Saturday, November 13, 2010

Case o' The Week: Detrimental, reliance - Schafer and Equitable Estoppel

What will repeated assurances by two California law enforcement officers that your grow is legal, get you? Federal charges and five years in a federal prison. United States v. Schafer, 2010 WL 4400052 (9th Cir. Nov. 8, 2010), opinion available here.

Players: Hard-fought case argued by our ND Cal CJA comrade Barry Morris. Decision by Judge Tallman.

Facts: Marion Fry was a medical doctor diagnosed with breast cancer in ‘97. Id. at *1. She and her husband, attorney Dale Schafer, grew marijuana to help alleviate the side effects of her chemotherapy. Id. The pair informed the local sheriff, and a detective and sergeant visited their residence and inspected their marijuana plants. Id. In ‘99, the marijuana grow, grew - and the two cops continued to visit and tolerate it. Id.

In 2000 DEA started investigating, in ‘01 the feds searched the business and home, and by ‘05 the couple were charged federally with a count of conspiracy to grow and manufacture marijuana, and a count of manufacturing at least 100 plants. Id. at *2.

The defense theory was entrapment by estoppel, alleging that the detective and sheriff were affiliated with the feds, and had blessed the grow as legal. Id. That theory was asserted as a pretrial motion to dismiss, was intended to be a defense at trial, and was argued in mitigation at sentencing. Id. at *2-*3. The district court rejected the theory at each turn. The court also refused to hold an evidentiary hearing on whether the two state law enforcement officers were acting as feds and had “said Appellants’ conduct was legal.” Id. at *2.

Each defendant got five years after conviction. Id. at *3.

Issue(s): (Among others): “Appellants’ first challenge focuses on the district court’s denial of their request for an evidentiary hearing on the motion to dismiss. They argue that they were entitled to an evidentiary hearing because the filings submitted in support of and in opposition to the motion to dismiss presented significant factual disputes.” Id. at *3.

Held: “[T]he questions raised by Appellants’ motion to dismiss establish the viability of Appellants’ defense; the factual disputes were not segregable from the issue that was to be decided at trial – Appellants’ guilt. Pursuant to [Federal Rule of Criminal Procedure] 12, the district court could not resolve these disputes before trial, and therefore it did not abuse its discretion when it denied Appellants’ request for an evidentiary hearing.” Id. at *4.

Of Note: In rejecting the motion to dismiss, Judge Tallman explains that “the district court was precluded from holding that Appellants were entitled to an entrapment by estoppel defense as a matter of law until the jury resolved the truth of the factual dispute.” Id. at *5 (emphasis added). He then immediately concludes that the jury shouldn’t hear this issue, and that the district court properly excluded the entrapment by estoppel defense as a matter of law. Id. at *5. (Tricky business, that: tough for a jury to resolve a factual question it never hears . . . .)

’s discussion on the right to an evidentiary hearing is a troubling limitation on a district court’s ability to hear pretrial motions, and relies heavily on United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452-53 (9th Cir. 1986). Shortt – and now Schafer – perpetuate a tough reality when defending drug cases: to assert a defense of entrapment, a defendant has to run the huge risks of taking a case to trial and can’t rely on a pretrial motion to dismiss. Because of the federal system’s steep mandatory-minimum sentences, in most cases this principal effectively insulates agents from judicial review of entrapment by estoppel or sentencing entrapment.

How to Use: There’s little that’s good in Schafer, but there are lessons on things to avoid. One such pitfall is briefing that doesn’t present facts in sworn declarations. Schafer at *4 & n.3. Although Eastern District of California rules require it, the defense moving papers in Schafer did not have supporting declarations. Id. Judge Tallman warns, “The district court would have been well within its rights to reject the request for an evidentiary hearing on this ground alone.” Id. Because the appellate challenge was denied anyway, the panel “overlook[ed] the procedural defect in the case . . . .” Id. “Trial counsel, however, would be well advised to follow the rules.” Id.

For Further Reading: However you felt about the merits of the measure California’s Prop 19 would have sharpened the divide evident in Schafer, between the state’s tolerance of marijuana and the feds’ prosecution of the drug. For an interesting article dissecting the proposition’s defeat, and discussing plans to it to the 2012 ballot, see SF Chronicle article here.

Cartoon from

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


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