COMMENTARY BY SAN DIEGO CRIMINAL DEFENSE LAWYER, SAM SPITAL:
“On January 24, 2013, according to the UT San Diego electronic news, U.S. District Judge Irma Gonzalez sentenced 32 year old Joshua Hester after a guilty plea to more than eight years in Federal Prison for money laundering, maintaining a drug-related business, conspiracy to distribute more than a ton of marijuana, and other charges. The Federal Government lawyer argued and the Judge agreed in imposing the sentence that Hester operated a multi-million dollar business in two medical marijuana dispensaries and used the state law to seemingly shield his operations for dealing in the sale of illegal drugs.
In 1996, Proposition 215 was passed in California as an Initiative (commonly known as the Compassionate Use Act of 1996. The purposes of the Act are to ensure seriously ill individuals have the right to obtain and use marijuana for medical purposes as long as the medical use is deemed appropriate and has been recommended by a physician who has determined the health of such individuals will benefit from the use of marijuana in the treatment of medical disorders and diseases such as cancer, AIDS, chronic pain and arthritis, migraine headaches and/or any other illness for which marijuana is deemed to provide relief.
Essentially, under California law, one can use marijuana for medicinal purposes as long as there is a recommendation by a physician. In addition, the Medical Marijuana Program (MMP) was established in 2003, pursuant to Senate Bill number 420 that was passed as an extension and clarification to provide qualified patients and their caregivers a registration program and the issuance of a voluntary medical marijuana identification card. The problem is that since 1972, the United States Congress has listed marijuana in Schedule I of the federal Controlled Substances Act, which means that it has no accepted medical use and is illegal under Federal law. Since that time, however, 17 of states and the District of Columbia have legalized the medical use of marijuana given the opinion that medical marijuana dispensaries are operated for the public good to serve those who are seriously ill and as such have found relief from marijuana. The debate will continue as long as there is a conflict in State and Federal law.”
Commentary by San Diego Criminal Defense Lawyer Sam Spital:
“On January 9, 2013, the United States Supreme Court in a unanimous 9-0 opinion written by Justice Scalia in the case of Smith vs. U.S., (Case No. 11–8976 http://www.supremecourt.gov/opinions/12pdf/11-8976_k5fl.pdf), affirmed the decision of the U.S. Court of Appeals for the District of Columbia Circuit that held a defendant who had been charged with conspiracy to distribute narcotics and his role in an illegal drug business (RICO conspiracy) could not argue the charges were barred by the five (5) year Federal statute of limitations because he allegedly withdrew from the scheme. A conspiracy is deemed to continue until it is terminated or at the time a particular defendant withdraws, if at all. In this case, the Petitioner was in prison for the last six years of a criminal conspiracy that spanned over a decade. This was the basis for his argument that he could not be prosecuted since he had withdrawn from the conspiracy more than five years before the criminal indictment was filed.
However, the court concluded a defendant has the burden of proving the affirmative defense of withdrawal from the conspiracy by a preponderance of evidence, and it is not the obligation of the Assistant U.S. Attorney to prove a particular defendant participated in the conspiracy during the limitations period; further, this requirement did not violate the Due Process Clause of the U.S. Constitution. The Court ruled that ‘unless an affirmative defense negates an element of the crime, the Government has no constitutional duty to overcome the defense beyond a reasonable doubt.’ A defendant would not be liable for the acts of the co-conspirators after an actual withdrawal from a conspiracy. Based upon such a principle, the defense lawyer contended an element of the crime of conspiracy is one’s membership and, therefore, when one withdraws it negates that component. The Court held the contrary is true and the proposition that one has withdrawn from a conspiracy does not negate any element of the crime since it presupposes there indeed was a conspiracy. In other words, the conspiracy still took place, but it establishes the point in time at which a defendant is no longer liable.
In summary, in order for a defendant to have had a complete defense to the within conspiracy charges, he had to prove by a preponderance of evidence his withdrawal occurred outside of the applicable statute of limitations period of time.”