Case 2:11-cr KJM Document 258 Filed 03/20/14 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA.

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1 Case :-cr-00-kjm Document Filed 0/0/ Page of IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ---ooo--- BEFORE THE HONORABLE KIMBERLY J. MUELLER, JUDGE ---ooo--- UNITED STATES OF AMERICA, Plaintiff, vs. No. CR. S-- BRYAN R. SCHWEDER, PAUL ROCKWELL, JUAN MADRIGAL OLIVERA, MANUEL MADRIGAL OLIVERA, FRED W. HOLMES, EFREN A. RODRIGUEZ, RAFAEL CAMACHO-REYES, VICTORINO BETANCOURT-MERAZ, LEONARDO TAPIA, BRIAN J. PICKARD, Defendants. / ---ooo--- REPORTER'S TRANSCRIPT MOTION HEARING WEDNESDAY, MARCH, 0 ---ooo--- Reported by: KIMBERLY M. BENNETT, CSR # RPR, CRR, RMR

2 Case :-cr-00-kjm Document Filed 0/0/ Page of APPEARANCES For the Plaintiff: United States Attorney 0 I Street Suite -0 Sacramento, California By: Samuel Wong Assistant U.S. Attorney For the Defendant Schweder: Law Offices of John R. Duree, Jr. J Street Suite Sacramento, California By: John R. Duree, Jr. For the Defendant Rockwell: Law Office of John R. Manning H Street Sacramento, California By: John R. Manning For the Defendant J. Olivera: Law Offices of Dina L. Santos J Street Suite Sacramento, California By: Dina Lee Santos For the Defendant M. Olivera: Law Offices of Clemente M. Jimenez J Street Suite Sacramento, California By: Clemente M. Jimenez

3 Case :-cr-00-kjm Document Filed 0/0/ Page of APPEARANCES (Continued) For the Defendant Holmes: Law Offices Of Michael D. Long 0 H Street Suite 0 Sacramento,California By: Michael D. Long For the Defendant Rodriguez: Law Office of Hayes H. Gable, III J Street, Suite Sacramento, CA By: Hayes H. Gable, III For the Defendant Camacho-Reyes: Law Offices of Michael E. Hansen Ninth Street Suite 0 Sacramento, CA By: Tatiana Filippova For the Defendant Betancourt-Meraz: Law Office of Michael B. Bigelow J Street Suite 00 Sacramento, CA By: Michael B. Bigelow

4 Case :-cr-00-kjm Document Filed 0/0/ Page of APPEARANCES (Continued) For the Defendant Leonardo Tapia: William E. Bonham, Hotel De France, Old Sacramento Second Street nd Floor, Suite A Sacramento, CA By: William E. Bonham For the Defendant Brian J. Pickard: Law Offices of Zenia K. Gilg 0 Montgomery Street Second Floor San Francisco, CA By: Zenia K. Gilg

5 Case :-cr-00-kjm Document Filed 0/0/ Page of 0 SACRAMENTO, CALIFORNIA WEDNESDAY, MARCH, 0, :0 a.m. --o0o-- THE CLERK: Calling criminal matter -00; the United States versus Bryan Schweder, et al. MR. WONG: Good morning, Your Honor. Samuel Wong, Assistant United States Attorney, appearing on behalf of the United States. THE COURT: Good morning, Mr. Wong. Let me call roll for the defense: For Mr. Schweder, Mr. Duree. MR. DUREE: Yes, Your Honor. Mr. Schweder is present, in custody. THE COURT: All right. And for Mr. Rockwell. MR. MANNING: Good morning, Your Honor. John Manning on behalf of Mr. Rockwell. Mr. Rockwell is in the front row, he's the second one in, starting from your right. THE COURT: All right. Good morning to you both. For Mr. Olivera, Ms. Santos. MS. SANTOS: Good morning, Your Honor. Dina Santos appearing with Juan Madrigal Olivera, who's present in custody, assisted by a Spanish interpreter. He's in the front row, to the far left. THE COURT: All right. Good morning to you both. For Manuel Madrigal Olivera, Mr. Jimenez.

