Dustin Costa Appeal to the 9th Circuit Court Transcript
by Vanessa Nelson
Wednesday, 05 December 2007
No
one has motivated activist sensibilities of central California like
Dustin Costa. A former Marine and union leader, Costa brought a wealth
of organizing skills and experience to the advocacy work he did on
behalf of the medical marijuana movement. From his base near Merced,
California, he led a group of nearly 300 volunteers on actions like
citizen lobbying, protesting at important court hearings, and
engineering community improvement efforts like graffiti removal. Costa
was initially prosecuted on the state level for his cultivation of a
collective garden of nearly 900 plants. After nearly 20 court
appearances, however, local authorities handed the case over to the U.S.
Attorney and the prosecution began all over again on the federal level.
Costa went to jury trial in November 2006 and was found guilty on
charges of the manufacture of marijuana, possession with the intent to
distribute, and possession of a firearm. He has been incarcerated since
his federal indictment, and is currently serving time in Big Spring,
Texas. Unless he wins his current appeal, Costa is expected to be
imprisoned until 2018. The hearing was held Dec 3rd and Vanessa's
transcript follows. 9th Circuit Court: United States v. Costa, 3 Dec
2007
Transcript by Vanessa Nelson
JUDGE: It's a pleasure
to be here, and we'll proceed with the first case on the oral argument
calendar, which is United States v. Costa. Counsel?
RAINWATER:
Thank you. My name is Robert Rainwater. I represent the appellant,
Dustin Costa. I'd like to start off by discussing the issues raised in
the motion to suppress that was filed in the district court. In this
particular case, there was a series of three particular search warrant
applications, including affidavits, over a short period of time. The
first was for an application to obtain PG&E records for suspected
residents, the second was for an application for a thermal imaging scan
of that residence, and finally the third one was to actually search the
residence. Prior to the motion to suppress, the defense raised the issue
that under Franks, there were false and recklessly misleading
allegations in the affidavits. That was based upon exhibits that we
attached to our motion to suppress, the difference in statements in the
three different affidavits, and a declaration that had been submitted to
the court by the officer who prepared the three different affidavits.
The Court granted a Franks hearing after comparing that information
based upon our representations that there were false statements. We
focused on five different areas where we believe there were false
statements on the affidavits. The first one was a statement in all three
affidavits that a criminal history showed a prior arrest and conviction
for cultivation and possession of marijuana, when in fact, the officer
testified at the hearing that he had a criminal history for the
defendant....which indicated that there was a notation on his prior
record that an arrest had been made and that there had been a drug court
referral, deferred judgment, and a successful term. That's all the
information that was in there. The officer testified that he's had
experience reading these criminal histories -- he knows that, usually,
if there's a conviction, it says conviction to a particular count, and
there's a sentence there, and in this case, he knew there was not that
information, and therefore his reference in all three warrants to the
fact that there was a criminal history showing arrest and conviction for
both counts was false, according to the officer's own testimony. The
district court, in fact, found that that was a false statement, but went
on to hold that, apparently, the district court found that it was not
false in the sense that it was intended to mislead the magistrate. But I
think that is an incorrect understanding of the falsity necessary under
Franks. Basically, it only requires the affiant knowingly or recklessly
misleads the judge with false information. I've cited case law in the
brief where it says an affiant states I had the information different
than what I put it in the warrant. That's a false statement. And if it
misleads the judge, then it's a Franks violation and it should be
excluded from the warrant. So I think that first area, the criminal
history representation, should be excluded from all three warrants.
The
second area we focused on was in the second warrant, after they got the
PG&E bills, the officer stated that he checked several PG&E
bills of individuals with homes of comparable size and learned that
there was a certain kilowatt usage more than what was in there, when in
fact --
JUDGE: Wait a minute, it's not just more, it's substantially more, right?
RAINWATER: Correct
JUDGE: It's practically an industrial level usage in a residential area.
RAINWATER:
Or it could be considered as a different usage, because it's more than
what would normally be required for a marijuana grow. There's several
different inferences. I don't think the inference that, by itself, and
there's case law that says an inference of high usage by itself --
JUDGE:
-- not marijuana but it spells heavy usage and some kind of industry or
business is being conducted over and above normal living consumption of
electric power.
RAINWATER: Yes, I would agree with that, but in
this case we don't have any indication that it's anything that was
illegal. There's nothing to establish that this usage was different than
other residences in the area.
JUDGE: It does establish that this residence is unique among other residences in the area.
