Defendants are charged with offenses relating to the manufacture and distribution of marijuana. Although their conduct is protected by the Montana Medical Marijuana Act, the lower court denied nearly all of their motions to dismiss.
To successfully assert the defense entrapment by estoppel, a defendant must show that â€œ(1) an authorized government official, empowered to render the claimed erroneous advice, (2) who has been made aware of al the relevant historical facts, (3) affirmatively told him the proscribed conduct was permissible, (4) that he relied on the false information, and (5) his reliance was reasonable.â€
Jason Washington, Lisa Fleming, and Steven Sann (collectively known as â€œDefendantsâ€), along with four other co-defendants, were charged with offenses relating to the manufacture and distribution of marijuana. When federal agents raided a business, the agents learned that Defendants had organized a medical marijuana business to provide and distribute medical marijuana to authorized users. Defendants contend that some of their conduct is protected under the Montana Medical Marijuana Act (MMMA). The lower court agrees that the Defendant’s conduct is in conformity with the MMMA, however, nearly all of their motions are still denied.
Whether Defendants properly asserted their defense, entrapment by estoppel.
No, Defendants did not properly asserted their defense, entrapment by estoppel.
Marijuana has been deemed a Schedule I controlled substance under the Controlled Substance Act. However, in 2009, executive branch officials of the United States made public statements suggesting that states should authorize medical marijuana programs. Yet, federal officials have never stated that the cultivation, sale, or use of medical marijuana is legal under federal law. One of the most prominent federal agent pronouncements regarding medical marijuana is known as the â€œOgden memo,â€ which â€œprovide[s] clarification and guidance to federal prosecutors in States that have enacted laws authorizing the use of medical marijuana.â€ The memo indicates that prosecutors should hold certain providers to a lower priority. Yet, the memo still indicated that medical marijuana activity is still illegal under federal law and did not state that medical marijuana providers were completely exempt from prosecution. Defendants assert the defense of entrapment by estoppel which requires a showing that â€œ(1) an authorized government official, empowered to render the claimed erroneous advice, (2) who has been made aware of al the relevant historical facts, (3) affirmatively told him the proscribed conduct was permissible, (4) that he relied on the false information, and (5) his reliance was reasonable. United States v. Batterjee, 361 F. 3d 1210, 1216 (9th Cir. 2004). Defendant presents statements by Barack Obama, Obama’s campaign spokesman, Obama’s white house spokesman, and the United States Attorney General Eric Holder, and Arlen Auld. The only individual whose testimony the court considered plausible was Arlen Auld, an investigator with the Flathead Police. Auld told Defendants that â€œeverything look[ed] okay[,]â€ regarding their business. Additionally, Auld reported to his Missoula High Intensity Drug Trafficking Area Task Force, whom he was a member of, that everything was in compliance with state law. The court further found that this statement by Officer Auld is not sufficient grounds to accept a motion to dismiss, however, Auld’s testimony should be presented to a jury to resolve case.