372 (1982). To establish vindictive prosecution, a defendant may produce direct evidence of the prosecutor's punitive motivation towards him. United States v. GallegosCuriel, 681 F.2d 1164, 1168 (9th Cir. 1982). Alternatively, the defendant is entitled to a presumption of vindictiveness if he can show that the additional charges were filed because he exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness. Id.
The bare fact that an increased charged followed an act by the defendant is not enough to create the appearance of vindictiveness. As explained by the Ninth Circuit:
[T]he link of vindictiveness cannot be inferred simply because the prosecutor's actions followed the exercise of a right, or because they would not have been taken but for exercise of a defense right. United States v. Robison, 644 F.2d at 1273. Rather, the appearance of vindictiveness results only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus ...