A dude in Colorado starts selling weed in accordance with Colorado State law. This dude goes on to be arrested in accordance with Federal Law and this goes to Federal Court. The 10th District says “the dude was selling in accordance with State Law, looks like Federal Law doesn’t apply… the dude is innocent.” Wouldn’t kicking this to the Supreme Court violate the whole double-jeopardy thing? Please! Enlighten me!
Jaybird
Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com
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Nah, double jeopardy doesn’t apply to appeals. It only applies to separate trials at the same level.Report
It seems vaguely improper that prosecutors can appeal in the same way that the defense can, for some reason.Report
It would potentially lead to some really crazy patchwork laws if they couldn’t. With Washington and Colorado in different circuits, you could potentially have one of them say state law controls, and one of them say federal law controls, but with no ability for the Supreme Court to make sure the legal system is uniform across both districts.Report
And even with the current system, there is no requirement the Supremes step in and rationalize the two. It’s theoretically possible, for instance, for the ruling that struck down California’s (anti-SSM) Prop. 8 to stand but apply only within the circuit.Report
Possibly but really, really unlikely.Report
Though that ruling is specifically structured so that even if it’s held to apply nationwide, it still only has an effect on California.Report
Well, if conviction is based on “guilty beyond a reasonable doubt”, appeals by the prosecution on the basis of the facts around guilty v. not guilty seem clearly inappropriate, since one court already doubted his guilt, which means reasonable doubt must exist.
An appeal based on questions about what the law actually says – not “did he take this action?”, but “is this action illegal?” – may be different though.Report
Ryan is correct. No double jeopardy implicated by an appeal.
What’s more, Tenth Circuit seems substantively wrong unless I’m mistaken on the nature of the charges brought. Just because Δ has not violated Colorado law does not exonerate Δ from violating (at least some) Federal law. See the doctrine of dual sovereignty.Report
Oh, bummer.
Well, surely there is at least one conclusion they can reach that would be right and proper on its own merits that will get kicked up to the SCotUS… right?
Or are there none?Report
IANAL but I’m pretty sure Raich controls here, right?Report
Ayup. Jaybird’s hypothetical is very close to being on all four corners with Raich.Report
Because, starting Thursday (or is it Friday?), we hit the point where the Colorado Constitution is changed.
Soon thereafter, someone will sell something to someone.
Soon thereafter that, someone will get busted.
At which point it goes to the Feds and, quite honestly, I see the 9th finding for Warshington and the 10th finding for Colorado… and then I wonder “what next?”Report
There are no hard issues in the case you’re positing. An action can be legal under state law and illegal under federal law at the same time, or vice-versa. No federal district court in the country would acquit someone of a federal charge based on the fact that the conduct is not illegal under state law.Report
So the general consensus is that this makes it to the 9th/10th and the Federal District court will find for the Feds? Any appeal to the Supreme Court will be on behalf of the convicted, rather than the gummint?Report
I can’t even imagine what a potential issue could be for review by the Supreme Court in a federal distribution conviction. The only way I could see these things getting to the Court would be if the federal government sued the states to stop a tax/regulate scheme (or the state preemptively sued the feds over that same issue). And even then, probably not a hard case; Supremacy Clause means the feds win.Report
There are things that feel different, though.
State Constitutional Amendment rather than Medicinal MJ law.
The Feds initiating the case rather than Angel Raich initiating.
Public opinion seems to have shifted.
There were a number of justices sympathetic to Angel Raich (well, who wouldn’t be?) who regretted deciding the way they did back in 2005 (I know that Stephens came out and said that he was sorry and Scalia has received no end of crap from supporters on his decision).
It *FEELS* different.Report
California’s MMJ law is also a state constitutional amendment.
Dude, they found against a cancer patient, but they’re going to feel bad finding against some guy who wants to listen to Pink Floyd on his headphones?Report
Engaging in Hippie Punching is one thing.
Punching an entrepreneur?
I mean, I’ve no doubt that the Supreme Court will find in favor of the Feds. Don’t think that I’m thinking that we’ll end up overturning Wickard or anything.
But I am thinking that the district courts will find *SOMETHING* that will allow them to find for the States. The 9th is the 9th, after all. Maybe the 10th has some resentment it’s been waiting to let out as well.Report
Honestly, I totally get it that there are people who are more sympathetic to entrepreneurs than to to cancer victims.Report
I think you’ve got it backwards — we’re much more likely to see a backtrack by SCOTUS than a district court thumbing its nose at the higher courts on what is frankly, under current law and precedent, a total non-question.Report
So it sounds like my hope rests in the 9th, rather than the 10th.Report
Honestly, I totally get it that there are people who are more sympathetic to entrepreneurs than to to cancer victims.
Of course. The entrepreneurs are making a contribution to society, growing wealth and fulfilling needs by selling chemicals to others. Cancer victims are just leeches asking the rest of us to pay for their chemicals and radioisotopes.Report
OMG I KNEW IT LIBERTARIANS THINK CANCER PATIENTS ARE A CANCER ON SOCIETY, THERE WERE NO WINKY EMOTICONS OR ANYTHINGReport
You left out “creating jobs.”Report
Gonzales v. Raich, 545 U.S. 1 (2005)>.Report
That case began with a lawsuit by Angel Raich against John Ashcroft, though.
