UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

Transcription

1 0 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON UNITED STATES OF AMERICA, ) ) Plaintiff, ) Nos. -CR-0-TOR- ) -CR-0-TOR- vs. ) -CR-0-TOR- ) -CR-0-TOR- RHONDA LEE FIRESTACK-HARVEY, ) -CR-0-TOR- LARRY LESTER HARVEY, ) MICHELLE LYNN GREGG, ) February, ROLLAND MARK GREGG, ) Spokane, Washington JASON LEE ZUCKER, ) ) Transcript of: ) Pretrial Conference/Motions Defendants. ) Hearing ) APPEARANCES: For the Plaintiff: For Defendant Firestack-Harvey: BEFORE THE HONORABLE THOMAS O. RICE UNITED STATES DISTRICT JUDGE Earl A. Hicks Stephanie Van Marter Assistant United States Attorneys P.O. Box Spokane, WA 0- Jeffrey S. Niesen, Attorney at Law Jeffrey S. Niesen Law Office W. Pinehill Road Spokane, WA Reported By: Debra Kinney Clark, RPR, CSR United States District Courthouse P.O. Box 00 Spokane, WA 0 (0) - Proceedings reported by mechanical stenography; transcript produced by computer-aided transcription.

2 0 APPEARANCES (Continued): For Defendant Harvey: Robert R. Fischer Federal Defenders of Eastern Washington and Idaho 0 North Post, Suite 00 Spokane, WA For Defendant M. Gregg: Bevan J. Maxey, Attorney at Law Maxey Law Offices W. Broadway Spokane, WA For Defendant R. Gregg: Phil Telfeyan, Attorney at Law Equal Justice Under Law G Street Northwest, Suite 0 Washington, DC 00 For Defendant Zucker: Frank L. Cikutovich, Attorney at Law Stiley & Cikutovich, PLLC 0 West Broadway Spokane, WA Reported By: Debra Kinney Clark, RPR, CSR United States District Courthouse P.O. Box 00 Spokane, WA 0 (0) - Proceedings reported by mechanical stenography; transcript produced by computer-aided transcription.

3 0 (February, ; :0 a.m.) THE COURTROOM DEPUTY: The matter before the court is United States of America v. Rhonda Lee Firestack-Harvey, Larry Lester Harvey, Michelle Lynn Gregg, Rolland Mark Gregg, and Jason Lee Zucker, Case No. -CR-00-TOR, Defendant Nos. through. Time set for pretrial conference and motion hearing. Counsel, please state your presence for the court and record, beginning with the plaintiff. MR. HICKS: Your Honor, Earl Hicks is present on behalf of the United States. Good morning, Your Honor. THE COURT: Good morning. MR. TELFEYAN: Good morning, Your Honor. My name is Phil Telfeyan; and I represent Defendant Rolland Gregg. THE COURT: Good morning to both of you. MR. FISCHER: Bob Fischer, Your Honor, for Mr. Larry Harvey. Good morning. THE COURT: And good morning to both of you. MR. MAXEY: Good morning, Your Honor. Bevan Maxey here on behalf of Michelle Gregg, who is also present. THE COURT: All right. Good morning to both of you. MR. NIESEN: Good morning, Your Honor. Jeffrey Niesen on behalf of Rhonda Firestack-Harvey, who is present. THE COURT: Good morning to both of you. MR. CIKUTOVICH: Good morning, Your Honor. Frank Cikutovich. I represent Jason Zucker.

4 0 THE COURT: And good morning to both of you. Counsel, we have a number of motions presently pending before the court at this pretrial conference. Trial in this matter is set for February rd, and I note that the case has been pending for quite some time. To efficiently address these motions, rather than have everyone jump up, back and forth, I'm going to go serially through the counsel and ask you to speak as to any motion that you'd like to speak on, realizing that full briefing has been performed in all of these motions and the court has read the file. Mr. Hicks, I'll begin with you. Are there any motions you would like addressed orally? MR. HICKS: Yes, Your Honor. I would like to discuss some of the responses that have been made. The oral motion -- the motion involving the new statute -- Your Honor, that's a motion to dismiss. I would like to address the notice of experts/0 information. We received a -- just recently received a motion, in effect; and it seems like it's to strike all of the testimony. So I want to address that. And we have a motion in limine, Your Honor, based on Mr. Telfeyan talking openly in the press about jury nullification issues, and that; and that's a motion in limine. And although I know that the court had certain deadlines, that

5 0 was something that just recently came up; and so we filed a motion on that because it appeared that Mr. Telfeyan was going to intentionally disregard court orders in this case. And we wanted the court to be alert to that because this is a rule. The law is what's important, not the personal opinions of Mr. Telfeyan. Do you want me to address my concerns, Your Honor, at this particular point in time, or -- THE COURT: Well, only as to matters that haven't been briefed -- MR. HICKS: Right. THE COURT: -- realizing I've read the entire file. I've read all the motions, all the responses, all the replies. MR. HICKS: Yes. THE COURT: I've read all the supporting documentation. If there's some point you want to make as to any particular motion, I'll hear from you now. MR. HICKS: All right. THE COURT: Otherwise I'll consider the motions submitted. MR. HICKS: All right. The one point that I want to make now, Your Honor, is that there's a marijuana statute in the state of Washington; and it is my position that in providing you with information, which -- although the defendants are presumed innocent, Your Honor -- I'm not claiming that they're guilty of

