Tampa Drug and Marijuana Defense Attorney Lawyer Call 813-222-2220

Marijuana Search - Protective Safety Sweep

2013-06-12T14:20:00.001-04:00

Marijuana Search
Protective Safety Sweep

Tampa Florida Criminal Defense Lawyer notes a recent Search and seizure case involving a Residence and a Search Warrant. The Second District Court ruled that the protective sweep of the possession of marijuana defendant's residence was improper. The court noted no basis for concern that drug evidence might be destroyed before a search warrant could be obtained.

Marijuana Search - Safety Sweep

The appeals court also found no facts to support a reasonable belief that there was a person in the residence who could pose a danger to law enforcement. The observation of narcotics by officers during an improper protective sweep cannot be a valid basis for issuance of search warrant, even so, since the officers smelled marijuana when the suspect opened front door after officers had lawfully approached residence and knocked on front door, probable cause for issuance of warrant was found.

When the court finds that police unlawfully obtained some of evidence contained in an affidavit or application for a search warrant, the trial court must then determine if there was probable cause to support issuance of warrant based on any independent and lawfully obtained evidence. The trial court committed error in granting the motion to suppress because probable cause for issuance of warrant was established without considering evidence obtained in improper protective sweep.

Case Excerpts:

"[T]he sweep of the house was improper based on the concern that evidence may be destroyed because there were no facts supporting an objectively reasonable basis for the belief that someone inside the house could destroy evidence while the warrant was being obtained. See United States v. Rivera, 825 F.2d 152, 156 (7th Cir. 1987) ("In determining whether the agents reasonably feared imminent destruction of the evidence, the appropriate inquiry is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced agent to believe that evidence might be destroyed before a warrant could be secured.")."

"[T]here was no evidence that the house was occupied, the trial court correctly found that the protective sweep of the house for officer safety was improper as there were no specific and articulable facts supporting a reasonable belief that there was an individual in the house who could pose a danger to law enforcement. See Maryland v. Buie, 494 U.S. 325, 337 (1990) ("The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.")."

"Where a court finds that police unlawfully obtained some of the evidence contained in the application for the

search warrant, the court must then determine if there is probable cause to support the issuance of the warrant based on any independent and lawfully obtained evidence. Id. “[T]he court must excise the invalid allegations from the affidavit and determine whether sufficient valid allegations remain to support a finding of probable cause.” State v. Hood, 68 So. 3d 392, 395 (Fla. 2d DCA 2011)."

Source: STATE OF FLORIDA, v. IDALIA ROMAN Case No. 2D11-769 (Fla 2d DCA Nov. 7 2012).

Drug Smuggling Video

2013-01-28T19:05:00.002-05:00

Trafficking Smuggling, Trafficking, Smuggling, methamphetamine, Heroin, Marijuana, Cocaine

Clip from Discovery Channel takes an inside look at the world of drug smuggling in Extreme Smuggling.

Marijuana Legalization Roadblocked - Federal Appeals Court Court says Remains Scheduled as Dangerous Drug

2013-01-23T04:02:00.000-05:00

Marijuana DEA and Legalization

Marijuana Defense Attorney just read a Federal Appeals Court ruling that threw several roadblocks on the path to legalization. Marijuana continues to be scheduled as a highly dangerous drug under federal law. That means under the United States Code, there are no accepted medical uses. Below is the full text of an appeals court ruling that refused to order a change in the government's drug classification schedule. Americans for Safe Access, contended that the Drug Enforcement Administration had a legal duty to review medical evidence and reclassify marijuana. The Court of Appeals rejected that claim.

Download a courtesy copy of the Marijuana Opinion here:

http://www.centrallaw.com/MarijuanaSchedule11-1265-1416392.pdf

Case Excerpts:

"There is a serious debate in the United States over the efficacy of marijuana for medicinal uses. Although marijuana has been legalized in a number of states, it is classified as a “Schedule I” drug by the Drug Enforcement Administration (“DEA”), pursuant to its authority under the Controlled Substances Act of 1970 (“CSA” or “Act”). The DEA has maintained this listing because it has determined that marijuana “has no currently accepted medical use in treatment in the United States.” 21 U.S.C. § 812(b)(1)(B). Because Schedule I is the most restricted drug classification under the CSA, the production, sale, and use of marijuana are largely banned by federal law. Petitioners in this case – Americans for Safe Access, the Coalition to Reschedule Cannabis, Patients Out of Time, and several individuals – challenge DEA’s denial of its petition to initiate proceedings to reschedule marijuana."

"Petitioners claim that “[n]umerous peer-reviewed scientific studies demonstrate that marijuana is effective in treating various medical conditions, but the DEA simply ignores them to conclude that marijuana should remain in Schedule I.” Pet’rs’ Br. at 20. Petitioners thus contend that the DEA’s denial of their petition was arbitrary and capricious and ask this court to remand the case to the agency for further consideration."

"Moreover, the existence of a medical necessity defense for marijuana cultivation is tenuous at best. The petitioners assert that marijuana’s Schedule I status is the only thing preventing courts from recognizing the defense, citing United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001), which held that no medical necessity defense exists for the illegal distribution of various controlled substances, including marijuana, because the CSA “reflects a determination that marijuana has no medical benefits worthy of an exception.”

"The DEA’s construction of its regulation is eminently reasonable. Therefore, we areobliged to defer to theagency’s interpretation of “adequate and well-controlled studies.” See Thomas Jefferson Univ., 512 U.S. at 512 (deferring to “an agency’s interpretation of its own regulations”). Judged against the DEA’s standard, we find nothing in the record that could move us to conclude that the agency failed to prove by substantial evidence that such studies confirming marijuana’s medical efficacy do not exist."

"Finally, Petitioners suggested during oral argument that the Government had foreclosed the research that would be necessary to create sufficiently reliable clinical studies of marijuana’s medical efficacy. Because Petitioners did not properly raise this issue with the DEA and there is nothing in the record to support it, we do not consider it here. We note, however, that DHHS’ recommendation explained that “[t]he opportunity for scientists to conduct clinical research with marijuana exists under the [D]HHS policy supporting clinical research with botanical marijuana.” Denial, 76 Fed. Reg. at 40,562. Thus, it appears that adequate and well-controlled studies are wanting not because they have been foreclosed but because they have not been completed."

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2012 Decided January 22, 2013

No. 11-1265

AMERICANS FOR SAFE ACCESS, ET AL., PETITIONERS

DRUG ENFORCEMENT ADMINISTRATION, RESPONDENT

CARL ERIC OLSEN, INTERVENOR

EDWARDS, Senior Circuit Judge: There is a serious debate in the United States over the efficacy of marijuana for medicinal uses. Although marijuana has been legalized in a number of states, it is classified as a “Schedule I” drug by the Drug Enforcement Administration (“DEA”), pursuant to its authority under the Controlled Substances Act of 1970 (“CSA” or “Act”). The DEA has maintained this listing because it has determined that marijuana “has no currently accepted medical use in treatment in the United States.” 21

U.S.C. § 812(b)(1)(B). Because Schedule I is the most restricted drug classification under the CSA, the production, sale, and use of marijuana are largely banned by federal law. Petitioners in this case – Americans for Safe Access, the Coalition to Reschedule Cannabis, Patients Out of Time, and several individuals – challenge DEA’s denial of its petition to initiate proceedings to reschedule marijuana.

The CSA permits the DEA to reclassify drugs to less restrictive schedules according to various statutory criteria, and interested parties can petition the DEA for such action. See 21 U.S.C. §§ 811, 812. In October 2002, the Coalition to Reschedule Cannabis petitioned the DEA to reschedule marijuana as a Schedule III, IV, or V drug. See Denial of Petition to Initiate Proceedings to Reschedule Marijuana (“Denial”), 76 Fed. Reg. 40,552, 40,552 (July 8, 2011). The DEA denied the petition on July 8, 2011, finding that “[t]here is no currently accepted medical use for marijuana in the United States,” and that “[t]he limited existing clinical evidence is not adequate to warrant rescheduling of marijuana under the CSA.” Id. at 40,552, 40,567. On July 22, 2011, Petitioners filed a timely petition for review of the DEA action.

Petitioners claim that “[n]umerous peer-reviewed scientific studies demonstrate that marijuana is effective in treating various medical conditions, but the DEA simply ignores them to conclude that marijuana should remain in Schedule I.” Pet’rs’ Br. at 20. Petitioners thus contend that the DEA’s denial of their petition was arbitrary and capricious and ask this court to remand the case to the agency for further consideration.

The Government, in turn, argues that we should dismiss the petition for review on jurisdictional grounds because Petitioners and Intervenor lack Article III standing. The Government also asserts that, even if the court determines that Petitioners or Intervenor have standing, the petition for review should be denied on the merits. According to the Government, in the record reviewed by the DEA, “there was no available evidence of adequate, well-controlled studies demonstrating marijuana’s safety and effectiveness as a medicine and no consensus among experts as to these issues. The enactment of state laws allowing the use of marijuana for medical purposes did not constitute the required science-based evidence.” Br. for Resp’t at 23.

We deny the Government’s jurisdictional challenge because we find that at least one of the named Petitioners, Michael Krawitz, has standing to challenge the agency’s action. Krawitz, who is a disabled veteran, is entitled to medical care through the U.S. Department of Veterans Affairs (“VA”). Krawitz has suffered injury-in-fact because he must shoulder a financial cost for services he could otherwise obtain free of charge from the VA. There is a causal connection between the DEA’s continuing decision to classify marijuana as a Schedule I drug and the VA’s policy of refusing to provide referrals for state medical marijuana programs. And a favorable decision from this court would likely redress Krawitz’s injury because, if the DEA rescheduled marijuana, the VA could no longer use the CSA to justify its policy of refusing to complete medical marijuana referral forms. Krawitz thus satisfies the requirements of Article III standing. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992).

On the merits, the question before the court is not whether marijuana could have some medical benefits. Rather, the limited question that we address is whether the DEA’s decision declining to initiate proceedings to reschedule marijuana under the CSA was arbitrary and capricious. These questions are not coterminous. “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). On the record before us, we hold that the DEA’s denial of the rescheduling petition survives review under the deferential arbitrary and capricious standard. The petition asks the DEA to reclassify marijuana as a Schedule III, IV, or V drug, which, under the terms of the CSA, requires a “currently accepted medical use.” The DEA’s regulations, which we approved in Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994), define “currently accepted medical use” to require, inter alia, “adequate and well-controlled studies proving efficacy.” Id. at 1135. We defer to the agency’s interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist.

I. Background

A. The Controlled Substances Act

We have previously described marijuana’s listing as a Schedule I drug under the CSA as follows:

The [CSA] places hazardous drugs in five categories, or schedules, which impose varying restrictions on access to the drugs. See 21 U.S.C. § 812 (1988). Marijuana is assigned by statute to Schedule I, the most restrictive of these. Schedule I drugs may be obtained and used lawfully only by doctors who submit a detailed research protocol for approval by the Food and Drug Administration and who agree to abide by strict recordkeeping and storage rules.

The CSA allows the Attorney General to reschedule a drug if he finds that it does not meet the criteria for the schedule to which it has been assigned. 21 U.S.C. § 811(a). The Attorney General has delegated this authority to the [DEA] Administrator. In rescheduling a drug, the Administrator must consider, inter alia, “[s]cientific evidence of [the drug’s] pharmacological effect, if known,” and “[t]he state of current scientific knowledge regarding the drug or other substance.” 21

U.S.C. § 811(c)(2), (3).

A drug is placed in Schedule I if (1) it “has a high potential for abuse,” (2) it has “no currently accepted medical use in treatment in the United States,” and (3) “[t]here is a lack of accepted safety for use of the drug . . . under medical supervision.” 21 U.S.C. § 812(b)(1) (1988) (emphasis added).

Alliance for Cannabis Therapeutics, 15 F.3d at 1133.

A criterion for Schedule III, IV, and V drugs is the existence of “a currently accepted medical use in treatment in the United States.” 21 U.S.C. § 812(b)(3)-(5). To assess whether there is a “currently accepted medical use,” the DEA looks for five necessary elements: “(1) The drug’s chemistry must be known and reproducible; (2) There must be adequate safety studies; (3) There must be adequate and well-controlled studies proving efficacy; (4) The drug must be accepted by qualified experts; and (5) The scientific evidence must be widely available.” See Denial, 76 Fed. Reg. at 40,579. Unlike Schedule I drugs, federal law permits individuals to obtain Schedule II, III, IV, or V drugs for personal medical use with a valid prescription. See 21 U.S.C. § 829(a)-(c).

Under the CSA, “any interested party” may petition the DEA to reschedule a drug. 21 U.S.C. § 811(a). In reaching a final scheduling decision, the DEA must request from the Department of Health & Human Services (“DHHS”)a “scientific and medical evaluation,” as well as a recommendation for the drug’s appropriate schedule. 21

U.S.C. § 811(b). These recommendations are binding on the DEA insofar as they rest on scientific and medical determinations. Id.

B. Procedural History

As noted above, Petitioners in this case include three advocacy organizations and several individuals. On September 1, 2011, Carl Olsen intervened on behalf of Petitioners. He asserts a religious interest in the use of marijuana.

On October 9, 2002, the Coalition to Reschedule Cannabis petitioned the DEA to reschedule marijuana as a Schedule III, IV, or V drug. See Petition to Reschedule Cannabis (Marijuana), reprinted in Joint Appendix (“J.A.”)

46-162. Petitioners assert that marijuana’s Schedule I status is inappropriate because, inter alia, it “has an accepted medical use in the United States.” The petition to reschedule supported this assertion with citations to alleged peer-reviewed, published studies on the potential medical applications of marijuana. See, e.g., id. at 38-56, reprinted in J.A. 86-104. The DEA submitted Petitioner’s rescheduling request to DHHS. Denial, 76 Fed. Reg. at 40,552.

In its scientific and medical evaluation, DHHS concluded that marijuana lacks a currently accepted medical use in the United States. In reaching this conclusion, DHHS applied the DEA’s established five-prong test, which requires a known and reproducible drug chemistry, adequate safety studies, adequate and well-controlled studies demonstrating efficacy, acceptance of the drug by qualified experts, and widely available scientific evidence. See id. at 40,559-60. DHHS stated that there are approximately 483 known components of the cannabis plant. Id. at 40,554. The components include 66 compounds called cannabinoids, and marijuana is the only plant in which these compounds are known to exist. Id. DHHS stated, however, that marijuana’s chemistry was not “known and reproducible” as there had not been “a complete scientific analysis” of its components. Id. at 40,552, 40,560. In addition, although there was ongoing research, there were no studies of sufficient quality to assess “the efficacy and full safety profile of marijuana for any medical condition.” Id. at 40,560. Further, there was “a material conflict of opinion among experts” as to medical safety and efficacy, thereby precluding a finding that qualified experts accepted marijuana as a medicine. Id. Additionally, the raw research data typically were not available in a format that would allow “adequate scientific scrutiny of whether the data demonstrate safety or efficacy.” Id.

DHHS gave the DEA its evaluation and scheduling recommendation on December 6, 2006. See id. at 40,552-66. The DEA subsequently denied the petition to reschedule on July 8, 2011, finding that “[t]he limited existing clinical evidence is not adequate to warrant rescheduling of marijuana under the CSA.” Id. at 40,567.

On July 22, 2011, Petitioners filed a timely petition for review of the DEA’s decision. Petitioners argue that the DEA acted arbitrarily and capriciously when it concluded that marijuana lacks a “currently accepted medical use” and has a “high potential for abuse.” They ask this court to remand the case to the DEA for reconsideration of its decision. The Government contests these assertions and responds further that Petitioners, for various reasons, lack standing to challenge the DEA’s determination in court.

After oral argument, “mindful of our independent obligation to be sure of our jurisdiction,” we requested supplemental filings on Petitioners’ standing. Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002); see also Am. Library Ass’n v. FCC, 401 F.3d 489, 492, 496 (D.C. Cir. 2005) (requesting supplemental filings on standing where the parties reasonably believed that the initial filings had sufficiently addressed the issue).

II. Analysis

A. Standing

“To satisfy the requirements of Article III standing in a case challenging government action, a party must allege an injury in fact that is fairly traceable to the challenged government action, and ‘it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.’” Nat’l Wrestling Coaches Ass’n v. U.S.

Dep’t of Educ., 366 F.3d 930, 937 (D.C. Cir. 2004) (quoting Defenders of Wildlife, 504 U.S. at 560-61). Petitioners have advanced several theories of standing in this case for each of the various parties. However, to proceed to the merits of their claims, we need only find one party with standing. See Tozzi

v. U.S. Dep’t of Health and Human Servs., 271 F.3d 301, 310

(D.C. Cir. 2001) (declining to address standing of remaining appellants after finding one appellant with standing). Because we conclude that petitioner Michael Krawitz has individual standing, we need not address the issue for the other Petitioners.

1. Petitioners’ Burden of Production

Before seeking review in this court, Petitioners were under no obligation to establish Article III standing. See Pfizer Inc. v. Shalala, 182 F.3d 975, 980 (D.C. Cir. 1999) (“An administrative agency, which is not subject to Article III of the Constitution of the United States and related prudential limitations, may issue a declaratory order in mere anticipation of a controversy or simply to resolve an uncertainty.”). However, when a federal court of appeals reviews an agency action, Article III standing must be demonstrated “as it would be if such review were conducted in the first instance by the district court.” Sierra Club, 292 F.3d at 899.

A “petitioner’s burden of production in the court of appeals is accordingly the same as that of a plaintiff moving for summary judgment in the district court: it must support each element of its claim to standing ‘by affidavit or other evidence.’” Id. (quoting Defenders of Wildlife, 504 U.S. at 561). “Its burden of proof is to show a ‘substantial probability’ that it has been injured, that the defendant caused its injury, and that the court could redress that injury.” Id. (quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C.

Cir. 2000)). “In assessing [Petitioners’] standing, we must assume they will prevail on the merits of their claims.” NB ex rel. Peacock v. District of Columbia, 682 F.3d 77, 82 (D.C. Cir. 2012).

If the parties reasonably, but mistakenly, believed that the initial filings before the court had sufficiently demonstrated standing, the court may – as it did here, see Order, Oct. 16, 2012 – request supplemental affidavits and briefing to determine whether the parties have met the requirements for standing. See, e.g., Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1296-97 (D.C. Cir. 2007) (noting that it was “prudent” for the court to seek supplemental submissions where there was a question about standing); Am. Library Ass’n, 401 F.3d at 492, 496. Petitioners submitted supplemental filings on October 25, 2012, offering factual information in support of Krawitz’s standing. See generally Supp. Krawitz Aff; Pet’rs’ Supp. Br. The Government was afforded an opportunity to respond to Petitioners’ supplemental filing and did so on November 1, 2012.

The dissenting opinion argues that we should decline to consider Petitioners’ supplemental filings because they allegedly rest on a new theory of standing and, thus, violate the commands of Circuit Rule 28(a)(7) and, relatedly, Sierra Club and its progeny. We disagree.

Circuit Rule 28(a)(7) states:

In cases involving direct review in this court of administrative actions, the brief of the appellant or petitioner must set forth the basis for the claim of standing. . . . When the appellant’s or petitioner's standing is not apparent from the administrative record, the brief must include arguments and evidence establishing the claim of standing.

D.C. CIR. R. 28(a)(7). In this case, Petitioners obviously made a serious effort to satisfy the requirements of the rule by setting forth their evidence and arguments in support of standing in their opening brief to the court. See Pet’rs’ Br. at 5-7. In addition, Circuit Rule 28(a)(7) does not itself impose any jurisdictional requirements. So even assuming, arguendo, that Petitioners failed to adhere to the briefing requirements of the rule – which has not been shown in this case – this would not compel sua sponte dismissal by the court.

