IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) No. 68058-7-1 f*o o Appellant,

v. ) DIVISION ONE —**. CO o 1—*CZ

JENNIFER LEIGH YOUDE, ) PUBLISHED OPINION rvs ' n \'i•*••»-, Respondent. ) FILED: May 20, 2013 S9

en Becker, J. — This case involves a prosecution for delivery ofmarijuana. 

### The investigating agency was the police department of the Tulalip Tribes. The Tribes asserted sovereign immunity inresponse to a defense subpoenafor information the Tribes deemed immaterial. Recognizing that a sovereign entity is 

### not subjectto compulsory process, the superiorcourt quashed the subpoena. The court then granted the defendant's motion to dismiss the prosecution under 

### CrR 8.3(b). The State appeals the dismissal. We hold the court abused its discretion by dismissing the casewithout first determining whetherthe subpoenaed informationwas material. Because the record does not support a finding of materiality, we reverse the orderofdismissal.No. 68058-7-1/2 

### JenniferYoude advertised on Craigslist, an online forum for goods and services, as a sellerofmedical marijuana. DetectiveWayne Schakel, an 

### undercover police officer ofthe Tulalip Tribes, responded to the ad by requesting a delivery. Youde delivered marijuana to him on February 6, 2010, and was immediately arrested by tribal officers. The arrest occurred on the Tulalip Indian Reservation. Youde's carwas searched and seized pursuantto a warrant issued 

### bythe tribal court. The Tribes laterforfeited Youde's car pursuantto tribal law. "Indian tribal courts do not have inherentjurisdiction to try and punish nonIndians who commit crimes on their land. Instead, criminal offenses occurring on
a reservation by non-Indians are subjectto prosecution by state orfederal governments, depending on the offense." State v. Schmuck, 121 Wn.2d 373, 379, 850 P.2d 1332 (citation omitted), cert, denied. 510 U.S. 931 (1993). Because Youde is non-Indian, Detective Schakel referred the criminal charge of possession of a controlled substance to the Snohomish County Prosecutorto make a charging decision. On March 11, 2011, the State filed an information in Snohomish County Superior Court charging Youde with delivery of a controlled substance, a felony. The Tulalip Police Department was listed inthe information as the "originating agency." Detective Schakel is cross commissioned with the Snohomish County Sheriff's Department, the Federal Bureau of Investigation, and the United StatesNo. 68058-7-1/3 Marshal. According to Detective Schakel's declaration, the investigation began inJanuary 2010, afterTulalip Police received a tip that someone was selling drugs on the reservation and advertising on Craigslist. Detective Schakel, who was asked to follow up on the tip, found an ad on 

### Craigslist posted by Youde. The advertisementwas captioned, "Need Medical MJ?

- $420 (MtVernon to Olympia)." The advertisement read in part: Ifyou use medical marijuana and would like a competent, friendly delivery, please email me. Ideliver anywhere between Arlington and Olympia two to four times a week.
... Idon't mind meeting in a convenient place for you. Medicine is free. Donation is accepted for my time. Donation request listed below. Iwill never shortyou on your meds. Detective Schakel contacted Youde with an e-mail that said, "Just saw 

### your ad, are you delivering today? I'd like to try some Kush for a change. What


### are your donation rates?" Youde suggested a meeting inMarysville. After several exchanges ofe-mails, the meeting eventually occurred on February 6, 2010, near a bank in Marysvillethat is located on the Tulalip Reservation. Youde 

### handed the undercover officer six grams ofmarijuana inexchangefor $90, 

### without making any effort to verifythat he was qualified as a medical user. This exchange was the basis for the charge ofdelivery. 