6 0 any state or federal crime at this particular point in time, because they're not. But in pointing that out, Your Honor, the government's position is, is that they clearly are in violation of the Medical Use of Cannabis Act in the state of Washington; and they were. And as you're aware, that's based upon documentation attached to my motion showing what the government contends are sales records that were found in the Harvey residence and on the Harvey computer. Medical use of marijuana is defined. It's for the exclusive use of the person. It doesn't authorize the manufacture of between to 0 pounds of marijuana and records indicating close to at least $0,000 of sales of marijuana. And Mr. Telfeyan believes and has indicated that it's his position that, based upon, now, at this particular point in time, that we cannot -- the federal government -- in states that have medical marijuana laws, cannot prosecute cases until the State has decided, until the person's convicted in state court. That is such an incredible stretch that it's absolutely beyond belief. The other thing that I want to address, Your Honor, is the 0 motion. Now -- but, first, I did put the definition of medical use of marijuana under the Washington statute. And then I pointed out to the court why this wasn't medical use of marijuana -- because you can't sell it. I want to also point out to the court again: Dispensaries

7 0 are illegal. So all of these arguments about taxing -- the State of Washington does not tax medical marijuana. That's a joke. So they're going to lose revenue. The State is going to lose revenue because the federal government's involved. Those things have previously been discussed with the court, but I want to emphasize them. And then I'm going to hold up, Your Honor, a cell phone. And the reason I'm going to hold up a cell phone is because when I turn this on, what I can do is I can go to a calculator. I can go to a calculator. And it's common for most people to have calculators. Most people have calculators. And most people have -- went to school. And I want to talk about the expert testimony in this case. The expert testimony -- we're claiming that it's not expert testimony. We're not saying that it's expert testimony. If it was going to be used as expert testimony or if the court feels that it needs to be expert testimony, then what happens is it goes through the qualifications of the person; and that would be what he's expected to testified to. In the preamble of what we put in there is that we don't believe that it's expert testimony. Mr. Telfeyan obviously didn't read that. We believe it's 0 evidence. And let's talk about the drug records, and let's talk about ounce, because -- we didn't respond to this because we didn't have time to respond to it -- about ounce and about pounds. In

8 0 discussing ounce and pounds -- my wife happens to be a schoolteacher. And I said to her: When do students learn that there are ounces in a pound? Now, I know that on one occasion defense attorneys had a hard time figuring out that five charges were less than six charges. But students learn that in the fourth grade in the state of Washington and have to be proficient by state law on that by the fifth grade. Ounces and pounds. All right? Apparently that's a concept that's going to be used in this case, because when we examine the records, which I have presented to the court, ounce and pounds is very important, because when the officer takes his calculator and when there's a heading that says quantity, O, he's going to testify that that means ounce. The only quantity that we know of, unit of measurement, that starts with O is ounce. And then what he's going to tell you he did is that -- looking at that record, he took those ounces there under those columns and he divided it by. And then the column right next to it says EL. And he believes that that's estimated pounds because -- I'll give you an example. One of them says. And then next to it, it says. You divide by ounces, and it ends up being pounds. Then next to it, there's a record that says -- and this is approximations -- I think it's a little bit off -- it says $00. You take three pounds. You divide that into $00. And this is for people who -- there's no evidence whatsoever, no

9 0 indication, that these people are involved in medical marijuana or are authorized in any manner or fashion to possess marijuana. And what happens is you determine that there are -- $0 per pound is what they're paying trimming costs to people. Then their records show that they paid over $,000 in trimming costs. This is not expert testimony. This is something that you could give a fifth grader a problem in and he would be able to figure out. And it's not based upon learning that in law enforcement. And besides, even if it was, he's entitled to say what he has experienced and seen in his life, including law enforcement. So this belief that the testimony of this fact expert is absurd (sic). That response is absurd, because it's that simple, Your Honor. And everything else in this case will be that simple. The testimony will be based upon the officer's observations. And if this court believes that it's expert testimony, then we have his background. And then I would suggest that that -- that particular point. Now, the other thing is, is they have an expert who said that the crop that was not harvested has no commercial value, that there's no value to this crop. I don't have to rebut him by an expert witness. I can leave that law enforcement officer up and rebut him based upon his common experience in law enforcement. So, Your Honor, all I'm saying is that if you find that

10 0 0 this expert notice is late and you bar the expert testimony, that's fine with the United States, to bar the expert -- proposed expert testimony, because everything else is so simple. It's human experience. Everybody who goes to the store know (sic) what ounces and pounds are. The scale that we have which we seized from their residence only measures ounces and pounds. That's all it measures, with the packaging material. That's all it measures. The marijuana that we seized from their house -- it says one pound on it. The drying racks that we took is the same product. Now, I submitted to the court a record, a record of -- that they had, where they kept track of sales up to a particular point in time. These records were found on a computer, in files that had the name "Rhonda" on them, in the Firestack-Harvey residence. In addition to that, Your Honor, we found those records in the house. They had been printed. And so when we're talking about these things, this is going to be very basic, fundamental, easy to understand. But the United States laid out its entire argument for the defense. Even though we believe it's 0, we laid it out for them. We're concerned about their math skills, because I've been through it with them. So -- anyway, that's what we've done. Now, I want to go to this 0 -- go back and make just a couple more statements, Your Honor. This belief that we can't look at anything -- we cannot look at anything until the State's

11 0 decided, there's a thing called the supremacy law. And where there's a conflict, the supremacy clause applies. And there's another thing here, Your Honor. The United States was asked to participate in this case by state law enforcement officials, and there's a record of that. So when the State asked the federal government to assist them -- we're supposed to keep out of their business? It's: The State asked the federal government. That's a State's right issue too. There is no Tenth Amendment violation, Your Honor. The law did not go away on the Tenth Amendment. Merely because a congressman or a senator says, oh, we think this is a Tenth Amendment violation, who decides that, Your Honor? It's the courts of the United States that decide it. And the Supreme Court of the United States has decided that, and the law has not changed. The United States has every right to go forward and deal with this case. Not only was this a case -- and I presented the direct testimony of a law enforcement officer for you, under oath, where he indicated that the State of Washington was going to prosecute the case, not contrary, like is represented. He indicated he was going to prosecute. The State was going to prosecute. Your Honor, the -- a lot of -- I could -- and I think that this court has jurisdiction. And, in effect, some of the arguments that are being made is: This court doesn't have

12 0 jurisdiction when it comes to state matters. You decide state matters all the time, Your Honor, be it civil or criminal. And because it's marijuana, now, all of a sudden, you can't decide state matters? It's absurd. And what happens is -- this is the typical circumstance where people want to stretch to the limit anything, so that you can legalize, so that marijuana is more legal than anything else. It is regulated in the state of Washington. It is regulated. Dispensaries are illegal. And what happens -- and I continuously read this argument that we're interfering with people from getting their medical marijuana. The United States Attorney's Office in the Eastern District of Washington has not prosecuted one medical marijuana patient who was in compliance with state law. All of the prosecutions are people who are selling or have so much marijuana that the federal -- it's of federal interest. I have a case with,0 marijuana plants with people who are from out of state, and they're claiming medical marijuana. They don't qualify because they're not residents of the state of Washington, even; and that's the stretch that we're making. The law is supposed to be reasonably interpreted. There's no reason in the way they want you to interpret that statute. And, Your Honor, it is, again, a battle that we've been fighting for a long time. I want to make a comment. There was a motion to the -- for an attorney to get off the case. I have been waiting to get

13 0 medical information on Mr. Harvey, just so the court's aware of that. If the medical information comports with what has been indicated, Mr. Harvey will not be at that trial, unless he's a witness for the defense. I even have concerns about whether or not -- and I have concerns about that because of comments that have been made. I have been discussing this, asking for these records and that; and I believe that other potential defendants in this case have interfered with that process. And it's unfortunate that Mr. Harvey is as ill as he is, and the federal government wishes him the best. And we've been making efforts to resolve this. And as soon as -- for the court's information, as soon as there's appropriate documentation of his present circumstances, I don't believe that you'll be seeing Mr. Harvey at that trial, unless he's called as a witness by the defense. And -- THE COURT: All right. Well -- MR. HICKS: -- I have just one last comment. In reading the -- a report on what prevents access to medical marijuana to patients who need it in the state of Washington, the State of Washington, a few years ago, did a report. One of the most significant things was price, Your Honor. It was price. And what happens in a case like this -- they're selling marijuana for $,00 a pound. That's what they're selling it for. And then what happens is when you get down to breaking it down into other amounts, the price even goes higher per pound.

14 0 Unfortunately, Your Honor, this type of conduct doesn't further medical -- it doesn't help medical marijuana at all. It takes away from the patients who need it. And what this case is about -- the position of the government is, is that we are piercing -- going through and looking behind that medical recommendation and asking: Is this really medical marijuana, or is this a for sales operation which is hiding behind that? And in this case, we went to a grand jury; and there's probable cause to believe that that's exactly what's going on. It is looking behind it. And there's a suggestion that the government doesn't have the right to do that. Well, the law in the state of Washington is that you can look behind that medical marijuana recommendation. The State can look behind it, and they can determine: Are you following the state law? Medical marijuana is not a defense in the federal courtroom. What happens is: We've looked behind the documents that Ms. Harvey presented. We looked behind the documents. The State of Washington looked behind the documents. And as it was pointed out in the testimony that we presented to the court by the witness who testified, Loren Erdman, who took and seized all of that, the materials, it was the State that seized the firearms, it was the State that seized all the records, it was the State that initiated the search. And the reason he kept all of those things is because it was his belief, as a law