Because the briefing requirements of Circuit Rule 28(a)(7) are not jurisdictional, they have no relevance here unless the Government raised a viable objection pursuant to the rule. The Government raised no such objection to Petitioners’ opening brief to the court. Likewise, in its response to Petitioners’ supplemental filings, the Government did not contend that Petitioners had infringed Circuit Rule 28(a)(7) or Sierra Club and its progeny. Rather, the Government merely noted that Petitioners’ supplemental filings stated, “for the first time, that [Krawitz] participates in the ‘Oregon Medical Marijuana Program.’” Supp. Br. for Resp’t at 1. The Government did not “protest that Krawitz raised a new standing theory,” as the dissenting opinion argues. Nor did the Government claim that Petitioners’ supplemental submissions on standing should not be addressed by the court because they failed to satisfy the requirements of Circuit Rule 28(a)(7) or the controlling law of the circuit. Indeed, the Government did not even suggest that it was disadvantaged in the adversarial process because of the nature of Petitioners’ supplemental filings. See Sierra Club, 292 F.3d at 901. TheGovernment’s arguments inresponse to Petitioners’ supplemental filings focused on its claim that Petitioners had failed to demonstrate Krawitz’s Article III standing.

Although Petitioners made a reasonable effort to satisfy the command of Circuit Rule 28(a)(7) in their opening brief by advancing evidence and arguments in support of standing, the court still had questions regarding whether the facts asserted by Petitioners were sufficient to satisfy the requirements of Article III standing. Therefore, the panel majority, adhering to well-established circuit law, requested supplemental briefing after oral arguments. Nothing in the text of the rule bars the court from requesting such filings. As Judge Kavanaugh noted in Public Citizen, Inc. v. National Highway Traffic Safety Administration:

This Court “retains thediscretion to seek supplemental

submissions from the parties if it decides that more information is necessary to determine whether petitioners, in fact, have standing.” Am. Library Ass’n v. FCC, 401 F.3d 489, 494 (D.C. Cir. 2005); see, e.g., Am. Chemistry Council v. Dep’t of Transp., 468 F.3d 810, 815 (D.C. Cir. 2006) (“[W]e raised the issue of standing at oral argument and requested supplemental briefing.”); Action on

Smoking & Health v. Dep’t of Labor, 100 F.3d 991, 992

(D.C. Cir. 1996) (petitioner “furnished post-argument affidavits at our request”); see also Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006) (supplemental briefing sought where agency first challenged standing after panel opinion issued).

489 F.3d at 1296.

The point here is simple: under the law of this circuit, the members of a panel retain discretion to seek supplemental submissions on standing to fulfill the obligation of the court to determine whether the requirements of Article III have been met. Circuit Rule 28(a)(7) does not preclude this, nor does the law of the circuit. The reason is clear. Circuit Rule 28(a)(7) says only that “[w]hen the appellant’sorpetitioner’s standing is not apparent from the administrative record, the brief must include arguments and evidence establishing the claim of standing.” D.C. CIR. R. 28(a)(7). This language is hardly free from ambiguity because what may be “apparent from the administrative record” to one reasonable person may seem less clear to another. And some parties may be unsure whether to explore every conceivable avenue of standing in the first instance in light of the admonition in Sierra Club cautioning advocates to submit only “a concise recitation of the basis [for standing].” 292 F.3d at 901 (emphasis added); see also Am. Library Ass’n, 401 F.3d at 494 (noting that a “gotcha” construction of Circuit Rule 28(a)(7) and Sierra Club “is inconsistent with our precedent and would have the

undesirable effect of causing parties to include long jurisdictional statements in practically all opening briefs for fear that the court might find their standing less than self-evident”). So it is hardly surprising that it sometimes happens, as it did in this case, that a party advances plausible arguments and offers concrete evidence in support of standing in its opening brief, reasonably assuming that nothing more is necessary, and the members of the panel still have questions. In such circumstances, as our case law shows, the court acts with prudence in applying Circuit Rule 28(a)(7) and in determining whether supplemental submissions are necessary. That is what was done in this case.

2. The Elements of Standing in this Case

Petitioners’ strongest theory of standing is that Krawitz,

a veteran of the United States Air Force, is harmed by the DEA’s continued classification of marijuana as a Schedule I drug because it deprives him of services that he is entitled to receive free of charge from the VA. The record indicates that, as a condition of his pain management treatment, Krawitz was asked by VA officials to sign a “Contract for Controlled Substance Prescription” that would prohibit him from, inter alia, using medical marijuana. See Supp. Krawitz Aff. ¶ 7; see also Krawitz Aff. Ex.1. Krawitz claims that, because he refused to sign this contract, he is now required to seek pain treatment outside the VA system. See Supp. Krawitz Aff. ¶¶ 8-10. Petitioners also contend that Krawitz suffers injury because a separate VA policy forces him to pay for a non-VA physician in Oregon to obtain the referral forms required to

participate in that state’s medical marijuana program. See id.

¶¶ 11-15. Petitioners argue that both of these injuries are

caused by theDEA’s continued decision to classifymarijuana

as a Schedule I drug and would be redressed by a favorable decision from this court. In response, the Government argues that Petitioners cannot prove redressability because their conclusion that rescheduling will result in any relief from the VA is too speculative.

The first element of the “irreducible constitutional minimum of standing” is injury in fact, meaning “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Defenders of Wildlife, 504 U.S. at 560 (citations omitted) (internal quotation marks omitted). Petitioners clearly establish injury in fact here and Respondents do not seriously question it. As a veteran, Krawitz is entitled to free medical care from the VA system. This care normally includes the “[c]ompletion of forms . . . by healthcare professionals based on an examination or knowledge of the veteran’s condition.” 38 C.F.R. § 17.38(a)(1)(xv) (2012). This policy is implemented by VHA Directive 2008-071, which states that “clinicians must honor all requests by patients for completion of non-VHA medical forms.” Supp. Krawitz Aff. Ex. 2. However, pursuant to VHA Directive 2011-004: “It is VHA policy to prohibit VA providers from completing forms seeking recommendations or opinions regarding a Veteran’s participation in a State marijuana program.” Supp. Krawitz Aff. Ex. 1. Thus, to participate in Oregon’s medical marijuana program, Krawitz consults with a non-VA physician in Oregon at an annual cost of approximately $140.00. See Supp. Krawitz Aff. ¶ 15. In being forced to pay out-of-pocket for care that he could otherwise receive freely from the VA system, Krawitz clearly suffers an “actual” and “concrete” injury to his “legally protected interest.” Defenders of Wildlife, 504 U.S. at 560; cf. Peacock, 682 F.3d at 83 (holding that “procedural violations that threaten an individual’s ability to obtain Medicaid coverage of prescription medications” constitute injury in fact).

Beyond injury in fact, we must determine whether Krawitz’s injuries have been caused by the DEA’s decision to continue listing marijuana as a Schedule I drug and whether there is a “substantial probability” that the relief requested would redress the injury. See Nat’l Wrestling Coaches Ass’n, 366 F.3d at 944. The modest complexity of these questions arises from the fact that the agency action challenged by Petitioners – i.e. the DEA’s continued classification of marijuana as a Schedule I drug – is not the direct cause of Krawitz’s injury. Rather, his injury is caused by the actions of the VA system, which has decided as a matter of policy not to assist patients in obtaining substances illegal under federal law. This court has addressed standing under analogous circumstances in at least four previous decisions. In those cases, we looked for whether “the record presented substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little doubt as to causation and the likelihood of redress.” Id. at 941. In two of those decisions, we found standing. In the other two, we denied standing. This case more strongly resembles the former two.

In Block v. Meese, 793 F.2d 1303, 1308 (D.C. Cir. 1986), the plaintiff’s company owned exclusive distribution rights to a film that the Justice Department classified as “political propaganda.” The plaintiff alleged injury to his economic interests because the classification deterred potential customers. Id. To support this assertion, the plaintiff submitted declarations and affidavits from potential customers who were dissuaded from purchasing the film because of its status as “propaganda.” Id. We held that there was sufficient factual evidence on the record to establish that the harm was “attributable to the classification.” Id.

In Tozzi v. U.S. Department of Health and Human Services, 271 F.3d 301 (D.C. Cir. 2001), a manufacturer of PVC plastic challenged a decision by the Secretary of Health and Human Services to list dioxin, a chemical released through the incineration of PVC plastic, as a “known” carcinogen. Though this triggered no new federal regulation, the manufacturer sued on the theory that the classification had prompted state and local entities to regulate to the detriment of the manufacturer. Id. at 309. Looking carefully at the record, we found several reasons to conclude that the government action was “at least a substantial factor motivating the third parties’ actions.” Id. at 308. We noted that Congress intended the Secretary’s determination “to serve as the federal government’s authoritative statement on the current state of knowledge regarding the carcinogenicity of various chemicals.” Id. at 309 (citing H.R. REP. NO. 951192, at 28 (1978) (describing the Secretary’s list as a “comprehensive document” containing “all known or suspected carcinogenic agents”)). We also noted that the Secretary’s list of carcinogens “is widely disseminated and highly influential,” and we pointed to several local government restrictions on the use of PVC plastic that explicitly cited the Secretary’s determination that dioxin is a “known” carcinogen. Id. We also found it significant that the term “carcinogen” is “inherently pejorative and damaging,” noting that this increased the probability of an economically harmful third party response. Id.

In at least two other cases, we have denied standing when a non-party’s conduct was the most direct cause of the alleged injury. In National Wrestling Coaches Ass’n, 366 F.3d at 933, “several membership organizations that represent[ed] the interests of collegiate men’s wrestling coaches, athletes, and alumni” challenged the government’s Title IX enforcement policy, alleging that it had caused several schools to cancel their men’s wrestling programs. We denied standing, reasoning that the plaintiffs “offer[ed] nothing but speculation to substantiate their claim that a favorable decision from this court [would] redress their injuries by altering these schools’ independent decisions.” Id. at 937. And in Renal Physicians Ass’n v. U.S. Department of Health & Human Services, 489 F.3d 1267 (D.C. Cir. 2007), a medical association challenged a government regulation that allegedly depressed their compensation for in-house patient referrals. Once again, this court denied standing, concluding it was “speculative,” not “likely,” that rescinding the regulation would increase the rate of compensation. Id. at 1277.

Turning to the facts of this case, the causation element is satisfied because Krawitz’s injury is fairly traceable to the Government’s decision to continue listing marijuana as a Schedule I drug. As with the statute in Tozzi, Congress made clear when it passed the CSA that the agency’s scheduling decisions should serve as the federal government’s “authoritative statement” on the legitimacy of particular narcotics and dangerous drugs. 271 F.3d at 309. The House Report for the CSA explains that Congress had already enacted “more than 50 pieces of legislation” relating to the regulation of dangerous drugs. H.R. REP. NO. 91-1444, reprinted in 1970 U.S.C.C.A.N. 4566, 4571. Congress intended the CSA and its scheduling program to “collect[] and conform[] these diverse laws in one piece of legislation.” Id. Furthermore, the Government’s classification of marijuana under Schedule I is “inherently pejorative.” Tozzi, 271 F.3d at 309. Under the terms of the Act, a Schedule I drug “has a high potential for abuse,”“has no currently accepted medical use,” and has “a lack of accepted safety for use.” 21 U.S.C. § 812(b)(1). When the DEA classified marijuana as a Schedule I drug, pursuant to its delegated authority under the CSA, it announced an authoritative value judgment that surely was meant to affect the policies of third-party federal agencies.

Unsurprisingly, the VA has heeded the DEA’s judgment regarding marijuana, thus making the question of causation relatively easy in this case. The record before the court clearly shows that the VA’s refusal to complete Krawitz’s medical marijuana forms is traceable to the DEA’s continued decision to classify marijuana as Schedule I. VHA Directive 2011-004, which prohibits VA providers from completing state medical marijuana forms, cites three times to marijuana’s Schedule I status. See Supp. Krawitz Aff. Ex. 1. Indeed, compliance with the CSA is the only justification the Directive cites for this policy. See id. (“[VA] providers must comply with all Federal laws, including the Controlled Substances Act. Marijuana is classified as a Schedule I drug under the Controlled Substances Act.”). In light of this evidence, the Government, in its brief to the court, offers nothing more than a perfunctory challenge to causation. This case is nothing like the situations in National Wrestling and Renal Physicians, where the records contained only weak evidence of causal links between the claimants’ injuries and the contested actions of third-party defendants.

The Government focuses most on redressability in contesting Krawitz’s standing in this case. The Government argues that rescheduling marijuana would not “generate a significant increase in the likelihood” that the VA would authorize its physicians to recommend marijuana in Oregon. See Town of Barnstable v. FAA, 659 F.3d 28, 32 (D.C. Cir. 2011). In support of this argument, the Government suggests that, based on the current scientific evidence, there would be no approval by the Food & Drug Administration of medical marijuana, and, absent such approval, VA physicians would be unlikely to recommend a substance that could not be prescribed or readily subjected to supervised use.

The Government’s argument against redressability fails. The issue is not whether VA physicians would recommend marijuana usage to patients. The issue is only whether rescheduling marijuana would “generate a significant increase in the likelihood” that Krawitz could obtain completed state medical marijuana forms from the VA. See id. Under existing regulations and VHA Directive 2008-071, VA clinicians are subject to a non-discretionary duty to “honor all requests by patients for completion of non-VHA medical forms.” See 38

C.F.R. § 17.38(a)(1)(xv) (2012); Supp. Krawitz Aff. Ex. 2. The only thing stopping VA clinicians from performing this duty with respect to Krawitz’s request is VHA Directive 2011-004. See Supp. Krawitz Aff. Ex. 1. The only reason the VA cites for implementing VHA Directive 2011-004 is the classification of marijuana as a Schedule I drug. Id. Therefore, were marijuana rescheduled to reflect its potential for medical use, the VA would have no expressed reason to retain VHA Directive 2011-004 and VA clinicians would likely be subject to a non-discretionary duty to complete Krawitz’s state medical marijuana forms.

This case is fully distinguishable from National Wrestling and Renal Physicians, where we found redressability lacking. In both those cases, in addition to a tenuous showing of causation, there were reasons beyond the challenged government action for the third parties to continue the conduct that caused injury to the plaintiffs. In National Wrestling there were many factors that led each school to cancel its men’s wrestling program, such as “the absence of league sponsorship for wrestling, budgetary concerns, and the need to balance the athletic program with other University priorities.” 366 F.3d at 942. Furthermore, Title IX and its accompanying regulations would have remained in force regardless of the case’s outcome. See id. at 943. Indeed the plaintiffs in National Wrestling did not even contest the legality of the Title IX regulations. Id. In Renal Physicians the court found that the plaintiffs had failed to demonstrate redressability in part because, even if the challenged regulation were struck down, market forces might drive the injurious conduct to continue. See 489 F.3d at 1277.

In contrast, this case is more like Tozzi. There we found it significant for redressability that the Secretary’s listing of dioxin as a “known” carcinogen was the only such pronouncement by the federal government. See 271 F.3d at 309-10. Therefore, if we had set aside that listing, “dioxin activists could no longer point to an authoritative determination by the United States government that dioxin is ‘known’ to cause cancer in humans.. . . State and local governments would be less likely to regulate dioxin, and healthcare companies would in turn be less likely to stop using PVC plastic.” Id. at 310. Here, the Schedule I listing is the authoritative federal declaration of marijuana’s illegality and unfitness for medical use. The VA is a federal agency and thus surely inclined to subscribe to such a federal declaration. Were the substance rescheduled, the VA would lose the only express justification for its policy against completing state medical marijuana forms. Therefore, it is “likely” instead of merely “speculative” that Krawitz’s injury would be redressed.

Because Krawitz has Article III standing due to his inability to have the VA system complete his state medical marijuana forms, we need not consider whether his alleged inability to obtain pain management services from the VA in Virginia warrants standing. We also need not consider whether the other Petitioners have standing as well. See Watt

v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981) (“Because we find [one plaintiff] has standing, we do not consider the standing of the other plaintiffs.”); see also Tozzi, 271 F.3d at 310 (same).

B. The DEA’s Denial of the Petition to Initiate Proceedings to Reschedule Marijuana

On the merits, Petitioners claim that the DEA’s final order denying their request to initiate proceedings to reschedule marijuana was arbitrary and capricious. Under the terms of the CSA, marijuana cannot be rescheduled to Schedules III, IV, or V without a “currently accepted medical use.” 21 U.S.C. § 812(b)(3)-(5). To assess whether marijuana has such a medical use, the agency applies a five-part test: “(1) The drug’s chemistry must be known and reproducible;

(2) There must be adequate safety studies; (3) There must be adequate and well-controlled studies proving efficacy; (4) The drug must be accepted by qualified experts; and (5) The scientific evidence must be widely available.” See Denial, 76 Fed. Reg. 40,552, 40,579. The DEA’s five-part test was expressly approved by this court in Alliance for Cannabis Therapeutics, 15 F.3d at 1135. Because the agency’s factual findings in this case are supported by substantial evidence and because those factual findings reasonably support the agency’s final decision not to reschedule marijuana, we must uphold the agency action.

Under the Administrative Procedure Act, a court may set aside an agency’s final decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “We will not disturb the decision of an agency that has ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’” MD Pharm. Inc. v. DEA, 133 F.3d 8, 16 (D.C. Cir. 1998) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Furthermore, the agency’s interpretation of its own regulations “must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). The CSA also directs this court to review the agency’s findings of fact for substantial evidence. See 21 U.S.C. § 877. Under this standard, we must “ask whether a reasonable mind might accept a particular evidentiary record as adequate to support a conclusion.” Dickinson v. Zurko, 527 U.S. 150, 162 (1999).

Petitioners do not seriously dispute the propriety of the five-part test approved in Alliance for Cannabis Therapeutics. Thus, they are left with the difficult task of showing that the DEA has misapplied its own regulations. Petitioners challenge the agency’s reasoning on each of the five factors. However, “[a] drug will be deemed to have a currently accepted medical use for CSA purposes only if all five of the foregoing elements are demonstrated.” Denial, 76 Fed. Reg. at 40,579. In this case, we need only look at one factor, the existence of “adequate and well-controlled studies proving efficacy,” to resolve Petitioners’ claim.

In its scientific and medical evaluation, DHHS concluded that “research on the medical use of marijuana ha[d] not progressed to the point that marijuana [could] be considered to have a ‘currently accepted medical use’ or a ‘currently accepted medical use with severe restrictions.’” Id. at 40,560. As noted above, DHHS’ recommendations are binding on the DEA insofar as they rest on scientific and medical determinations. 21 U.S.C. § 811(b). After an exhaustive examination of the issue, the DEA, adhering to DHHS’ recommendation, reached the following conclusion:

To establish accepted medical use, the effectiveness of a drug must be established in well-controlled, well-designed, well-conducted, and well-documented scientific studies, including studies performed in a large number of patients (57 FR 10499, 1992). To date, such studies have not been performed. The small clinical trial studies with limited patients and short duration are not sufficient to establish medical utility. Studies of longer duration are needed to fully characterize the drug’s efficacy and safety profile. Scientific reliability must be established in multiple clinical studies. Furthermore, anecdotal reports and isolated case reports are not adequate evidence to support an accepted medical use of marijuana (57 FR 10499, 1992). The evidence from clinical research and reviews of earlier clinical research does not meet this standard.

Denial, 76 Fed. Reg. at 40,579.

Petitioners contest these findings, arguing that their petition to reschedule marijuana cites more than two hundred peer-reviewed published studies demonstrating marijuana’s efficacy for various medical uses, and that those studies were largely ignored by the agency. As we explain below, Petitioners’ singular reliance on “peer-reviewed” studies misses the mark. It is also noteworthy that Petitioners’ brief to this court fails to convincingly highlight any significant studies allegedly ignored by DHHS or the DEA.

Petitioners’ argument focuses at length on one study – the March 1999 report from the Institute of Medicine (“IOM”) – that was clearly addressed by the DEA. The IOM report does indeed suggest that marijuana might have medical benefits. See, e.g., INST. OF MEDICINE, MARIJUANA AND MEDICINE: ASSESSING THE SCIENCE BASE 177 (Janet E. Joy et al. eds., 1999), reprinted in J.A. 208 (“For patients such as those with AIDS or who are undergoing chemotherapy, and who suffer simultaneously from severe pain, nausea, and appetite loss, cannabinoid drugs might offer broad-spectrum relief not found in any other single medication.”). However, the DEA fairly construed this report as calling for “more and better studies to determine potential medical applications of marijuana” and not as sufficient proof of medical efficacy itself. Denial, 76 Fed. Reg. at 40,580. In other words, “while the IOM report did support further research into therapeutic uses of cannabinoids, the IOM report did not ‘recognize marijuana’s accepted medical use’ but rather the potential therapeutic utility of cannabinoids.” Id.