6 Case :-cr-00-kjm Document Filed 0/0/ Page of 0 MR. JIMENEZ: Good morning, Your Honor. Clemente Jimenez. Mr. Olivera Madrigal is on the bottom row, second from the left, in custody, being assisted by the Spanish interpreter. THE COURT: All right. Good morning to each of you. For Mr. Holmes. MR. LONG: Michael Long for Fred Holmes. He's out of custody. He has a waiver on file, so he is not present today. THE COURT: All right. Good morning, Mr. Long. For Mr. Efren Rodriguez. MR. GABLE: Hayes Gable. Mr. Rodriguez is present, third from the left in the rear row. THE COURT: All right. Good morning to each of you. For Mr. Camacho. MS. FILIPPOVA: Tatiana Filippova, standing in for Mike Hansen. Mr. Camacho-Reyes is present, on the second row, second from the left. THE COURT: All right. Mr. Camacho, is it acceptable to you that Ms. Filippova stand in for you today for Mr. Hansen? DEFENDANT CAMACHO-REYES: Yes. THE COURT: All right. For Victorino Betancourt-Meraz. MR. BIGELOW: Michael Bigelow, Your Honor, on behalf

7 Case :-cr-00-kjm Document Filed 0/0/ Page of 0 of Mr. Betancourt-Meraz, who is present before the Court, in custody, assisted by a Spanish speaking interpreter, he's on the back row, far left, as you face the jury box. THE COURT: All right. Good morning to each of you. For Leonardo Tapia. MR. BONHAM: Yes, Your Honor. On behalf of Leonardo Tapia, he is present in court, out of custody. THE COURT: All right. Good morning to each of you. And for Mr. Pickard. MS. GILG: Good morning, Your Honor. Zenia Gilg, appearing on behalf of Mr. Pickard, who is present, out of custody. THE COURT: All right. Good morning to each of you. This is on calendar based on defendants' motion to dismiss. This is filed by Mr. Pickard, but joined by every defendant here this morning. Do I have that right? Is there any defendant not joining the motion? All right. And I should also allow the interpreter to make her appearance known. INTERPRETER: Good morning, again, Your Honor. Mauri Fitzgibbon, previously sworn interpreter. THE COURT: All right. I've reviewed the parties briefing. My main question, at this point, for Mr. Wong, in

8 Case :-cr-00-kjm Document Filed 0/0/ Page of 0 determining whether or not to have a hearing, is the jurisdictional question. Do you concede there is jurisdiction to the extent there is a statutory challenge here? In other words, I'm asking you to reply to the arguments made in the reply. Because, of course, if I have no jurisdiction, we don't go any further. MR. WONG: Your Honor, the statute in Section seems to say that any reclassification of marijuana -- or, excuse me, any challenge to the Attorney General's classification of a controlled substance, that jurisdiction lies with the -- either the D.C. Circuit, or the circuit -- the court of appeals for the circuit in which the challenge is being made. And I believe that that's correct, Your Honor. THE COURT: But if it's a challenge to the statute, not the Attorney General's classification? MR. WONG: They're so interlinked, Your Honor, they're so intertwined, that if the defense has an issue, and they want an evidentiary hearing regarding whether the drug, marijuana, is properly classified, I think that does apply. THE COURT: Just to clarify your position, Ms. Gilg. MS. GILG: Yes, Your Honor. We are not challenging the Attorney General, the DEA 's discretionary decision to