15 0 enforcement officer, that he had probable cause to believe that they were violating the state law; and he was keeping them for evidence, and they were going to prosecute the case. And now we're being told, under, that we can't even look behind that? We can't take it into consideration? And the last thing is the Cole Memorandums and all of the memorandums that are out there that talk about making a decision as to whether or not -- and it only applies to prosecution. We have to look at the facts of the case. And that's something that -- apparently, Mr. Telfeyan has a hard time that the federal government would actually look at the facts of the case in deciding whether or not to prosecute somebody. The State can do it, and we can do it too. Thank you, Your Honor. THE COURT: All right. Mr. Hicks, I have one question of you. MR. HICKS: Yes. THE COURT: Are there any Bruton issues in this case? MR. HICKS: There's no statements. THE COURT: All right. MR. HICKS: The only -- THE COURT: That's all I need to hear. MR. HICKS: Yeah. There's no statements. THE COURT: All right. Thank you. All right. Mr. Fischer, I want to hear from you next.

16 0 Mr. Fischer, there is an outstanding motion regarding counsel. And I don't want to get into the details of all that, but it's my understanding that your client does not presently have substitute counsel able to try the case on February rd. Is that correct or not? MR. FISCHER: Your Honor, if I might clarify, Mr. Harvey and I spoke this morning. He does not want substitution of counsel. He wants to keep me as his attorney. THE COURT: All right. MR. FISCHER: So that issue is off the table, Judge. THE COURT: All right. I'll deny that motion as moot. I'm going through the list of motions filed. You filed a motion to enjoin the prosecution, at ECF. The court's considered that completely. I'll give you -- this is your opportunity to tell me anything additional or highlight anything in these motions you want to. But otherwise, I've read all the material. MR. FISCHER: Understood, Judge. Your Honor, I have a housekeeping issue first. Mr. Harvey does suffer from stage pancreatic liver cancer. He's undergoing chemotherapy. He may need to use the restroom. And with leave of the court, I would ask the court to allow that during this hearing -- THE COURT: Since -- MR. FISCHER: -- if necessary.

17 0 THE COURT: Since these matters are of a legal nature, legal rulings, the court can allow him to momentarily be not present in the courtroom. Without asking for permission, you can leave the courtroom as necessary and return as necessary. Do you understand that? DEFENDANT HARVEY: Yes. Thank you. THE COURT: All right. MR. FISCHER: First, Your Honor, I want to make it clear that defendants, as you realize, more than not, sometimes -- many times -- often personalize a prosecution by a government, state or federal. This, I want to tell the court, is not my position, my client's position. He does not personalize this. I want to make it very clear that I and Mr. Harvey hold Mr. Earl Hicks in high esteem. I do. I do not believe this is a personal vendetta on his part. That's why this motion to enjoin is made against the Department of Justice -- not Mr. Ormsby's office; not Mr. Hicks, as an assistant United States attorney. It is made against the Department of Justice, who they operate under. So I just want to make that clear to everybody. Secondly, Your Honor, this motion is not unique to this court. The court may be aware of -- that this motion is circulating -- the motion that I presented to you -- is circulating across the United States. I had a lot of assistance in drafting this motion; and that assistance came from people in

18 0 California, law professors and whatnot. But -- and federal defenders in Santa Ana, California. So this motion is not unique to the court. But having said this, this motion is based purely on -- purely on spending allocation. It is not evidentiary based, as I explained in my motion. It has nothing to do with that. It has nothing to do with compliance. If the Congress, in passing this bill into an act signed by President Obama, wanted to put in the act itself thou shall not prosecute people who live in states who provide medical marijuana laws and are in compliance with those laws, Congress could have so stated. It did not. This merely, as I indicated, seeks to not allocate funds to the Department of Justice that are allocated in other parts of the act to the Department of Justice to prosecute people. This says: Thou shall not prosecute people in states with their own state laws. And Washington is enumerated among the 0 states therein, specifically stated in that act. That's the premise. And I don't want the court to get confused with evidence. Whatever evidence there is or is not in compliance with state law, that is for another court to decide; and that is my position, respectfully. What the Washington state law has -- and this is of another interest, and which I want to make clear to the court; and I didn't fully brief it in my brief. But if you have 0 states that currently have legal marijuana -- medical marijuana laws,

19 0 each of those states -- we can pretty much surmise that they're all different in one respect or another. Thus, is the federal government authorized under its power to look at each state law and to prosecute some individuals under some states but not prosecute other individuals in other states because of their medical marijuana laws? For example, Washington has an affirmative defense. I have enumerated several Washington cases saying that if you go above plants per person or plants per garden, then a person has, who is charged with a crime in the state of Washington, an affirmative defense to show medical necessity for growing over those plant sizes. Now, that's for Washington. This court I'm asking to enjoin because the money should not be allocated and is not allocated under those funds. So you not only have the non-allocation issue, you also have an underlying issue of equal protection under the laws of this country and of each state. In other words, depending on state law, if the federal government or the United States Department of Justice can prosecute some people in some states who have an affirmative defense or cannot prosecute people for being in compliance with that affirmative defense -- other states don't have that affirmative defense -- they just have to be in compliance with the laws -- then prosecution can be unequal among those 0 states. Does that make sense, Your Honor?