At bottom, the parties’ dispute in this case turns on the agency’s interpretation of its own regulations. Petitioners construe“adequate and well-controlled studies” to mean peerreviewed, published studies suggesting marijuana’s medical efficacy. The DEA, in contrast, interprets that factor to require something more scientifically rigorous. In explaining its conclusion that there is a lack of clinical evidence establishing marijuana’s “currently accepted medical use,” the agency said the following:

[A] limited number of Phase I investigations have been conducted as approved by the FDA. Clinical trials, however, generally proceed in three phases. See 21

C.F.R. 312.21 (2010). Phase I trials encompass initial testing in human subjects, generally involving 20 to 80 patients. Id. They are designed primarily to assess initial safety, tolerability, pharmacokinetics, pharmacodynamics, and preliminary studies of potential therapeutic benefit. (62 FR 66113, 1997). Phase II and Phase III studies involve successively larger groups of patients: usually no more than several hundred subjects in Phase II and usually from several hundred to several thousand in Phase III. 21 C.F.R. 312.21. These studies are designed primarily to explore (Phase II) and to demonstrate or confirm (Phase III) therapeutic efficacy and benefit in patients. (62 FR 66113, 1997). No Phase II or Phase III studies of marijuana have been conducted. Even in 2001, DHHS acknowledged that there is “suggestive evidence that marijuana may have beneficial therapeutic effects in relieving spasticity associated with multiple sclerosis, as an analgesic, as an antiemetic, as an appetite stimulant and as a bronchodilator.” (66 FR 20038, 2001). But there is still no data from adequate and well-controlled clinical trials that meets the requisite standard to warrant rescheduling.

Id. at 40,579-80.

The DEA interprets “adequate and well-controlled studies” to mean studies similar to what the Food and Drug Administration (“FDA”) requires for a New Drug Application (“NDA”). See id. at 40,562. DHHS found that “there have been no NDA-quality studies that have scientifically assessed the efficacy of marijuana for any medical condition.” Id. It is well understood that, under FDA protocols, “adequate and well-controlled investigations” require “clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved, on the basis of which it could fairly and responsibly be concluded by such experts that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling or proposed labeling thereof.” 21 U.S.C. § 355(d). This is a rigorous standard. See, e.g., Edison Pharm. Co. v. FDA, 600 F.2d 831, 843 (D.C. Cir. 1979) (holding that substantial evidence supported the FDA’s conclusion that double-blind testing of a new drug was necessary before the drug could be administered to cardiac patients); Holland-Rantos Co. v. U.S. Dep’t of Health, Educ. and Welfare, 587 F.2d 1173, 1174

(D.C. Cir. 1978) (refusing to construe the requirement of a “well-controlled investigation” in a “self-defeating fashion”).

Contrary to what Petitioners suggest, something more than “peer-reviewed” studies is required to satisfy DEA’s standard, and for good reason. “[S]cientists understand that peer review per se provides only a minimal assurance of quality, and that the public conception of peer review as a stamp of authentication is far from the truth.” Charles Jennings, Quality and Value: The True Purpose of Peer Review, NATURE.COM (2006), http://www.nature.com/nature/ peerreview/debate/nature05032.html; see also Lynn S. McCarty et al., Information Quality in Regulatory Decision Making: Peer Review versus Good Laboratory Practice, 120 ENVTL. HEALTH PERSP. 927, 930 (2012) (“It is difficult to extract from the extensive body of work and commentary published over the last 25-30 years that scientific journal peer review is a coherent, consistent, reliable, evaluative procedure. . . . [T]he opposite conclusion may be more accurate.”). Petitioners may have cited some peer–reviewed articles in support of their position, but they have not pointed to “adequate and well-controlled studies” confirming the efficacy of marijuana for medicinal uses. If, as is the case

here, “there is substantial evidence to support the [agency’s]

finding that the[] studies [offered by petitioner] are not

helpful, then petitioner must fail.” Unimed, Inc. v. Richardson, 458 F.2d 787, 789 (D.C. Cir. 1972). In making

this assessment, we must “remind ourselves that our role in

the Congressional scheme is not to give an independent judgment of our own, but rather to determine whether the expert agency entrusted with regulatory responsibility has taken an irrational or arbitrary view of the evidence assembled before it.” Id.

The DEA’s construction of its regulation is eminently reasonable. Therefore, we areobliged to defer to theagency’s interpretation of “adequate and well-controlled studies.” See Thomas Jefferson Univ., 512 U.S. at 512 (deferring to “an agency’s interpretation of its own regulations”). Judged against the DEA’s standard, we find nothing in the record that could move us to conclude that the agency failed to prove by substantial evidence that such studies confirming marijuana’s medical efficacy do not exist.

Finally, Petitioners suggested during oral argument that the Government had foreclosed the research that would be necessary to create sufficiently reliable clinical studies of marijuana’s medical efficacy. Because Petitioners did not properly raise this issue with the DEA and there is nothing in the record to support it, we do not consider it here. We note, however, that DHHS’ recommendation explained that “[t]he opportunity for scientists to conduct clinical research with marijuana exists under the [D]HHS policy supporting clinical research with botanical marijuana.” Denial, 76 Fed. Reg. at 40,562. Thus, it appears that adequate and well-controlled studies are wanting not because they have been foreclosed but because they have not been completed.

III. Conclusion

For the reasons discussed above, we hereby deny the petition for review.

Over a decade ago, our court was compelled to remind all petitioners of first principles, namely, they must assure us that they meet Article III’s case or controversy requirement if their standing is not “self-evident” from the record. Sierra Club v. EPA, 292 F.3d 895, 900 (D.C. Cir. 2002). We subsequently transformed the holding into D.C. Circuit Rule 28(a)(7) to tell the litigating world we really meant what we said in Sierra Club. Since then, our precedent and our Rule seem to have been honored more in the breach than in compliance. We have issued pre-argument orders alerting the parties to be prepared to address standing at oral argument because of our uncertainty regarding standing based on the briefing. See, e.g., Order, Cherry v. FCC, No. 10-1151 (Feb. 23, 2012). We have allowed a second—late—opportunity to establish standing at the reply brief stage. See Exxon Mobil Corp. v. FERC, 571 F.3d 1208, 1219 (D.C. Cir. 2008). We have even asked for post-argument briefs based on the petitioner’s failure theretofore to establish standing. See Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1297

(D.C. Cir. 2007); see also id. at 462-63 (Sentelle, J., dissenting). Some of us have been more forgiving than others. See, e.g., Am. Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005) (Edwards, J.) (articulating Sierra Club exception if petitioners “reasonably [but mistakenly] believed their standing [was] self-evident”); Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 685 (D.C. Cir. 2004) (Edwards, J.) (excusing belated submissions attached to reply brief because they made standing “patently obvious”); KERM, Inc. v. FCC, 353 F.3d 57, 60-61 (D.C. Cir. 2004) (noting petitioner’s belated assertion of standing but nonetheless analyzing standing arguments) (Edwards, J.). Perhaps it is too late to blow the whistle but I do not share the solicitude my colleagues show the petitioners—no novices on their merits claim¹—here, especially in view of the fact that their standing theory for the lone petitioner with standing is, post-argument, brand new.

Petitioners Americans for Safe Access (ASA), Coalition for Rescheduling Cannabis (CRC), Patients Out of Time (POT), Kathy Jordan, Michael Krawitz, Richard Steeb and William Britt (petitioners) petition for review of the decision of the Drug Enforcement Administration (DEA or Agency), Denial of Petition To Initiate Proceedings To Reschedule Marijuana, 76 Fed. Reg. 40,552 (Jul. 8, 2011), denying their petition to initiate rulemaking proceedings to reschedule marijuana as a Schedule I substance under the Controlled Substances Act (CSA), 21 U.S.C. §§ 801 et seq. The majority determines—based on his post-argument submission—that Krawitz has standing and thus proceeds to the merits. I believe the post-argument submission should not have been allowed. Once allowed, it should not have been considered because it asserts a new theory of standing. The remaining petitioners also lack standing and therefore the petition for review should have been dismissed.

To press their claim, the petitioners must establish that at least one of them has standing. Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006). Article III standing has three elements: “(1) injury-in-fact, (2) causation, and (3) redressability.” Sierra Club, 292 F.3d at

¹ Two individuals who joined the petitioners’ quest to reschedule marijuana at the administrative stage—Jon Gettman and High Times—had petitioned for review of DEA’s earlier failure to reschedule marijuana. We dismissed their petition for lack of standing. Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002).

898. Reviewing administrative action, we require that the petitioner “either identify in that record evidence sufficient to support its standing to seek review or, if there is none because standing was not an issue before the agency, submit additional evidence to the court of appeals.” Id. at 899. Three of the seven petitioners—ASA, CRC and POT—are organizations. The remaining petitioners—Jordan, Krawitz, Steeb and Britt—are members of ASA (ASA Members). Neither CRC nor POT has attempted to establish its standing. The remaining petitioners assert three theories of standing: ASA’s standing as an association, the individual standing of the four ASA Members and ASA’s standing representing its members. I begin with Krawitz’s standing as he is the one whose standing the majority affirms.

II.

A. Krawitz’s Standing

In their opening brief, the petitioners did not distinguish Krawitz from the other ASA Members. With that brief, the petitioners submitted an affidavit executed by Krawitz. Krawitz declared therein that he was a disabled veteran and that he used marijuana to alleviate his pain. Krawitz explained that he received medical benefits from the United States Department of Veterans Affairs (VA) but that

[b]ecause of my medical cannabis use, I am currently being denied my prescription pain treatment by the VA based upon their illegal drug policy that routinely, administratively, denies pain treatment as punishment for using cannabis by veterans that do not live in a state with legal medical cannabis, based on VA’s policy regarding medical cannabis, which, among other things, prohibits VA physicians from discussing therapeutic uses of cannabis with me. A true and correct copy of that policy is attached hereto as Exhibit 1. Although the bulk of my medical care still occurs at VA hospital I am now seeing an outside M.D. for my pain treatment under the VA’s fee basis program.

Krawitz Aff. ¶ 4 (bracketed text omitted) (emphasis added). To his affidavit, Krawitz attached a document entitled “CONTRACT FOR CONTROLLED SUBSTANCE PRESCRIPTION.” Krawitz Aff. Ex. 1 at 1. The document is confusing at best, and, at worst, makes it appear as if the VA itself could be providing Krawitz with marijuana. See, e.g., Krawitz Aff. Ex. 1 at 1 (“I will not request or accept controlled substance medication from any other physician or individual while I am receiving such medication from my physician at the Salem VAMC Clinic.”). The petitioners, unhelpfully, provided no explanation of the contract in either their opening or their reply briefs.

Krawitz’s affidavit and exhibit failed to establish standing. His affidavit boiled down to the averment that he was injured because the VA had a drug policy that “denies pain treatment as punishment for using cannabis by veterans that do not live in a state with legal medical cannabis,” Krawitz Aff. ¶ 4 (emphasis added). But Krawitz challenges federal, not state law, and he has provided no evidence or argument that rescheduling marijuana under the CSA will change the way any state regulates marijuana. Indeed, state marijuana legislation in recent years has distinctly diverged from federal law. See, e.g., Gettman v. DEA, 290 F.3d 430, 435 (D.C. Cir. 2002) (“[S]peculative claims dependent upon the actions of third parties do not create standing.”).

Notwithstanding the failure of the petitioners’ showing regarding standing—specifically, Krawitz’s affidavit with attachment—we issued a post-argument order, giving them yet another opportunity² to “clarify and amplify the assertions made in paragraph 4 of the Affidavit of Michael Krawitz regarding his individual standing.” I dissented from the order because our precedent unequivocally directs the method by which a petitioner must establish standing, a method the petitioners ignored. In 2002, we explained:

Henceforth, therefore, a petitioner whose standing is not self-evident should establish its standing by the submission of its arguments and any affidavits or other evidence appurtenant thereto at the first appropriate point in the review proceeding. In some cases that will be in response to a motion to dismiss for want of standing; in cases in which no such motion has been made, it will be with the petitioner’s opening brief—and not, as in this case, in reply to the brief of the respondent agency. In either procedural context the petitioner may carry its burden of production by citing any record evidence relevant to its claim of standing and, if necessary, appending to its filing additional affidavits or other evidence sufficient to support its claim. In its opening brief, the petitioner should also include in the “Jurisdictional Statement” a concise recitation of the basis upon which it claims standing.

. . . . [A]ll too often the petitioner does not submit evidence of those facts with its opening brief and the

The petitioners’ reply brief, while providing a more detailed standing argument and including (improperly) a supplemental affidavit, was nonetheless deficient. With their post-argument opportunity to supplement, the petitioners have now been allowed three chances to establish standing.

respondent is therefore left to flail at the unknown in an attempt to prove the negative, or the court raises its own question about the petitioner’s standing and ends up having to direct the parties to file supplemental briefs in order to ensure that the issue is joined in a fair and thorough adversarial process.

Sierra Club, 292 F.3d at 900-01 (emphasis added). We cautioned that “[a]bsent good cause shown . . . a litigant should not expect the court” to depart from the above procedure. Id. at 900. Sierra Club does not make the petitioner’s showing optional—it instead constitutes binding Circuit law. As noted earlier, we codified Sierra Club in our Circuit Rules as follows:

In cases involving direct review in this court of administrative actions, the brief of the appellant or petitioner must set forth the basis for the claim of standing. This section, entitled “Standing,” must follow the summary of argument and immediately precede the argument. When the appellant’s or petitioner’s standing is not apparent from the administrative record, the brief must include arguments and evidence establishing the claim of standing. See Sierra Club v. EPA, 292 F.3d 895, 90001 (D.C. Cir. 2002). If the evidence is lengthy, and not contained in the administrative record, it may be presented in a separate addendum to the brief.

D.C. Cir. R. 28(a)(7); see also Int’l Bhd. of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130, 1134-35 & n.2 (D.C. Cir. 2005) (dismissing petition for review because petitioner “first addressed its standing at oral argument, in response to questioning by the court”); Exxon Mobil, 571 F.3d at 1220 (declining to consider standing theory first articulated at oral argument). The petitioners had made no effort to show “good cause”³ for their initial failure to establish standing. And, this being so, I opposed giving them yet another opportunity to establish standing.

In response to the order, the petitioners filed a supplemental brief with a new Krawitz affidavit, featuring a new theory of standing. He avers, for the first time, that he spends one or two months per year in Oregon, where he obtains marijuana for medical use. To obtain medicinal marijuana in Oregon, a person must apply for a registration card, which requires him to submit annually “[v]alid, written documentation from the person’s attending physician stating that the person has been diagnosed with a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects of the person’s debilitating medical condition.” See Or. Rev. Stat § 475.309(2), (7)(C)(i). Krawitz complains that the VA has a policy—VHA Directive 2011-004—prohibiting its physicians from providing such documentation, thus forcing him to pay $140.00 per year to consult an Oregon physician who can so provide.

Unlike his original affidavit—in which Krawitz declared that the VA denied him pain treatment—Krawitz’s new affidavit states that the VA is not denying him treatment for pain based on his marijuana use. Moreover, VHA Directive 2011-004 makes plain that the VA does not have a policy of denying pain treatment to veterans who are using marijuana, instead declaring: “VHA policy does not administratively

³ We have found “good cause” if, for example, a petitioner had a reasonable belief its standing was self-evident, see Am. Library Ass’n, 401 F.3d at 492 or if supplemental declarations submitted with a reply brief made standing “patently obvious,” see Communities Against Runway Expansion, 355 F.3d at 685.

prohibit Veterans who participate in State marijuana programs from also participating in VHA . . . pain control programs . . . [D]ecisions to modify treatment plans in those situations need to be made by individual providers in partnership with their patients.” VHA Directive 2011-004 (Jan. 31, 2011), available at http://www.va.gov/VHAPUBLICATIONS/View Publication.asp?pub_ID=2362.

In other words, Krawitz asserts a new injury-in-fact—a $140.00 per year pocketbook injury—that is nowhere to be found in even the most generous reading of his original affidavit. As we have earlier held, however, “we are aware of no authority which permits a party to assert an entirely new injury (and thus, an entirely new theory of standing) in its reply brief.” Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 147 (D.C. Cir. 2012) (per curiam) (emphasis added). And plainly—until today—we have never permitted a petitioner to assert an entirely new injury and theory of standing in a post-argument submission.⁴

⁴ Oregon’s policy—not that of the VA or of DEA—is the direct cause of Krawitz’s annual $140.00 injury because, if Oregon eliminated the physician documentation requirement, Krawitz’s injury would be immediately redressed. By contrast, if we ordered DEA to reschedule marijuana, the VA might rescind VHA Directive 2011-004 and Krawitz’s VA physician might complete the Oregon documentation for Krawitz. See Memorandum Regarding State Medical Marijuana Registration Forms from Department of Veterans Affairs General Counsel to Under Secretary of Health at 5 (May 21, 2008) (cited by VHA Directive 2011-004) (stating, prior to promulgation of VHA Directive 2011004, “[a]t present, the language of 38 C.F.R. § 17.38(c)(3) does not require the completion of [medical marijuana] forms by VHA physicians [because t]his regulatory provision eliminates non-FDA

Because my colleagues found that Krawitz has standing, they proceeded directly to the merits. Rumsfeld, 547 U.S. at 52 n.2 (“[T]he presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement.”). Because I believe Krawitz lacks standing, I must consider the other petitioners’ standing.

B. Other Petitioners’ Standing

ASA’s Organizational Standing

In their opening brief, the petitioners asserted that ASA has standing as an organization because it must expend “significant resources combatting the DEA’s positions respecting marijuana’s medical use and abuse potential, which would be redressed by a favorable decision.” Pet’rs’ Opening Br. 6. In their reply brief, they argue “ASA has been unable to employ a full-time California Director to interface with government agencies in California and those of other medical marijuana states to implement state law, in particular, the regulation of medical marijuana dispensaries.” Pet’rs’ Reply Br. 3 (citing Sherer Supp. Aff. ¶ 2).

An organization does not have standing based on a mere “ ‘setback to [its] abstract social interests.’ ” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011) (quoting Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995)). An association’s “self-serving observation that it has expended resources to educate its members and others regarding [a challenged statutory provision] does not present an injury in fact,” particularly if “[t]here is no evidence that [the challenged provision] has

approved drugs from the basic care provided to veterans”); see also VHA Directive 2011-004, supra.

subjected [the association] to operational costs beyond those normally expended to review, challenge, and educate the public.” Nat’l Taxpayers Union, 68 F.3d at 1434. Nor is standing found “when the only ‘injury’ arises from the effect of the regulations on the organizations’ lobbying activities.” Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161

(D.C. Cir. 2005).

The petitioners support ASA’s organizational standing by relying on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). In Havens, a nonprofit corporation sued the owner of an apartment complex for damages under the Fair Housing Act because “the [discriminatory] practices of [the apartment complex] had frustrated the organization’s counseling and referral services, with a consequent drain on resources.” Id. at 369. The Supreme Court upheld the nonprofit’s standing because the “practices have perceptibly impaired [its] ability to provide counseling and referral services for low-and moderate-income homeseekers . . . . Such concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitutes far more than simply a setback to the organization’s abstract social interests.” Id. at 379.

We considered a similar standing issue in Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C. Cir. 1990), where we found two organizations had standing to assert a claim for injunctive relief and damages under the Fair Housing Act because the discriminatory conduct “required [plaintiffs] to devote more time, effort, and money to endeavors designed to educate not only black home buyers and renters, but the D.C. area real estate industry and the public that racial preference in housing is indeed illegal.” Id. at 27; see also id. at 28-29 (“increased education and counseling could plausibly required”). We emphasized “the difference between this suit and one presenting only abstract concerns or complaints about government policy;” specifically, the plaintiffs “do not seek to compel government action, [or] to involve the courts in a matter that could be resolved in the political branches” but rather “are private actors suing other private actors, traditional grist for the judicial mill.” Id. at 30.