9 Case :-cr-00-kjm Document Filed 0/0/ Page of 0 classify -- or to keep marijuana classified as Schedule I, we're directly challenging the Congressional Act which places it in Schedule I and gives the attorney that discretion by so placing it. In addition, I think to apply in this circumstance would, number one, be inconsistent with the case law, which, even cited in the government's opposition, the cases that they rely on, all started in the first instance in the district court, other than the Young decision, which was a habeas petition, and which was directly challenging the Attorney General. We're not asking for reclassification. We're asking that the statute be struck because it is unconstitutional at this particular day and this particular time in the history of the evolution of the evidence with regard to the effects of marijuana. The other thing about applying, which is not in our briefs, so I'm not repeating myself, is that there is a 0-day limit on when you can make such a challenge under. So, in other words, anyone who did not make a challenge within 0 days in would be foreclosed from making that challenge. So, under those circumstances, I can't imagine that it would even be constitutional for the Congress to foreclose any future challenges that may arise based on the evolution of evidence as is occurring in this

10 Case :-cr-00-kjm Document Filed 0/0/ Page of case. 0 So, I do not think applies. And it hasn't applied in any other case. So, I mean, Raich started in the district court -- THE COURT: With that clarification, at this point I do believe I have jurisdiction. I'll remain alert to that line. But, given the challenge to the statute, I'm prepared to proceed. And with that said, I am prepared, at this point, taking the next step, to grant the request for an evidentiary hearing. My question is, can the declarations submitted stand as the direct, or what exactly -- assuming there is a hearing, what's the request? MS. GILG: I believe that they could; although, since the filing of the motion, and, in fact, since the filing of the reply, numerous things have occurred. For instance, NIDA has approved the use of -- or the scientific examination of marijuana as it applies to PTSD. There are other things I'd like to incorporate into those declarations. But, other than that, you know, things have advanced significantly, even in the two weeks since we filed the reply. THE COURT: All right. So, if the hearing -- the hearing will not duplicate what's in the declarations. There can be additional direct. The declarations can serve as

11 Case :-cr-00-kjm Document Filed 0/0/ Page of 0 direct and the subject of the scope of cross. So, how much time -- with that clarification, how much time, total, do you believe you would need? MR. WONG: Your Honor, in light of the Court's ruling that it's going to grant an evidentiary hearing in this case, I think I'm going to need to consult with the Department of Justice back in Washington, D.C. They're probably going to want to assign a -- one of their attorneys to handle this case. So, I would ask for at least 0 days before the evidentiary hearing. THE COURT: Ms. Gilg? MS. GILG: That's fine, Your Honor. I wonder if we should just come back, maybe in two weeks or so, just to -- THE COURT: Why don't we set a hearing date at this point, let's pencil in a date for about 0 days down the road. In the meantime, I'm directing the parties to meet and confer. You'll serve as lead counsel on this question -- MS. GILG: Yes, Your Honor. THE COURT: -- Ms. Gilg. So, if you can meet and confer with Mr. Wong. And it would appear to the Court you could submit a proposed stipulation and order clarifying hearing date, length of time requested. I would specially set this, I wouldn't have it during the criminal law and motion schedule. MS. GILG: Okay.

12 Case :-cr-00-kjm Document Filed 0/0/ Page of 0 THE COURT: So, what is 0 days, Ms. Streeter? MS. GILG: I'm sorry, can I go get my calendar? THE CLERK: That would put us at approximately May st, which is where we set that other evidentiary hearing this morning. MR. WONG: Can we go the week after -- say, two weeks after that, Your Honor? THE COURT: Is the Court in trial on May th at this point? MS. GILG: I'm sorry, Your Honor, I have a fairly important hearing that I can't pass off in Nevada on the th of May. THE COURT: What about June nd? Is there a trial showing on that date as confirmed? THE CLERK: They've all been reset or vacated. THE COURT: Let's say June nd. That's a Monday. MS. GILG: That's fine. I do have a trial set that day but, as the Court probably knows, most trials don't go, but I just want to put that out there. MR. GABLE: I was going to weigh in on that. I have a trial starting in Judge Mendez's court on the nd. THE COURT: That's confirmed? MR. GABLE: It has not been confirmed yet. Confirmation hasn't -- THE COURT: I don't need to hear all of the details.