20 0 THE COURT: It does if you had a suspect class. Where's your suspect class? MR. FISCHER: Well, the suspect class is -- well, Mr. Harvey and these other individual defendants are members of the protected class within that group. The law states, and as the court is aware, none of the funds may be available in this act to the Department of Justice to prevent such states from implementing their own laws. And the implementation is the issue. Compliance is not the issue. So having stated that, Your Honor -- and as the court has indicated, it's read all the briefing -- it just seems illogical to make that other step when the federal government, under the United States Department of Justice, can look at each state law and decide on their own who and who is not in compliance with that state law and then prosecute them. THE COURT: All right. I understand your argument, and I've read the briefs. Are there any other motions that you would like to address that -- and your client is considered joined in all the other motions. But I didn't know if you had any oral statements to make as to any of those. MR. FISCHER: Understood, Your Honor. Depending on -- I have a -- I will have an oral motion. I prepared a brief and will ask the court to accept it. If this court denies the motion to enjoin this case so that -- it's currently set, as the court knows, February rd for trial. If

21 0 the court does not -- seeks to deny that motion, I would ask the court orally to stay further proceedings so that -- and I believe I made this aware to the court in my -- some of my filings -- that we would seek interlocutory appeal. So I'll reserve that, depending on the court's position. THE COURT: All right. MR. FISCHER: Thank you. THE COURT: All right. Thank you. Mr. Telfeyan, you appear to have the next majority of -- number of motions presently before the court. Are there any that you'd like to orally discuss? MR. TELFEYAN: Yes, Your Honor. Good morning. And may it please the court -- and a few housekeeping matters I'd like to start with. I will be respectful of the court's time and only address issues not already raised in the briefing. I would just like to note that the fact that I'm not responding to some of Mr. Hicks' comments that were in the briefing is not a waiver of any of his points. I'm just resting on the papers in terms of some of the responses that have already been briefed. I would also like to highlight that if Mr. Harvey is, in fact, dropped from the case, if the government dismisses charges, the other defendants have, of course, joined in his motion for an injunction and his motion for declaratory relief. So we would ask the court not hold those moot if he drops out of

22 0 the case because we are still seeking the same relief that he filed in his motion. THE COURT: That's understood by the court. MR. TELFEYAN: Thank you, Your Honor. I'll try to address each of the five motions that I filed very briefly and only on points that were not fully addressed in the briefing. The first one I'll discuss is the motion to dismiss. The briefing, in my opinion, in some sense, due to the shortened nature of the briefing on the motion to dismiss, lacks a certain clarity on all parts, including my own, Your Honor. I think the briefing fails to distinguish between each of the charges in the indictment. And Congress' appropriations act provision requires us to look at each charge individually. Can the Department of Justice spend money on each of the five charges? And I want to highlight for Your Honor at a minimum, Counts and have absolutely no justification to continue in this court. Most of the DOJ's briefing on the matter has focused on the distribution issue, which we concede will have a different analysis than Counts and. But Counts and, Your Honor, relate only to the manufacture of marijuana. Under the Cole Memo, which, of course, was in effect for a year and a half before the appropriations act restriction was put in place, the DOJ could not prosecute a simple manufacture

23 0 charge of five people growing plants. I would doubt that there would be any dispute from the Department of Justice that they could not, under the Cole Memo, bring a charge of a -plant manufacturer. What the budget act does is heighten the stakes. So the DOJ brought this prosecution in February of consistent with the Cole Memo because it believed that there was distribution and use of guns, and it can combine all of those counts together. With the budget act, it says on each count, money cannot be spent in furtherance of the prosecution. So with regard to manufacturing plants, that is a charge that the Department of Justice cannot spend money on. They may be able to spend money prosecuting some of the other charges, or -- actually, we've argued for different reasons that they can't. But at a minimum, the manufacturing charges, which are on Counts and, must be dismissed. The Department of Justice argues that our position is nonsensical -- that they must wait for a state court finding of guilt at least on Counts and. Your Honor, we would simply submit that this position is the only sensible way to enforce Section of the budget act. The DOJ seems to concede that if five individuals are clearly in compliance with state law -- let's say there are only three plants being grown -- they could not prosecute a manufacture charge in such a case. They seem to concede that clear compliance under state law bars a

24 0 prosecution. What we have in this case, according to the DOJ, is a gray area. It's ambiguous. We're not talking about,0 plants from another state, as they reference. We're talking about five individuals allegedly growing plants each. At minimum, such an allegation is in a gray area under the state law. The state law, as we've put before the court, authorizes any individual with a medical prescription to grow plants him or herself. It authorizes a collective garden to grow plants. The state law says absolutely nothing about whether five individuals can grow on the same property. It says absolutely nothing about whether two collective gardens can grow on the same property. There is, at minimum, ambiguity in the state law. We're not talking about a case with,0 plants. In a situation where there is ambiguity, it makes absolutely no sense, under Section, for DOJ to be in charge of deciding whether the state law has been violated. Exactly what the law was meant to do was to keep DOJ out of it. We've quoted in our brief statements from Representative Rohrabacher, Brown, and Blumenauer that say we don't want the federal government deciding how states enforce their laws. Those quotes are all before the court. For the DOJ to determine in these cases of ambiguity that a state violation is broken seems absurd to us, Your Honor. And respectfully, Your Honor, we think for a federal court to tell a state that five defendants who are

