Federal Courts

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Alito Free Speech Comments -- a Hint on "Bong Hits 4 Jesus" Case?

Drug WarRant spotted the following comments by Justice Alito, printed by the Washington Post, comments that suggest he might go the right way in the "Bong Hits 4 Jesus" free speech case:
"I'm a very strong believer in the First Amendment and the right of people to speak and to write," [...] "I would be reluctant to support restrictions on what people could say." [...] "it's very dangerous for the government to restrict speech."
View pictures from the March demonstration outside the Court here.
Location: 
Washingotn, DC
United States

Bush Seeks to Re-Impose Mandatory Minimums

Location: 
United States
Publication/Source: 
CBS News
URL: 
http://www.cbsnews.com/stories/2007/06/13/politics/main2924206.shtml

Court to Weigh Disparities in Cocaine Laws

Location: 
Washington, DC
United States
Publication/Source: 
The New York Times
URL: 
http://www.nytimes.com/2007/06/12/washington/12scotus.html

Crack Cocaine Sentencing Headed to Supreme Court

The US Supreme Court has agreed to rule on the U.S. v. Kimbrough case, in which an eastern-Virginia US District Court judge, Raymond Jackson, sentenced a crack cocaine offender -- Derrick Kimbrough -- to a below-guidelines sentence, only to be overruled following an appeal by the government to the 4th Circuit. "Guidelines" here refers to the federal sentencing guidelines (similar to, but not to be confused with the mandatory minimums), in which certain very harsh sentences require only 1/100th the amount of crack cocaine to get triggered as is required of powder cocaine. The "government" here refers to federal prosecutors, who objected that Judge Jackson had based his view that the guidelines sentence for Kimbrough's offense was unreasonable (a requirement for downward departures in the post-Booker ruling federal sentencing world, at least for now) in part on his disagreement over the policy of the harsher sentences for crack offenders. The Court of Appeals in the 4th Circuit agreed, and Kimbrough's sentence was kicked back up to the much-criticized guidelines level. Also before the Court is the case of Victor Rita, another crack cocaine defendant. And the Court has promised to pick a case that deals with the same issue as the one that was at stake in the case of Mario Claiborne, who died earlier this year (info at same link). While there are far more whites who use crack cocaine than blacks, as the Associated Press reported today, "[m]ost crack cocaine offenders in federal courts are black." Why does the 4th Circuit Appeals Court see the intellectual path a judge took to get to a finding of unreasonableness as more important than the self-evidently unreasonable nature of the draconian sentences they are defending? Both Mr. Kimbrough and Judge Jackson are African American, by the way. They are also both veterans -- Kimbrough fought in the first Gulf War; Jackson has a decades-long military career that included a stint as a JAG and includes continuing service as a colonel in the Reserves. The 4th Circuit decision, which is only two paragraphs long, is not published online (or so I've read), but visit the post made about this case on the Sentencing Law and Policy blog and scroll down to the third comment to read it. Our topical archive on the crack/powder cocaine sentencing disparity is online here (though it only goes back to early fall -- you have to use the search engine for earlier stories). We also have a Federal Courts archive here Last but not least, as I mentioned in my previous blog post, click here to write to Congress in support of H.R. 460, Charlie Rangel's bill to reduce crack cocaine sentences to the same level as sentences for powder cocaine.
Location: 
United States

Feature: Ed Rosenthal Convicted Again in Pyrrhic Victory for Feds

A federal jury Wednesday found "Guru of Ganja" Ed Rosenthal guilty for a second time of growing hundreds of marijuana plants in what is no more than a symbolic victory for federal prosecutors. Because Rosenthal has already served a lenient one-day sentence after he was first convicted of the same charges in 2003, US District Court Judge Charles Breyer, the presiding judge in the case, has already ruled that he cannot be resentenced.

http://stopthedrugwar.org/files/edrosenthalcourtdate.jpg
Ed Rosenthal at courthouse, with supporters, September 2006 (courtesy indybay.org)
Rosenthal's original conviction was overturned on appeal. Vengeful federal prosecutors angered by his public criticism of their methods retried him knowing they could not further punish him. They even filed additional charges that Judge Breyer threw out as vindictive.

The trial itself was noteworthy for the mass refusal of medical marijuana movement people subpoenaed to testify for the government to do so. Equally noteworthy was their escaping without contempt citations -- at least so far.

Rosenthal grew the plants to produce medical marijuana for use in California, where it is legal, but his defense was unable to explain that to the jury because it was blocked from doing so by Judge Breyer. Federal law and the federal courts do not recognize "medical" marijuana. Neither was Breyer willing to let defense attorneys go too far in urging the jury to vote its conscience.

"There are places that we can't go... There are answers too realistic, reasonable questions you may have that I can't give you," defense attorney Robert Ampranan told the jurors during final arguments. "I fear my government because it does not always tell us the truth. The federal government has had almost six years to complete this recipe... and yet their recipe, ladies and gentlemen, contains tainted, soiled, spoiled ingredients," he said. "If it smells like something that's going to make you sick, you have the right to reject it."

