federal government lacked the power to regulate medical marijuana even in the interest in trust a kind of contacts but nothing in rates in any way addresses or weakens the other claims that are raised here demonstrated the really tenuous hold on legality that federal medical marijuana prosecutions have three justices generally explain lee supportive of lauren forstmann held that the federal government has no power to regulate medical marijuana at the state level the author of the opinion who just a few even two held that the federal government indeed can regulate medical marijuana has since declared an american bar association that as a matter of policy he thinks it's a bad idea and should be legislatively limited so if where the federal government is going to speak seek conviction in an area as controversial as this one it is surely appropriate to ensure that those who are indicted on merit medical marijuana charges receive a full and fair opportunity to raise all of their defenses to those charges and of course receive a trial that is fully consistent with due process and that did not happen in this case very case specific manner there are a number of challenges to the conviction here i intend to address two of those and sit down after about ten minutes and mr alford will  claim it should have dismissed the conviction on the grounds that mr rosenthal isn't title to federal immunity that would result in dismissal of the charges on the other we are arguing that the court erred in denying  of the plant is presented but one key to both of those claims and it's one area that we are fully in agreement with judge prior is that judge prior stated that a literal reading of eighty five day official state official involved in the enforcement of a law which relates to controlled substances that is marijuana what the judge said is that there is a literal reading but it's not the only reading and judge prior came up with what he thought was a better reading which is that immunity is only available when you're in forcing a state statute in a way that's consistent with federal drug policy well these two enormous problems with that view the first is that this is a criminal statute if it can be read reasonably by a reasonable person to believe that their conduct is lawful if it can be read so as to believe that you are not violating the law and  statute that that defined when a criminal prosecution can and cannot be brought i can stand corrected in a tent it is a criminal procedure statute it does not define what is criminal as much as it does state who will not be prosecuted for a conduct which might otherwise meet the definition of criminal activity but it is a statute your honor that either subject which is not subject to a determines whether somebody could be prosecuted picked california court of appeal had all the cannabis clubs could not be protected and this was before he got his immunity from oakland well judge  did not address any of those questions judge bryer said look your conduct can be perfectly lawful under state law or i am telling you that it cannot be immune under federal law unless it's consistent with federal policy he did not  say i find that you were not engaged under those key words lawful engagement or a lawful exercise lawfully engaged in the enforcement of why he didn't say you're not engaged walkley under state law he said fine you're engaged lawfully under state law it doesn't make any difference you don't get the federal protection and two quick instances of why one i don't think there's any case that has ever said very literal reading of the statute is not a reasonable reading for the purposes of the rule of lenity there is no legislative history of this statute the judge prior relied on for his interpretation you did well let's look at what the purpose of other federal drug laws are but he did not rely on if they're doing that in order to catch criminals their lawful what congress intended to do is say you can't and this has happened of course you can have a police officer who sees drugs from a from a dealer and then goes and resell them he  well then your honor quite appropriately there and in a criminal federal prosecutors or federal drug laws they could invoke the linear immunity of good faith immunity described there and if they were able to present that defense that they acted they had a good faith belief that was reasonable then they would have immunity from federal prosecution and if they if they were unable to do that then they wouldn't have a defense do is right or wrong under certain circumstances make a policy decision the diplomats will be protected from all criminal prosecutions the supremacy clause and the good faith doctrine described in the near good state and federal officials immunity from prosecution under certain circumstances even if they're wrong this statute let's face it in california right now there are police departments that have a policy pursuant to state law uses marijuana from somebody if they have a prescription you give it back to them did congress intend those priests officers who were under a directive to to arrest people without a prescription or seize their drugs but not arrest them if they have a prescription did attend whether that's a wrong headed policy or not did it tend to subject those police officers to federal prosecution and a fair reading of the statute is that it did not is that it is not you could even have a situation where there prosecute let's say these things illegal drugs illegal marijuana for people who don't have prescriptions when they have immunity if they're carrying it around could the federal government say oh ok you see is that pursuant to a state policy which is not in conformity with our laws it just supposed to arrest everybody