Unlike Havens and Spann, this case does not involve “private actors suing other private actors, traditional grist for the judicial mill.” Id. Nor does it involve a suit for damages under a federal statute (like the Fair Housing Act) that creates a cause of action. Instead, it serves “to compel government action, [and] to involve the courts in a matter that could be resolved in the political branches.”⁵Id. Moreover, ASA’s asserted injury—that it must spend money to “educate the public about the true benefits of marijuana” and to “lobby[ ] local, state and federal governments,” Sherer Aff. ¶¶ 8, 12—is essentially an argument that ASA cannot allocate issue advocacy expenses in the way it would prefer, which is insufficient to establish standing. See Ctr. for Law & Educ., 396 F.3d at 1162 (“The only ‘service’ impaired is pure issue-advocacy—the very type of activity distinguished by Havens.”). Nor have the petitioners explained how ASA would be able to avoid these expenditures if marijuana were rescheduled. For example, ASA would still need to meet the substantial scientific evidence—identified by DEA—that rejects its position regarding marijuana’s medical efficacy. Similarly, ASA would need to counter statements made by

⁵ ASA and similar organizations have had great political success in recent years. See, e.g., Louise Radnofsky, Voters Weigh Social Issues, Wall St. J., Nov. 7, 2012 (seventeen states and District of Columbia have legalized the medicinal use of marijuana; Washington and Colorado have legalized marijuana for recreational use).

entities other than DEA (including the very state and local governments they are lobbying) that oppose legalization of marijuana for medical use. See Nat’l Taxpayers Union, 68 F.3d at 1434 (“There is no evidence that [the challenged statutory provision] has subjected [the association] to operational costs beyond those normally expended to review, challenge, and educate the public.”).

The closest the petitioners come to establishing an injury to ASA as an organization is their statement that “[s]ince 2006, due to expenditures made by ASA to offset the false statements made by the [DEA and HHS] that marijuana has no medical use and is extremely dangerous, ASA has been unable to hire a full-time California Director.” Sherer Supp. Aff ¶ 2. But whatever happened in 2006 that prevented ASA from hiring a full-time California Director, it could not have been marijuana’s Schedule I listing because marijuana has been so listed since 1970. See 21 U.S.C. § 812(c) (establishing initial schedules of controlled substances).

ASA Members’ Individual Standing

The petitioners also assert that the three ASA Members other than Krawitz have their own individual standing. In their opening brief, they assert that if marijuana were removed from Schedule I, the three would no longer be “deterred from cultivating their own medicine . . . since they would likely be afforded a medical necessity defense in federal court.” Pet’rs’ Opening Br. 7. Nevertheless, “speculative claims dependent upon the actions of third parties do not create standing.” Gettman, 290 F.3d at 434-35 (dismissing petition—for lack of standing—of marijuana researcher who argued DEA decision not to reschedule marijuana decreased his potential customers and diminished his ability to conduct research). Here, the causal chain is even more speculative. ASA’s Members allege that their injury could be redressed by a favorable ruling because (1) if marijuana were rescheduled; and (2) if they chose to cultivate marijuana; and (3) if the federal government detected the cultivation; and (4) if the federal government prosecuted the cultivators; and (5) if the cultivators asserted a medical necessity defense; and (6) if the court accepted the medical necessity defense; then (7) they would avoid criminal liability for cultivation.⁶

Moreover, the existence of a medical necessity defense for marijuana cultivation is tenuous at best. The petitioners assert that marijuana’s Schedule I status is the only thing preventing courts from recognizing the defense, citing United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001), which held that no medical necessity defense exists for the illegal distribution of various controlled substances, including marijuana, because the CSA “reflects a determination that marijuana has no medical benefits worthy of an exception.” Id. at 491. The Court’s reasoning made

The ASA Members’ standing argument is reminiscent of the nursery rhyme “For Want of a Nail:”

For want of a nail, the shoe was lost,

For want of the shoe, the horse was lost,

For want of the horse, the rider was lost,

For want of the rider, the battle was lost,

For want of the battle, the kingdom was lost,

And all for the want of a horse-shoe nail!

Stuart Minor Benjamin, Proactive Legislation and the First Amendment, 99 MICH. L. REV. 281, 329 n.168 (2000) (quoting Mother Goose’s Nursery Rhymes 191 (Walter Jerrold ed., Alfred

A. Knopf Inc. 1993) (1903)). While a lost nail may lead to a lost kingdom, establishing Article III standing requires more than a good imagination.

clear, however, that rescheduling marijuana would not necessarily produce a medical necessity defense because “it is an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute.” Id. at 490 (“Even at common law, the defense of necessity was somewhat controversial.”).

Assuming arguendo the three ASA Members decide to cultivate marijuana, it is far from likely that a federal prosecutor would exercise his discretion to prosecute. In fact, the Department of Justice recently suggested that it did not consider it an efficient use of resources to prosecute “individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana.” David W. Ogden, Deputy Attorney General, U.S. Dep’t of Justice, Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct 19, 2009), available at http://www.justice.gov/opa/documents/medical-marijuana.pdf.⁷

⁷But see James M. Cole, Deputy Attorney General, U.S. Dep’t of Justice, Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use (June 29, 2011), available at http://www.azdhs.gov/medicalmarijuana/documents /resources/guidance_regarding_medical_marijuana.pdf (Ogden Memorandum was not intended to shield from prosecution “planned facilities” with “revenue projections of millions of dollars” and that “[p]ersons who are in the business of cultivating, selling or distributing marijuana . . . are in violation of the Controlled Substances Act, regardless of state law”).

ASA’s Representational Standing

Finally, I believe that ASA lacks standing to bring this action on behalf of its members because ASA has failed to establish that one of its members has standing to sue in his own right. Fund Democracy, LLC v. SEC, 278 F.3d 21, 25

(D.C. Cir. 2002) (“An association only has standing to bring suit on behalf of its members when[, inter alia,] its members would otherwise have standing to sue in their own right . . . .”).⁸

Because I believe that no petitioner possesses Article III standing, I respectfully dissent.⁹

In addition, intervenor Carl Olsen lacks standing. He concedes that his injury can be redressed only if marijuana is removed from all CSA schedules, a remedy the petitioners do not seek. Furthermore, Olsen makes distinct arguments from those of the petitioners—for example, he invokes “federalism”—and thus he cannot supply the requisite standing. See Ill. Bell Tel. Co. v. FCC, 911 F.2d 776, 786 (D.C. Cir. 1990).

⁹ While my dissent begins with the observation that some of my colleagues are more forgiving than others in allowing exceptions to the Sierra Club rule, codified in Rule 28(a)(7), it is now apparent the majority would have the exceptions swallow the Rule. Ignoring our longstanding precedent that arguments may not be made for the first time in a reply brief, see, e.g., Porter v. Shah, 606 F.3d 809, 814 n.3 (D.C. Cir. 2010), during oral argument, see, e.g., United States v. Southerland, 486 F.3d 1355, 1360 (D.C. Cir. 2007), or during rebuttal oral argument, see, e.g., Coal. of Battery Recyclers Ass’n v. EPA, 604 F.3d 613, 623 (D.C. Cir. 2010)—they would revise Rule 28(a)(7) to create a “reasonable belief/effort” mega-exception permitting any party to assert an entirely new standing theory not only in a reply brief or during oral argument but even after oral argument.

The elephant in the room is that we do not allow “a party to assert an entirely new injury (and thus, an entirely new theory of standing) in its reply brief,” Coal. for Responsible Regulation, 684 F.3d at 147, much less in a supplemental brief. As already noted, in his supplemental affidavit Krawitz raises a new injury and, thus, a new theory of standing. Yet in response to this undisputed fact, my colleagues do not attempt to claim Krawitz’s theory of standing is not new. Instead, they skirt the issue by noting that DEA did not so argue in its supplemental brief. First and foremost, whether a party has established standing is for the court—not the parties—to decide. See, e.g., Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994) (“Standing . . . is a jurisdictional issue which cannot be waived or conceded.”); cf. Am. Library Ass’n, 401 F.3d at 495 (“[W]hether standing is self-evident must be judged from the perspective of the court[.]”). And the majority’s statement that Rule 28(a)(7) (let alone Sierra Club) “ha[s] no relevance” absent an objection, see Maj. Op. 11, is wholly unsupported. In any event, DEA did protest that Krawitz raised a new standing theory. While DEA did not cite Sierra Club or Rule 28(a)(7), it maintained that Krawitz “states, for the first time, that he participates in the ‘Oregon Medical Marijuana Program;’ ” and now “claims not that he is denied VA pain treatment in Oregon but that the VA prohibits its physicians from completing a state program form.” Resp’t Supp. Br. 1.

The majority’s new exception declares that “[i]f the parties reasonably, but mistakenly, believed that the initial filings before the court had sufficiently demonstrated standing, the court may—as it did here—request supplemental affidavits and briefing.” Maj. Op. 10 (citing Pub. Citizen, Inc., 489 F.3d at 1296-97; Am. Library Ass’n, 401 F.3d at 492, 496); see also Maj. Op. 12 (suggesting we should allow supplemental briefing if parties make a “reasonable effort” to satisfy Rule 28(a)(7)). But Public Citizen and American Library Association establish no such exception to our Rule. See, e.g., Am. Library Ass’n, 401 F.3d at 492 (establishing exception if the petitioners “reasonably [but mistakenly] believed their standing [was] self-evident”). Moreover, I do not see how the majority’s new exception would not apply in virtually every case—presumably parties do not make “unreasonable” standing arguments or fail to use reasonable efforts to establish their standing.

Tampa, Florida Marijuana Defense Attorney

813-222-2220

Tampa Criminal Defense Lawyer - Board Certified

2012-12-15T00:21:00.000-05:00

Tampa Criminal Defense Lawyer

Casey Ebsary is a Board Certified Trial Lawyer with diverse criminal litigation experience.

Fast, Easy, and Free Phone Consultation directly with a Board Certified Criminal Trial Lawyer. Just click on the Google Voice Icon above, enter your name and phone number and I will personally speak to you.

Conveniently Located: Tampa, Florida 1101 Channelside Drive Number 244, Tampa, FL 33602. Licensed in Florida, Federal Middle District of Florida - . Call Casey Toll Free 1-877-793-9290.

Tampa Criminal Defense Lawyer Attorney

Pinellas DUI Checkpoint - Epic Fail

2012-11-18T23:13:00.000-05:00

Pinellas DUI Checkpoint nets 1 Arrest out of almost 800 vehicles?

DUI Checkpoint Results For November 16-17, 2012

Where: The sobriety checkpoint was conducted at 26996 US19 North in Clearwater (K-Mart parking lot).

When: The checkpoint was held from 10:00 p.m. on November 16 through 3:00 a.m. on November 17, 2012.

Checkpoint results are as follows:

1 Subject Arrested

4 Charges:

1 No Valid DL

2 Misdemeanor Possession of Marijuana

1 Possession of Controlled Substance with Intent to Sell

1 Citation

790 vehicles passed with

194 vehicles diverted

Spring Hill Marijuana Grow House Map

2012-10-03T21:57:00.001-04:00

Hernando County Florida Courthouse

Marijuana Grow House Attorney Needed

Growhouse Defense Attorney notes a media reports that a grow house was busted in Spring Hill, Hernando County, Florida. TBO.com reports, "Armed with a search warrant, detectives went to 14185 Dorado St. and located 49 marijuana plants . . . . [The Defendant] was diverting power prior to the meter to feed the grow operation [and] was charged with possession of a structure for cultivation, cultivation of marijuana, grand theft, trespass of utility and possession of drug paraphernalia. He is at the Hernando County Detention Center under $21,000 bail."

Map of 14185 Dorado St, Spring Hill, FL 34609

View Larger Map

Source:http://m2.tbo.com/content/2012/oct/03/031657/hernando-deputies-shut-down-spring-hill-grow-house/news-breaking/

Marijuana Grow House Attorney Needed Call 813-222-2220

Trafficking Prescription Drugs - Evidence Tossed

2012-10-03T17:49:00.001-04:00

Trafficking Prescription Drugs

Criminal Defense Attorney / Lawyer notes a recent court decision involving trafficking and possession of drugs and a Fla. R. Crim. P. 3.190(g), motion to suppress the narcotics seized and charges made under Florida Statutes 893.13. The prescription drug bottle with a unreadable label was the subject of a Search and seizure. The drugs were found in a Vehicle. The drug cops saw the defendant park his car in high-crime area. The suspect got out of his car, cash in hand; handed cash to a guy who walked out of officers' sight. Suspect returned with a large prescription bottle, handed bottle to defendant; who drove away.

Prescription Drugs and Probable Cause to Search

Court ruled that detectives lacked probable cause to arrest defendant and then search his vehicle. Why? Because the officers had all accouterments of office and employed their car's emergency equipment, stopped the defendant's vehicle, yanked him from vehicle, and put defendant on the sidewalk, then searched the car with a drug dog. Motion to suppress was granted. Here are a few Case Excerpts:

Facts of the Case:

On Nov. 15, 2010, Darrian Washington, a detective with the Miami-Dade Police Department, was observing a small apartment complex on 80th Street west of 7th Avenue. (Darrian Washington's Dep. 6.) Defendant Lopez drove up and parked his car approximately ten to 15 yards from where Det. Washington was standing. (Darrian Washington's Dep. 6.) When Mr. Lopez got out of his car, he appeared to Det. Washington to be holding cash in one of his hands. (Darrian Washington's Dep. 7, 8.) Another man -- described only as “a black male,” (Darrian Washington's Dep. 8) -- spoke briefly with Mr. Lopez, after which Det. Washington saw Mr. Lopez hand the cash he had been holding to the other man. (Darrian Washington's Dep. 8.)

The black male then walked out of Det. Washington's line of sight, (Darrian Washington's Dep. 9), but soon returned carrying what Det. Washington described as a “large prescription bottle” (Darrian Washington's Dep. 9, 10), the label of which had been defaced. (Darrian Washington's Dep. 11.) Mr. Lopez took the bottle, then got in his car and drove away. Det. Washington contacted two colleagues, Detectives Benitez and Kinney, (Darrian Washington's Dep. 12), and instructed them to apprehend Mr. Lopez. (Darrian Washington's Dep. 13.)

Det. Benitez recalls that, upon instructions from Det. Washington, he “activat[ed] the emergency equipment” of the “unmarked police vehicle” of which he was the driver and Det. Kinney the passenger, and pulled over Mr. Lopez. (Jason Benitez's Dep. 6.) At that time, the two detectives “were wearing a modified please (sic; police) uniform TNT, which we had our body armor with POLICE and our badges on the outside, red and blue lights on the siren.” (Jason Benitez's Dep. 7.) Although Det. Benitez did not see Mr. Lopez commit any crimes or traffic infractions, he did “see the defendant tugging at the headrest,” (Jason Benitez's Dep. 7), which was a source of “concern” to the detective “for weapons.” (Jason Benitez's Dep. 8.) Fortunately, this concern proved unfounded; the detective “didn't see any weapons.” (Jason Benitez's Dep. 8, 9.) Mr. Lopez was taken out of his car and placed in custody “on the ground on the sidewalk.” (Jason Benitez's Dep. 9-10.) The detectives then radioed for the assistance of a canine officer, Detective Menoud. (Jason Benitez's Dep. 11.) In due course -- the time is not stated in the deposition transcripts -- Det. Menoud arrived, accompanied by his dog Shasta. (Jason Benitez's Dep. 12.) Shasta, with the assistance of his human colleagues, conducted the search of Mr. Lopez's car that resulted in the seizure of the contraband at issue here. (Jason Benitez's Dep. 12.)

Ruling of the Case:

Although the Hodari D. test is cast in the disjunctive, in the case at bar both prongs were met. Two officers, bearing all the accouterments of office and employing their car's emergency equipment, pulled Mr. Lopez over. He was then removed from his own car and, according to the testimony of one of the detectives, placed on the ground on the sidewalk. He was obliged to remain there while his car was searched by hands and paws. Whether measured by the “submission to authority” component or the “actual physical force” component, the conduct visited upon Mr. Lopez satisfies the predicate for arrest. the contraband at issue here. (Jason Benitez's Dep. 12.)

It is a principle too well-settled to require citation to authority that such an arrest -- conducted, as this one was, in the absence of warrant -- must be justified by nothing less than probable cause. The classic and oft-cited definition provides that “[p]robable cause exists where ‘the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-6 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). In the taxonomy of standards of proof, probable cause is lower than proof beyond a reasonable doubt, see Locke v. United States, 11 U.S. 339 (1813) (Marshall, C. J.), but higher than mere articulable reasonable suspicion, see Terry v. Ohio, 392 U.S. 1 (1968). Only if Mr. Lopez's arrest was justified by probable cause are its fruits admissible at trial.

Although the presence or absence of probable cause turns chiefly on the conduct of the person to be arrested, other factors may also be relevant. Typically -- it is tempting to say invariably -- police officers will testify that the conduct in which they saw the arrestee engage occurred in a “high crime area” or “known drug area.” That was the case here; Detective Washington was asked if he knew the contents of the bottle he saw come into Mr. Lopez's hands. “No, sir,” he responded -- and then hastened to volunteer, “Based on my training and experience I was in a known drug area.” (Det. Darrian Washington's 10.)

The topos of the “high crime area” in present-day police testimony is, in at least one sense, perfectly understandable. No self-respecting policeman can be expected to begin his testimony by remarking that, “I was patrolling in a crime-free area” or “Our squad was detailed to set up surveillance in an area where no crimes had been reported.” Sending the greatest number of police officers to the areas with the greatest number of serious crimes is precisely what we want our police departments to be doing. But when every officer testifies in every case that his search or seizure was justified, at least in part, because it took place in a “high crime area,” then every search or seizure is justified, at least in part. In Orwell's Animal Farm, all pigs were equal but some were more equal than others; so, too, if all areas in which policework is done are “high crime areas,” then some of those areas must be “higher crime” -- and therefore some “lower crime” -- than others. Comparatives and superlatives lose their force when applied to anything and everything. And the use of a particular locution in every, or nearly every, case in which policemen testify detracts from the force and probative value of that locution in any given case. See, e.g., United States v. Marshall, 488 F.2d 1169, 1171 n. 1 (9th Cir. 1973).

Det. Washington's observations gave rise to that “articulable reasonable suspicion” that justify the police in conducting an investigatory stop. See § 901.151, Fla. Stat. (codifying and modifying the doctrine ofTerry v. Ohio, 392 U.S. 1 (1968)). This Terry doctrine is as fully applicable to the drivers of cars as it is to pedestrians. See Michigan v. Long, 463 U.S. 1032 (1981); State v. Dilyerd, 467 So.2d 301 (Fla. 1985). The officers in the case at bar were entitled to stop Mr. Lopez's car and make further inquiries; indeed they would have been recreant in their duty had they failed to do so. Their authority was limited to “temporarily detain[ing] [Mr. Lopez] for the purpose of ascertaining [his] identity . . . and the circumstances surrounding [his] presence abroad which led the officer[s] to believe that [he] had committed, was committing, or was about to commit a criminal offense.” § 901.151(2), Fla. Stat. If, during the course of that investigatory stop, the officers had observed contraband in plain view, they would have been entitled to seize it. If, during the course of that investigatory stop, the officers had solicited and obtained Mr. Lopez's consent to search his car, or his person, they would have been entitled to do so. If, during the course of that investigatory stop, the officers had developed probable cause, then -- and only then -- would they have been entitled to make an arrest. § 901.151(4), Fla. Stat. Where, as here, there was no contraband in plain view, there was no consent to search, and there was no probable cause, the seizure of Mr. Lopez's person and the search of his car were unsupportable as a matter of law. The fruits of such a search must be suppressed.

Conclusion of the Case:

The evidence was suppressed by the Judge.

Trafficking Prescription Drugs Defense Attorney Call 813-222-2220

Source: 19 Fla. L. Weekly Supp. 934a Online Reference: FLWSUPP 1911LOPE

Inside Drug Smuggling Tunnel Video

2012-07-14T12:20:00.000-04:00

Marijuana and Drug Charge Defense Attorney / Lawyer notes more drug smuggling tunnels have been uncovered beneath a Southwest border. One media report stated that the smuggling tunnels had lighting and ventilation systems. The construction was found near the U.S.-Mexico border. The tunnels are an effort to elude surveillance above ground. This week, the tunnels were at least one hundred-fifty yards long.

Florida Drug Statute 893 Update

2012-07-12T16:05:00.000-04:00

Florida Drug Defense Attorney checked the Court's opinions on the Constitutionality of Florida's Drug Statute Chapter 893 today. The Florida Supreme Court issued an opinion today in State v. Adkins, SC11-1978, 2012 WL 2848903 (Fla. July 12, 2012), holding that sec 893.13(1(a), (6)(a), Fla. Stat., is constitutional. http://drug2go.blogspot.com/ .

