Wednesday, November 7, 2012

Marijuana Legalization may Create a Rare Entrapment Defense to Federal Drug Prosecutions

Image from taberandrew

Marijuana is Legal Now, Sort of

On November 6, 2012, Washington State and Colorado voted to allow recreational use of marijuana. A lot of people are saying that marijuana was "legalized" but this is not really the case. Marijuana is still prohibited under federal law. Federal authorities send people to prison for decades for conspiracy to distribute marijuana just the same as they do for trafficking in other drugs.

So what is the practical effect of such "legalization"? There is no indication that federal authorities intend to change course on Marijuana prohibition, so the most interesting consequence might be the people prosecuted federally in these jurisdictions could have a defense based on the doctrine of "entrapment by estoppel."


Entrapment by Estoppel Defense

The defense was recognized by the United States Supreme Court in Raley v. Ohio, 360 U.S. 423 (1959). In that case, witnesses before the Ohio Un-American Activities Commission, were called to testify, but were told by commissioners that they had a legal right to refuse to answer questions because of constitutional protections against self incrimination. The witness asserted their rights and refused to answer. Unknown to the witnesses or the commission, another law granted such witnesses immunity, and since there was no possibility of incrimination, the right to remain silent did not apply and refusing to answer was illegal. The witnesses were prosecuted and convicted but, after several appeals, they won.

The US Supreme Court threw out the convictions and reasoned that to do otherwise, "would be to sanction an indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State had clearly told him was available to him." Other courts have consistently recognized this principal and held that a person can not be prosecuted for engaging in conduct that the government told them was legal. This sounds a lot like the situation that could happen for marijuana sellers in Colorado and Washington: The State Government has approved their actions while the Federal Government prohibits them.

More recently, courts have considered the Entrapment by Estoppel defense and found that it is avaiable where:

"(1) an authorized government official, empowered to render the claimed erroneous advice, (2) who has been made aware of all the relevant historical facts, (3) affirmatively told [the defendant] the proscribed conduct was permissible, (4) that [the defendant] relied on the false information, and (5) that [the] reliance was reasonable." US v. Schafer, 625 F. 3d 629, 637 (9th Cir. 2010).

Most often, the defense has come up in the Medical Marijuana context. Notable cases like Schafer above and the case of Charlie Lynch, involve marijuana dispensary operators who were sentenced to prison for violating Federal drug Trafficking laws. In these cases, the entrapment by estoppel defense failed because, it was not clear that the defendants were mislead since state documents associated with the medical marijuana program were clearly marked to say that Federal laws still ban the drug. Furthermore, even if they were given bad advice, the defendant's reliance on the advice might have been deemed to be unreasonable since the conflict of laws would have been well known to a person in their position.

But the defense could be available in this new arena where many millions are now operating under the belief that marijuana is completely legal. The reasonable reliance argument gets a bit stronger where the people possessing or selling the drugs are not business men who have filed applications and signed paperwork, but are just citizens who's vote just helped pass a law legalizing marijuana. 

Federal Authorities May Still Prosecute Drug Trafficking

We should expect so see some interesting conflicts between Federal authorities and these new state laws. If the Feds still insist on prosecuting marijuana crimes in Colorado and Washington, defense attorneys will have some very interesting cases on their hands. We know that Federal Prosecutors do not shy away from prosecution by entrapment. Once again, It might be the appeals courts that need to do the heavy lifting to sort things out. As is often the case with drug crimes, it will be the defendants who pay the real price. This time by sitting in federal custody for doing something that they were told was legal.