Bill of Rights. (From the public domain.)

Recently, I won a marijuana possession case in federal magistrate’s court. I won the case not through pulling any rabbits out of the hat, but by using procedural rules and procedural strategy to my advantage. 

My client was issued a citation for possessing a small amount of marijuana in a national park. The cop issued him a citation that looks similar to a speeding ticket, and left. The citation provided the alternative to pay the ticket rather than needing to defend in court. The upside of paying the ticket was eliminating the risk of incarceration and the need to pay a lawyer. The downside is that the payment of the fine can be considered a conviction for allegations of violating existing probation for an earlier case, and when the defendant applies for a security clearance, applies for a job, has a bond set for any future arrests, and gets sentenced for any future conviction.

Here are some arguments I made to try to win the case. I welcome your thoughts, particularly the thoughts of colleagues who have defended cases in federal magistrate’s court:

My client was charged under the Interior Department’s regulation against possessing controlled substances on national park property; the maximum possible incarceration time for such a charge is six months. For my motion to suppress, I argued, unsuccessfully, that the park rangers had no authority to seize, search, nor arrest my client. I wrote:

"The discovery indicates that exclusively park rangers were involved in the investigation, interrogation, search and arrest of Defendant. However, for the following grounds, the rangers were without lawful authority and jurisdiction to do so:

"16 USCS § 1a-6(b) provides, inter alia: ‘In addition to any other authority conferred by law, the Secretary of the Interior is authorized to designate, pursuant to standards prescribed in regulations by the Secretary, certain officers or employees of the Department of the Interior who shall maintain law and order and protect persons and property within areas of the National Park System.’ 16 USCS § 1a-6(b) (emphasis added).

"However, a careful search of the Code of Federal Regulations and the United States Code finds no authority conferred by the Secretary of the Interior nor statute to park rangers to ‘maintain law and order” in the National Park System. First, a Lexis search for the term “ranger” within the statutory language in the United States Code only finds [the following omitted] results that do not convey authority on rangers to ‘maintain law and order.’

"Second,  a Lexis search  for the terms r’anger’ and ‘Interior’ within the Interior Department’s regulations at Title 36 of the Code of Federal Regulations only reveals the following [omitted] Interior-related regulations (omitting those results for the Agriculture Department), and none of the resulting regulations convey authority on rangers to ‘maintain law and order.’"

For my motion to dismiss the prosecution, I unsuccessfully argued that the Interior Department’s criminal rule against controlled substances was unconstitutional:

"The Interior Department’s regulation under which Defendant is being prosecuted represents an instance where Congress ‘delegated excessive legislative power’ and ‘upset the constitutionally mandated balance of powers among the coordinate Branches.’ Mistretta v. United States, 488 U.S. 361, 413 (1989).

"The statute that delegates the Interior Secretary the authority to establish the regulation applicable to Defendant’s criminal prosecution is overly vague and overbroad:

"The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service, and any violation of any of the rules and regulations authorized by this Act shall be punished by a fine of not more than $ 500 or imprisonment for not exceeding six months, or both, and be adjudged to pay all costs of the proceedings.

"16 U.S.C. § 3 (emphasis added). Consequently, with the foregoing statute, Congress ‘delegated excessive legislative power’ and ‘upset the constitutionally mandated balance of powers among the coordinate Branches.’ Mistretta v. United States, 488 U.S. 361, 413 (1989). Consequently, the ongoing prosecution of Defendant is unconstitutional."

At the conclusion of motions arguments, the prosecutor moved to reschedule the trial to another day, in order to bring the drug chemist to court from 150 minutes away. I argued the prejudice of rescheduling, seeing how my client already was missing work to be at trial, and seeing that my client’s costs increase each time he and I take the hours-long trip to this court. The judge denied the prosecutor’s motion, and I wonder how much that this had to do with the long distance needed for me and my client to drive back to court.

Curiously, the prosecutor decided to proceed to trial even without the chemist. However, the chemist’s absence did not automatically guarantee a victory. For instance, if the judge believed that the defendant admitted that the suspected marijuana was actual marijuana, such an admission only needed slight corroboration for the judge to have been able to use the admission against him. The possible corroboration came in the form of the cop’s testifying, over my objection, that some seized items smelled either like marijuana (which can reek when burnt ) and unburnt marijuana (which is very difficult to identify in small amounts).

Fortunately, the prosecutor was unable to present any damaging corroborated admission from my client, and we won, which is the outcome I wish for all marijuana defendants. I still look forward to the day when marijuana is fully legalized. Jon Katz