Drug Charge News

Florida 893 Drug Statute Constitutional Says Florida Supreme Court

2012-07-12T10:30:00.000-04:00

Florida Drug Statute Constitutional - Breaking News

Update July 12, 2012 - The Florida Supreme Court issued an opinion today in State v. Adkins, SC11-1978, 2012 WL 2848903 (Fla. July 12, 2012), holding that sec 893.13(1(a), (6)(a), Fla. Stat., is constitutional.

Tampa Drug Defense Attorney Lawyer had previously received an opinion issued by a Federal District Judge declaring the Florida Drug Statute 893.13 Unconstitutional.

The Judge ruled, "In accordance with Rule 57 of the Federal Rules of Civil Procedure, a Declaratory Judgment shall be entered separately, declaring FLA.STAT. § 893.13, as amended by FLA.STAT. § 893.101, unconstitutional;" so says Federal Court in Florida. Chapter 893 covers almost every drug charge on the books.

Raw Text of Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

MACKLE VINCENT SHELTON, Petitioner,

v. Case No.: 6:07-cv-839-Orl-35-KRS SECRETARY, DEPARTMENT OF CORRECTIONS, et. al., Respondents. _____________________________/

ORDER

THIS CAUSE comes before the Court for consideration of Mackle Vincent Shelton’s Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Dkt. 1); the response filed in opposition thereto (Dkt. 7); Petitioner’s Reply (Dkt. 11); the parties’ Supplemental Memoranda (Dkts. 25, 31, 36); and the Amicus Brief filed in support of Petitioner. (Dkt. 28) On May 13, 2002, the Florida Legislature enacted changes to Florida’s Drug Abuse Prevention and Control law, FLA.STAT. § 893.13, as amended by FLA.STAT. § 893.101. By this enactment, Florida became the only state in the nation expressly to eliminate mens rea as an element of a drug offense. This case, challenging the constitutionality of that law, was filed following Plaintiff’s conviction for delivery of cocaine without the jury being required to consider his intent in any respect1 and the subsequent imposition of an eighteen year sentence following his conviction. Upon consideration of all relevant filings, case law, and being otherwise fully advised,

1 Because Petitioner did not assert lack of knowledge of the illicit nature of a controlled substance as an affirmative defense (See Fla. Stat. § 893.101(2)), the jury was instructed that it must convict Petitioner upon sufficient proof that Petitioner had, in fact, delivered cocaine. The applicable instruction required no other proof or finding. (See Dkt. 8 at B. 338)

the Court GRANTS Petitioner’s request for habeas relief (Dkt. 1), and finds that FLA.

STAT. § 893.13 is unconstitutional on its face.

I. BACKGROUND

A. Florida’s Legislative Scheme

“Actus non facit reum nisi mens sit rea” --except in Florida.2

Prior to May 2002, Florida law provided, inter alia:

(1)(a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver,3 or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to:

1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c) 4., commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or

s. 775.084.

. . .

(6)(a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

FLA.STAT. § 893.13(1)(a),(6)(a) (2000).

Addressing whether § 893.13 included guilty knowledge as an element of the

offense, the Florida Supreme Court opined:

We believe it was the intent of the legislature to prohibit the knowing

possession of illicit items and to prevent persons from doing so by

attaching a substantial criminal penalty to such conduct. Thus, we hold

2 Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.” 3 “Deliver” or “delivery” is defined as “the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” FLA.STAT. § 893.02(6).

that the State was required to prove that Chicone knew of the illicit nature

of the items in his possession.

Chicone v. State, 684 So. 2d 736, 744 (Fla. 1996). Additionally, the Florida Supreme

Court held that “it was error for the trial court to deny Chicone’s request for a special

jury instruction on knowledge.” Id. at 746. Subsequently, in Scott v. State, 808 So. 2d

166, 170-72 (Fla. 2002), the Florida Supreme Court made clear that “knowledge is an

element of the crime of possession of a controlled substance, a defendant is entitled to

an instruction on that element, and . . . [i]t is error to fail to give an instruction even if the

defendant did not explicitly say he did not have knowledge of the illicit nature of the

substance.”

In direct and express response to the Court’s holdings in Chicone and Scott, in

May 2002, the Florida legislature enacted amendments to Florida’s Drug Abuse

Prevention and Control law:

(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla. 2002) and Chicone v. State, 684 So. 2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.

(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

(3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.

FLA.STAT. § 893.101. As explained by one Florida court: The statute does two things: it makes possession of a controlled substance a general intent crime, no longer requiring the state to prove that a violator be aware that the contraband is illegal, and, second, it allows a defendant to assert lack of knowledge as an affirmative defense. There is a caveat that, once this door is opened, either actual or constructive possession of the controlled substance will give rise to a permissive presumption that the possessor knew of the substance's illicit nature, and the jury instructions will include this presumption. The knowledge element does not need to be proven, but if the defendant puts it at issue, then the jury is going to hear about it, and the defendant must work to rebut the presumption.

Wright v. State, 920 So. 2d 21, 24 (Fla. 4th DCA 2005) (internal citation omitted).

Not surprisingly, Florida stands alone in its express elimination of mens rea as

an element of a drug offense.4 Other states have rejected such a draconian and

unreasonable construction of the law that would criminalize the “unknowing” possession

of a controlled substance. See, e.g., State v. Bell, 649 N.W. 2d 243, 252 (N.D. 2002)

(noting the legislature amended North Dakota’s drug laws in 1989 to include the

culpability requirement of “willfully” as an element of the offense of possession of a

controlled substance, thereby eliminating possession as a strict liability offense); State

v. Brown, 389 So. 2d 48, 51 (La. 1980) (concluding drug possession cannot be a strict

liability crime because it would impermissibly criminalize unknowing possession of a

controlled substance and permit a person to be convicted “without ever being aware of

the nature of the substance he was given.”). In stark contrast, under Florida’s statute, a

The State of Washington adopted the Uniform Controlled Substances Act, but its legislature has deleted the “knowingly and intentionally” language from the model act’s mere possession statute. See WASH, REV.CODE §§ 69.50.41, 69.50.603. Thus, mens rea was eliminated as an element of the offense of possession of a controlled substance under Washington law by implication not express intent of the legislature. See State v. Bradshaw, 98 P.3d 1190, 1194-95 (Wash. 2004). North Dakota had done so but retreated from this unwise course in 1989 by abandoning a strict liability regime and amending its drug laws to include the culpability requirement of “willfully” as an element of the offense. State v. Bell, 649

N.W. 2d 243, 252 (2002) (citing N.D. CENT.CODE § 19-03.1-23).

person is guilty of a drug offense if he delivers a controlled substance without regard to whether he does so purposefully, knowingly, recklessly, or negligently. Thus, In the absence of a mens rea requirement, delivery of cocaine it is a strict liability crime under Florida law. See FLA.STAT. §§ 893.101, 893.13.5

B. This Lawsuit and Petitioner’s Claims

Petitioner was arrested on October 5, 2004, and charged with eight counts: three counts of aggravated assault with a deadly weapon (Counts I-III); delivery of cocaine (Count IV); one count of fleeing or attempting to elude a law enforcement officer (Count V); driving while license suspended (Count VI); reckless driving causing damage to property or a person (Count VII); and, two counts of criminal mischief (Counts VIII and IX). (Dkt. 8 at A. 39-47) Following a jury trial on June 1, 2005, Petitioner was found guilty as to Counts IV, V, VI, VII, and IX. (Id. at 182; Dkt. 8 at B. 351-53) Because Petitioner was convicted of Count IV—delivery of cocaine—after the May 2002 changes to Florida’s Drug Abuse Prevention and Control law, the jury was not instructed as to knowledge as an element of that offense. (See Dkt. 8 at B. 338) Rather, on Count IV, the jury was simply instructed as follows:

To prove the crime of delivery of cocaine, the State must prove the following two elements beyond a reasonable doubt:

[1] That Mackle Vincent Shelton delivered a certain substance; and,

[2] That the substance was cocaine.

5 See also U.S. v. Harris, 608 F.3d 1222, 1231 (11th Cir. 2010) (recognizing the three broad categories of crimes under Florida law: “(1) ‘strict liability’ crimes (e.g., DWI manslaughter or statutory rape) which are criminal violations even if done without intent to do the prohibited act; (2) general intent crimes; and (3) specific intent crimes.”) (quoting Linehan v. State, 442 So.2d 244, 247 (Fla. 2d DCA 1983)).

“Deliver” or “Delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

(Dkt. 8 at B. 338)

Petitioner was declared an Habitual Felony Offender pursuant to FLA.STAT. § 775.084 and sentenced to eighteen years in prison. (Dkt. 8 at A. 179-80, 219) Petitioner appealed his sentence and conviction and Florida’s Fifth District Court of Appeal affirmed per curiam.See Shelton v. State, 932 So. 2d 212 (Fla. 5th DCA 2006). On August 22, 2006, Petitioner filed a Motion for Post-Conviction Relief pursuant to FLA.

R. CRIM. P. 3.850. (Dkt. 8 at E.) The trial court denied Petitioner’s Motion for Post-Conviction Relief, and Florida’s Fifth District Court of Appeal affirmed on March 6, 2007. See Shelton v. State, 951 So. 2d 856 (Fla. 5th DCA 2007). (Dkt. 8 at F.) Notably, neither of the appellate decisions analyzed or discussed the federal constitutional issue raised by Petitioner—each court simply affirmed the decisions below. See Shelton v. State, 951 So. 2d 856; see also Shelton v. State, 932 So. 2d 212. On May 18, 2007, Plaintiff filed the instant petition for federal habeas corpus relief. (Dkt. 1)

Petitioner advances nine grounds as a basis for habeas relief. (See Dkt. 1 at 535) Of initial importance here is ground one, Petitioner’s claim that FLA.STAT. § 893.13 is facially unconstitutional because it entirely eliminates mens rea as an element of a drug offense and creates a strict liability offense under which Petitioner was sentenced to eighteen years in prison. (Dkt. 1 at 5) Petitioner’s remaining grounds, none of which provides a sufficient basis to overturn his conviction or alter his sentence, are discussed in section II(D) infra.

II. LEGAL STANDARDS AND ANALYSIS

A. Habeas Relief Pursuant to 28 U.S.C. § 2254

“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 131 S. Ct. 770, 780 (2011). Pursuant to 28 U.S.C. § 2254(a), a district court may grant an application for writ of habeas corpus if the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under certain circumstances, a district court must grant deference to the state court’s decision:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). “This is a difficult to meet, and highly deferential standard for evaluating state-court rulings, which demands that state-court rulings be given the benefit of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal citations and quotation marks omitted).

At the time the instant petition was filed, the applicable standard of review was in dispute. (See Dkt. 7 at 4-7; Dkt. 11 at 5-6; Dkt. 25 at 21-25; Dkt. 36 at 1-7) However, as predicted by Petitioner in his Supplemental Memorandum (See Dkt. 25 at 21-22), in January 2011, the United States Supreme Court held:

When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.

Harrington, 131 S. Ct. at 784-85 (emphasis added). State-law procedural principles in Florida provide that a per curiam affirmance has no precedential value and is not an adjudication on the merits. Dep’t of Legal Affairs v. Dist. Court of Appeal, 5th Dist., 434 So. 2d 310, 311 (Fla. 1983). As noted in the procedural history in section I(B), supra, Florida’s Fifth District Court of Appeal issued decisions affirming the rulings of the trial court without opinion and without a merits-based analysis of the federal constitutional claims, and thus its per curiam affirmances do not constitute an adjudication of Petitioner’s facial challenge to the constitutionality of FLA.STAT. § 893.13 on the merits. See Harrington, 131 S. Ct. at 784-85; see also Dep’t of Legal Affairs, 434 So. 2d at 311. Therefore, no deference is due to the state court’s decision. See id.

As such, this Court reviews de novo Plaintiff’s constitutional challenge to FLA. STAT. § 893.13, as amended by § 893.101, and finds the statute to be facially unconstitutional, as it is violative of the Constitution’s due process clause.6

B. FLA.STAT. § 893.13 is Facially Unconstitutional Because it Results in a Strict Liability Offense With a Harsh Penalty, Stigma, and Overbroad Regulation of Otherwise Innocuous Conduct

Petitioner’s facial challenge to Florida’s drug statute is properly premised on allegations that the State’s affirmative elimination of mens rea and scienter from this felony offense violates due process. 6 The same result would obtain under a deferential standard as the legal authority relied upon herein has long established that some level of culpable scienter is an essential element of any felony offense that punishes otherwise innocuous conduct, carries substantial penalties and imposes grievous stigma. In the absence of an articulated basis to ignore these settled principles and precedents, the state decision cannot stand.

The requirement to prove some mens rea to establish guilt for conduct that is

criminalized is firmly rooted in Supreme Court jurisprudence and, as reflected in the

ineffectual response by the State to this petition, cannot be gainsaid here. Well

established principles of American criminal law provide:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn't mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. . . . [T]o constitute any crime there must first be a ‘vicious will.’

Morissette v. United States, 342 U.S. 246, 250 (1952).

To be sure, the law recognizes the authority of government to fashion laws that

punish without proof of intent, but not without severe constraints and constitutional

safeguards. As the Supreme Court explained:

[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.

This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard.

Patterson v. New York, 432 U.S. 197, 210 (1977) (evaluating New York’s murder and

manslaughter statutes and the requirements for proving the affirmative defense of

acting under the influence of extreme emotional distress). Thus, while the State is

correct that the legislature has the authority to declare the elements of an offense, it

“must act within any applicable constitutional constraints in defining criminal offenses.”

Jones v. United States, 526 U.S. 227, 241 (1999). As discussed further, infra, a strict

liability offense has only been held constitutional if: (1) the penalty imposed is slight; (2)

a conviction does not result in substantial stigma; and (3) the statute regulates

inherently dangerous or deleterious conduct. See Staples v. United States, 511 U.S.

600, 619-20 (1994).

Because it is rare that a legislative body would deign to expunge knowledge or

intent from a felony statute expressly, as the Florida legislature has done here, the issue

typically arises where a statute is silent as to knowledge and the courts are called upon

to determine whether knowledge is a prerequisite to the constitutional enforcement of

the challenged statute. In such cases, courts engraft a knowledge requirement to cure

the statute’s infirmity and follow the common-law presumption7 against penalizing

A full explication of the elimination of mens rea as atavistic and repugnant to the common law is eloquently and thoroughly set forth in the memorandum filed by Amici Curiae, National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, American Civil Liberties Union of Florida, Drug Policy Alliance, Calvert Institute for Policy Research, and thirty-eight Professors of Law: (1) Bridgette Baldwin (W. New England Coll. Sch. of Law); (2) Ricardo J. Bascuas (Univ. of Miami Sch. of Law); (3) Caroline Bettinger-López (Univ. of Miami Sch. of Law); (4) Guyora Binder (Univ. at Buffalo Law Sch.); (5) Jennifer Blasser (Benjamin N. Cardozo Sch. of Law); (6) Vincent M. Bonventre Albany Law Sch.); (7) Tamar R. Birckhead, (Univ. of N.C. Sch. of Law); (8) Darryl K. Brown (Univ. of Va. Sch. of Law); (9) Paul Butler (The Geo. Wash. Univ. Law School); (10) Michael Cahill (Brooklyn Law Sch.); (11) Matthew H. Charity (W. New England Coll. Sch. of Law); (12) Lucian E. Dervan (S. Ill. Univ. Sch. of Law); (13) William V. Dunlap (Quinnipiac Univ. Sch. of Law); (14) Sally Frank (Drake Univ. Law Sch.); (15) Monroe H. Freedman (Hofstra Univ. Sch. of Law); (16) Bennett L. Gershman (Pace Law Sch.);

(17) Andrew Horwitz (Roger Williams Univ. Sch. of Law) (18) Babe Howell (CUNY Sch. of Law); (19) Renée Hutchins (Univ. of Md. Sch. of Law); (20) John D. King (Wash. & Lee Univ. Sch. of Law); (21) Jeffrey L. Kirchmeier (CUNY Sch. of Law); (22) Richard Daniel Klein (Touro Coll. Jacob D. Fuchsberg Law Ctr.) (23) Kelly S. Knepper-Stephens (The Geo. Wash. Univ. Law School); (24) Alex Kreit (Thomas Jefferson Sch. of Law); (25) Donna Hae Kyun Lee (CUNY Sch. of Law); (26) Mary A. Lynch, (Albany Law Sch.); (27) Dan Markel (Fla. State Univ. Coll. of Law) (28) Ellen S. Podgor (Stetson Univ. Coll. of Law);

(29) Martha Rayner (Fordham Univ. Sch. of Law); (30) Ira P. Robbins (Am. Univ. Wash. Coll. of Law);

(31) Jenny M. Roberts (Am. Univ. Wash. Coll. of Law); (32) Ronald Rotunda (Chapman Univ. Sch. of Law); (33) Stephen A. Saltzburg (The Geo. Wash. Univ. Law Sch.); (34) William A. Schroeder (S. Ill. Univ. Sch. of Law); (35) Michael L. Seigel (Univ. of Fla. Levin Coll. of Law); (36) Laurie Shanks (Albany Law

defendants who have “knowledge only of traditionally lawful conduct.” Staples, 511

U.S. at 618.

In the seminal case on this issue, Staples, the United States Supreme Court held that under the National Firearms Act, 26 U.S.C. § 5861(d), which establishes a ten-year maximum sentence for a person who possesses a machine gun that is not properly registered, the government must prove that the defendant knew that the gun was a machine gun. Id. at 602. The Supreme Court explained that when a statute is silent as to the mental state required for a violation, the existence of a mens rea requirement is the rule rather than the exception. Id. at 605. It also explained that without such a requirement in § 5861(d), the statute potentially would impose criminal sanctions on innocent persons. Id. at 614-15. Further, the Supreme Court emphasized that the potentially harsh penalty attached to a statutory violation supported a mens rea requirement. Id. at 616.

Subsequently, in United States v. X-Citement Video, Inc., 513 U.S. 64, 68 (1994), the Supreme Court considered whether knowledge should be an element of an offense under 18 U.S.C. § 2252, which prohibits the transportation, shipping, reception, or distribution of pornography produced using underage individuals. Although the statute contained the word “knowingly,” the Ninth Circuit reasoned that the placement of the word was such that it modified transportation, distribution and receipt, but it did require knowledge by the defendant that the visual depictions involved minors. The Ninth Circuit, finding that there was no scienter requirement as to the age of the performers in the videos, struck down the statute as a violation of the First Amendment. United States v. X-Citement Video, Inc., 982 F.2d 1285 (9th Cir. 1992).

Applying its analysis in Staples, the Supreme Court examined the presumption that “some form of scienter is to be implied in a criminal statute even if not expressed” and, because of the added constitutional dimension “a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.” X-Citement Video, 513 U.S. at 69. Thus, the Supreme Court read Staples and its antecedents as “instruct[ing] that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” Id. at 72. Because “the age of the performers is the crucial element separating legal innocence from wrongful conduct,” the Supreme Court found a strong presumption in favor of a scienter requirement as to that element. Id. at 73. The Court reasoned that this presumption was further necessitated because “a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts.” Id. at 78. Thus, the Court found it “incumbent upon [itself] to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress.” Id.8

From this body of law it is clear that while “strict liability offenses are not unknown to the criminal law and do not invariably offend constitutional requirements,” their use is very limited and they are accorded a “generally disfavored status.” United

8 Of course, where, as here, the legislative intent clearly eliminates the mens rea requirement, the Court is powerless to cure the statute by engrafting a knowledge requirement that is squarely contrary to that intent. See FLA.STAT. § 893.101. It is precisely that act of engrafting that prompted the legislature to amend the statute. Thus, the Court must consider the statute’s constitutionality bereft of mens rea.

States v. U.S. Gypsum Co., 438 U.S. 422, 437-38 (1978). The Supreme Court has upheld strict liability offenses in “public welfare” cases which involve statutes that regulate inherently dangerous items/conduct and which provide for only slight penalties, such as fines or short jail sentences. See, e.g., United States v. Balint, 258 U.S. 250, 256 (1922). In such cases, there is no due process violation because “the accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.” Id. Thus, under Staples and its progeny, the tripartite analysis for evaluating a strict liability offense under the strictures of the Constitution involves consideration of: (1) the penalty imposed; (2) the stigma associated with conviction; and (3) the type of conduct purportedly regulated. Staples, 511 U.S. at 619-20.

