Three judges from the 9th Circuit Court of Appeals have rejected
the appeal of Aaron Sandusky, the California man sentenced to 10
years in federal prison for selling medical marijuana in a state
where such activity is completely legal. Reason has
covered the Sandusky case extensively
here.
The three-judge panel opted not to hear oral arguments but
rejected each of the legal arguments submitted in
Sandusky’s brief. Their five-page decision is available
here.
In short, the appeals court ruled that the judge acted properly
in prohibiting Sandusky from mentioning in his trial that medical
marijuana was legal in California and that the attorney general,
deputy
attorney general, and the president of the
United States himself stated that enforcement against legal
dispensaries would not be a priority.
Sandusky’s lawyers had attempted an
“entrapment by estoppel” defense during the original trial,
meaning they hoped to argue that statements made personally to him
by FBI agents, and publicly by the Department of Justice and
President Obama, led him to reasonably conclude that opening and
operating a medical marijuana dispensary would not subject him to
federal prosecution. The judge in that case
prohibited Sandusky from making this argument, and the appeals
court upheld that decision, concluding that “no authorized
government official ever affirmatively told Sandusky that
his marijuana operations were permissible” [italics added].
The court also rejected Sandusky’s constitutional argument that
the federal government lacked the power under the commerce clause
and the 10th Amendment to prosecute someone operating within
state law. Here, the court simply cited the
Raich v. Gonzales case, wherein the Supreme Court
concluded that the ever-expansive
commerce clause authorizes the federal government to prohibit
the growth of medical marijuana in one’s home even absent an
intention to ever sell it.
Other rejected arguments included claims that Sandusky was the
subject of “vindictive or selective prosecution” and that the court
imposed a mandatory minimum sentence in the face of insufficient
evidence and inappropriately excused jurors who might be
sympathetic to jury
nullification.
Sandusky has served a little more than a year of his 10-year
sentence, which he is serving in Big Spring,
Texas, far away from any friends and family.
“Aaron is having tough time with all of this right now
especially with all the new developments going on in Colorado,” his
girlfriend Darlene Buenrostro said in an email. “He doesn’t
understand how he can be sitting in prison for something that
was legal within his state’s law, and Colorado is booming the way
it is with their state laws, but yet the federal government is
not taking action the way they did to him.”
In the wake of the historic law changes in Colorado and
Washington, with the public on the side of legalization, and the
feds taking a wait-and-see approach, will Obama
free the legal marijuana distributors he’s already imprisoned?
When his administration has prosecuted
80 percent more medical marijuana cases than his
predecessor’s—and yet another California dispensary worker was
thrown in jail just two weeks ago—optimism begins to look a lot
like credulity.
Sandusky will appeal to have his case heard en banc in the 9th
Circuit and, failing that, hopes for a trip to the Supreme Court.
He has a legal defense fund here.
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