Primary Appeal issues
The principal issues for Appeal in our case had to do with entrapment. The principal of entrapment is that when the government tells you that what you are doing is legal, you should not be held criminally liable for doing what you were told by the government was legal.
Under the principals of criminal law, you have to have criminal intent when you do a criminal act to be guilty of committing a crime. If a person believes what they are doing is legal, they are not guilty of committing a crime. However, there are now crimes that do not require criminal intent. They are called general intent crimes. Under Federal criminal law, growing marijuana is a general intent crime. If you grow marijuana, you have broken the law. It does not matter if you thought it was lawful. However, the Courts have recognized the principal of entrapment as a defense to general intent crimes.
In our case, the sheriff of our county knew we were growing marijuana after they came to our house in 1999. We invited them to come to the house to see our garden. Two narcotics officers came to the house, viewed the garden and told us that what we were doing was alright under California law. The narcotics officers came to our house to view our garden on at least four occasions over three years. We were told on each occasion that what we were doing was not a crime. In addition, in the summer of 2000, the two narcotics officers that came to the house in 1999, called and requested to come to the house to talk with us. When the officers came over, they informed us that they were there on behalf of the DEA who were investigating two former employees of ours that were involved in a thousand plant grow. We were told that the DEA felt the two officers had a better relationship with us so they took the task of talking with us about our former employees. On that visit, the two officers viewed the garden and told us we were not doing anything criminal. I specifically asked if the federal government felt we were doing anything criminal and we were told that the federal government did not have any problems with what we were doing. I asked the officers to please tell us if the Federal government ever felt we were doing anything criminal to please tell us and we would stop. I had several telephone conferences with one of the officers over the next year and I was not told anything like we were in violation of federal law or the Federal government had any problems with what we were doing. However, the deputy testified that he was acting undercover when he talked to us and he was just trying to gather evidence of our alleged criminal conduct.
When we went to trial, we tried to raise the issue of entrapment. The trial judge would not allow us to introduce any evidence of entrapment. We tried to have a hearing about entrapment and the Judge would not allow a hearing so we could not get evidence into the trial record about the issue of entrapment. We tried to raise the issue of entrapment as a complete defense to the charges and as a mitigation to the mandatory minimum sentence.
We tried to argue the issue of sentencing entrapment. The theory is that we continued to grow marijuana and got to a level of over 100 plants, the amount for a minimum 5 year sentence; because the officers told us we were not breaking the law. If they had told us there was a problem with the Federal government, we would have stopped growing well before we reached 100 plants. With less than 100 plants, there is no minimum mandatory sentence. The Judge can sentence you to whatever sentence he feels is appropriate, even probation.
We appeal to the Ninth Circuit Court of Appeals in San Francisco. The Appeals Court ruled that the local officers were not Federal officers and they did not have specific or apparent authority to tell us that what we were doing was legal under Federal law. As you may know, the Federal government uses local law enforcement officers all of the time to help investigate marijuana crimes. These task forces are active in every County in California. The local cops report to the Feds all of the time and work closely while investigating marijuana crimes. These local cops tell suspects all sorts of things to get information against them The Federal Courts do not want to recognize this working relationship or authorize local officers to speak for the Federal government. Of course this flies in the face of the reality of what is happening, but that is the state of the law at this time.
Of course there were other issues on Appeal. If you are interested in learning more about our case, you can purchase a copy of our book “Cool Madness” @ WWW.MMAPUB.COM
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