Federal Judiciary

Case o' The Week: Ninth Takes Pot-Shot at Marijuana Conviction -- Stever, Brady, and Sixth Amendment Right to Present a Defense

Players: Big win by D. Or. AFPDs Bryan Lessley and Tonia Moro.

Facts: Officers discovered a 7,000-plant marijuana grow on rural property on which Stever lived. Id. at *1. Some of the plants were found on adjoining Forest Service land, along with gear to support the grow. Id. Two Hispanic men fled when the officers arrived, leaving behind guns, a phone, an alien ID card, and a wallet that had Stever?s business card and Stever?s mother?s cell number. Id. Stever told the police that he had hired one of the fleeing aliens to work on a generator. Id.

Before trial, Stever moved for discovery on Mexican drug trafficking organizations (DTOs) growing marijuana in Eastern Oregon. Id. The government refused, and the district court refused to compel disclosure. Id. at *2. Moreover, the court prohibited the defense from arguing that it was actually a Mexican DTO that was (solely) responsible. Id. Stever was convicted.

Issue(s): ?Stever sought to defend on the ground that the marijuana growing operation found on an isolated corner of his mother?s 400-acre property was the work of one of the Mexican drug trafficking organizations . . . that had recently infiltrated Oregon. He was prevented from doing so by two district court rulings, the first denying him discovery related to the operations of DTOs and the second declaring that defense off-limits. We consider whether these rulings violated Rule 16 of the Federal Rules of Criminal Procedure, Stever?s rights under Brady v. Maryland, . . . and Stever?s Sixth Amendment right to make a defense.? Id. at *1.

Held: 1.Discovery: ?The district court?s conclusion was illogical. Evidence is relevant if it has ?any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.? FED. R. EVID. 401 (emphasis added). The requested evidence, if it existed, tended to show that a Mexican DTO planted the marijuana. It also tended to make it more probable that Stever was not involved, as there would then be an alternative explanation for the grow that would not entail the consent, much less the participation, of any of the Stevers.? Id. at *4.

2. Sixth Amendment / Right to Present a Defense: ?Having denied Stever the opportunity to explore this discovery avenue, the district court declared a range of defense theories off-limits, without considering in any detail the available evidence it was excluding. [I]ts reason for doing so?that any such evidence was necessarily irrelevant?was deeply flawed. Stever was not only prevented from putting on evidence important to his defense . . . ; he was prevented from making his defense at all. We must conclude that Stever?s Sixth Amendment rights were violated.? Id. at *7

Of Note: One of many notable aspects of Judge Berzon?s excellent opinion is her systematic rebuttal of the government?s discovery arguments. For example, she rejects the government?s whine that evidence of the Mexican DTOs may have simply meant that Stever conspired with the Hispanic men. Id. at *4. That conclusion is ?certainly possible,? she concedes, but ?Stever correctly argues that his guilt is less likely with Mexican DTO involvement than without it . . . . ? Id. at *4. That?s great language ? Brady doesn?t only apply to evidence capable of one, exonerating interpretation. If evidence is material and makes guilt less likely, that?s enough to trigger Brady.

How to Use: Constitutionalize! That mantra, drilled into us by our instructors in training seminars, is borne out in Stever. Judge Berzon observes that the case would have simply been remanded if this was just discovery error, but the combination of Brady error and the restraints on the Sixth Amendment right to present a defense meant the conviction is reversed. Stever is a textbook example of how to preserve and constitutionalize trial objections to win on appeal.

For Further Reading: Stever was right: pot is now a common sight, nestled among the desert sagebrush. (photo above right). See, ?Remote Oregon Counties Gearing Up for Another Busy Pot-Growing Season?, article available here.

Image of marijuana among Oregon sagebrush fromhttp://media.oregonlive.com/news_impact/photo/potplantsjpeg-896953f1c878b685.jpeg

Image of the Hon. Marsha Berzon from http://blog.law.uark.edu/wp-content/uploads/2007/08/judge_marsha_berzon.jpg

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org

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Full post as published by Ninth Circuit Blog on May 09, 2010 (boomark / email).