with marijuana if you're only here and forcing the law which only arrest half those people since your federal state law is inconsistent with our federal law you don't have the right to invoke immunity and the answer to that would be under the terms of the statute they do congress probably never contemplated the situation of whether they want to give immunity in american marijuana context where a state  more lax than a federal law it consists the law but the spatial terms of this statute would protect rosenthal or the highway patrol officer who takes somebody is marijuana gives back to them upon things prescription and immunity should exist but of course that is not the ultimate position that we have because quite apart from the question of immunity which requires dismissal you have the question of entrapment by a staffer and once judge bryer who heard all of this evidence stated mr rosenthal honestly credibly and reasonably believed that his activities were lawful based on a combination obviously of  there are two real readings of a statute both of which are reasonable the law obligates a court to accept the view which papers the criminal defendant and says that conduct is not is not criminal because since linear since the supreme court has said a person must be unfair notice that their conduct is criminal we hold people responsible for laws that they might never ever know about ok and subjectively they never learned  state officials with the power to create immunity if there's a police department the doesn't exist and it's a new municipality is started tomorrow who creates the department and who gives the drug department the drug officers in that department the power to engage and under sale of narcotics it's the state it's the city they are the ones who create law enforcement officers under the structure of  course it is state officials that you look to to see if your belief that you are acting in enforcement of the law and therefore protected under the is reasonable and of course in this case that's what mr rosenthal got and one thing that we know community that the government was able to obtain its convictions at the first of the patients for questioning before the grand jury the grand jurors peppered the prosecutor with fifteen questions touching on such questions  first case where the government is going after the canvass clubs in order to realizing that it's indictment was in peril in order to persuade the grand jury to issue the indictment the federal government lie first mentioned that the indictment doesn't include the harm reduction center and more importantly said we have not shot sought to shut down the operations of the clubs it is operating the district court found that the prosecutors statements in this regard were false and apparently calculated to overcome grand jurors concerns it then was able to salvage the conviction only by ignoring the dual function of the grand jury a grand jury as this court has repeatedly recognized is not just to consider probable based on injustice it was only by deceiving them about their continued availability of marijuana through the campus clubs that the federal government was able to convince them to go ahead and issue the the and i don't exactly with just my understanding  declaration of henry cargill its states he found the doors of the club had locked all of the marijuana had been taken from the clouds and although no indictment was issued they cleared out the in the toy and the club was shot  down but this was not the only instance where the committee conscience was eliminated from these proceedings there is also the germ misconduct and what that had was even despite the limited evidence that was presented to the jury two jurors were so troubled by the proceedings that they went in a list of the advice of outside counsel a friend of one of the jurors and was told that there was nothing else she could do but to follow the instructions and when she persisted asking about a hun the attorney erroneous lee advised her you could only do that if there was some leeway in the judge's instructions and then you followed up with i could get into trouble if i tried to do something outside those instructions this was a highly courses and a one you just instruction opportunity for the defendant to be a participant in what was told to these jurors and these jurors were therefore coerced into issuing the verdict that they gave it at a minimum at a minimum it affected their specific language which is that the to sixty one was i could get into trouble if i tried to do something outside those instructions and this is coupled with the other course of language which is that she was instructed that  she had to follow the instructions and there was nothing else she could do but it was specifically the specter of punishment of getting into trouble that was most coercive most likely to cause these jurors to be affected in their freedom of action is jurors which is the standard as you will that while not judging the law itself that you can judge the entire situation the law is applied in the context of the specific case and that the play in the joints language comes from united states versus doherty and it's precisely the type of language that the court navarro vargas and what all of this leads to is ultimately well there's no instruction that ought to be given to a jury about your emails occasion you also will tell them they must follow the law although there may be some questions with that it's one of the possibility of jury nullification is absolutely foreclosed and it was foreclosed both by the court's own instruction about not bringing their sense of justice to bear on this case but more troubling still it was absolutely foreclosed by this erroneous instruction from an