Wednesday, May 5, 2010
Ninth Circuit Throws Out Conviction in Marijuana Conspiracy
Panel Says Defendant Was Wrongly Barred From Blaming Mexican Gangs for Plants Found on Family’s Land
By KENNETH OFGANG, Staff Writer
An Oregon man, convicted of conspiracy after thousands of marijuana plants were found on his family’s property, was improperly denied discovery, and the right to present a defense, with respect to his claims that Mexican drug gangs grew and harvested the crop without his knowledge, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Rulings by U.S. District Judge Owen M. Panner of the District of Oregon violated Rule 16 of the Federal Rules of Criminal Procedure, dealing with discovery, and Andrew Stever’s Sixth Amendment right to defend himself, Judge Marsha S. Berzon wrote for the court. Because the constitutional error was not harmless beyond a reasonable doubt, the judge said, Stever is entitled to a new trial.
Stever was arrested after a search of the 400-acre Lakeview, Ore., property, pursuant to a warrant, resulted in discovery of the marijuana plants. It was the largest find of its kind in Lake County history, a law enforcement official told a reporter.
The officers also found several items apparently left behind by men who fled upon seeing them. One of the items was a cell phone containing numbers that Stevers had frequently called, and another was a wallet containing a resident alien ID card, a business card for Stever, and a cell phone number that turned out to belong to Stever’s mother, who lived with him on the property.
The ID card belonged to Alfredo Jesus Beltran-Pulido. Stevers told police he hired Pulido and several others to work on a generator and repair fences; prosecutors also presented evidence that the two men socialized and that Pulido was briefly involved in a romance with one of Stever’s friends.
Stever, who lived about a mile from the area where the plants were found, denied having been in that area. Indicted three months after the raid, he moved to discover any reports the government had concerning the “characteristics, modus operandi, and other information regarding” Mexican drug trafficking organizations involved in growing marijuana. In support of the motion, defense consel noted that the U.S. Attorney’s Office for the District of Oregon was then prosecuting a number of factually similar marijuana cases involving such organizations.
Denying the motion, Panner said “[t]he issue is not necessarily who planted the marijuana, but whether or not the defendant is guilty as charged.” The judge did grant a motion in limine barring the government from arguing that Stever was involved with Mexican drug gangs, but also said Stever could not present evidence about Mexican drug gangs or “whoever else was involved.”
Stever was convicted of one count of conspiracy and one count of manufacture of marijuana and sentenced to 10 years in prison, the mandatory minimum for conspiring to manufacture more than 1,000 plants.
But Berzon, writing for the Ninth Circuit, said the evidence Stever attempted to gain through discovery, and that which his counsel was barred from presenting, regarding Mexican drug traffickers active in Eastern Oregon might have created a reasonable doubt as to his guilt.
That evidence, Berzon noted, might have included expert testimony that Mexican drug gangs operated in the area without the cooperation of local landowners. And evidence of such operations would have been highly reliable and might have strongly influenced the jury if it came from the government itself, Berzon wrote.
“Precluded from pointing to any alternative explanation for the operation on his mother’s property, Stever was confined to poking holes in the Government’s case and, as his lawyer argued to no avail in closing, holding the prosecution to its burden of proof,” the judge wrote. “Stever was, quite literally, prevented from making his defense.”
The district judge’s conclusion that the evidence would necessarily have been irrelevant, Berzon went on to say, “was deeply flawed.”
The opinion was joined by Senior Judges Jerome Farris and Dorothy W. Nelson.
The case is United States v. Stever, 09-30004.
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