### On August 10, 2011, Youde filed a requestfordiscoveryfrom the Tribes pursuantto CrR 4.7(d). This section ofthe criminaldiscovery rule sets forth the 

### prosecutor's responsibility to assist a defendant in obtaining material held by others which "would be discoverable if inthe prosecutor's control." The requestNo. 68058-7-1/4 

### asked the Snohomish County Prosecutorto attemptto obtain (1) the telephonic application for the search warrant, (2) Tulalip police department policies 

### regarding "buy/bust" operations ingeneral, and "specifically the targeting of individuals who provide medical marijuana," and (3) written and electronic communications among members ofthe tribal police department, and between members ofthat department and the Tribes' legal department, "inregards to medical marijuana and its status on tribal lands." 

### The prosecutorwas unable to obtain the requested materials. On August 26, 2011, on Youde's motion and without opposition from the State, the trial court issued a subpoena duces tecum for the requested materials, directed to the Tribes' legal representative. Through their prosecutor, the Tribes formally objected thatthere were no materials responsive to the first and second parts ofthe request. The Tribes said thatthe audio recording ofthe telephonic warrant application was no longer available due to an office relocation inthe summer of2010, and the only police department policy regarding "buy/bust" operations pertained to the use of confidential informants. As to the third category inthe subpoena, the Tribes objected to the production of attorney-client privileged communications and further objected that the production of internal law enforcement communications was unduly burdensome, likely to compromise other police investigations, and unlikely toNo. 68058-7-1/5 

### lead to admissible evidence. In addition, and of chiefsignificanceto this case, 

### the Tribes objected that the request "exceeds the scope of permitted discovery under CrR 4.7 and fails to meetthe discretionary disclosure standards of materiality under Cr.R 4.7(e)(1)." Responding to the Tribes' objections, Youde explained why she viewed 

### the requested information as material. She said she was considering asserting a "somewhat hybrid defense" combining elements ofthe medical marijuana statute and entrapment. She explained that underthe statute as itexisted atthe time of herarrest, a person acting as a "designated provider" ofmedical marijuana could not be found guilty of a crime for assisting a "qualifying patient" withthe medical

use ofmarijuana. See former RCW 69.51A.005 (2007). Because the undercover officerwas not in reality a qualifying patient, Youde conceded she could not rely solely on the statute to show she was not guilty of a crime. Instead, she explained, she might have to rely upon an entrapment defense. That is, she would show that she would not have provided medical marijuana to the officer "inthe absence ofher beliefthat he was a medical marijuana patient requesting that she be a provider ofmedical marijuana, actions that are legal in Washington State." Youde hypothesized that the Tribes deliberately lured her onto tribal lands so she would not have the protection afforded by state law to providers of medical marijuana: Inthis case the Tulalip Tribe, a sovereign nation, elected to target an individual who was acting within the laws of our state, lure herNo. 68058-7-1/6

onto Tribal Lands, and then arrested her and seized and forfeited her car. Inpresenting a defense ofentrapment, the defendant must be allowed to investigate whetherthe Tulalip Police acted to specifically target medical marijuana providers and what motivated such action. Itwas the Tribe that chose to seek out a medical marijuana provider and use subterfuge in an attemptto either push that provider's conduct outside the protections ofthe Medical Marijuana statute or, perhaps, inan effort to bring that provider onto tribal lands, where the tribe may believeWashington's Medical Marijuana laws have no power. That is why it is not only communications between members ofthe Tribal Police Department, but also the 

### Tribal Legal Department, that are relevantto the defense in this case, and must be disclosed. 

### On September23, 2011, the superior court held a hearing on the Tribes' 

### objections to the subpoena. With respectto the internal communications requested inthe third part ofthe subpoena, the Tribes argued that an entrapment defense would not be viable given the facts ofthe case. The Tribes 

### acknowledged making no effort to determinewhetheror not documents 

### responsive to the subpoena existed because the information was considered by the Tribes to be immaterial. Finally, the Tribes stated that ifthe court ruled that 

### the information soughtwas material and the Tribes was obliged to produce it, the Tribes was reserving the right to assert sovereign immunity: the Tribes has not made an effort to determine ifthese documents exist because the documents are so far outside the scope ofwhat is material under4.7 that there should be no obligation to do so. 