RAINWATER:
Well, I don't think we have any evidence that he checked other-- That's
the point of the argument. He didn't actually check other residences in
the area. What his testimony was was he asked people he knew, who he
believed had similar houses, what their bills were, and he never
actually checked any actual bills to see what their usage was. He never
checked any --We don't have any indication whether these the same area
or not. This is a rural area where it occurred. It was wintertime. We
don't have any evidence about whether or not they checked their usage
for an average over the whole year, their usage during the summer, the
usage during the wintertime. There could be, obviously, variations.
JUDGE: So, your argument, essentially, this is normal, customary usage in this neighborhood, correct?
RAINWATER:
No, my argument is that he lied to the magistrate, and there's not
enough information to make a determination that that information leads
to criminality here. And in fact, he indicated in the affidavit that he
filed with the court and in his testimony that he never actually checked
any bills. And in the third warrant, he makes a completely different
statement, he admits that. Because in the third warrant he says the
amount of kilowatt usage in a residence -- and I would underline 'a,'
meaning a single residence -- that did not have an indoor grow was
significantly less. I think it's disingenuous by the government to argue
that when he says 'I checked several bills,' it doesn't really mean
that. That's a false statement. The district court, magistrate, made a
factual ruling -- that was a false statement. Again, I think the
district court misunderstood that there's some additional requirement
that the defense show that he did it on purpose to mislead the
magistrate or of some ill intent. But I think the law is that if he
doesn't do it by accident, in other words, if he had other information
that he put in there, and if he did it by accident, or if he had other
information and didn't know, that's not knowing or reckless.
JUDGE:
If you had to summarize, what would you think the reason for those
rulings are? That there's no basis for issuing a warrant unless there's a
lie?
RAINWATER: I'm sorry -- maybe I don't understand the question.
JUDGE: I gather that you're arguing that he got his search warrant based on false information.
RAINWATER: Correct
JUDGE:
So, if we say, 'All right -- you're right", then do we say, 'So, the
search warrant must be quashed because there's not sufficient basis if
you ruled out the false information for issuing the warrant"?
RAINWATER: I'm not saying that necessarily --
JUDGE:
I would hope not, because it seems to me that's what we boil down to.
Don't we have to look at that and say -- is there enough? Even if we
rule out the false statement, is there enough?
RAINWATER: Even if
we include the false statement, I think there's not enough. And in fact
the district court found there's not enough. But the relevance of the
false statement is that we have to first exclude them and then we
analyze the warrant. And also it deals with whether there's a good faith
exception to the warrant requirement. If there's a false statement,
then we don't have a Leon issue and then there's no good faith
compliance. So it's relevant on those two reasons. All I'm arguing is
that we should exclude those statements when we consider the warrant,
and then we consider there's probable cause, and then it goes to the
Leon issue of whether there was good faith compliance, whether or not
they made reckless or false statements. I don't know whether that
answers the question, but that's the best I can do.
The next area
we focused on was the fact that in the first two warrants this affiant
said, and I quote, an anonymous citizen informant and he put in
parentheses "CI," had notified him of a possible indoor marijuana grow
at the address and that Mr. Costa resided at that address. When in fact
he testified that the information he had was from a fellow officer who
got a call from someone who was unidentified in any way, who said, this
person told me there's a possible marijuana grow at a certain residence
and Mr. Costa lives there. And in fact, in a final third warrant, he put
down correctly the information by saying he received a tip regarding
that address and the defendant resided at that address and the person,
he or she, believed that there was growing marijuana at the residence.
And I would point out that the officer testified that he knows the
difference between, number 1, citizen informant, which implies someone
who has no ax to grind in the case, who doesn't have a prior criminal
record, and he testified to putting on the term "CI," which is commonly
referred to as a confidential informant, which happens to have even more
credibility. I don't think there's any doubt that in warrants 1 and 2,
the affiant exaggerated his probable cause. And in fact, it's pretty
consistent through the warrants, as he gets more information, he gets
the PG&E, he gets the thermal imaging, he thinks he has more
probable cause, he corrects the statements that he made that were false
in the beginning warrants. For example, he doesn't need the anonymous
citizen informant anymore, or CI statement, and he goes in the third
warrant to what it actually is, an anonymous tip. I think it pretty
clearly shows that during the course of the warrants, he began to be
more confident about his probable cause, and became more truthful. And
as he needed to be untruthful, he was untruthful to the magistrate in
several areas.