Evaluated under this framework, the Florida drug statute fails completely.

1. Section 893.13 Violates Due Process Because its Penalties are Too Severe

It cannot reasonably be asserted that the penalty for violating Florida’s drug statute is “relatively small.” A violation of § 893.13(1)(a)(1), for delivery of a controlled substance as defined in Schedule I, FLA.STAT. 893.03(1), is a second degree felony, ordinarily punishable by imprisonment for up to fifteen years. FLA.STAT. § 775.082(3)(c). For habitual violent felony offenders, such as Petitioner, a violation of § 893.13(1)(a)(1) is punishable by imprisonment for up to thirty years and includes a ten-year mandatory minimum sentence. See FLA.STAT. § 775.084(1)(b). Other provisions of Florida’s drug statute subject offenders to even harsher penalties, including ordinary imprisonment for thirty years for first time offenders and life imprisonment for recidivists. See, e.g., FLA.STAT. §§ 893.13(1)(b) (delivery of more than 10 grams of a schedule I substance); § 893.13(1)(c) (delivery of cocaine within 1,000 feet of a child care facility, school, park, community center, or public recreational facility).

No strict liability statute carrying penalties of the magnitude of FLA.STAT. § 893.13 has ever been upheld under federal law. In fact, the Supreme Court has considered a penalty of up to three years’ imprisonment or a fine not exceeding $100,000.00 too harsh to impose on a strict liability offense. See Gypsum, 438 U.S. at 442. In Gypsum, the Supreme Court considered the penalties for an individual violation of the Sherman Antitrust Act and opined, “[t]he severity of these sanctions provides further support for our conclusion that the [Act] should not be construed as creating strict-liability crimes.” Id. Similarly, in Staples, the Supreme Court declined to construe the National Firearms Act as a strict liability statute given its “harsh” penalty of up to ten years’ imprisonment. Staples, 511 U.S. at 616. As the Supreme Court explained:

The potentially harsh penalty attached to violation of § 5861(d)-up to 10 years' imprisonment-confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Certainly, the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary.

Id. Other federal courts have reached similar conclusions regarding even lighter penalties. For example, in United States v. Wulff, 758 F.2d 1121 (6th Cir. 1985), the Sixth Circuit concluded the felony provision of the Migratory Bird Treaty Act (“MBTA”) was unconstitutional where the maximum penalty was two years’ imprisonment. Specifically, the Sixth Circuit recognized that a two-year sentence was not “relatively small” and that a felony conviction “irreparably damages one’s reputation.” Id. at 1125. The District Court for the District of South Dakota reached exactly the same conclusion in its analysis of the same MTBA felony provision. See United States v. St. Pierre, 578

F. Supp. 1424, 1429 (D. S.D. 1983).

While the same two-year strict liability provision was subsequently upheld by the Third Circuit, the court considered the constitutional question an extremely close call. See United States v. Engler, 806 F.2d 425, 431-35 (3d Cir. 1986). For the Third Circuit, the difference between the one-year penalty under the misdemeanor provision, which had been upheld in Wulff, and the two-year penalty under the felony provision was so slight “that the analysis takes place on a very slippery slope with too much ‘in the eye of the beholder.’” Id. at 435. Thus, the Third Circuit opted to permit a penalty of two years’ imprisonment for strict liability offenses that are part of “a regulatory measure in the interest of public safety, which may well be premised on the theory that one would hardly be surprised to learn that [the prohibited conduct] is not an innocent act.” Id. (quoting United States v. Freed, 401 U.S. 601, 609 (1971)). Because the “capture and sale of species protected by the MBTA is not ‘conduct that is wholly passive,’ but more closely resembles conduct ‘that one would hardly be surprised to learn . . . is not innocent,’” the Third Circuit upheld the constitutionality of the MTBA’s two-year penalty. Id. at 435-36.

Thus, while the Third and Sixth Circuits disagree over whether the outer bounds of due process lie at a one or two-year strict liability sentence, the State does not cite, and the Court has not located, any precedent applying federal law to sustain a penalty of fifteen years, thirty years, and/or life imprisonment for a strict liability offense. In fact, at least one Circuit Court of Appeals has expressly stated that a twenty-year strict liability provision would be unconstitutional. See United States v. Heller, 579 F.2d 990 (6th Cir. 1978). In Heller, the Sixth Circuit considered an interstate extortion/kidnapping statute that was silent regarding mens rea and carried a maximum penalty of twenty years’ imprisonment. Id. at 993. The Sixth Circuit held that a mens rea element must be inferred by judicial construction because the statute would otherwise violate due process. Id. at 994 (elucidating, “if Congress attempted to define a Malum prohibitum offense that placed an onerous stigma on an offender’s reputation and that carried a severe penalty, the Constitution would be offended[.]”).

The State offers no safe harbor for Florida’s drug statute on this point. (See Dkt. 7; Dkt. 36) Instead, the State suggests that the statute is not unconstitutional as applied because Petitioner’s “sentence is not the direct result of or reasonably related to the alleged infirmity in chapter 893.” (Dkt. 36 at 19) Rather, the State contends Petitioner’s “sentence was the result of the habitual violent offender statute.” (Id. at 17) This argument is flawed in three respects. First, Petitioner asserts a facial challenge to Florida’s drug statute, not an as-applied challenge as the State implies. Second, Petitioner’s “enhanceable” status was triggered by his conviction under § 893.13, a facially unconstitutional statute. Thirdly, the fifteen-year maximum sentence that the statute imposes is not “relatively small” even when considered without regard to the enhancement Petitioner faced, and it cannot reasonably be contended otherwise.

As Petitioner so aptly explained, “a ruling upholding penalties on the order permitted by the statute would leave literally nowhere else to go to draw a meaningful Constitutional line. Even if there is uncertainty about precisely where this line is drawn, that hardly matters here because by any measure sentences of fifteen years to life are on the wrong side of it.” (Dkt. 25 at 11) The Court agrees. Sentences of fifteen years, thirty years, and life imprisonment are not by any measure “relatively small.” Accordingly, the Court concludes that the penalties imposed by Florida’s strict liability drug statute are too severe to pass constitutional muster, and doubly so when considered in conjunction with the other two factors in the tripartite analysis.

2. Section 893.13 Violates Due Process Because it Creates Substantial Social Stigma

In this regard, there can be little question that a conviction for a second degree felony coupled with a sentence of fifteen to thirty years tends to “gravely besmirch” a person’s reputation. As the Supreme Court noted, a felony is “as bad a word as you can give to a man or thing.” Morissette, 342 U.S. at 260. Convicted felons cannot vote, sit on a jury, serve in public office, possess a firearm, obtain certain professional licenses, or obtain federal student loan assistance. The label of “convicted felon” combined with a proclamation that the defendant is so vile that he must be separated from society for fifteen to thirty years, creates irreparable damage to the defendant’s reputation and standing in the community. This social stigma precludes, for example, the ability of a convicted felon to reside in any neighborhood of his choosing or to obtain certain employment.

The State offers little argument on this point, stating only “that Shelton, who is a Habitual Violent Felony Offender, has already voluntarily besmirched his reputation long before the lack of mens rea was made an affirmative defense.” (Dkt. 36 at 19) Again, Petitioner is not raising an as-applied challenge to Florida’s Drug Abuse Prevention and Control law, so his particular past criminal history is irrelevant to the issue of whether a second degree felony conviction besmirches an individual’s reputation. Moreover, habitual offender status occasioned by a conviction under this unconstitutional statute further marred the Petitioner’s already sullied character. The Court finds, therefore, if it does not go without saying, that a felony conviction under Florida’s strict liability drug statute gravely besmirches an individual’s reputation. See Heller, 579 F.2d at 995.

3. Section 893.13 Violates Due Process Because it Regulates Inherently Innocent Conduct

Finally, Florida’s strict liability drug statute also runs afoul of due process limits when viewed from the perspective of the nature of the activity regulated. Where laws proscribe conduct that is neither inherently dangerous nor likely to be regulated, the Supreme Court has consistently either invalidated them or construed them to require proof of mens rea in order to avoid criminalizing “a broad range of apparently innocent conduct.” Liparota v. United States, 471 U.S. 419, 426 (1985). Under this reasoning, not even a small criminal penalty may constitutionally be imposed without proof of guilty knowledge where the conduct at issue includes a wide array of innocuous behavior or behavior not inherently likely to be regulated. See Lambert v. California, 355 U.S. 225 (1958).

In Lambert, the Supreme Court held that a strict liability felon registration ordinance, punishable by six months’ imprisonment, violated due process. Id. at 229

30. The felon registration ordinance required a convicted felon to register with law enforcement within five days of entering Los Angeles, but it did not require proof that the defendant knew of the registration requirement. Id. at 226-27. The Supreme Court reversed the defendant’s conviction because being in Los Angeles is not inherently unlawful, and thus the defendant had no reason to believe that her conduct might be proscribed. Id. at 228-30.

Similarly, in Liparota, the Supreme Court held that the offense of unlawfully acquiring food stamps required proof that the defendant knew he had acquired the stamps unlawfully. Liparota, 471 U.S. at 426. The Supreme Court made clear that “constitutional constraints” limit a legislature’s ability to enact strict liability crimes. Id. at 424 n.6. Additionally, the Supreme Court read a mens rea of specific intent into the statute as a matter of judicial construction because dispensing with a mens rea requirement and treating the statute as a true strict liability offense would have resulted in reading the statute to outlaw a number of innocent acts. Id. at 433 (distinguishing possession of a food stamp from possession of a hand grenade—a particularly dangerous weapon).

While the Supreme Court has upheld statutes regulating inherently dangerous conduct without requiring mens rea as to every element, such instances, unlike the present one, did not involve pure strict liability offenses; rather, they involved statutes that included at least some mens rea requirement. For example, in Balint, the Supreme Court addressed the requisite mens rea for a violation of the Narcotic Act of 1914.

Balint, 258 U.S. at 253-54. The statute at issue in Balint was not a true strict liability

statute because it required proof that the defendant knew that he was selling

“dangerous narcotics.” Id. at 254. The Supreme Court held that due process was

satisfied without proof of the additional fact that the defendant knew that the specific

narcotics he was selling were within the ambit of the statute because “where one deals

with others and his mere negligence may be dangerous to them, as in selling diseased

food or poison, the policy of the law may, in order to stimulate proper care, require the

punishment of the negligent person though he be ignorant of the noxious character of

what he sells.”9 Id. at 252-53; see also United States v. Int’l Minerals & Chem. Corp.,

402 U.S. 558, 564 (1971); United States v. Freed, 401 U.S. 601, 609 (1971). By

contrast, Florida’s statute does not require even the minimal showing that the Defendant

knew he was delivering any illicit substance as an element of the offense charged.10

9 Nor does Balint support the constitutionality of FLA.STAT. § 893.13 because, unlike the provision upheld in Balint, § 893.13 does not require proof that the defendant knew what he was delivering or even that he was delivering it, much less that it was known by him to be dangerous. Cf. Balint, 258 U.S. at 252-53. Florida’s prohibition on the mere delivery of a substance without proof of knowledge is therefore akin to the Los Angeles ordinance stricken in Lambert and the food stamp provision in Liporata. See Liparota, 471 U.S. at 426; see also Lambert, 355 U.S. at 226.

Curiously, according to Florida’s Standard Criminal Jury Instructions, if charged with the crime of possession, the State would at least have to prove that the Defendant had knowledge of the presence of the substance, but again, not that it was an illicit substance. See FLA.STD.JURY INSTR. (Crim.) 25.2. Specifically, the jury instructions provide that in order to prove the crime of sale, purchase, manufacture, delivery, or possession of cocaine:

[T]he state must prove the following elements bond a reasonable doubt:

1. 1. Defendant [sold], [purchased], [manufactured] [delivered] [possessed with intent to sell] [possessed with intent to purchase] [possessed with intent to manufacture] [possessed with intent to deliver] a certain substance.

2. 2. The substance was cocaine.

Give if possession is charged.

3. Defendant had knowledge of the presence of the substance.

FLA.STD.JURY INSTR. (Crim.) 25.2. The source of this distinction is nowhere apparent in the statute, and the knowledge requirement is, as noted above, not a factor in the delivery instruction. See FLA.STAT. § 893.13(1)(a).

In Freed, the Supreme Court considered a statute proscribing another inherently dangerous and likely to be regulated activity—possession of unregistered grenades. Freed, 401 U.S. 607. The statute was not a pure strict liability offense because it required proof that the defendant knew the items in his possession were grenades. Id. The defendant contended the statute should be read to require the Government to prove the defendant also knew the grenades were unregistered. Id. at 605. The Supreme Court disagreed and upheld the statute notwithstanding its ten-year maximum penalty because “one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Id. at 609. Thus, under Freed due process is not offended by a ten-year penalty when the statute requires general rather than specific intent and where the conduct at issue is inherently dangerous. There is nothing in Freed, however, to suggest the Supreme Court would have upheld the statute had it permitted guilt without proof the defendant knew what he possessed was a grenade.

Knowledge of the hazardous character of substances has also been sufficient to sustain liability in the shipping context. See Int’l Minerals, 402 U.S. at 564. In this context, because “dangerous or deleterious devices or products or obnoxious waste materials are involved, probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them has to be presumed to be aware of the regulation” requiring classification of property on shipping papers. Id. at 565. Thus, in Int’l Minerals, the Supreme Court sustained a statute proscribing the knowing shipment of “corrosive liquids” without listing them as such in the shipping papers. Id. Analogous to the statute at issue in Freed, the statute at issue in Int’l Minerals was not one of strict liability because it required proof that the defendant knew he was shipping dangerous materials—sulfuric acid. Id. at 560. Because shipping sulfuric and other dangerous acids is inherently dangerous and likely to be regulated, the Supreme Court held due process did not require proof that the defendant also knew he was required to list this on the shipping papers. Id. at 664-65. However, the Supreme Court emphasized that had the statute attempted to so regulate the shipping of “pencils, dental floss” and “paper clips,” without a greater mens rea requirement, this would “raise substantial due process questions.” Id.

Many of the cases discussed, supra, analyze either the severity of the punishment or the inherently questionable nature of the conduct at issue. The Supreme Court’s decision in Staples, however, discusses all three considerations relevant to the due process inquiry—punishment, stigma, and type of conduct at issue. Staples, 511

U.S. at 604-19. As noted previously, the Supreme Court in Staples addressed the mens rea necessary to sustain a conviction under the National Firearms Act—whether the Government was required to prove beyond a reasonable doubt that the defendant knew the weapon he possessed had characteristics that brought it within the ambit of the statutory definition of a machine gun. Id. at 604.

The Supreme Court held that it was indeed necessary for the government to prove the defendant’s awareness of the characteristics of his firearm that rendered it unlawful. Id. at 619. In reaching this conclusion, the Supreme Court distinguished the possession of hand grenades because “there is a long tradition of widespread lawful gun ownership by private individuals in this country.” Id. at 610. Additionally, the Supreme Court declined to construe the statute as dispensing with mens rea because the statute carried a harsh penalty of up to ten years’ imprisonment for violations and would thus do grave damage to an offender’s reputation. Id. at 616-18.

After reviewing the extensive history, case law, and commentary regarding strict liability offenses, the Supreme Court explained that this history “might suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense,” and that “absent a clear statement from Congress that mens rea is not required, we should not apply the public welfare offense rationale to interpret any statute defining a felony offense as dispensing with mens rea.” Id. at 618. The Court did not find it necessary to establish a firm rule because it found that the severe ten-year penalty, attendant stigma, and inherently innocent nature of gun ownership required it to construe the statute to include a mens rea element regarding the nature of the firearm owned. Id. at 619-20. However, analogous to the statute at issue in Freed, this was not a true strict liability offense because the government was required to prove that the defendant knew he possessed something that was “highly dangerous and of a type likely to be subject to regulation.” Id. at 634-35.

Under this analytical framework, FLA.STAT. § 893.13 cannot survive constitutional scrutiny when considered in relation to the conduct it regulates—the delivery of any substance. To state the obvious, there is a long tradition throughout human existence of lawful delivery and transfer of containers that might contain substances under innumerable facts and circumstances: carrying luggage on and off of public transportation; carrying bags in and out of stores and buildings; carrying book bags and purses in schools and places of business and work; transporting boxes via commercial transportation—the list extends ad infinitum. Under Florida’s statute, that conduct is rendered immediately criminal if it turns out that the substance is a controlled

substance, without regard to the deliverer’s knowledge or intent.

The State’s only rebuttal to this point is a citation to a footnote in Staples:

Of course, if Congress thinks it necessary to reduce the Government's

burden at trial to ensure proper enforcement of the Act, it remains free to

amend § 5861(d) by explicitly eliminating a mens rea requirement. Staples, 511 U.S. at 161 n. 11. (Dkt. 36 at 13) This, the State suggests, is an express pronouncement that “the legislature’s abolition of a mens rea requirement does not render [FLA.STAT. § 893.13] . . . unconstitutional” because it is within the legislature’s power to “do away with a mens rea requirement.” (Dkt. 36 at 18) To support its position, the State cites several Florida cases11 upholding challenges to the facial constitutionality of FLA.STAT. § 893.13; however, these cases contain no analysis of or citation to the tripartite constitutional analysis employed by the United States Supreme Court in Staples. (Dkt. 7 at 5) The States cites no Florida appellate case that has addressed the constitutionality of this statute under the federal Constitution. Most recently, a Florida Circuit Court concluded that FLA.STAT. § 893.135(1)(b), the cocaine trafficking provision, is unconstitutional on its face and as applied. See State v. Green, No. 08-3673-CF-10A (Fla. Cir. Ct. Feb. 7, 2011). (Dkt. 31-1) More importantly, the Supreme Court’s dicta in Staples that a legislature is free to eliminate mens rea in defining the elements of an offense does not dispense with its prior holdings requiring constitutional scrutiny of any such promulgation. As the Court explained in Patterson, 432 U.S. at 210, even if the legislative bodies choose to eliminate elements from

See, e.g., Reynolds v. State, 842 So. 2d 46, 47-48 (Fla. 2002); Harris v. State, 932 So. 2d 551, 552 (Fla. 1st DCA 2006); Wright v. State, 920 So. 2d 21 (Fla. 4th DCA 2005), rev. denied, 915 So. 2d 1198 (Fla. 2005); Burnette v. State, 901 So. 2d 925 (Fla. 2d DCA 2005).

criminal offenses “there are obviously constitutional limits beyond which the States may not go in this regard.” (emphasis added). The State of Florida exceeded those bounds in this instance.

C. Respondents’ Remaining Arguments Regarding FLA.STAT. § 893.13

In a final effort to salvage § 893.13, Respondents suggest any constitutional infirmity should be overlooked because: (1) the defendant may raise lack of knowledge as an affirmative defense, rending the statute something other than a strict liability offense (Dkt. 36 at 7); or, alternatively, (2) “it is difficult to conceive of large numbers of people ‘innocently’ selling or purchasing flour and sugar in plastic baggies for cash on a streetcorner.” (Id. at 4) Each of these arguments is discussed in turn.

1. The Affirmative Defense Set Forth in FLA.STAT. § 893.101 Cannot Be Both an Affirmative Defense and an Element of the Offense

In a vacillating and legally unsupported argument, the State contends that the question of whether the statute results in a strict liability offense cannot be answered in “a simple ‘yes’ or ‘no’.” (Dkt. 36 at 7) However, the Florida Legislature’s removal of a mens rea requirement from drug offenses could not be more clear. The statute explicitly provides “knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter.” FLA.STAT. § 893.101(2). On its face the statute punishes actual, constructive, and/or attempted delivery without any proof of knowledge—not only of the illicit nature of the substance but, apparently, even of its delivery in fact. See FLA.STAT. §§ 893.02(6), 893.13(1)(a).

Despite the clear language of the statute and the unequivocal impetus for its promulgation, see section I(A), supra, the State seems to contend that the offense is not a strict liability crime because the defendant may raise lack of knowledge as an affirmative defense. (Dkt. 7 at 7) This contention fails for two reasons. First, even if knowledge could be properly relegated to an affirmative defense for such an onerous felony as drug distribution, it does not change the character of the statute from a strict liability statute. Whether a statute is viewed as one of strict liability is determined by reference to its elements not available affirmative defenses.

