Obama Entrapped Me

Medical-pot provider mounts a novel criminal defense in federal court

By Dave Maass, San Diego CityBeat

More than most citizens, James Dean Stacy feels betrayed by the candidate for whom he voted for president.

Up and down the campaign trail, from Los Angeles to Medford, Ore., then-Sen. Barack Obama and his spokespeople pledged that he would end the aggressive raids by the U.S. Department of Justice of medical-marijuana dispensaries operating legally under state law. The candidate said it was a waste of resources that would be better dedicated to fighting terrorism and prosecuting violent crime. Obama said he didn’t see any meaningful difference between marijuana and prescriptions such as morphine and that providers should be protected, excepting those who blatantly use medical-cannabis laws as a shield for otherwise dubious drug trafficking.

When he assumed office, U.S. Attorney General Eric Holder echoed the sentiments during several meet-the-new-DOJ appearances in California and New Mexico—“You will be surprised to know that the Justice Department will be acting in a manner consistent with what [the president] said during the campaign”—and, in October, Holder formalized the policy in a set of guidelines distributed to U.S. Attorney offices.

By then, Stacy had been running a medical-marijuana collective, Movement in Action, for five months in the space adjacent to his martial-arts dojo in Vista.

“I’m the most follow-the-rules kind of guy around, so I thought I was the perfect guy to do it,” Stacy tells CityBeat. “When the collective was open, I’d have days where we’d turn away as many as 10 people who didn’t have the proper paperwork.”

In a Dec. 10 court motion, Stacy says he did the due diligence: He researched the prosecutorial policies articulated by Holder, hired a lawyer to walk him through the process and corresponded with the California Secretary of State’s (SOS) office on how to file for “public benefit” status, the technical term for a California nonprofit. The SOS even provided him with a copy of the state Attorney General’s guidelines for running a collective. Unlike many of the other collectives where the San Diego Regional Narcotics Task Force ran stings, Stacy opted for a low-profile model because, he says, “I didn’t want people who didn’t need to know to have it in their face.”

Stacy told undercover officers that they could provide labor to the collective in exchange for medicine and invited them to a “farmers market,” where patients could buy directly from growers—practices he felt were in keeping with the spirit of the California AG’s guidelines. Nevertheless, on Sept. 9, he was arrested after his collective and 13 others were raided.

Now, Stacy is one of only two collective operators who have been charged in federal court as a result of the raids. He faces one count of conspiracy to manufacture and distribute marijuana, one count of manufacturing marijuana and one count of possession of a firearm while committing the other crimes—a handgun was found in the locker where he kept the collective’s supply.

The other federal defendant, Joseph Nunes of Green Kross Collective, pleaded guilty to his charges earlier this month. Stacy, however, says he’s not giving in to the prosecution.

“I quote my wife: ‘I’m not going to let you plead guilty to something you didn’t do,’” says Stacy, who uses marijuana to treat pain from martial-arts injuries and to relieve the nausea he’s suffered since losing his gall bladder. “They threatened life-imprisonment at both of my bail hearings…. This is nothing but a terrorist attack against the medical-marijuana community.”

Instead, Stacy is mounting a novel defense: The statements by Obama and Holder constitute entrapment by estoppel, defined as when an official tells someone that something is legal, then busts them for it. Put plainly, Stacy would not have formed the collective if the government hadn’t assured legal collectives that they wouldn’t be prosecuted.

The U.S. Attorney’s Office does not comment on pending cases, and Ben LaBolt, a White House spokesman whose pro-medical-marijuana statements were directly cited in the court filing, did not respond to inquiries.

The entrapment defense draws from a “fundamental notion of fairness: The individual must have fair warning of what conduct the government intends to punish,” Stacy’s attorney, Kasha Castillo of Federal Defenders of San Diego, writes in the recent motion. Judge Barry Ted Moskowitz has agreed to hear the motion—which includes a request that the case be dismissed or, alternately, Stacy be allowed to present the entrapment defense in court—on Feb. 3.

When CityBeat first posted a summary of the motion on its blog, Lastblogonearth.com, and linked it from the Huffington Post, some commentators wrote it off as a gratuitous and foolish attempt to claim that a candidate’s campaign promises are as good as laws passed by Congress. However, defense attorneys say it isn’t just a novel approach; rather, it’s a potential groundbreaking solution to a longstanding paradox in federal medical-marijuana cases.

San Diego County Deputy Public Defender Juliana Humphrey explains that, historically, medical-marijuana patients and caregivers have been barred from saying they were acting in good-faith under California law because it has not been considered a legitimate defense under federal law.

“Most of the time, the common thought is that trial defendants are getting some kind of advantage because everything is sterilized for the defendant’s benefit,” says Humphrey, who chaired the city of San Diego’s Medical Cannabis Task Force in 2002. “But in this case, it completely keeps from the jury the truth of the motivation of the person that possesses or provides the marijuana for the benefit of the government.”

Last month, a San Diego jury in state Superior Court acquitted Jovan Jackson, the coordinator of Answerdam Alternative Care, of all marijuana-related charges; the foreman told the press following the verdict that California’s laws are too vague to determine whether Jackson’s collective wasn’t in compliance.

Jackson’s trial lawyer, K. Lance Rogers of Turner Law Group, cautions that each case’s circumstance are different—not to mention each jury—and that Jackson’s verdict doesn’t indicate how the federal court will rule on Stacy’s motion. Plus, unlike in Jackson’s case, when the prosecution had to prove he committed the crimes beyond a reasonable doubt, the burden will be on the defense during the hearing to show that Stacy was within the law.

“The issues and the challenges that will ultimately come up with Mr. Stacy’s hearing are all of the same issues that came up in Jovan’s case,” Rogers says. “It’s not enough to say, ‘I knew about this information before I set up my collective.’ In my opinion, he needs to show some evidence that he knew the government’s public advisory.”

Stacy’s testimony may be enough, Rogers says, but his communication with the Secretary of State’s Corporations Division and the fact he hired a lawyer to advise him may prove the most compelling.

More than the entrapment defense, Rogers is interested in another argument Stacy’s attorney makes: The federal government violated the 10th Amendment protection of states’ rights by enlisting San Diego County Sheriff’s deputies to enforce a federal law that contradicts state law.

“The federal government can’t commandeer state law enforcement to implement federal policies, and the keyword is ‘commandeering,’” Rogers says. “This is a fundamental principle of federalism and American jurisprudence. That’s a fascinating argument that has not been decided to my knowledge.”

Until it is decided, Stacy is keeping his nose (and his pipe) clean. He believes he has the right to continue using marijuana for medical purposes but has switched to Marinol, a synthetic THC pill, until the court gives him explicit permission at his next bail hearing.

“I did not, I do not and I will not break the law,” Stacy says.

Write to davem@sdcitybeat.com and editor@sdcitybeat.com .

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