The next area that we focused on was his statement
that he was unable to locate a driver's license history for Mr. Costa
at the marijuana grow address. In the first and second warrants he put
that information in there, when he testified in fact that he knew that
the driver's license information was that Mr. Costa had a residence that
was at a different location. And in fact in the third warrant, again
when he thought he had more probable cause, he put down that he had
located a driver's license history with an address different from the
one where the marijuana was supposedly grown, which was information
which is the only information linked directly to the informant's tips --
information that Mr. Costa resided at that residence. Now, I'm not
arguing that it's conclusive evidence, but it's evidence the magistrate
should have considered in deciding to issue the warrant -- whether or
not there was information that he lived there, whether or not they were
unable to find information that he lived there, or whether they had
information that he lived someplace else. And in fact the district court
found that that that was an omission that was false and misleading, but
then found that was not material. And I think the district court
misunderstood the meaning of material. It seems to me that this
definition of material was that if that had been left out, would the
magistrate or the issuing judge have found probable cause. But that's
not materiality. I think materiality in this context is whether or not
it goes to a decision about probable cause. It's not an issue of whether
a magistrate who read the affidavit wouldn't have found probable cause
because of that change, but did he consider it. That makes it material,
and if it's false, then it has to be excluded from the equation--
JUDGE: But the findings of the district court are findings of fact, right?
RAINWATER: Yes, the district of court made a finding of fact that there was an omission but it found it was not material, but --
JUDGE: But--
RAINWATER: -- but the materiality is not a finding of fact.
JUDGE: Excuse me, counsel.
RAINWATER: Yes.
JUDGE:
The finding of fact made by the district court may have been erroneous,
but could you have made any showing that the officer relied on the
finding of the district court when executing the warrant?
RAINWATER:
I'm not quite sure what you meant. I haven't gotten to the Leon issue
yet, if that's what the court is addressing, in terms of the issue
whether the officer had a good faith belief in the validity of the
warrant --
JUDGE: This is the place where we're starting to get a
mix of your position and the findings of fact made by the district
court. That's my problem. You're saying the district court had a right
to make a finding of fact, and you concede the findings of facts made by
the district court were correct, or you don't.
RAINWATER: And I
concede that the district court found that the criminal history was
false, a finding of fact, that he checked several PG&E bills was
false, and I agree that the driver's license history was an omission
that was false. The district court made all those findings. The district
court found that the omission was not material, which is a different
finding, and which is reviewed de novo, because it is a mixed question
of law and fact, and this court must then determine the law and the
finding to determine whether or not it was material, and I think the
court can review it de novo, and should review it de novo, under this
court's previous decision in U.S. v. Luong. I am not challenging, in
those cases, the district court's finding. I think the district court
was erroneous in the area of the citizen informant and in the area I
haven't gotten to yet which deals with the comparison to other grows.
And
that's the next issue I wanted to talk about because in the second
warrant, the affiant put down that he had talked with one detective in
Los Banos who indicated that the usage amount in marijuana he had grown
recently was 3500 kilowatts. And in the third warrant he changed that to
say he knew of other indoor marijuana grow locations that showed usage
higher than the known marijuana grows. In other words, he increased it
to multiple marijuana grows, and he testified the reason he only put
about the one in the second warrant, was that he only had exact
information from one person. And in the third warrant, he said he had
talked to people in general but didn't have specific kilowatt usage, he
put down he increased it, even though he didn't have that information to
put down, multiple locations, because that increased the probable cause
and was a false statement.
Those are the five areas that I think
show there were false omissions and false statements in this affidavit,
or all three of the affidavits.
JUDGE: Let's assume, for the
moment, leaving the question of materiality aside, that we agreed with
the district court's factual finding, or at least didn't find the
reversal under a clearly erroneous standard. Where does that leave you?
Is that fatal to your case, or do you still think that you have enough
that the warrant should be suppressed?
RAINWATER: I think even
without excising any of the Franks information, under the Luong case
that I cited, which indicated where you have an uncorroborated,
anonymous tip as the lynchpin of your probable cause, with no other
information to support it, you don't have any indicia of probable cause,
and you can't rely on it under good faith. And I would point out
particularly in terms of the third warrant just quickly, because I
realize my time is running out, that all we have for probable cause is
an anonymous tip that someone believed that Mr. Costa was growing
marijuana at that residence, contradicted by the driver's license
information, with no other information to substantiate that tip. For
example, in other cases, we have informants saying, "I went in the
residence, I've seen marijuana growing there." We don't even have that
here.
