The Ninth Circuit upheld a marijuana cultivation case and refused to apply an entrapment by estoppel defense where there was no evidence that the defendants relied upon a Federal official’s claim that the grow was legal.

Entrapment by estoppel occurs when

(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.

Dale Schafer and Marion Fry are a husband/wife team. She is a doctor and a cancer patient. He is a lawyer. They live in Cool, California. ¹ After she was diagnosed with breast cancer and received a doctor’s recommendation that she use marijuana they began to grow marijuana. Eventually they grew more and a dispensary was formed. Throughout the period they kept local law enforcement officer informed of their activities and were assured that there actions were legal.

But they were eventually arrested on Federal charges by the DEA. Unlike California state law, Federal law does not allow for medical marijuana.

Prior to trial the District Court granted a motion made by the United State Attorney to prohibit Shafer and Fry from using an estoppel defense at trial. The Court ruled that even if the local agents could be considered Federal agents there was no evidence that Shafer and Fry relied upon their word in deciding to grow marijuana. In fact, Fry’s written recommendation that she gave to patients recommending the use of marijuana specifically warned that marijuana was not legal under Federal law. Therefore they can not be said to have relied upon the local officers’ alleged statements telling them that the grow was legal.

A second argument made by Shafer and Fry was that they are the victims of sentencing entrapment. Sentencing entrapment occurs when law enforcement agents encourage individuals to grow more marijuana or to sell more drugs in order to increase their possible sentence. But here there was no evidence that any agent or officer encouraged Fry and Shafer to grow more marijuana. Even if the local sheriffs told them that their grow was legal it does not mean that they encouraged Shafer and Fry to increase the size of the grow.

Of course one lesson to be learned from Shafer and Fry is not to be greedy. As any California medical marijuana grower knows, the Feds generally do not become involved in a case unless there are 100 plants or more. Shafer and Fry were growing over 100 plants.

The Department of Justice announced a new policy affecting the fourteen states which have medical marijuana laws. The Department directed U. S. Attorneys in those states not to prosecute medical marijuana users or provider of medical marijuana who strictly comply with state laws.

The new policy is in line with campaign promises made by Barack Obama when he ran for president and statements made by Attorney General Eric Holder.

The letters to the U. S. Attorneys said that while possession of marijuana remains illegal they should use their discretion and limited resources in deciding not to prosecute those who are in compliance with state laws.

The policy is a step forward towards a reasonable marijuana policy and it may encourage additional states to develop positive medical marijuana laws. But it raises nearly as many questions as it answers. For example, recently in Fresno, CA the local government closed down all of the dispensaries on the grounds that they were not in compliance with local zoning laws which banned medical marijuana dispensaries. Despite the fact that this may be illegal under state law, will the Federal government continue to prosecute dispensary owners and employees in Fresno because they are not in strict compliance with local zoning (marijuana) laws?

The policy gives the United States Attorneys tremendous discretion in determining what is legal under state law. Since marijuana remains illegal U. S. Attorneys will continue to successfully argue that judges and juries cannot decide whether or not defendants are violating state law. Decisions by U. S Attorneys to prosecute or not to prosecute an individual are not subject to a motion to dismiss, to a jury decision or to an appellate court.

Last week a Federal/State task force raided two Los Angeles area marijuana dispensaries. At first blush it would appear that the Feds were violating the promises made by President Obama during the campaign and later by Attorney General Holder not to interfere with state medical marijuana laws.

While the DEA, FBI, Internal Revenue Service, Los Angeles County Sheriff’s Department, Los Angeles Police Department, Torrance Police Department and Culver City Police Department all took part in the raids, the raids appear to have been directed by State authorities with the feds only helping out. The Los Angeles Police Department applied for the Search Warrant which was granted by a Superior Court judge. This would indicate that the affidavit supporting the search warrant alleges a violation of state law. But no one involved–neither the police department or the DEA are publicly admitting what violation occurred.

The task force raided Organica Collective in Culver City, and the Overland Gardens Collective in West Los Angeles . The clubs are owned by Jeffrey Joseph. His house was also raided and he was arrested. He is now out on bail. They seized 100 pounds of marijuana, 200 live plants, and $100,000 in cash. None of this necessarily indicates anything other than a dispensary which sells marijuana to patients who have the approval of their doctors to legally possess marijuana.

The Organica Collective posted a statement on opposingview,com denying any violation of state law.

The law requires that the police file the search warrant affidavit within ten days of the search and it then becomes public. Therefore it should be filed within the next week and we will know the allegations.

Oakland, California voters, last week, overwhelmingly imposed a 1.8 percent gross receipts tax on medical marijuana dispensaries according to an article in the Huffington Post. Eighty per cent of those voting approved the tax. Oakland is the first city in the county to pass a local tax on marijuana. The tax is in addition to the state sales sale paid by marijuana purchasers. There are four medical marijuana dispensaries in Oakland selling marijuana to people who qualify under the state’s medical marijuana statute. The measure which was proposed by the dispensaries as a way to give back to the community and help fill the gap in the city’s budget is expected to raise $294,000 for the city in its first year. The measure takes effect on January 1.

The medical marijuana community hopes to use the tax to promote further legalization of marijuana. One study showed that a statewide tax on marijuana currently pending in the state legislature could raise 1.3 billion dollars.