good morning your honors joe well for greg presenting appellate michael to michael to get the unfortunate victim of the tension between the state of california and its voters and the federal government and its policy on medical marijuana the government c s otherwise but there are two very important facts which do not bear out the government's contentions the first is founded excerpts of record pages forty six through forty seven where the court found in sentencing teague that he was caught in th confusion between california and federal law and for that reason sentenced him to out gave me two level downward departure also at reporters transcript eight nineteen zero three at page sixty nine the court said if you if you turned out to be a dealer you wouldn't case at three zero nine f third six twenty nine at page six forty six footnote ten united states attorneys or rather the federal government generally does not prosecute marijuana cases involving fewer than five hundred plants cultivated indoors or a thousand plants cultivated outdoors and it remains a mystery why mr teague was targeted for this prosecution other than the fact he was a medical marijuana patient when he called that they did approximately five times fewer than that five involves a question about how the state wishes to extend its funds and the federal government cannot force the state to expend its funds to enforce a federal regulatory scheme if the state disagrees the federal government solution is to ratchet up its own federal regulatory that one when state officers execute a state warrant the property is returned a bill to the state court and is then the property of the state court if the federal government wants to obtain that property it must obtain a turnover order from the state court and i to the other issue of the appeal and i would before doing so i would like to know that i think the primary issue in the appeal is the length of michael t supervised release he's already served his entire sentence or entire sentence imprisonment but he still has four years of supervised release hanging over his head this was based on the just records likely erroneous mis understanding that this was the mandatory minimum the government has conceded this issue and so i won't belabor it exactly right which leads me to the to the errors of his court appointed counsel and the court reporter apparently a family emergency with the court reporter michael t going to dub spending the entire nearly the entirety all but one week of his eighteen month sentence before the transcripts were prepared for an appeal he had up and spend the entirety of the sentence before any appeal was filed this stands apart from any other case that i've been able to locate where the government has pointed out that satisfies the prejudice criteria that must be met or the practice criterion and that is unusual in citing concern of the can take to convicted party awaiting appeal michael teague saki thought and medical marijuana patient released on bail pending appeal brian at this released on bail bail pending appeal because their appeals have been filed in the rage case that allowed them to be released on bail pending appeal michael teague however was not released on bail pending appeal he was a medical marijuana patient because his appeal had not been prepared and timely fashion who languished in prison not knowing why does appeal was not being filed not knowing when his appeal was going to be filed and in the most unusual case of the appeal being rendered virtually meaningless before being released on him before being having his appeal being filed the remedy ought to be outright dismissal of the indictment and no more further prosecutions it would only compound what has already been a very unfortunate situation for mr t to force him to have to good morning your honor sanders well probably half the government there were three issues in the initial appeal obviously we have agreed that supervised release question ought to be remanded to this record all first move on to the tenth amendment concerns  conant the commandeering issue require the government make the state do something and in this case there's no factual there's no there's nothing in the record suggesting that the federal authorities made the state do anything and in fact the records quite to the contrary the state is the one that executed the search warrant and the state is the one who turned over that evidence to the federal authorities for prosecution the root of the commandeering doctrine is the word command and the state has command the federal authorities of command of the state to do nothing in this case finally there's the question of appellate ally and first i want to just spend a minute talking about the length of the life and where the blame  was a sixteen month sentence and it's important to know that when the defendant started the appeals process he had a retained attorney and that would he was a remand if it was remanded in august of two thousand and three and for the first four months of a se appointed counsel and that appointed counsel at the downey did not designate all the transcripts that he was supposed to and so in january when the appointed counsel shifted to being sorry when the retained counsel shifted to being appointed counsel and it's important to note it was the april of two thousand and four that a designation of five or six sorry i'm sorry six additional transcripts were designated by that now appointed counsel but i think it's important to note that we're now eight months in the defendant here the defendant sentenced and had retained counsel done the proper designation when he was supposed to then that the in theory the transcripts would have all been prepared at that point in time and so beginning in april until when it's now  counsel designated those transcripts and april this court order those transcripts be prepared in june of two thousand and four that's ten months into the defendant sentence and i think that looking at the record closely it's really only fair to ascribe that period after the defendants transcripts were fully prepared to should have been fully prepared to the to the government and here it was really the mistakes of the appointed counsel at the very important thing that one looks that to determine if there's been a due process violation is prejudice and that prejudice is either in the form of a meritorious appeal or alternatively in the form of some type of oppressive incarceration now the argument mr teague's incarceration was more oppressive is this notion that he thought he was going to get a quick appeal and was going to be meritorious i would suggest the record does not support that argument in the following regard the defendant files for motion filed motions for fact that then it continued to file motions for bonding appeal and was continually told no that's not going to happen and while the defendant i'm sure hoped he would be released that mere hope doesn't rise to the level of being an oppressive the oppressive incarceration i'm certain that all folks who are who are incarcerated hope for whatever reason that they're going to get released chalker had some some language in it that i think is really important to this to this particular issue and it's and i'll just read that the quote out of tucker federal court may not exercise its supervisory powers to reverse the conviction absent a showing of prejudice tucker violated the law in his hand guilty at a fair trial in this situation mr teague all but stipulated to his guilt at a fair trial and there's no reason there's no reason to believe that his incarceration was any more oppressive than it is for any other any other any other than any other defendant owes the record explain why his motions for bail on the old were denied  donations are sales you can call it what you like but it's an absolute sale and so i don't think that this is mice i'm supposing here but i doubt that the emotions panel concluded that someone who is distributing marijuana falls under the weight what what was argued and race that purely intrastate growth of marijuana for personal use was somehow exempt from commerce it's also important to note that in neither of the defendants first two motions for bond pending appeal if you raise this notion of the due process concern with respect to the delay it was only his final motion for bond pending appeal which was filed shortly before he was released that this issue first was raised and even in light of this issue the motions panel declined to release the defendant on bond pending appeal that the the court that has any additional questions the government will say that cause challenges did warrant their bail pending appeal in terms of testing them in oregon i would just briefly like to submit we don't know what it whether how much coercion was involved in the federal government assuming jurisdiction over this case we don't know if they pressured the state given that this case must be