25 0 growing plants violates a state law is inappropriate, given what Congress has tried to enact in the budget act. So, Your Honor, in a case of ambiguity, which this absolutely must be, at worst -- and we believe in truth it's a case of perfect compliance -- the DOJ cannot make its own assumption about how state law would be interpreted by the state courts. It must wait for the state courts to say whether these individuals are in compliance or not in compliance. Mr. Hicks referenced on his discussion of the motion to dismiss the state officials asked the U.S. attorneys to get involved in this case. As I'm sure the court knows, we have absolutely no record of that. I'm not sure what Mr. Hicks is referring to. But even if it did occur, the law has changed substantially since that request was alleged to have been made. And at this point, the DOJ is barred from prosecuting, at minimum, Counts and, which only relate to manufacture. All of the DOJ's arguments about this being a drug trafficking scheme or a distribution do not apply to whether they can spend money on a simple manufacture charge, encompassed in Counts and. I'll move, Your Honor, to our second motion, which was the motion for reconsideration of the exclusion of medical marijuana evidence. And again, I think the only point I would add to the briefing is that the restriction on medical marijuana evidence now needs to be looked at count by count. The Department of

26 0 Justice's only opposition, as far as I can tell from the briefing before I joined the case, was that use of medical marijuana would encourage jury nullification on the manufacture counts. I can't see how the medical marijuana information could encourage jury nullification on any of the other counts because, in fact, the use of medical marijuana is a factual defense to all of the other counts. For example, the defendants are charged with distributing marijuana. And if they can prove to the jury that they actually never sold an ounce of marijuana because they had to use it for their medical purposes, that's not a nullification argument. That's a factual innocence argument. So although the briefing was before my time, my understanding is that the DOJ's only objection on the medical issue is that it would encourage nullification on the manufacture count. Being that the manufacture count, we argue, at minimum, must be dismissed, the Department of Justice's argument is entirely eviscerated on the medical marijuana issue. There is no possibility of jury nullification on any of the other counts. If the court does not dismiss the manufacture charges, the medical marijuana issue does become relevant even on the manufacture count because the jury is entitled to know whether the prosecution is legal. The law says that individuals cannot be prosecuted if they're in compliance with state law. We've submitted that they are in compliance or, at minimum, they're in

27 0 a gray area. So if the manufacture charges are dismissed, there's no nullification problem. If they are -- if they stand as part of the case, the medical issue becomes relevant for the jury's determination about whether the prosecution has met its burden set by the interaction between the CSA and Section. I will make two points on our motion to strike the Department of Justice's proposed expert witness; but first, a logistical point. We did not style that motion as a motion in limine, understanding this court's orders to have barred all motions in limine. But I hope the court understands it has the same effect. We tried to style it as a motion that would be accepted by the court. Our motion is a motion to strike. It's, in effect, a motion in limine to exclude expert testimony. I cited to the rule in my brief but didn't quote it, so I'll just quote it for the court here. Federal Rule of Evidence 0 reads that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of opinion. Of the -page brief that the DOJ submitted, the vast majority of the statements are based on training and experience -- exactly the qualifications that Federal Rule of Evidence 0 envisions for an expert witness. Training and experience are, in fact, specifically enumerated as expert testimony under Rule 0; and we've also provided the court with Ninth Circuit case law to that effect. The training and experience testimony is what we are

28 0 arguing should be excluded. I am very pleased to see the Department of Justice has effectively conceded that it will not offer any of the expert testimony that it has proffered. That's how I understood its oral statement. We do not object at all to the introduction of fact testimony from a fact witness, which would include what the witness saw during the investigation and would even include a conversion from pounds to ounces. That is not expert testimony, and it's not based on training and experience. That being -- sorry, Your Honor. THE COURT: Mr. Telfeyan, I have to interrupt you. Realizing that I inherited this case, where in the file does it order the government to turn over expert notice? MR. TELFEYAN: Your Honor, I have not seen that order. I presume -- THE COURT: Nor have I. I went through the whole file, and I couldn't find it. MR. TELFEYAN: Exactly. I presume it was either made orally or not made at all, Your Honor. Our motion is not based on any deadline for expert witnesses. It's simply based on the court's deadline for briefing. THE COURT: And therein lies the problem -- what you've just identified. What's the fact testimony, on the one hand? And where does it cross the line into expert testimony? And I am presuming, because you're saying -- your paperwork says this -- that if it goes into the expert testimony, you want

29 0 three months to prepare, to meet that expert testimony, because it was late disclosure. But some of what was proffered by the government seems to me to be argument, pure and unadulterated argument, that counsel could make during closing argument, but shouldn't be given the imprimatur of an expert telling the jury certain things. MR. TELFEYAN: Your Honor -- THE COURT: What's your read on that? MR. TELFEYAN: -- I completely agree with the court's position on that. So -- and that's quite helpful. There are three areas that I think are up for analysis at this point. One is direct fact testimony that the officer saw during the investigation, which of course he can testify to. The second is testimony only based on his training and experience. And the third is argument. We have no objection to counsel making argument in front of the jury. We don't think a fact witness should be added with the imprimatur of expertise by making those legal arguments. The -- and there seems to be no dispute, unless the Department of Justice disputes the line between fact and expert testimony in this case. Your Honor, just to clarify, the fact that there appears to have been no deadline for expert testimony does not affect our position because our arguments on prejudice apply equally, whether there was a deadline or not. We simply don't have enough time to find a rebuttal expert.

