Friday, February 14, 2014

United States v. Duval, Nos. 12-2338/2339 (6th Cir. Feb. 7, 2014) (for publication).

Med MJ issues.

Panel of Judges Cole, Gilman, Donald. 

Issues:
* Was compliance with Mich Med MJ Act (MMMA) relevant to search-warrant application?  COA said no.
* Did the indictment allege a federal crime even though one of the defendants was a registered "caregiver" under the MMMA and qualified for the "practitioner exception" under 21 U.S.C. 802(21)?  COA said yes.
* COA affirmed district court.

Discussion:
* Defendants said search warrant invalid b/c deputy omitted defendants' status as registered patients and caregivers under Mich law.  Gov said issue waived b/c not raised in dist ct.  COA rejected gov's contention---defense counsel probed issue sufficiently in dist ct, though not quite explicitly. 
* Deputy did not have "clear and uncontroverted evidence" that defendants were complying fully with MMMA at time of search-warrant application.  Actually seemed like the defendants were not complying, given what officer knew.  The deputy did not know another officer had advised the defendants earlier about complying with the MMMA.  So failing to include that info in warrant application could not be deliberate.  Info not imputed here.  No evidence the officers communicated.
* Application for warrant was to state magistrate, rather than the federal magistrate judge, despite fact deputy was detailed to a federal agency.  But deputy's position gave him flexibility to choose whether investigation would go state or federal.   
* No error in failing to suppress evidence. 
* Defendants waived and forfeited chance to challenge sufficiency of indictment.  Issue raised first time on appeal.  Won't fly unless the alleged defect is jurisdictional.  No jurisdictional defect here.  COA cited United States v. Marcinkewciz, No. 12-2441 (6th Cir. Oct. 29, 2013).   

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