### And, your Honor, Ithink it's important to articulate for the courtthatthe Tribes, particularly through the police department, wants to ensure thatthe Snohomish County Prosecutor's Office is 

### able to meet all of its legal and ethical obligations under4.7. And 

### all the discovery thatthe department has was provided through the prosecutor's office inthe normal course.No. 68058-7-1/7

Now there's an additional issue that I'd like to reserve time to address should the courttake the position thatthere's

- thatthere is a basis to respond to this subpoena, thatthe materials sought are not only material, but ones thatthe Tribes has an obligation to answer, and that argument is based on the principle ofimmunity. But Iwould simply reserve that issue atthis time and address it should itbe necessary with the court. The court asked for supplemental briefing on sovereign immunity. The Tribes first repeated the argumentthatthe information soughtwas immaterial but 

### argued alternatively thatthe subpoena should be quashed in its entirety because 

### the court lacked jurisdictionoverthe Tribes. The Tribes asserted that the Tulalip Tribal Courtwas the courtwithjurisdiction to issue such a subpoena. 

### Youde argued she had a constitutional right to investigate possible defenses and the requested materials were withinthe scope ofdiscovery. She also contended the Tribes had implicitlywaived sovereign immunity by entering 

### into a cooperative lawenforcementagreementwithSnohomish County. On October 10, 2011, after reviewing the cooperative agreement, the 

### superior court issued an order quashing the subpoena. The court concluded the Tribes had not waived sovereign immunity: "Nowhere in this agreement do the 

### Tribes eitherexpressly orimplicitlywaive theirrightto control the policies and procedures of either their Policeagency or LegalDepartment.. . . The mere fact thatthe Tribes and the County have chosen to sharejurisdiction ofthe 

### prosecution of crimes does not confer any implied waiver of sovereign immunity on the part of the Tribes." The court found that the Tribes' invocation ofNo. 68058-7-1/8 sovereign immunity was "dispositive ofthe issues before the Court..
. . Because 

### the Tribes have successfully invoked sovereign immunity,there is no need to address any ofthe other issues raised byeither party." 

### The orderquashing the subpoena on the basis ofsovereign immunityhas 

### notbeen appealed. It iswell established that a waiver ofsovereign immunity must be unequivocally expressed; itcannot be implied. Ecl, United States v. 

### Testan. 424 U.S. 392, 399, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976). On November 15, 2011, Youde filed a motion to dismiss pursuantto CrR 8.3(b). She maintained thatthe information soughtwas material to a potential defense ofentrapment. She said, "The State may argue that Ms. Youde is not going to prevail on an entrapmentdefense. But that is entirely beside the point,
as Ms. Youde is being prevented from even investigating that defense." The State responded thatthe assertion ofsovereign immunity was not arbitrary action

orgovernmental misconduct and that the extraordinary remedy ofdismissal should not be granted because Youde had failed to show material prejudice to her right to a fair trial. On November 18, 2011, the court heard arguments on the motion to dismiss. In an oral ruling granting the motion, the court concluded that allowing the State to proceed inthe face ofan assertion of sovereign immunity by the investigating agency would violate due process and deny Youde the opportunity to develop a defense:

8No. 68058-7-1/9 [Tribal police] requested that the State prosecute her as a Washington State case. The alternative would have been to seek prosecution by the US Attorney in Federal Court. The Tribes had a choice here ofproviding the information necessary to this defense so the defense could determine if ithad an affirmative defense to the case. They didn't do that. Instead, they asserted sovereign immunity. Ithink then itbecomes a constitutional issue, a due process issue here. It rises to constitutional levels. Ithink it's a violation of due process here at this pointto allow the State to proceed when the Tribes who developed the case and requested prosecution has asserted sovereign immunity as a reason notto provide the requested discovery. At the same time, Ithink it's denial of effective assistance of counsel if counsel can't then build his defense or seek to build a defense in this case because the Tribes has denied them. The order ofdismissal was consistentwith the oral ruling: "It is hereby ordered thatthe assertion ofsovereign immunity by the investigating law enforcement 

### agency isequivalentto governmental misconduct as itdenies due process and effective assistance ofcounsel, and the motion is granted and case dismissed." 