Shortly later, as Amparan compared Rosenthal's prosecution to past injustices done under color of law, such as slavery and the internment of Japanese-Americans during World War II, Breyer sent the jury from the courtroom and accused Amparan of trying to lead the jury into questioning the federal law itself. When Amparan replied that he wasn't, but that he intended to cite the false pretenses for the war in Iraq and the disastrous response to Hurricane Katrina as other examples of government mistakes, the packed courtroom burst into cheers. Breyer warned that he would clear the courtroom if any more outbursts occurred, then ordered Amparan not to make that argument to the jury.

After deliberating for two days, the jury convicted Rosenthal of growing more than 100 marijuana plants, conspiring to cultivate the drug and maintaining a growing operation in a warehouse. He was acquitted of a fourth charge, and Breyer sternly ordered prosecutors to drop the fifth charge when the jury said it was deadlocked.

"It's a shame that the federal government continues to put California citizens in the position of having to set aside their own votes at the ballot box and pretend they don't know anything about the state law or medical science," said William Dolphin, a spokesman for the Rosenthal defense fund Green Aid. "After 60% of the jury pool just refused to be involved in a case like this, we ended up with a jury that felt like it had to follow the instructions of the court."

"The government has shown it can in fact win a conviction in a medical marijuana case in the most pot-sympathetic district in the country," said Dale Gieringer, head of California NORML. "Of course, when we have to play by their rules and can't even mention the main element of the defense, it's an open and shut case. Ed was clearly growing pot, as was shown by the government."

If the verdict was somewhat anticlimactic, there was high drama and civil disobedience in court last Friday. That's when six medical marijuana movement witnesses subpoenaed by the government to testify against Rosenthal simply refused. Five others who were prepared to join them were dismissed on technical grounds.

One by one, recalcitrant witnesses Debbie Goldsberry, James Blair, Etienne Fontan, Evan Schwartz, Brian Lundeen, and Cory Okie told the court they would not participate in an immoral prosecution. (Read the transcript here.) "I told them I could not participate and go against the wishes of the community," said Goldsberry.

Judge Breyer praised the six for their dignified conduct and asked them if being sent to jail for the weekend would make them change their minds about testifying. When they replied in the negative, he sent them home for the weekend. They reappeared on Tuesday, reiterated their refusal to testify, and Breyer simply excused them.

The successful act of civil disobedience merits attention, said California NORML's Gieringer. "It's important that this gets some attention because it is one of the few actions where people have had the courage to risk going to jail for refusing to testify for the government," said Gieringer. "The prosecutor can file contempt charges if he wants, but I think the judge would be pretty unhappy. Rosenthal isn't going to jail in any case, so to have someone go to jail would be a real travesty."

"The community is getting fed up," said Green Aid's Dolphin. "The jury pool was not happy, the judge was not happy, and a dozen people subpoenaed to testify just said 'I'm not going to do it, and you can't make me.'"

The federal government prevailed by winning several convictions against Rosenthal, but the victory may be a pyrrhic one. The Justice Department and local federal prosecutors have managed to irritate just about everybody in Northern California, from the presiding judge on down. And the continuing persecution of Rosenthal and other medical marijuana providers has only strengthened the community and emboldened it to try new, provocative tactics.

Search and Seizure: California Federal Court Throws Out Warrantless Cell Phone Searches

A federal district court judge in Northern California ruled May 23 that police need a search warrant to peruse the contents of cell phones seized from people being arrested. While police may typically search people at the time of arrest and at booking, the judge held that searching a cell phone requires a search warrant.

The case arose from a December 2004 medical marijuana dispensary raid by the San Francisco Police Department in which five people were arrested. Three of them--Edward Park, Brian Ly and David Lee -- were taken to a local police station, where SFPD Police Inspector David Martinovich admitted searching one man's phone and ordering another police inspector to search the other two men's phones.

"I believed that a search of the cellular telephones at the police station during the booking process was permissible as a booking search," Martinovich said in court documents. He admitted perusing the cell phone and writing down the contents of its address book.

The three men filed a motion to suppress the evidence, saying the warrantless cell phone search violated the Fourth Amendment. US District Judge Susan Illston agreed.

"This court finds... that for purposes of Fourth Amendment analysis, cellular phones should be considered 'possessions within an arrestee's immediate control' and not part of 'the person,'" wrote Illston in her opinion. "This is so because modern cellular phones have the capacity for storing immense amounts of private information."

Illston expressed concern at violations of people's right to privacy. "Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, e-mail, video and pictures. Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through e-mail and text, voice and instant messages," she noted.

"Any contrary holding could have far-ranging consequences," Illston continued. "At the hearing, the government asserted that, although the officers here limited their searches to the phones' address books, the officers could have searched any information -- such as e-mails or messages -- stored in the cell phones."

The government failed to show any purpose other than furthering criminal investigations, Illston concluded. "The court finds that the government has not met its burden to show, by a preponderance of the evidence, that it is standard police practice to search the contents of a cellular phone as part of the booking process," she wrote. "Indeed, the government has not articulated any reason why it is necessary to search the contents of a cell phone in order to fulfill any of the legitimate governmental interests served by a booking search: namely, to deter theft of arrestees' property and false claims of theft by arrestees, and to identify contraband and other items."