outside attorney that you would actually the district court worked very hard in this case to ensure that the verdict would rest on the law and the evidence produced at trial to achieve this the court determined whether the sentence proffered evidence regarding for example why he was growing marijuana or whether he believed he was immune from prosecution went to any element of the offense and because it did not he determine it was not relevant to the drury's determination of guilt or innocence it found that it was relevant however to the courts determine a determination of punishment and consider that for purposes of sentencing well we have course disagree with the extent that these factors were considered for purposes of sentencing which i will discuss in a moment and we continue to contend that the district court clearly erred both in finding that defendant was not in the leadership role with respect to the mandela growth site and in finding that the defendant in good faith reasonably believed he was i he excluded from going to the jury is a two prong defense that the defendant must show a pulmonary showing before it goes to the jury and the first prong is what the court found the defendant didn't meet and that first prong is that there is a form misleading that there is a ferment of misleading by an authorized government official empowered to give the erroneous advise the second part of the test is that the defendant then reasonably relied on that advice and authorize somebody to act on legal so why wouldn't the st michael officials another spectacular structure the relevant people with regard to the question of whether this person  well i think that goes in part your honor to the question that you raised before about what does it mean to be lawfully engaged you have to be lawfully i think in part what it means that you are a person who is authorized to enforce controlled substances laws and generally determine force meant relates to having the power to prevent or require someone to do something under the law and generally it's believed i think to include immunised under the controlled substances act i think it recognizes that cities and states are the ones who determine those who are police officers or long foresman officers with and can define what constitutes a public official for purposes of enforcing its laws but that's not to say that the state or the local government can determine what conduct or that it can carve out an exception for conduct that is clearly unlawful under the federal controlled substances a public officer to the extent there was any finding that would be erroneous but more importantly that the court specifically did not find that in fact if you look at the excerpts of record at three o seven lines to seven the district court actually well said well it may be maintained the defendant did not fall within the protection of order by the ordinance since he was not an officer of the city of oakland and then he goes on about what city charter they did not have the authority to make him a public officer and so instead they under the ordinance created a different definition of what public officer meant and said officer meant designee and specifically said not within the meaning of officer is in city charter that goes against the lawfully engaged point which is that only certain city officials are public officials are authorized or lawful or can lawfully enforce controlled substances act and because the defendant was not in fact a public officer as defined by the city charter he could not be quote lawfully engaged in enforcement he didn't have those kinds of duties there was a case district court case traction in terms of federal law i think the question and i think should acquire got this right is that if the law if the law is otherwise unconstitutional it doesn't have anything but it is person who by virtue of law under the city that you know you're enforcing these laws for are you a person who's lawfully authorized to enforce the drug and to enforce drug laws so i mean i think there's four different ways in which he's not immune to the statute the first is what judge pryor said into looking at the general overall legislative intent eighty five the second is that the defendant was not in fact a public officer and even if the city of oakland intended to make him one even if he believed he was one in order to get the attention of the statute you have to actually in fact be a public officer and as that's defined by open city charter he was not he therefore was not lawfully engaged and could not be by virtue of the fact that he was not a law enforcement officer he could not be lawfully engaging in force no drug drug substances laws and finally what his actions were is about implementation or administer it ministration of the ordinance and that's different from unfortunate and i think in fact that's true it is different from of course meant for each of those reasons i believe that he doesn't get immunity and i also want to clarify one othe factual point which was that the defendant in support of his position says the the court found that his conduct was lawful under state law or under obligation to fifteen and that is simply an incorrect statement of california law and the district court acknowledged that and i guess while we're on the immunity issue i will address the entrapment by stoppel defense i think i don't have too much more to add on that but i think he cannot rely on the statute itself because his own subjective united states versus lancing talks about that instead for it is clear that more is required than a simple showing of the defendant well there's a subjective matter misled and that the crime resulted from his mistaken belief this is a case of or a federal court interpret