Second, if this averment is offered to suggest that knowledge becomes an element of the offense if raised by the Defendant as an affirmative defense, the State is hoisted on its own petard. By the plain import of the statute, the Defendant bears the burden of raising and proving the affirmative defense of knowledge, and the State enjoys a presumption against the proof that a Defendant might proffer. But, as the State well knows, it cannot shift the burden of proof to a Defendant on an essential element of an offense. Patterson, 432 U.S. at 215 (recognizing that “a State must prove every ingredient of an offense beyond a reasonable doubt . . . it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. . . . Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.”); Morissette, 342 U.S. at 256 (emphasizing the law endows the accused with an “overriding presumption of innocence . . . which extends to every element of the crime.”); U.S. v. Blankenship, 382 F.3d 1110, 1127 (11th Cir. 2004) (recognizing that “[a] defendant is never obligated to prove anything to a jury, and a jury is entitled to believe a defendant's claims regardless of whether he offers proof to substantiate them.”); U.S. v. Kloess, 251 F.3d 941, 948-49 (11th Cir. 2001) (noting because “affirmative defenses are created through statutory exceptions, the ultimate burden of persuasion remains with the prosecution, but the defendant has the burden of going forward with sufficient evidence to raise the exception as an issue. . . . Any requirement to do more would unconstitutionally shift the burden to the defendant to prove his innocence by negating an element of the statute-the required mens rea. This the Constitution forbids.”) (internal citation and quotation marks omitted).

What is more, if this affirmative defense is somehow transformed into an element of the offense, it would fail constitutional review for the additional reason that it purports to dispense with the fundamental precept underlying the American system of justice—the “presumption of innocence.” By its terms, the statute permits the jury to presume the presence of knowledge and forces the Defendant to overcome the presumption. Thus, either the statute does not require mens rea, rendering it a strict liability offense, or it does require proof of mens rea, in which case the proof of that element could not constitutionally be shifted to the Defendant under the guise of an affirmative defense.

In point of fact, this aspect of the State’s response is wholly without merit. The legislative intent could not be more clear—§ 893.101 “expressly provides that knowledge of the illicit nature of a controlled substance is not an element of any offense under chapter 893.” Miller v. State, 35 So. 3d 162, 163 (Fla. 4th DCA 2010). And, in the instant case, the jury instruction was devoid of any reference to scienter, mens rea, or any level of knowledge of the nature of the substance or even of the delivery itself.

(See Dkt. 8 at B. 338) Thus, both Florida’s legislative body and its courts have made clear that this statute is a strict liability statute.

2. “Tough Luck!” is no Answer to the Constitutional Infirmity of FLA.STAT. § 893.13

Additionally, the State argues that FLA.STAT. § 893.13 does not regulate innocuous conduct since “the possession of cocaine is never legal,” and the imposition of harsh penalties without proof of mens rea is simply a risk drug dealers undertake for selling or delivering cocaine. (Id. at 18) By this assertion, the State confirms Professor Sanford H. Kadish’s hypothesis that the basis for strict liability crimes is often simply a backhanded retort --“tough luck” to those who engage in criminal activity. Sanford H. Kadish, Excusing Crime, 75 Cal. L. Rev. 257, 267-68 (1987).

But, in this suggestion, the State ignores that Florida’s statute is not a “drug dealer beware” statute but a “citizen beware statute.” Consider the student in whose book bag a classmate hastily stashes his drugs to avoid imminent detection. The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statute: delivery (actual, constructive, or attempted) and the illicit nature of the substance. See FLA.STAT. §§ 893.02(6), 893.13(1)(a). The victim would be faced with the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of the two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposes that he does in fact have guilty knowledge.

Such an outcome is not countenanced under applicable constitutional proscriptions.12

The Court declines to grant the State broad, sweeping authority to impose such an outcome in direct contravention of well-established principles of American criminal jurisprudence—that no individual should be subjected to condemnation and prolonged deprivation of liberty unless he acts with criminal intent—and binding Supreme Court precedent governing the constitutional analysis of strict liability offenses. See Staples, 511 U.S. at 619-20. Because FLA.STAT. § 893.13 imposes harsh penalties, gravely besmirches an individual’s reputation, and regulates and punishes otherwise innocuous conduct without proof of knowledge or other criminal intent, the Court finds it violates the due process clause and that the statute is unconstitutional on its face. Accordingly, Petitioner’s request for habeas relief on claim one is GRANTED.

III. PETIONER’S REMAINING HABEAS CLAIMS

The Court finds Petitioner’s remaining challenges to his conviction and sentence unavailing.13 In claims two through nine, Petitioner alleges: (a) his habitual felony offender classification is illegal for an offense related to drug possession; (b) ineffective

The Court notes with some consternation that if the Florida legislature can by edict and without constitutional restriction eliminate the element of mens rea from a drug statute with penalties of this magnitude, it is hard to imagine what other statutes it could not similarly affect. Could the legislature amend its murder statute such that the State could meet its burden of proving murder by proving that a Defendant touched another and the victim died as a result, leaving the Defendant to raise the absence of intent as a defense, overcoming a permissive presumption that murder was the Defendant’s intent? See Patterson, 432 U.S. at 205-06 (reasoning that an affirmative defense is constitutional where it does not negate the due process requirement that the prosecution prove beyond a reasonable doubt all the elements of murder—the death, the intent to kill, and causation). Could the state prove felony theft by proving that a Defendant was in possession of an item that belonged to another, leaving the Defendant to prove he did not take it, overcoming a permissive presumption that he did? 13 Although the Petitioner specifically cites nine grounds as a basis for granting habeas relief, Ground 4 (“Improper Closing Arguments Made by Prosecutor Denied Defendant Fair and Impartial Trial Due Process”) and Ground 5 (“Ineffective Assistance of Counsel-Failure to Object to Improper Prosecutorial Comments During Closing Arguments”) are substantially similar and will be discussed together as one claim for relief. (See Dkt. 1 at 13-19)

assistance of counsel for failure to raise illegal sentence issues; (c) ineffective assistance of counsel for failure to object to prosecutorial misconduct during closing;

(d) ineffective assistance of counsel for failure to argue reasonable doubt; (e) ineffective assistance of counsel for failure to conduct effective cross-examination of state witnesses to elicit exculpatory evidence; (f) ineffective assistance of counsel regarding cumulative errors caused by counsel’s lack of effectiveness; and (g) denial of due process and equal protection by the state court for refusing to permit filing of a motion to correct illegal sentence in the trial court. (Dkt. 1 at 5-35) To the extent warranted, each is addressed, infra.

A. Habitual Felony Offender Classification Claim

In claim two, Petitioner contends his habitual felony offender sentence is not authorized by FLA.STAT. § 775.084 because delivery of cocaine is an offense “related to” the possession of a controlled substance and therefore cannot be considered an enhanceble offense. (Dkt. 1 at 8-9)

Section 775.084(1)(a) provides that a habitual offender sentence may be imposed on a criminal defendant if:

1. 1. The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses.

.2. The felony for which the defendant is to be sentence was committed:

.a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for a felony or other qualified offense; or

.b. Within 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release from a prison sentence, probation, community control, control release, conditional release, parole or court-ordered or lawfully imposed supervision . . . . .

1. 3. The felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance.

2. 4. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this paragraph.

3. 5. A conviction of a felony or other qualified offense necessary to the operation of this paragraph has not been set aside in any postconviction proceeding.

FLA.STAT. § 775.084(1)(a) (emphasis added). Further, “to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.” FLA.STAT.§ 775.084(5). “The statute reflects the legislative intent to exempt purchase or possession of controlled substances from habitual felony offender enhanced sentencing.” Dougherty v. State, 33 So. 3d 732, 733-34 (Fla. 5th DCA 2010). Florida courts have consistently held that while it is improper under Florida law to impose an habitual offender sentence for possession of cocaine, habitual offender sentencing is proper for the sale or delivery of cocaine. See Marrero v. State, 741 So. 2d 634, 634 (Fla. 3d DCA 1999). Florida’s interpretation of its own sentencing laws in this regard is within the exclusive purview of the Florida courts and provides no basis for federal habeas corpus relief. See Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005). Thus, assuming, arguendo, the Court were to sustain Petitioner’s conviction for delivery of cocaine, his habitual felony offender status would remain undisturbed. See Marrero, 741 So. 2d at 634.

As noted, in section II(B), supra, however, the Court has ruled Petitioner’s conviction for delivery of cocaine must be overturned; therefore this issue DENIED as moot. Whether and to the extent that Petitioner is subject to habitual felony offender status based upon his criminal history related to other felony convictions is an issue for the Florida trial court on resentencing.

B. Ineffective Assistance of Counsel Claims

As to claims three through eight, Petitioner has failed to demonstrate either deficient performance or the existence of prejudice necessary to sustain a claim for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984) (establishing a two-part test for determining ineffective assistance: (1) whether counsel’s performance was deficient and fell below an objective standard of reasonableness; and (2) whether the deficient performance prejudiced the defense). In deciding whether there was deficient performance, the Court must review counsel’s actions in a “highly deferential” manner and “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. To overcome Strickland's presumption of reasonableness, Petitioner must show that “no competent counsel would have taken the action that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc).

The second showing required under Strickland is prejudice: Petitioner must also show that, but for his counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different—that is, the reviewing Court’s confidence in the outcome must be undermined by counsel's deficient performance. Strickland, 466 U.S. at 694.

1. Claim Three

Petitioner contends that trial counsel was ineffective because he failed to object to Petitioner’s sentence on the grounds that it is unconstitutional as it exceeds the maximum allowable for a strict liability offense and because it is not authorized by FLA. STAT. § 775.084. (Dkt. 1 at 10-12) In response, the State contends this claim was procedurally defaulted in the state court and is therefore barred from consideration by this Court. (Dkt. 7 at 8)

Petitioner raised this claim in his Rule 3.850 motion for post-conviction relief. (Dkt. 8 at E.) The trial court denied this ground, stating (1) that Petitioner's sentence is legal, as it does not exceed the maximum allowed pursuant to the habitual felony offender statute; and (2) Petitioner was procedurally barred from raising claims that could have or should have been raised on direct appeal. (Dkt. 8 at F. 4) Florida’s Fifth District Court of Appeal per curiam affirmed. (Dkt. 8 at H.) This per curiam affirmance of the state trial court’s finding of a procedural default bars this Court’s consideration of claim three. See Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) (recognizing that when a court has issued an alternative finding that a claim is procedurally barred, the federal court "should apply the state procedural bar and decline to reach the merits of the claim."). Accordingly, claim three is DENIED.

2. Claims Four and Five

Petitioner contends the prosecutor made improper statements in closing regarding Petitioner’s guilt, the credibility of Petitioner’s testimony, and the credibility of a state witness, thereby denying Petitioner due process and the right to a fair and impartial trial. (Dkt. 1 at 14-19) Specifically, Petitioner alleges that trial counsel was ineffective for failing to object to following the comments:

The defendant went there to sell Jerry Yon cocaine. Yon was given some money to do that. The charges --on that charge is delivery of cocaine. Did the defendant deliver some cocaine . . . Did he deliver any cocaine to Jerry Yon? Yes. You saw the cocaine; you heard the testimony from Yon. You heard the testimony from Wiley Black. The cocaine's in evidence; it is cocaine. There's no doubt about that.

There's no testimony about where it possibly wound up, and why it wasn't recovered or what happened to it. It doesn't really matter. Did the defendant deliver any cocaine to Jerry Yon? Yes. In short, the defendant's entire testimony was fascinating beyond belief and not worthy of your belief. . . . Jerry Yon --you saw his demeanor on the witness stand. He's incarcerated right now. He has nothing to gain by his testimony in this case. There are --there's nothing; no reason for you to believe that he has anything to gain by his testimony in this case. In fact, he told you, he did not want to be testifying in this case, and he fears for himself in this case. . . . He [Yon] got the dope from the person that he knew would bring him some dope, and he [Petitioner] did, and he handed it over to Wiley Black. He probably dropped some in the car. He doesn't know. It all happened very fast in the car. . . . You have testimony from Jerry Yon, who has nothing to gain by his testimony about the delivery that took place and why he did it. . . . In this case, the facts fit together to prove to you just what the state has charged. That the defendant went to that Winn-Dixie parking lot to deliver cocaine, to someone he's known, Jerry Yon, who had called him up that same day. He didn't go there to chat with Jerry Yon, as he says. He went there to deliver cocaine to him.

(Dkt. 8 at B. 312-13, 315, 322)

Petitioner raised these claims in his pro se appeal to the Fifth District Court of

Appeal and in his Rule 3.850 motion for post-conviction relief. (Dkt. 8 at C., E.) The

state court denied the claims, finding the comments Petitioner listed as personal opinion

were not, in fact, personal opinions; rather, “the prosecutor was merely relating to the jury what the evidence presented at trial showed.” (Dkt. 8 at F. 5) Due to the evidence presented at trial and the contradictions in Petitioner's own testimony, the state court concluded the prosecutor did not improperly attack Petitioner's credibility and that it was reasonable for the prosecutor to argue Petitioner's testimony was not believable. (Id. at 5-6) Additionally, the state court concluded that the prosecutor’s comments regarding Mr. Yon did not improperly bolster Mr. Yon’s credibility because the prosecutor was merely recapitulating Mr. Yon’s testimony and noting what conclusions the jury could draw from that testimony. (Dkt. 8 at F. 5-6)

Due process is denied “when there is a reasonable probability,” or “a probability sufficient to undermine confidence in the outcome,” that, but for the improper remarks, “the outcome of the proceeding would have been different.” United States v. Eyster, 948 F.2d 1196, 1206–07 (11th Cir. 1991) (citations omitted). The prosecutor's comments must both (1) be improper and (2) “prejudicially affect the substantial rights of the defendant.” United States v. Thompson, 422 F.3d 1285, 1297 (11th Cir. 2005). A prosecutor's comments constitute improper “vouching” if they are “based on the government's reputation or allude to evidence not formally before the jury.” Eyster, 948 F.2d at 1206.

The record supports the state court's findings that no improper remarks were made during closing arguments. The prosecutor's statements did not contain any suggestion that he was relying on information outside of the evidence presented at trial. (See Dkt. 8 at B. 312-13, 315, 322) Further, the prosecutor supported the State’s contention that the Petitioner was guilty and/or that Petitioner's version of events was not credible by referring to other testimony given during the trial. (Id. at 312-14) Petitioner has not demonstrated that the prosecutor's comments, even if impermissible, had a substantial and injurious effect on the jury, as there was testimony from other witnesses that Petitioner delivered cocaine to Jerry Yon. See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); see also Parker v. Allen, 565 F.3d 1258, 1273-74 (11th Cir. 2009) (recognizing that a prosecutor's comments must be improper and prejudicially affect the substantial rights of a defendant). Mr. Yon testified on cross-examination that coming to court and testifying against Petitioner placed him in danger, however that he “was subpoenaed and I come here to tell the truth. I've got nothing to gain and I'm not up here lying. I wouldn't do anything to set somebody up." (Dkt. 8 at B. 210) While attempts to bolster a witness by vouching for his credibility are normally improper, in this case, the prosecutor was reiterating Mr. Yon's testimony and stating the reasonable inferences that could be drawn therefrom. See Parker, 565 F.3d at 1273-74. (See Dkt. 8 at B. 314, 321)

Petitioner has not demonstrated that any improper comments were made, nor has he shown that counsel was ineffective for failing to object to the comments cited, supra. Therefore, the Florida courts’ denial of these claims was neither contrary to federal law nor an unreasonable determination of the facts in light of the evidence presented. See Strickland, 466 U.S. at 689; see also Eyster, 948 F.2d at 1206. Accordingly, any claims predicated on the prosecutor’s improper expression of personal opinion, attacking Petitioner’s testimony, and/or improperly bolstering a state witness’s credibility are DENIED.

3. Claim Six

In claim six, Petitioner contends that trial counsel was ineffective for failing to argue to the jury key evidence that established a reasonable doubt as to Count IV, the delivery of cocaine charge. (Dkt. 1 at 20) Petitioner asserts, inter alia, that trial counsel failed to emphasize the fact that Mr. Yon’s girlfriend, who accompanied Mr. Yon to the drug deal, was never searched and that Officer Black did not maintain continuous visual observation of Mr. Yon and his girlfriend. (Id.) Petitioner raised claim six in his Rule 3.850 motion for post-conviction relief. (Dkt. 8 at E.) In rejecting this claim, the state court concluded that even if trial counsel had commented on Officer Black's failure to search Mr. Yon's girlfriend and his inability to monitor all of the parties during the course of the drug transaction, Petitioner still could not show that the result of trial would have been different. (Dkt. 8 at F. 7) (noting “[s]uch comments would not directly refute Yon’s testimony that Defendant delivered cocaine to him, nor would they be sufficient to establish reasonable doubt.”).

A review of the record in this case refutes Petitioner's claim and supports the state court's findings. Mr. Yon testified that Petitioner gave him the cocaine. (Dkt. 8 at

B. 192) Officer Black testified that prior to the deal he searched Mr. Yon's van and verified that there were no illegal drugs inside. (Id. at 131) Officer Black also testified that he could see out of the van windows and watched the transaction between Mr. Yon and Petitioner. (Id. at 134) Therefore, there is no reasonable probability that the result of the trial would have been different had trial counsel commented on Officer's Black's failure to search Mr. Yon's girlfriend and/or his failure to maintain continuous visual observation. See Strickland, 466 U.S. at 694. Because Petitioner’s claim is purely speculative and there is no indication that the Florida courts’ decisions were contrary to or an unreasonable application of the law, or were based on an unreasonable determination of the facts, claim six must be DENIED.

4. Claim Seven

Petitioner also claims that trial counsel was ineffective for failing to effectively cross-examine state witnesses to elicit exculpatory evidence as to Count IV, the delivery of cocaine charge. (Dkt. 1 at 24-27) Petitioner contends that trial counsel should have cross-examined Officers Black and Berry about whether they heard Petitioner agree, over the telephone, to deliver cocaine to Mr. Yon. (Id. at 24) According to Petitioner, had the jury been advised that Officers Black and Berry were not privy to the telephone conversation between Petitioner and Mr. Yon, the jury could not have found beyond a reasonable doubt that Petitioner was guilty as to Count IV. (Id. at 25) Petitioner raised claim seven in his Rule 3.850 motion for post-conviction relief, and the trial court denied the claim. (Dkt. 8 at F. 7-8) Because “the officers simply related their recollection of events that transpired on the date the incident occurred,” the state court concluded the officers’ testimony did not mislead the jury regarding whether the officers were privy to Petitioner’ telephone conversation with Mr. Yon. (Id. at 8) Finally, the court determined that Petitioner had not established the prejudice prong of Strickland because there was no showing that trial counsel’s “failure to cross examine on this specific issue so thoroughly affected the case that the ultimate outcome was undermined.” (Id.) The Court agrees.

Petitioner has not demonstrated that counsel's failure to cross-examine Officer Black prejudiced the outcome of the trial. Officer Black testified that Mr. Yon called Petitioner to arrange the meeting. (Dkt. 8 at B. 132) Although Officer Black stated that "[w]e actually called him twice," the record is clear that Mr. Yon, acting as a confidential informant, called Petitioner to arrange a meeting to purchase cocaine. (See id. at 18586, 132) Mr. Yon testified that he: (1) set up the meeting to buy cocaine from Petitioner in a parking lot; (2) drove with his girlfriend and Officer Black to a Winn Dixie parking lot;

(3) arrived at the location before Petitioner; (4) exited his vehicle and got into Petitioner’s vehicle when Petitioner arrived; and (5) “When I got in the car, I just handed the money and he [Petitioner] was in the process of handing me the cocaine when the cops swooped down on us, cars everywhere.” (Id. at 185-88) There is nothing in the record beyond Petitioner’s rank speculation to suggest that Officer Black's testimony misled the jury into believing that he heard the telephone conversation between Petitioner and Mr. Yon or that it would have impacted the outcome of the trial. As such, the state court's denial of this claim was not contrary to, or an unreasonable application of federal law, or unreasonable in light of the evidence and facts presented. Accordingly, claim seven is DENIED.