30 0 0 THE COURT: All right. I wanted that clarification. And then let's just take one of these as an example -- the fact that firearms were possessed, and the government says there's a nexus between drug trafficking and firearms, and expert testimony to say that there's this nexus. But you would agree with me that the witness can say we recovered these firearms, and here's where we recovered them, and whether or not they were loaded, or any condition that they were in; and you would agree that that witness -- lay opinion testimony or whatever you want to call it -- could say firearms are used to protect yourself. They can -- they can -- they can be used for that purpose. MR. TELFEYAN: Your Honor, that's actually where I draw the line, respectfully. THE COURT: You're saying that firearms can't be used to protect? MR. TELFEYAN: No, Your Honor. I'm not saying that firearms can't be used to protect oneself. But I think that's exactly the kind of point that an attorney must make in their argument before the jury. If it's a witness's opinion that firearms were used, then, in fact, it's kind of an obvious fact that the witness doesn't even need to state. The witness is called to present factual evidence for the jury that he found firearms, that they were or were not loaded, what rooms they were in, and et cetera. THE COURT: Well, and then the -- then the -- then it

31 0 goes on. Let me -- let me say -- then the third type of expert testimony or testimony elicited would be that others -- drug traffickers, the criminal element -- uses guns. But that's taking a broad generality and applying it to these defendants, and that's something for the jury to decide. So -- MR. TELFEYAN: Yes, Your Honor. And it's -- it's that third category which we believe is the most extreme that falls vulnerable to confrontation issues and propensity issues, as we briefed. So once the officer starts to testify that in his years of experience, he's seen that the common modus operandi of criminals is to carry guns or drive ATVs or wear blue jeans or whatever the testimony is, that's quite clearly expert testimony, because it can only be based on his training and experience. THE COURT: Well -- and then -- and then you want three months to find an expert that says -- what? MR. TELFEYAN: Your Honor, we would want three months to find, if such an expert exists, that, in fact -- THE COURT: That's what I'm asking. MR. TELFEYAN: -- in fact, the modus operandi of individuals who sell drugs is nothing like the facts that this expert witness has proffered, that individuals who sell drugs do not necessarily wear blue jeans, that they don't necessarily drive ATVs, that they don't necessarily carry firearms, or, alternatively, an expert to say individuals who carry firearms

32 0 actually are more likely to use them for many lawful purposes, such as hunting, such as protecting themselves; and usually they're not associated with drug trafficking. If such an expert exists, we would want to retain that expert to rebut the evidence put on by the prosecution. THE COURT: All right. I understand your argument. You can go back -- move on to the next motion. MR. TELFEYAN: Yes, Your Honor. I'll move on to briefly discuss the earliest motions filed which, now are a distant memory. Your Honor, we have before the court a motion for additional peremptory challenges, which I understand is entirely within the court's discretion. We have a very short brief on that subject. I will only add something that was not added to the brief on the need for additional peremptory challenges, given the multiple defendants in this case. The defendants, as Your Honor may be aware, differ wildly in terms of age, ethnicity, gender, and other factors, and may very well have different interests in ensuring a fair cross-section of the jury. As Your Honor knows, the defendants have been barred from communicating with each other about the case. So they have not collaborated on defense strategy. THE COURT: Do you want me to lift that bar? MR. TELFEYAN: Yes, Your Honor. We do. We've been in touch with the government about lifting that bar, and we have

33 0 not heard their position on the matter. MR. HICKS: Your Honor, can I interrupt for a second? THE COURT: Yes. MR. HICKS: There is not a total bar. That is inaccurate. THE COURT: No. I understand that. I've reviewed the record. The question now is, as we are mere days from trial, whether or not they can begin talking about the case, if they choose to talk about the case. MR. HICKS: They've never -- that's never been denied, as long as counsel was present. It's never been denied. So there's not a bar. THE COURT: All right. MR. HICKS: All right. THE COURT: That will be the court's ruling right there. MR. TELFEYAN: Respectfully, Your Honor, we would ask that -- because this is a family and they live together, especially because I'm based in Washington, D.C., that the bar not require the presence of counsel. THE COURT: All right. By telephone or otherwise. The problem you get into is -- and I've got to protect everybody's interests. But as soon as somebody says something in preparation for trial and then somebody flips and wants to plead guilty and cooperate and testify, then you've invaded the