She wasn’t busted, she out and out *SUED* the AG.
Does the Feds arresting someone change any dynamics at all?Report
I’d say no.
http://en.wikipedia.org/wiki/Ed_Rosenthal#Legal_battlesReport
He was convicted, and some of the jurors denounced their own verdict after they learned Rosenthal was acting as an agent of the City of Oakland, a fact that had been withheld from them during the trial.
What is meant by “the truth, the whole truth, and nothing but the truth” if Rosenthal was not allowed to say “I was acting as an agent of the City of Oakland”?
How is this not the judge and prosecutor colluding to withhold exculpatory evidence from the jury???
But I say that every year…Report
How is this not the judge and prosecutor colluding to withhold exculpatory evidence from the jury???
IANAL and this is pure speculation on my part. In fact, I’m posting it mostly so a real lawyer will get disgusted and say “You’re an idiot, here’s the real reason.” My guess is that while you and I might think it’s exculpatory that somebody’s acting as an agent of a duly constituted city government, fulfilling a humanitarian purpose that the citizens of the state (and quite likely many members of the jury) explicitly approved, to the court it was just a red herring that would distract from the application of the letter of the law. It’s like if he were accused of embezzling, it would be irrelevant that all the money went to charity.Report
Oh, sure, there’s some paperwork differences down at the nuts-and-bolts level. But for our purposes here, there’s effectively no difference: it’s a legal question for the court to deal with.
(“Deal with.” Not necessarily “answer,” since there are a variety of means by which a clever court might duck the issue if it chose to and could so gyrate without failing the exacting standard of judicial integrity known as the “giggle test.” I refer to techniques like standing, abstention, procedural arcana, and so on.)Report
Because it seems to me that there are dynamics that exist in 2012 that did not in 2005 (let’s call one of them “a backlash to social conservativism”) and I wonder if the upcoming case, whatever it is, will be made hesitantly due to various tipping points happening around the country… I mean, KELO is still seen as a bad decision, rather than a decision that spurred legislation protecting citizens. Another Raich-esque case might result in a rescheduling of Marijuana, of course… but it’ll be seen as the legislature fixing something that the Supremes messed up.
And I get the feeling that Roberts *HATES* the idea of popular narratives where the Supremes messed up.Report
Gonzales v. Raich question:
Why isn’t coitus Interstate Commerce?Report
Following the logic of Lawrence, moral disapprobation shouldn’t be enough to justify laws against prostitution, so there’s a good argument that coitus IS interstate commerce.
😀Report
That’s the conclusion that I reached.
One struggles to consider an appropriate tax scheme.Report
[insert joke about congestion pricing]
(pun intended)Report
Well, if you found a room that (you should pardon the expression) straddled a state border…Report
ones that straddle county lines are extremely common.Report
Next thing you know, they’ll be putting in a pool table.Report
Well, the conclusion that the commerce clause does not grant Congress the authority to regulate intrastate commerce would be right and proper on its own merits. However, it does violate (bullshit) precedent.Report
Right, the precedent is clearly horrible. But I’m not sure if the circuits are willing to just openly thumb their noses at a fairly clear rule. Whatever you think of stare decisis in general, the circuits are much more constrained in what they are professionally obligated to do.Report
Out of curiosity, is this actually enforced in any way? Can a judge be impeached for repeatedly ruling in a manner contrary to precedent set by a superior court?Report
Noises have been made… I’m sure you remember the time there where the 9th Circuit was mocked as the most overturned court in the nation.
Nothing was done, though. I think they realized that “doing something” would be a cure worse than the disease. Besides, when you perpetually control the Supreme Court, it doesn’t matter what crap the 9th pulls, right?Report
Your decisions will keep getting overturned, but it seems to me that you could still make yourself a nuisance by clogging up the superior courts’ dockets with cases that they feel compelled to overturn. Unless they have some kind of fast-track overturning process that doesn’t require actually hearing the case.Report
IIRC, they sort of do. Pretty sure SCOTUS can just say “you did that wrong” and send the case back to the lower court, without having to hear arguments.Report
It is called “remand” and is usually accompanied with instructions.Report
No, there’s just a certain level of professional embarrassment.Report
No, there’s just a certain level of professional embarrassment.
If *that* meant anything, the WOD should’ve ended years ago.Report
How long did Alberto Gonzales hang on as AG, again?Report
Asking for a friend?Report
Nah. I have a job that has access to Federal Funds and, as such, must follow Federal Law including, of course, the references to “A Drug-Free Workplace”.
I’m just trying to get myself prepared for the movie I’m about to watch.Report
The Washington version of that film will be more interesting, I think. Not least because it’s focused on commercial distribution via a licensing scheme. Growing in your own home is still illegal. So you’re talking about Philip Morris or Costco whoever else wants to get on that train going up against the Federal government. I suspect it’ll start with Bob’s Ganja Emporium getting a license and the bigger brands will wait around to see what happens.Report
Mea Culpa. As it turns out, Colorado’s Constitutional Amendment does not go into effect until Governor Hickenlooper officially declares the results of the votes for Amendment 64.
He is not required by Law/Constitution to do this until January 5th.Report