13 Case :-cr-00-kjm Document Filed 0/0/ Page of 0 This is why Ms. Gilg is lead counsel for this question. The Court is not going to micromanage. You need to sort this out; what is the date that will work, once Mr. Wong knows more about how the government wishes to proceed. But, for now, we will put on the calendar, so it doesn't fall through the cracks, June nd as the starting date for an evidentiary hearing. And the Court anticipates clarifying the date, the length of time, by reviewing a proposed stip and order. MS. GILG: Your Honor -- THE COURT: If you can't agree on a proposal, you can submit your competing proposals. But I don't see why you couldn't agree just on a date and approximate time. MS. GILG: And -- MR. WONG: I'll work with Ms. Gilg on that, Your Honor. MS. GILG: Your Honor, when would the Court like any supplemental declarations with regard to any additional -- I won't repeat anything that's in the prior declarations, but what's occurred since the filing of the motion? THE COURT: Why don't you address that in your stip and order, giving the government sufficient time to review those before hearing, but I'll let you see if you can work that out. Is there anything else? The Court's plan would be to have the hearing to

14 Case :-cr-00-kjm Document Filed 0/0/ Page of 0 address contested issues of fact. I'm finding that there are contested issues of fact that can be clarified through a hearing. And then we would likely set a schedule for supplemental briefing following the hearing. MR. WONG: Your Honor, so that I can accurately convey the information back to the Department of Justice in Washington, is the scope of the hearing going to be whether marijuana is properly classified as a Schedule I controlled substance? THE COURT: It is to -- it's looking at the statutory challenge. And, so, I think the best thing for you to do is to provide all of the briefing to the attorneys in Washington; there is a violation of Equal Protection Clause challenge, there is a violation of Equal Sovereignty challenge. And, so, at this point I'm not going to further limit the scope, but if you want to meet and confer on that question and propose a scope, I think that's the best next step. MR. WONG: All right. THE COURT: At the very least, I'm allowing the three persons who have submitted declarations to be called as witnesses, and anything they've said in those initial declarations, anything they will say in a supplemental declaration, can be probed at the hearing. MR. WONG: All right. Thank you.

15 Case :-cr-00-kjm Document Filed 0/0/ Page of THE COURT: Subject to rebuttal. We'll say :00 a.m. on June nd. Is there anything else at this point? MS. GILG: Not for Mr. Pickard, Your Honor. MR. WONG: No, Your Honor. THE COURT: All right. Any other defendant? All right. The motion is filed. Time is excluded based on the filing of the motion. All right. I'll look for your stip and order, and I'll see you in June, if not on some other date. All right. Thank you very much. (Proceedings adjourned, :0 a.m.) ---ooo--- 0

16 Case :-cr-00-kjm Document Filed 0/0/ Page of REPORTER'S CERTIFICATE ---ooo--- 0 STATE OF CALIFORNIA ) COUNTY OF SACRAMENTO ) I, KIMBERLY M. BENNETT, certify that I was the Official Court Reporter, and that I reported verbatim in shorthand writing the foregoing proceedings; that I thereafter caused my shorthand writing to be reduced to typewriting, and the foregoing pages constitute a complete, true, and correct record of said proceedings: COURT: U.S. District Court Eastern District of California JUDGE: Honorable KIMBERLY J. MUELLER, Judge CASE: UNITED STATES OF AMERICA vs. BRYAN R. SCHWEDER, PAUL ROCKWELL, JUAN MADRIGAL OLIVERA, MANUEL MADRIGAL OLIVERA, FRED W. HOLMES, EFREN A. RODRIGUEZ, RAFAEL CAMACHO-REYES, VICTORINO BETANCOURT-MERAZ, LEONARDO TAPIA, BRIAN J. PICKARD DATE: MARCH, 0 IN WITNESS WHEREOF, I have subscribed this certificate at Sacramento, California. /s/ Kimberly M. Bennett KIMBERLY M. BENNETT CSR No., RPR, CRR, RMR