in the scope of the statute where the facts are similar such as in albert sheeny or even of a federal agency providing regulations or publishing a form whose specific intent is to provide guidance as of the statute and now would be the pen chemical and pattered that is the case but this is simply defendant reading the statute and feeling i think i fit the definition and that is simply a mistake of law which does not provide a defense as to what the city official told him under this court's decision brabner one is not entitle to rely on any representations made by state or local officials because these officials lack the authority to bind the federal government to an  interpretation of federal law and that's the situation here there was a whole evidentiary hearing held and the courts with the clay found that based on that testimony no federal official ever made representations of immunity  to the sentencing issue but i want to focus here is the reasonableness of the extent of the departure because particularly in light of book or should we lose on the guidelines issues reasonableness of the overall sentence is going to be the test so i think reasonable this is where the discussion  o start determining what is a just sentence or reasonable sentence is a difficult task and the determination of what is just a reasonable will inevitably vary from person to person or judge to judge and this is why in part congress established guidelines and it is why a judge must be guided by congressional intent in determining the sentence otherwise sentencing disparity will inevitably result among defendants convicted of similar conduct congress has given several clues about what kind of things is reasonable in the context of large scale marijuana cultivation and while we may not always agree with congress's judgment in these regards courts remain in good measure still bound by it within of course some limits of discretion so in this case normally defendants who have grown as many plants as the defendant did in this case are subject to a five year mandatory minimum and they are not eligible for probation in they were mandatory or not mandatory he doesn't have to justify this departure from the guy's mind so why are we looking at a departure from the confines well i think the guidelines still give some guidelines as to what kinds of things there are should be considered or to the extent whether they're just favored in terms of how they're considered and of course then there are the factors in the thirty five fifty three way which may or may not encompass all the other factors that can be or should not be looked and i do agree and one reason i'm focusing more on the reasonableness of the departure rather than the legality of that the departure is because i recognise exactly what the court is saying which is that some stance the the ability to part is not so important now in a post like a world so we do as discourse to look at the at the whether the district court erred in terms of applying the state the valve because that is just a guideline calculation question i think when it gets  departure not that we're abandoning our argument altogether about the erroneous factual basis for it but i do think alternately that the court's time is better spent as i was hoping mine was on the reasonable so i do think just as a matter of expediency to some extent you may as well decide the overall reasonableness if you get to that in other words if you find that we did not prevail in the safety valve issue and as you've used your time with you have any response you want to for ever and isn't that really kind of the the line that's been struck the recognition that ultimately the secrecy of the jury means that we will inform people as to what they're supposed to do but we won't investigate thanked on it or punish them that's how the balance was checked from what the usual bounds but even if that were so i think it's not completely accurate to say that in the sense that there is some indication at least of the eleventh  juror could be dismissed for example for refusing to follow the law there by contacting somebody for whatever reason there was a disobeying of the court's order which could conceivably be a contempt of court in other words but the statement about trouble is pretty ambiguous it's not completely clear that it's completely inaccurate but even taking it at its worst interpretation the most it would have done the most prejudice it could have look at the evidence in a way that she would otherwise look at for fear that should be taken to be nullifying well i think that's reading on travel no i don't think so i mean there was certainly what her friend told her was you need to follow the court's instructions and the court's instructions in the way indicated there was no statement that had anything to do with coercing all the jurors to come to an agreement or anything like that where she has no right to nullify so even a right that she could get in trouble for doing a right she doesn't have is not a she has to carry to do it without being punished that she has that's true so to the extent that he is making her feel like she might get in trouble for exercising that power he's diminishing her sense of power but because it's not a right i don't think her diminished sense of power can infringe defendant's constitutional rights i mean the supreme court has held due pro a jury capable and willing to decide the case solely on the evidence and that's what defendant got you may to want to dress who had a greater recognition about their power to nullify but he didn't get that and i don't  transcript first of all if you look at the conduct about or the statement about shutting down the cannabis clubs that was made in the in response to the question is