Sunday, May 09, 2010

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

The Oregon FPD earns an important victory this week in a great case illustrating the interplay of Brady and the Sixth Amendment right to present a defense. United States v. Stever,__ F.3d __, No. 09-30004, 2010 WL 1757926 (9th Cir. May 4, 2010), decision available here.

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 from

Image of the Hon. Marsha Berzon from

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


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Anonymous grow marijuana indoors said...

I hope that you will understand the side of the marijuana growers. Seeing how they fight for making marijuana legal. Thanks.

Monday, May 10, 2010 4:03:00 AM  
Anonymous Anonymous said...

fascinating case. We live in Madera County, California and it is well known, that cartel related activities, have brought the pot farms to rural farm and ranch land. Sometimes, it is on Forestry land. They have been known to "pipe" in water from creeks and watershed, for distances up to 1 mile. It is laughable, that the prosecution was arguing a case based on "conspiracy" with the growers. Around here, the growers gain knowledge of the surrounding areas for potential growing, via ranching work that gives the access to the property. Ranch work such as brushing (cutting and removing timber, brush, etc.), cutting or brushing firebreaks, etc. The defense needs to cite the work of the Madera County Drug Enforcement Team. Ranchers around here are hard working people, and wouldn't stand for this railroading for one short minute.

Wednesday, May 19, 2010 12:30:00 PM  

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