As Illston noted in her opinion, there is no controlling opinion on these issues in either the 9th US Court of Appeals or the US Supreme Court. In one similar federal case, the presiding judge found for the government. These issues are likely to be further adjudicated in the federal appeals courts.

A New Activist's Tactic Emerges in the Rosenthal Trial

One of the feature stories I'm working on this week is the Ed Rosenthal re-trial on federal marijuana production and distribution charges, which ended yesterday with a split verdict. The trial was a complete waste of time since even if Rosenthal was found guilty, he could not be sentenced to anything more than the one day he had already served, but federal prosecutors were vindictively determined to get their man. Rosenthal's supporters were equally determined not to help the government, and that's where the new tactic emerged: A dozen people in the medical marijuana movement who had been subpoenaed to testify against Rosenthal simply refused. A civil contempt citation is the usual response to such refusals, but as the judge in the case noted, the contempt citation is designed to impel people to testify, not to punish the. When the judge asked if throwing them in jail for the weekend would change their minds, they all said no. Since they convinced the judge they were rock solid in their positions, he decided not to issue the citations and instead dismissed them. He also thanked them for the dignity they displayed in articulating their positions. We should all thank them for taking this courageous stand. Who knows? Maybe we can start a movement. Look for a feature story on the trial and the witness rebellion tomorrow.
Location: 
United States

'Ganja Guru' found guilty by U.S. but won't do more time

Location: 
San Francisco, CA
United States
Publication/Source: 
The Oakland Tribune (CA)
URL: 
http://www.insidebayarea.com/oaklandtribune/ci_6027620

Ganja Guru case rests in the hands of a federal jury, again

Location: 
San Francisco, CA
United States
Publication/Source: 
Oroville Mercury-Register (CA)
URL: 
http://www.orovillemr.com/news/bayarea/ci_6019330

Press Release: Home of the Free???

For Immediate Release: May 16, 2007 Contact: E.C. Danuel D. Quaintance, Church of Cognizance at (928) 485-2952 I ask for nothing more than open minds to examine the possible consequences of putting scriptural interpretations of a recognized religion to a test, in order to decide if that religion qualifies for First Amendment protections. It is not uncommon amongst followers of various faiths to interpret their common faith in different ways. The Supreme Court stated, in Thomas v. Review Board, “Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences in relation to the Religion Clauses,” then went on to instruct that “Courts are not arbiters of scriptural interpretations.” This human freedom to interpret the scriptures as we see them was something most Americans take for granted. This freedom is not something small churches can take for granted any longer. The attack against a small church, and religious interpretations in general, has begun in a U.S. District court in New Mexico. New Mexico follows prior decisions of the 10th Cir. Courts. The 10th Circuit upheld the use of a test in the District of New Mexico, which originated in deciding if the beliefs of a newly established, one-man, religion qualified to receive First Amendment protection. The test has become known as the Meyers Matrix. The use of the Meyers Matrix test was never challenged in the Supreme Court of the United States. Now the Meyers test has been inappropriately used to test if a religious group of a recognized religion deserves protections under the Religious Freedom Restoration Act, RFRA. Testimony of cultural anthropologist Dr. Deborah Pruitt, PhD, who specializes in many non-mainstream religions, revealed the Meyers test is highly skewed against a great number of recognized religions. Government, in an attempt to avoid the requirement of showing “a compelling government interest” for burdening the free “Exercise of Religion”, has chosen a new and innovative path of getting around that requirement. First government attorneys declared the religion was “a Bastardized form” of the religion. Then went on to declare, what synonymously amounts to claiming because the leader of a Christian church was no Christ, the church did not deserve the constitutional protection a religion enjoys. This wasn’t enough insult to freedom of religion, government turned to a Priest of another sect of the religion, as an expert witness, in an attempt to prove another religious group incorrectly interprets the teachings, practices, and modes of worship of their common faith. This move showed a total disrespect for prior decisions of the Supreme Court, like the one quoted above. In the end it didn’t matter that government attempted to test one sect against another. Government’s hoped results from such an attempt backfired. The testimony of government’s expert witness from the common faith ended up showing the small group might actually more correctly interpret many elements of their common faith. With the prior method failing it was up to the, recently appointed, Federal Judge to put the hammer down. U.S. District Judge Judith Herrera had her own methods of depriving religious freedoms. She decided to count the elements that were not met in the Meyers test, and then call that which was met “dicta,” which allowed her to not count that part of the test when arriving at a deciding average of whether or not the beliefs qualify for religious protections. By that move, and a determination that the “mantra” considered the “moral and ethical compass,” of this recognized religion, provided no moral or ethical guidance, the judge ruled that not enough factors of the Meyer Matrix were met to qualify for religious protections under RFRA or the First Amendment. End of story, the beginning of the end of a once highly honored protection amongst Americans. The only hope now is through contacting your representatives and asking them to investigate and put a halt to this disregard for cherished human rights. For more information visit http://danmary.org
Location: 
NM
United States

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