this the first case where you're going against cannabis clubs and the prosecutor was basically answering by saying well we're not prosecuting the cannabis club in this particular case and it's in that context where he talks about that i think it's important to keep in mind that all of the alleged misstatements about whether there's prior prosecutions about what the state law is about whether it was for medicinal use about the availability of medical marijuana the fact that nothing's going to happen to them if they do it and that they so it wasn't denying that there is a role for the jury gradually in doing this but they were looking at it as a very carefully balanced  not entitle to legally irrelevant information which these days but also you know taking your point and recognizing that you know of course they have no right to be instructed about nullification let's look at what the grand that that the federal government was targeting suppliers the prosecutor told the grand jury is the focus of these cases and other cases that we have in the office here has been on the supply side there was no attempt to let them think that this was somehow an anomalous case and it wasn't the grand jurors were informed that the clubs were in various ways being targeted by the federal government that agent testified i news that there's been additional searches which indicates additional investigations and they were told about the injunction against the oakland cannabis club and told that the contents of that case was an injunction where dear old jason sought to shut the club down and it was a civil injunction filed against multiple locations they were aware of course of the raid of harm and that was a part of the this case they were  when they were asked about whether they were blazing new ground by going after growers like rosenthal they were told by the prosecutor this is forty four we prosecute growers so you know of course we disagree with the district court's conclusion that there was misleading or even false evidence given about the availability of mail local marijuana and that's in our motion for reconsideration but i think you know the point is the grand jury certainly was aware of the  defendants medical marijuana dissent and in spite of that i mean the question really is were they prejudiced or co worse to return the indictment was their independence in french and i think when you look in the context of all that was disclosed to them and when you look at the fact that the four person even made explicit statement about well you know this is a federal law and intel that you know we can't change it by what we do in here that i'm misquoting a little bit but it was basically recognizing the difference between following the law and voting despite the law the grand jurors returned the indictment so i really think that's evidence that their independence was not infringed ok thank you very much an officer or found that he was lawfully engaged under state law what i said was that none of that mattered to judge prior judge prior said california compared to statute and give the governor the exclusive power to distribute medical marijuana he can be question should be reversed and remanded for a factual findings on that because i don't think the court on this record is in a position to make a factual determination whether it was an officer without without having heard the evidence so my it would be if judge price reading of eighty five day is wrong and the immunity depends on factual questions such as whether rosenthal was an officer the case should we reversed and remanded on on on the immunity question practice judge bryer doesn't have to make hold another hearing but i think he does have to address those factual questions i think he felt it was unnecessary to apply in on them because under his view of eighty five g and the fact that it has to be lawful under federal law all the factual questions were relevant point number two judge grace interpretation is quite frankly makes no sense in this sense if lawfully engaged in the forstmann of a state law means in gauging the something very important in the past the entrapment by stop of question it's a judge prior determined that the entrapment by a powerful evidence was not relevant to the elements of the crime and their choice for should be excluded that's exactly what he did and that's exactly affirmative defense not a subjective offense that is based on the conclusion that someone was reasonably risk led by public officials so to the extent the judge prior excluded because it wasn't relevant to the elements he's dead wrong  really have to rule government really has to rest its position on one thing his statement that it has to be a federal officer well there's a couple of problems with that it's a federal statute here that combined with state officials mislead in talmage this court said it was a combination of advice from a federal officer a state judge and a lawyer that led to a reasonable belief in the legality of inspections so it doesn't have to be a federal officer and here  diego or anywhere else and they prosecute them for making undercover sales and they then a prosecutor says to the federal judge barred them from even informing the jury that there's a drug officials because it's irrelevant they had the drugs and drug activities in fact in my hypothetical you run under the government to do those undercover sales are not protected by eighty five deepika selling drugs by state officials is in violation of federal law and it is selling drugs juries polled secretly without the court or lawyers knowing that they can get in trouble for anything that goes on in the jury room without at least raising the presumption of prejudice that has to be rebutted if the conviction is t