May 24, 2019

Archives for November 19, 2012

Spark the Discussion: Amendment 64: The Ripples Here at Home

Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Joshua Kappel, Esq.

On Election Day, the voters of Colorado made history with the passage of Amendment 64—the Regulate Marijuana Like Alcohol Act of 2012.

Amendment 64, which received 55% of the vote, legalizes marijuana under Colorado law for adults over the age of 21. Specifically, it removes all civil and criminal penalties under Colorado law for the limited possession, use, and cultivation of marijuana by adults over the age of 21. This measure also requires the Colorado Department of Revenue to create a regulatory system for the production and distribution of marijuana in a manner similar to alcohol.

The passage of Amendment 64 made waves across the world and made headlines from England to India.  Just this week, a handful of Latin America leaders called for a review of international drug policy in light of these measurers passing.  Politically, the 10 point passage of Amendment 64 has prompted other states to consider similar measures, and has even spurred bi-partisan action by Colorado’s congressional delegation to exempt states’ marijuana laws from the federal Controlled Substance Act.

This historic victory also made waves here in Colorado.  Colorado Governor Hickenlooper’s responded with his now infamous comments, telling voters not to “break out the Cheetos” yet because marijuana remains illegal federally.  The Governor’s comments hinted at a lack of interest in fighting on behalf of Colorado voters and led many to wonder what, if any, effect Amendment 64 will have here at home.

The state vs. federal nature of this law change will continue to be of great interest to both legal scholars and voters.  A full analysis of this issue will be saved for another post, but to be clear, the federal government cannot force our state to criminalize anyone – including those who use or produce marijuana.

The removal of criminal penalties for adults using, possessing and cultivating marijuana goes into effect once the election is certified (probably sometime around January 6th), although retail stores won’t be able to open until late 2013 or early 2014.

We still have time before the measure goes into effect, but already, Amendment 64 is making ripples in our communities. This week both the Boulder District Attorney and the Denver District Attorney announced they will dismiss all marijuana charges related to actions that would have been protected by Amendment 64.  In the interest of justice, we hope more District Attorneys follow suit. According to long standing Colorado law, a change in a criminal law that reduces a sentence or eliminates the violation all together should apply retroactively in the interest of justice to all convictions not yet final. C.R.S. § 18-1-410(1)(f); Colo. Crim. P. Rule 35; People v. Thomas, 185 Colo. 395 (1974).  Even if a stubborn district attorney was lucky enough to convict an adult for possessing marijuana now, the case should be dismissed by the trial judge or on appeal once Amendment 64 goes into effect.

Although Amendment 64 is not yet in effect, for the adults currently caught in the system for marijuana offenses, the ripples of last Tuesday are already being felt.

Joshua Kappel, Esq. is the Associate Director of Sensible Colorado, the leading state-wide non-profit working to educate the public about sensible marijuana policy. Mr. Kappel is also the senior associate at Vicente Sederberg, the first nation-wide medical marijuana law firm.The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Reasonable Suspicion to Stop Person Requires Only a Minimal Level of Objective Justification

The Tenth Circuit issued its opinion in United States v. Guardado on Thursday, November 15, 2012.

Brian Luis Guardado, the defendant, entered a conditional plea of guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He reserved the right to appeal the district court’s denial of his motion to suppress evidence found during a Terry stop-and frisk. Guardado’s arrest came about while two members of Salt Lake City’s Metro Gang Task Force were patrolling an area late at night because of an ongoing graffiti feud between rival gangs, as well as other crimes. Guardado argued the police lacked reasonable suspicion to stop him.

The Tenth Circuit viewed the totality of the circumstances of the stop to determine that the officers had reasonable suspicion to stop Guardado. Guardado was with three other men at 1 a.m. in a high crime area where foot traffic was sparse at night. One of the men had a backpack (typically used to carry graffiti materials) and two of the others, including Guardado, had brown clothing, the color a specific gang wore. When Detective Burton pulled up near the men, one yelled “cops” and Guardado ran. Detective Burton chased him while yelling that he was police and ordering the defendant to stop. While he was running, “Guardado’s hand was in front of his body, which Detective Burton noted was ‘uncommon in a full pursuit as you’re running.’ Detective Burton believed Mr. Guardado was possibly trying to conceal some type of evidence or weapon, or retrieve a weapon.” Detective Clark tackled Guardado, who ignored orders to give the police his left hand, which he kept under his body. After the officers handcuffed him, they frisked him and found a gun in the front of his pants. The court found Guardado’s flight from the officer to be the most important factor in giving rise to reasonable suspicion that criminal activity was afoot.