5. Claim Eight

In claim eight, Petitioner contends trial counsel was ineffective due to the cumulative effect of counsel's deficiencies. (Dkt. 1 at 28) The state court rejected this claim in Petitioner's Rule 3.850 motion for post-conviction relief, finding that because Petitioner's Strickland claims were without merit, there could be no cumulative effect of counsel's alleged errors. (Dkt. 8 at F. 8) Because Petitioner's individual claims of ineffective assistance of counsel warrant no relief, he cannot demonstrate cumulative error sufficient to entitle him to federal habeas relief. See Conklin v. Schofield, 366 F.3d

1191, 1210 (11th Cir. 2004) (noting the court "must consider the cumulative effect of . . . [the alleged errors] and determine whether, viewing the trial as a whole, [Petitioner] received a fair trial as is . . . due under our Constitution.") (quoting United States v. Blasco, 702 F.2d 1315, 1329 (11th Cir. 1983)). Accordingly, claim eight is DENIED.

6. Claim Nine

Petitioner contends he was denied due process and equal protection when the state court denied him means to utilize the sentencing error correction procedures of Florida Rule of Criminal Procedure 3.800(b)(2). (Dkt. 1 at 30-34) During the pendency of his initial appeal, Petitioner contends Florida’s Fifth District Court of Appeal denied his request to file a Rule 3.800(b)(2) motion. (Id. at 30) In response, the State argues that this claim is purely a state procedural matter. (Dkt. 7 at 12-13)

Petitioner has raised a claim that does not implicate federal constitutional law and thus is not subject to federal habeas review. "[W]hile habeas relief is available to address defects in a criminal defendant's conviction and sentence, an alleged defect in a collateral proceeding does not state a basis for habeas relief." Quince v. Crosby, 360 F.3d 1259, 1261-62 (11th Cir. 2004) (citation omitted). The state appellate court's refusal to permit Petitioner to file a Rule 3.800(b)(2) motion during the pendency of his appeal alleges a defect in the state court proceeding and only implicates the appellate court's interpretation of a state rule of criminal procedure. Because a state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief, Petitioner's ninth claim is not subject to federal review since no question of a constitutional nature is involved. See Callahan, 427 F.3d at 932; see also McCullough

v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992).

Even assuming, arguendo, the Court considered Petitioner's ninth claim, Petitioner cannot show that he was denied due process and equal protection. Rule 3.800(b)(2) permits a criminal defendant or the State to file, in the trial court, a motion to correct a sentencing error before the first appellate brief is served. FLA.R.CRIM P. 3.800(b)(2). Petitioner attempted to file his Rule 3.800(b)(2) motion after appellate counsel filed his Anders brief, and thus the appellate court correctly denied Petitioner’s request as untimely. (See Dkt. 8 at C., I.) Because the alleged sentencing errors Petitioner wished to raise were filed in his initial pro se brief, which was considered by the Fifth District Court of Appeal and rejected, Petitioner has not established prejudice. (See Dkt. 8 at C., D.) Accordingly, claim nine is DENIED.

Any of Petitioner’s remaining allegations not specifically addressed herein have been found to be without merit and are also DENIED.

IV. CERTIFICATE OF APPEALABILITY

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) prevents appellate review of a habeas petition unless the district or circuit courts certify specific issues for appeal. See 28 U.S.C. § 2253(c); FED.R. APP. P. 22(b). Petitioner has not requested that this Court grant him a Certificate of Appealability (“COA”), although the Court can consider the issue sua sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). The Court may only issue a COA when “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). To make such a showing "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec’y Dep’t of Corrs., 568 F.3d 929, 934 (11th Cir. 2009). When a district court dismisses a federal habeas petition on procedural grounds, a COA should issue only when a petitioner shows "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.

Clear, binding precedent forecloses relief on claims two through nine—for which Petitioner is not entitled to relief. Petitioner has not demonstrated that reasonable jurists would find the district court's assessment on these claims debatable or wrong. See Lamarca, 568 F.3d at 934. Under the appropriate standard, Petitioner's claims do not require this Court to certify any issue for appellate consideration. Accordingly, the Court will not issue a COA.

V. CONCLUSION Upon consideration of the foregoing, it is hereby ORDERED as follows:

.(1) Mackle Vincent Shelton’s Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2255 (Dkt. 1), is GRANTED upon Ground One of his Petition and is DENIED upon all remaining grounds;

(2) With respect to Claim One, the Court conditionally GRANTS a writ of habeas corpus. A writ of habeas corpus shall issue unless within 90 days, the State of Florida vacates Petitioner’s conviction and sentence with respect to Count IV and begins new sentencing proceedings against Petitioner regarding the same. The 90-day time period shall be tolled until the conclusion of any

appeal from this Order, either by the exhaustion of appellate remedies or the expiration of the time period within which to file such appellate proceedings;

.(3) Petitioner’s request for an evidentiary hearing (See Dkt. 1 at 36) and any other outstanding motions are DENIED;

.(4) The Court will not certify any issue for appellate consideration;

.(5) In accordance with Rule 57 of the Federal Rules of Civil Procedure, a Declaratory Judgment shall be entered separately, declaring FLA.STAT. § 893.13, as amended by FLA.STAT. § 893.101, unconstitutional; and,

.(6) The CLERK is directed to mail a certified copy of this Order to the Clerk of the Circuit Court for the Ninth Judicial Circuit, in and for Osceola County, Florida.

DONE and ORDERED in Orlando, Florida, on this 27th day of July 2011.

Copies furnished to:

Counsel of Record

Clerk, Osceola County Circuit Court

Florida Drug Statute 893 Unconstitutional

Florida Drug Defense Attorney Lawyer | Tampa

DEA Chief on Marijuana v Meth v Heroin v Cocaine

2012-06-23T22:03:00.000-04:00

Marijuana, versus Prescription Drugs, versus Meth, versus Heroin, versus Cocaine

DEA Chief grilled on impact of Marijuana, versus Prescription Drugs, versus Meth, versus Heroin, versus Cocaine.

Drug Sentences Slashed in Cocaine Cases

2012-06-21T19:44:00.001-04:00

Federal Criminal Defense Attorney Lawyer for cocaine cases notes new United States Supreme Court case law on Mandatory minimum sentencing for Drug offenses under the Fair Sentencing Act's more lenient mandatory minimum provisions. The Court ruled today that the favorable provisions apply to offenders who committed crack cocaine crime before effective date of Act, but were sentenced after Act took effect .

The Court also held the new Act's lower minimums also apply to those who committed an offense prior to effective date of Act and were sentenced after the new Act's effective date, before new Guidelines took effect.

Fair Sentencing Act Applies? Call 813-222-2220

SCOTUS says Lab Analyst Testimony Not Needed

2012-06-19T00:48:00.001-04:00

Supreme Court backs down.

Supreme Court retreats on testimony from lab analysts - latimes.com

NFL DUI Video Florida - Blackmon

2012-06-16T23:40:00.001-04:00

Florida Drug Statute 893 Update

2012-06-13T02:26:00.001-04:00

Florida Drug Defense Attorney checked the Court's opinions on the Constutionality of Florida's Drug Statute Chapter 893 yesterday and there is still no decision by the Florida Supreme Court. Pass The word that we are tracking this issue closely and will keep posting news here and on http://drug2go.blogspot.com/ .

Drug Charge News

893 Drug Questions? Keep Checking Back or Call 813-222-2220 .

Pasco County Growhouse Bust

2012-06-13T02:24:00.001-04:00

Pasco Circuit Courthouse

Grow house defense attorney may be needed in Pasco County, Florida because:

"More than 240 marijuana plants were seized and four people arrested Friday in three separate busts in western Pasco County."

The cops found, "212 marijuana plants growing under lights, air conditioning and fans. There were another 3 pounds 8 ounces of packaged marijuana ready for distribution, deputies said."

The charges were, "trafficking marijuana, cultivation of marijuana, possession of marijuana with intent to sell, manufacture or deliver, possession of drug paraphernalia and theft from a utility."

According to the arrest report here are the addresses:

9602 Richwood Drive in Port Richey
7301 Madison Drive in Port Richey
4121 Perry Place in New Port Richey

Source: http://m2.tbo.com/content/2012/jun/13/PANEWSO2-four-arrested-on-marijuana-charges/news-breaking/

Hillsborough County Juvenile Drug Court Program

2012-06-06T20:00:00.003-04:00

Juvenile Drug Court Program

The Juvenile Drug Court Program is a court pretrial diversion program which allows a student who successfully completes the program to have the charges dismissed.

Juvenile Drug Court Program Requirements

The Program requires:

• Students must be under 17 years of age upon being referred. The State Attorney’s Office and the (JAC) Juvenile Assessment Center will receive notification of student being a Zero-Tolerance Hillsborough County school referral.

• Students must enroll and begin a substance abuse treatment program which the appropriate level of treatment will be determined by the student’s level of drug involvement. The standard length of the program is 6-12 months, however, the exact length is determined by the treatment and educational need. They will be required to participate in random urinalysis, drug education classes as well as group and individual counseling. Students who test positive during treatment may be referred to DETOX, which three days is a standard evaluation period. Furthermore, attendance of NA/AA meetings may be required.

EACH STUDENT REFERRED BY HILLSBOROUGH COUNTY SCHOOL DISTRICT MUST BE EVALUATED AND COMPLETE ALL RECOMMENDED TREATMENT.

Juvenile Drug Court Program family Involvement

• Parent(s) must attend an orientation and participate in the treatment program as required.

• Student and parent(s) must sign a contract with the State Attorney’s Office agreeing to participate in Juvenile Drug Court.

• Student and parent(s) will attend regular court status reviews for the purpose of judicial supervision.

Benefits of Juvenile Drug Court Program

UPON SUCCESSFUL PROGRAM COMPLETION, CHARGES WILL BE DISMISSED.

The student will receive a certificate of completion and order of dismissal from the Court which School Administration will be notified of successful program completion. Pending charges may take up to 90 days for official filing. If the student charge(s) are officially filed in another court division other than Juvenile Drug Court or not officially filed by Office of the State Attorney, students are still required to continue and successfully complete treatment as recommended.

Hillsborough County Juvenile Drug Court Program

Source: http://www.fljud13.org/Portals/0/Forms/pdfs/drugcourt/infoSheetSchoolOfficials.pdf

View Larger Map

Drug Court - Hillsborough County Winner

2012-06-06T19:21:00.000-04:00

Hillsborough Drug Court Graduation Certificate

Drug Court - Hillsborough County, Florida - Happiest day I have ever had in years in the Hillsborough County Drug Court. Today someone who I thought was lost, to IV drug use (oxycodone etc.), completed the Drug Court Program and serious Felony Drug Charges were dropped.

Special Thanks to Rich Uhlman, Rita Mitchell and Circuit Judge Jack Espinosa for being so patient with this guy. He went to jail several times, went through several programs, completed residential treatment, and is still alive. Congratulations to the big winner of our most courageous recovery of the year award.

View Larger Map

Video - Marijuana Michael Phelps and Olympics

2012-05-09T14:31:00.000-04:00

Marijuana and Michael Phelps

Marijuana Defense Attorney just reviewed some amazing super slow motion video (near the end of the clip below) of a 2012 Olympian with an interesting twist. It was not the rigorous drug testing program for athletes that caught him, but a photo. Marijuana use in a January 2009 photo of Michael Phelps (with a bong) nearly derailed 16 years of Olympic training. He was suspended for 3 months by USA Swimming, the sanctioning body for the US team for the 2012 Olympic Games.

He is back training and we can't wait to see him at the Games this year. Welcome back, Michael Phelps.

Marijuana Troubles in Florida? Call Attorney Casey Ebsary 813-222-2220

Marijuana Thrown Out - Overhead Emergency Lights | Seizure

2012-04-25T17:36:00.001-04:00

Florida Marijuana Defense Lawyer / Attorney

Florida Marijuana Defense Attorney just reviewed another case where the cops claim they smell an odor of Cannabis / Marijuana under Florida State Chapter 893. The court threw the case out where the cop activated his emergency lights to investigate a legally parked car. During the investigation of the scofflaw, the cop smelled marijuana. Court ruled that activation of lights constituted a seizure without cause. Excerpts below. Full marijuana defense attorney's copy of opinion is here.

"At the suppression hearing, a deputy of the Broward County Sheriff’s Office testified that he was on duty in the early morning hours of April 11, 2010. At around 2:30 a.m., the deputy was driving on a residential street when he noticed an occupied SUV parked in front of a vacant open field. The SUV was legally parked, and its interior lights, headlights, andtail lights were all turned off."

Florida Marijuana Defense Lawyer Case Excerpts:

"The deputy saw one individual in the vehicle, seated in the driver’s seat. The deputy testified that he became suspicious once he saw that the vehicle had no lights on. The deputy pulled in front of the SUV and parked “almost catty corner” to where the SUV was parked. Although the deputy did not recall exactly how his police vehicle was positioned, he denied that he blocked in the SUV. The deputy activated his overhead emergency lights."

"The Florida Supreme Court has described three levels of police-citizen encounters: 1) a consensual encounter involving minimal contact during which the citizen is free to leave; 2) an investigatory stop or detention which requires a well-founded suspicion of criminal activity; and 3) an arrest supported by probable cause that a crime has been committed, or is being committed. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). “During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.”"

"In this case, the question is whether appellant was seized before the officer approached his vehicle and smelled the marijuana. Activation of emergency police lights is one factor to be considered in a totality-of-thecircumstances analysis of whether a seizure has occurred. G.M., 19 So. 3d at 974. Likewise, use of a spotlight or flashlight is another factor to be considered in evaluating whether a person would reasonably believe he was free to leave, but the use of a spotlight, without more, does not transform a consensual encounter into an investigatory stop. See State v. Goodwin, 36 So. 3d 925, 927 (Fla. 4th DCA 2010) (holding that the officer’s mere use of her spotlight and flashlight did not transform the consensual encounter into an investigatory stop)."

"Under the totality of the circumstances, where, as here, appellant was legally parked on a residential street and did not give any indication that he might be in need of police assistance, no reasonable person would have felt free to drive away after an officer activated his emergency lights and used a spotlight to illuminate the person’s parked vehicle. See G.M., 19 So. 3d at 980 (“Moreover, it would b e both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances.”)."

"Because the deputy seized appellant before detecting the odor of marijuana, and because the seizure was not founded upon reasonable suspicion, we reverse the denial of the motion to suppress and remand with directions for the trial court to vacate appellant’s convictions in this case. Reversed and Remanded."

Search and Seizure? Call Casey at 813-222-2220

Source: No. 4D10-4790 April 25, 2012

Marijuana Cannabis Defense Attorney

Florida Middle District United States District Court House - Tampa

2012-04-19T11:29:00.001-04:00

Criminal defense attorney / lawyer just spent the morning in the Florida Middle District United States District Court House in Tampa. 801 N Florida Ave, Tampa, FL 33602

Federal Criminal Defense Needed? Call Casey at 813-222-2220 .

Sam M. Gibbons U.S. Courthouse

801 N Florida Ave # 2, Tampa, FL, United States

More photos from W.F. Casey Ebsary, Jr.

Drug Charge Evidence Storage

2012-04-11T11:39:00.001-04:00

Pinellas County Sheriff Evidence Unit

Drug Charge Evidence Storage at the Pinellas County Sheriff Evidence Unit - drug evidence goes here for prosecution of cases by the Pinellas State Attorney's Office. Located across the street from the Courthouse and the jail. Evidence includes: drug evidence, Pinellas drug case physical evidence, marijuana, cocaine, and prescription drugs .

Drug Charges? Call Casey 813-222-2220 .

Drug Defense Attorney - Drug Dog Sniffs

2012-03-26T15:09:00.000-04:00

Drug Dog Sniffs

Tampa Drug Defense Attorney has received an interesting comment on Drug Sniffing Dogs from one of our anonymous sources. I post it in its entirety:

"The dog lovers at the United States Supreme Court have once more dissed the dog haters at the Florida Supreme Court (I'm a cat person myself). You may recall that in January the SCOTUS granted cert in Florida v. Jardines, No. 11-564, to decide the question whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause. Starring in Jardines is a drug-sniffing dog named Franky."

"Today, not content with one Florida drug-sniffing dog case per term, the SCOTUS granted cert in Florida v. Harris, No. 11-817, another drug-sniffing dog case. I am not sure of the exact question presented, but I do know the name of the dog -- Aldo. In any event, the holding of the Florida Supreme Court to be reviewed is as follows:"

"We hold the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability. The trial court must then assess the reliability of the dog's alert as a basis for probable cause to search the vehicle based on a totality of the circumstances. Because in this case the totality of the circumstances does not support a probable cause determination, the trial court should have granted the motion to suppress. We remand for proceedings consistent with this opinion."

Harris v. State, 71 So.3d 756, 775 (Fla. 2011).

Drug Dog Sniff Questions? Call Casey at 813-222-2220

Operation Blue Forest - Video Report

2012-03-15T01:05:00.002-04:00

Operation Blue Forest

Drug Defense Attorney has just reviewed and summarized reports on Operation Blue Forest in Marion County, Florida. This case has all the facts I typically see as a Federal and not state Prosecution. Penalties under the United States Code are very tough. The presence of firearms could dramatically impact sentencing guidelines and preclude the availability of Safety Valve sentences that avoid Minimum Mandatory Prison Sentences for first-time offenders.

Looks like drugs were bought in Tampa and taken back to Marion County, Florida. Prescription drugs were then distributed from the primary target's home in or near the Ocala National Forest.

Operation Blue Forest By The Numbers:

11 Month Operation
35 people into custody in Marion County
7,000 oxycodone pills
1,680 methadone pills
$16,000 in cash
$15 - 20 per Pill
200 charges
$5 million Bail
$96,326 profit in 6 weeks
8 Warrants Still Outstanding

Need Help for Yourself or a Loved One? Call an Expert at 813-222-2220

Law Enforcement Agencies:

Unified Drug Enforcement Strike Team
Multi-Agency Drug Enforcement Team
Florida Department of Law Enforcement
Marion County Sheriff
Ocala Police

Blue Forest Questions? Call an Expert at 813-222-2220

Tampa DUI Attorney Lawyer Mobile Site

2012-01-26T11:25:00.003-05:00

We previously launched our Tampa, Florida DUI News site and that can be viewed here http://www.widgetbox.com/widget/msite/mobile-site-jodiann-1/

We have just launched mobile versions of our DUI Tampa site and they can be viewed here Tampa DUI Attorney Mobile or here Tampa DUI Lawyer Mobile on your Android or iPhone.

Tampa Drug and Marijuana Defense Attorney Lawyer Call 813-222-2220

Marijuana Search - Protective Safety Sweep

Marijuana Search - Safety Sweep

Drug Smuggling Video

Trafficking Smuggling, Trafficking, Smuggling, methamphetamine, Heroin, Marijuana, Cocaine

Marijuana Legalization Roadblocked - Federal Appeals Court Court says Remains Scheduled as Dangerous Drug

Tampa, Florida Marijuana Defense Attorney 813-222-2220

Tampa Criminal Defense Lawyer - Board Certified

Pinellas DUI Checkpoint - Epic Fail

Spring Hill Marijuana Grow House Map

Marijuana Grow House Attorney Needed

Marijuana Grow House Attorney Needed Call 813-222-2220

Trafficking Prescription Drugs - Evidence Tossed

Prescription Drugs and Probable Cause to Search

Trafficking Prescription Drugs Defense Attorney Call 813-222-2220

Inside Drug Smuggling Tunnel Video

Florida Drug Statute 893 Update

Florida 893 Drug Statute Constitutional Says Florida Supreme Court

DEA Chief on Marijuana v Meth v Heroin v Cocaine

Marijuana, versus Prescription Drugs, versus Meth, versus Heroin, versus Cocaine

Drug Sentences Slashed in Cocaine Cases

SCOTUS says Lab Analyst Testimony Not Needed

NFL DUI Video Florida - Blackmon

Florida Drug Statute 893 Update

Pasco County Growhouse Bust

Hillsborough County Juvenile Drug Court Program

Hillsborough County Juvenile Drug Court Program

Drug Court - Hillsborough County Winner

Video - Marijuana Michael Phelps and Olympics

Marijuana Thrown Out - Overhead Emergency Lights | Seizure

Florida Middle District United States District Court House - Tampa

Drug Charge Evidence Storage

Drug Defense Attorney - Drug Dog Sniffs

Operation Blue Forest - Video Report

Tampa DUI Attorney Lawyer Mobile Site

Tampa, Florida Marijuana Defense Attorney

813-222-2220