### The State appeals the orderofdismissal. The State contends dismissal

was unwarranted because Youde did not articulate a material basis for her 

### requestforthe Tribes' internal communications. Youde responds thatthe "selective invocation ofsovereign immunity" bythe Tribes short-circuited her right to investigate a possible defense. CrR 8.3(b) provides: The court, inthe furtherance ofjustice, after notice and hearing, 

### may dismiss any criminalprosecution due to arbitrary action or governmental misconductwhen there has been prejudice to the rights ofthe accused which materially affects the accused's right to a fair trial. The court shall set forth its reasons in a written order.No. 68058-7-1/10

The trial court's powerto dismiss is discretionary and is reviewable only for manifest abuse ofdiscretion. Discretion is abused when the trial court's 

### decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons. State v. Blackwell. 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). The State contends the court abused its discretion because Youde has 

### shown neither (1) arbitrary action or governmental misconduct, nor (2) prejudice affecting her right to a fair trial. The assertion ofsovereign immunity by an investigating agency in a criminal case is not unique to tribes. A state court cannotenforce a state 

### subpoena issued to an agentof the Federal Bureau of Investigation, for example,
even ifthe withholding ofthe information means the state court mustthen grant a defendant's motion to dismiss. F.B.I, v. SuperiorCt. of Cal., 507 F. Supp. 2d 

### 1082, 1087-88, 1094 (2007). For the purpose of our analysis underCrR 8.3(b),
we will assume the terms "arbitrary action" and "governmental misconduct" are 

### appropriate labels for the State's insistence on proceeding with a prosecution despite the refusal byanother sovereign to disclose material information. But Youde has cited no cases, and we have found none, where a dismissal has been affirmed because a police agency—with or without sovereign 

### immunity—defies a subpoenaforinformation that isimmaterial. Under CrR 

### 8.3(b), the accused must showmaterial prejudice before a motion to dismiss is

10No. 68058-7-1/11 granted. To establish a right to discovery, a defendant "must advance some factual predicate which makes itreasonably likelythe requested file will bear information material to his or her defense." Blackwell, 120 Wn.2d at 830. The trial court went straightto constitutional issues without ruling on the materiality ofthe requestfor the Tribes' internal communications. In part, the court reasoned that it is fundamentally unfairfor an investigating agency of another sovereign to submit a case for prosecution withoutwaiving sovereign 

### immunity. ("I think it's a violation ofdue process here at this point to allowthe State to proceed when the Tribes who developed the case and requested prosecution has asserted sovereign immunity as a reason not to provide the 

### requested discovery.") We have found no authority inthe criminal rules or elsewhere for holding that a criminal case must be dismissed whenever 

### sovereign immunity is asserted by the entitythatdeveloped the case or requested prosecution. 

### The more substantial question is whetherthe State violated Youde's 

### constitutional rights byexposing her to continued prosecution under circumstances where the court could not protect her right to compulsory process. 

### The right to compulsory process is "in plainterms the right to present a defense
.... This right is a fundamental elementofdue process oflaw." Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). 

### The right to effectiveassistance ofcounsel isguaranteed by the Sixth

11No. 68058-7-1/12
Amendment. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Effective assistance ofcounsel includes an attorney's duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 721, 101 P.3d 1 (2004). "The defendant's interest in fully investigating every possible defense to the charges leveled against him is not to be lightlydenied." State v. Gonzalez, 110 Wn.2d 738, 748, 757 P.2d 925 (1988). Generally speaking, the scope ofdiscovery underthe criminal rules is within the trial court's sound discretion. State v. Yates. 111 Wn.2d 793, 798, 765 P.2d 291 (1988). The trial court is to regulate discovery in a mannerwhich will insure a fair trial to all concerned. Yates. 111 Wn.2d at 799. We do not hesitate to say that a trial court's decision to dismiss a criminal prosecution would be upheld in accord with these principles where, by an assertion ofsovereign immunity, a defendantwas prevented from obtaining material information inthe hands of a third party not subjectto the court's power. 