34 0 defense camp; and then it's a whole other constitutional issue. If the counsel is present, then we won't -- we won't have that, I suspect. MR. TELFEYAN: Understood, Your Honor. I was merely bringing up the point to highlight the need for additional peremptory challenges. And the only point I would add is the different cross-sectional interests. THE COURT: Well, the court is going to grant peremptory challenges by the defense, in total. MR. TELFEYAN: Okay. THE COURT:. MR. TELFEYAN: Thank you, Your Honor. Turning to the next motion before the court -- I have, by the way, nothing to add on our written motion for oral voir dire. So the next motion I'll speak briefly on is our -- is, rather, the government's recently filed motion in limine. We received that on Tuesday, Your Honor. And, first, we'd ask at least until Tuesday to file our written response, obviously given the briefing in this case. It's been somewhat flurried just in the days leading up to trial. THE COURT: Well, tell me your thoughts on that, because it's rather uncontroversial, in the court's view, right now. And I don't want to put you to the expense of having to file another written brief next Tuesday. MR. TELFEYAN: I would --

35 0 THE COURT: You've read the brief. MR. TELFEYAN: I would appreciate that, Your Honor. I have read the brief, and I do have three points to make in response to it. The first is: To the extent -- which I only fully realized during counsel's comments today -- the extent to which the motion in limine directly attacks comments made by me as opposed to the defense as a whole, I have to, Your Honor, take personal offense to those allegations. I have been an officer of the Department of Justice for five years. My first job was as a law clerk to one of the most respected federal judges in the country. I've dedicated my career to public service, and I've dedicated my career to upholding the rule of law. I would never violate my oath to this court. I'm an officer of this court. And the furthest thing from my mind would be to violate any of these courts' orders. The insinuation that I would do so is, frankly, disrespectful. The quotes that the Department of Justice was relying on, which, of course, I feel no need to authenticate, because, as the court knows, they're double hearsay; and I have no idea of the accuracy of them. But to the extent that I believe -- that I would like the jury to hear the full facts of this case on the distribution charge, there's no question about that. I want the jury to know that none of these defendants ever sold or gave an ounce of marijuana to any human being on the face of this earth.

36 0 They are completely innocent of the distribution charge. The Department of Justice has argued that the jury should not see the full facts on the distribution charge. Your Honor, it is simply not jury nullification to argue to the jury that these defendants did not distribute marijuana. My second point on the jury nullification motion is the prosecution's limited understanding of jury nullification. I guess from a prosecutor's perspective, the term "jury nullification" can only mean a defense attorney sneakily trying to get the jury to acquit. From a defense attorney's perspective, Your Honor, I fear jury nullification for the opposite reason. As the court knows, juries can convict defendants who are innocent for reasons independent of the evidence. Nullification is any time a jury disregards the evidence -- what they've seen and heard in the court -- and decides to vote for a verdict inconsistent with that evidence. Because these defendants are completely innocent of all charges, I don't want jury nullification in this case. I want the jury to apply the evidence and find the defendants not guilty of every charge. I don't want the prosecution using improper methods to try to get the jury to vote guilty. So both parties are in agreement that the jury should base its conclusion on the evidence and what it sees and hears in court and not on any improper factors.

37 0 For the prosecution to argue that only the defense seeks jury nullification is also insulting, Your Honor. None of the defense attorneys, as far as I've seen in this entire record, have ever suggested that we want the jury to do anything but look at the facts and find these defendants not guilty because of what the evidence shows. The third point I'll make on the Department of Justice's motion in limine respects the gun charge. I've argued very briefly that the factual truth on the distribution charge would lead any reasonable jury to find these defendants not guilty, because any reasonable jury would know that even if the defendants had marijuana, they were using it for their own personal medical use. The same point would be made for the gun charge. It is not nullification for a jury to say these defendants probably used their guns for hunting, not for trafficking drugs. Similarly, it's not nullification for the jury to say these defendants were medical patients and wouldn't have needed guns to protect their medicine. That's not a nullification verdict. That's simply a verdict of factual innocence. The prosecution's insinuation that the defense would somehow violate their obligation to this court has no basis. If the defendant ever does anything improper, the prosecution has the same recourse that we, as defense attorneys, have -- to make an objection in court and ask the -- ask Your Honor to restrict

38 0 the question -- the improper question. But, Your Honor, on all of these issues, I, for one, can say I'm preparing to make sure that I do not ask improper questions. I hope the prosecution is doing the same. But I will make the same objection if I believe the prosecution is trying to get the jury to vote in -- to vote guilty, contra -- inconsistent with the facts. THE COURT: Well, you keep saying "inconsistent with the facts." My understanding of jury nullification is inconsistent with the law. Nullify a law. Nullify a federal law in favor of a state law. MR. TELFEYAN: So -- THE COURT: That was the crux of the government's motion. MR. TELFEYAN: Let me just put it this way, Your Honor, at least speaking for myself. The defense in this case intends to ask the jury to vote not guilty only because the facts prove these defendants not guilty. So -- THE COURT: And that's what the court will expect of you and not to argue any other matter that the court has previously excluded -- for instance, the medical marijuana laws in the state of Washington -- because if we are in trial, those will not be relevant -- MR. TELFEYAN: Exactly, Your Honor. THE COURT: -- to the trial. MR. TELFEYAN: And we have not -- even in the motion