Tenth Circuit: ALJ’s Credibility Determinations Deserve Great Weight

The Tenth Circuit issued its opinion in Cordero Mining LLC v. Secretary of Labor on Thursday, November 15, 2012.

Cindy Clapp was a long time employee at a coal mine operated by Cordero Mining. She was terminated after making several complaints about safety issues. The Secretary of Labor filed a complaint of discrimination on her behalf, alleging Cordero violated § 105(c) of the Federal Mine Safety and Health Act of 1977 (the Act). An ALJ found Cordero had violated the Act and ordered Clapp be reinstated with back pay and imposed a civil penalty of $40,000. As the Federal Mine Safety and Health Review Commission denied review, Cordero petitioned for review of the final decision.

The Tenth Circuit held the ALJ’s findings were supported by substantial evidence. Clapp had established a prima facie case of discrimination by 1) showing she engaged in the protected activity of raising safety concerns and 2) that she was terminated for that activity, not for insubordination. The ALJ’s credibility determinations deserved great weight.

The court also rejected Cordero’s challenge to the back pay award as Cordero failed to meet its burden of establishing Clapp “did not exercise reasonable diligence” in finding new employment and thereby mitigating her damages. Finally, the court found substantial evidence supported the ALJ’s civil penalty, including the chilling effect Clapp’s termination would have on other miners.

Tenth Circuit: Obstruction of Justice Conviction Affirmed

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ahrensfield on Wednesday, November 14, 2012.

The defendant, Brad Ahrensfield, was a former Albuquerque police officer who was convicted of obstructing justice in violation of 18 U.S.C. § 1512(c)(2). Ahrensfield’s teenage son worked for Car Shop, a business owned by Shawn Bryan. Car Shop and Bryan were the targets of an investigation by the FBI and Albuquerque police, following information from a confidential informant that Car Shop employees purchased stolen merchandise and sold drugs and that Bryan was the leader. An officer who was friends with Ahrensfield told him about the investigation because he was concerned about the son’s safety. Ahrensfield then told Bryan his shop was the target of an investigation and he was the suspected ringleader. Bryan then contacted the Albuquerque sheriff and police department commander to ask why he was under investigation and told them the defendant had told him about it. The investigation was dropped at that point.

The defendant was charged with obstruction of justice and making false statements to the FBI. During his first trial, he was acquitted of making false statements but the jury did not reach a verdict on obstruction of justice. Before the second trial, Ahrensfield argued the Double Jeopardy Clause precluded the government from introducing any evidence regarding the false statements because he had been acquitted of that charge by the jury in the first trial. The district court denied his motion. The Tenth Circuit upheld the admission of testimony regarding his false statements because the evidence was admitted as proof of his guilty knowledge, not because it was a required element of the offense of obstruction of justice. “Where the government is not required to prove the offered evidence relating to the prior acquittal beyond a reasonable doubt, ‘the collateral-estoppel component of the Double Jeopardy Clause is inapposite.’”

The defendant filed a motion to dismiss during his second trial based on alleged Brady violations. During that trial, the government impeached Bryan through transcripts of an interview he gave the FBI after the first trial. Defense counsel said he had not been given the transcript or a copy of the recording and did not know Bryan had been interviewed after the first trial. The court gave him time to review the transcript and he extensively cross-examined Bryan. The next day, the government produced a transcript of a call between Bryan and the FBI. The district court denied his renewed motion to dismiss and instead allowed him to recall the FBI agent for further cross-examination as part of the government’s case. He did so and effectively cross-examined the FBI agent using the transcript. After the jury convicted the defendant, the defense discovered it had not received a laboratory report of analysis of the drugs purchased by the confidential informant from a Car Shop mechanic.

The Tenth Circuit found that while the transcripts were suppressed by the government and were favorable to the defendant, they were not material. The lab report was neither favorable nor material, so the court found no Brady violation.

The court affirmed the conviction as there was a nexus between the defendant’s conduct and interference with the official proceeding.

Tenth Circuit: Unpublished Opinions, 11/15/12

On Thursday, November 15, 2012, the Tenth Circuit Court of Appeals issued four published opinions and three unpublished opinions.

Turner v. United States

Mohamed v. Holder

United States v. Castillo

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.