### Indeed, the State acknowledges thatthe assertion ofsovereign immunity can justify dismissal of a criminal case if itprevents the defendantfrom receiving a fair trial. A violation ofthe defendant's constitutional right to counsel and the right 

### to compulsory process is presumed to be prejudicial. State v. Burri, 87 Wn.2d 175, 181, 550 P.2d 507 (1976). IfYoude had stated a predicateforthe possible 

### materiality ofthe files, and the Tribes had declined to provide them at leastfor in

12No. 68058-7-1/13

camera review, dismissal would bejustified. An accused cannot be left to defend 

### herselfin a court that is unable to enforce discovery orders for material information. 

### The problem for Youde is that she has not stated a predicateforthe possible materiality ofthe files. She contends the materiality ofthe requested items was conclusively settled when the court issued a subpoena forthem and 

### the State did not object. Butshe cites no authority forthe proposition thatthe State must objectto a subpoena at the time a court issues it inorderto preserve the issue ofmateriality. The issuance ofthe subpoena did not estop the trial courtfrom reconsidering the materiality ofthe requested information once the Tribes objected to producing it. The State timely argued the requested discovery

was immaterial in connection with the motion to dismiss. Youde claimed below that the requested information was relevant to a "somewhat hybrid" defense involving both the medical marijuana statute and the affirmative defense ofentrapment. She did not spell out how a jury would be instructed on such a defense. On appeal, she argues only that her investigation

was aimed at a potential defense ofentrapment. The defense of entrapment is provided by statute: (1) Inany prosecution for a crime, it is a defense that: (a) The criminal design originated inthe mind of law enforcement officials, or any person acting undertheir direction, and (b) The actor was lured or induced to commit a crime which the actor had not otherwise intended to commit.

13No. 68058-7-1/14 

### (2) The defense ofentrapment is notestablished by a showing only that law enforcement officials merely afforded the actor an opportunity to commit a crime. RCW9A. 16.070. Youde suspects the police set up the transaction to occur on tribal land 

### because they believed a delivery ofmarijuana would be illegalthere even if it would be innocent elsewhere inWashington underthe medical marijuana statute. It is possible the requested materials would reveal such a belief. Possibly, the Tribes' internal communications would even document a deliberate scheme of arranging for sellers to make deliveries in a location where the Tribes would have jurisdiction to initiate forfeiture actions. We therefore will assume the subpoenaed information could be material to the first prong ofan entrapment defense: that the idea of steering Youde to a particular location was a design that "originated inthe mind" of tribal law enforcement officials. However, on this record, Youde fails to demonstrate any possibility of proving that the subpoenaed information could be material to the second prong: thattribal police lured or induced herto commit a crime she had no intention of committing. Where the police merely give a defendant an opportunity to commit
a crime by employing a ruse, entrapment is not established. RCW 9A.16.070; State v. Smith, 93 Wn.2d 329, 350, 610 P.2d 869, cert denied. 449 U.S. 873 (1980). Delivering marijuana was plainly Youde's intention. The undercover operation, through a ruse, merely gave her an opportunity to deliver it.

14No. 68058-7-1/15
On this record and atthis point inthe case, there is no reason to believe thatthe gap inproofofthe second prong ofan entrapment defense would be filled by information aboutthe motives or beliefs that led tribal law enforcementto 

### target sellers likeYoude. Therefore, we conclude the requirement of materiality in CrR 8.3(b) was not satisfied when the court granted the motion to dismiss. Following Blackwell, we hold that a trial court must determine that requested discovery is material before granting a motion to dismiss based on the unavailability ofcompulsory process. Here, the trial court did not make that determination. And the record lacks a colorable showing by Youde thatthe requested materials could make entrapment a viable defense. We conclude the State may proceed with the prosecution ofYoude.
The order of dismissal is reversed. 

# S?<J<e^

WE CONCUR:



# ,flcr. extAA^

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