JUDGE: What we have is high usage of electricity.
RAINWATER:
Well, yes, with no explanation for it. In other cases where we have a
stronger tip, or someone who went in the house, or more information. In
other cases, we have high usage compared to similar houses in similar
locations --
JUDGE: I think what Judge Farris is asking is, high usage plus an anonymous tip, if we assume that, is that enough?
RAINWATER: No, not under Leon.
JUDGE: I think that was his question.
RAINWATER: All right. I would reserve the rest of my time for rebuttal.
ESCOBAR:
Good morning, Your Honors. I'm Karen Escobar. I represented the
government in the district court...an emotionally charged case, and a
lot of issues, but I think the only issue before the court, really, that
requires analysis, because there are multiple layers of analysis with
respect to the constitutionality of the warrants. It is our position
that the first warrant, which sought solely the records from PG&E,
there is no Constitutional issue, the defendant lacks standing because
there is no reasonable expectation of privacy in the business records of
a third party. The defendant has never conceded that the first warrant
was not something that he could challenge. The second warrants, however,
should be the focus of the Court's attention. The validity of the
second warrant, which sought purely thermal imaging authorization, and
the third warrant which sought the search of the residence, which was
based on primarily many of the factors enunciated in the second search
warrant along with the findings of the thermal imaging, which found that
there was a high heat source emanating from the residence where the
defendant resided. As Your Honor, Judge Farris, wrote in Motts, where
the defendant makes a substantial preliminary showing that a false
statement was deliberately or recklessly included in the affidavit, and
was material to the magistrate's finding of probable cause, the court
must hold a hearing to investigate the veracity of the affiant. It is
the government's position that the defendant did not make a substantial
preliminary showing to even warrant a Franks hearing in this case.
Before the hearing was held, the only evidence that was submitted by the
defendant was the memorandum, in his exhibits, primarily the
declaration of the officer, the California Highway Patrol officer who
was assigned to this narcotics task force in Merced, with eight years of
experience in narcotics investigations, and participation in over a
hundred marijuana cultivation cases. And in that declaration, the
officer stated that, with respect to the issue of checking the PG&E
bills of homes of comparable size that did not have indoor cultivation,
that the bills were significantly lower -- the kilowatt usage was
significantly lower. In that declaration, he stated that he did not
obtain the bills and read those bills, he talked to homeowners of homes
of comparable size. That is the only evidence, along with the rap sheet
of the defendant, that the defendant submitted in support of a Franks
hearing. The defendant identified, as he has indicated, that one of the
false statements that he identified was that, in search warrants 1 and
2, the officer referred to an anonymous citizen informant --
JUDGE:
Well, to get back to the PG&E bills, he said he checked several
PG&E bills, that was wrong? He did not check the bills?
ESCOBAR:
He clarified then at the Franks hearing and in his declaration that was
submitted in support of the request for the Franks hearing, that the
basis of that statement was that he obtained verbal information, he
talked to homeowners of homes of comparable size. The government would
argue that that statement is subject to interpretation. The officer --
his checking with -- checking the PG&E bills, is what he said in the
warrant, by that he meant he talked to people with homes of comparable
size. I would submit that was a semantic, or perhaps an inarticulate, or
not well-crafted statement of what in fact he did. He did not
deliberately misrepresent to the district court at any stage, of what he
meant. He did not, for example, submit a declaration that the defendant
attached in support of his Franks request that, "oh yes, I did in fact
obtain actual physical documents, PG&E records of homes of
comparable size." He explained what he meant. He did not deliberately
misrepresent to the district court what he meant. I would argue it was
inarticulate, it was perhaps negligent, how he stated what he did, but
in any event I don't believe that it arises to the level of deliberate
misrepresentation. Nor did the district court after the Franks hearing,
after assessing the credibility of Officer Lopez, find that it was a
deliberate misrepresentation. It was perhaps negligent, but it did not
arise to deliberate misrepresentation.
The other finding by the
district court, which we disagree with actually, was the criminal
history of the defendant. The court did find, as the defense states,
that the officer misrepresented the criminal history of the defendant,
stating that he had been convicted for the cultivation of marijuana in
the past. In the search warrants, that's what he stated. The rap sheets
that were submitted in support of the Franks hearing, indicated that the
defendant was in fact arrested for the cultivation of marijuana, and
that he participated in a drug program, a deferred entry of judgment was
made, and the case was dismissed. The officer testified that, in his
mind, he believed the conviction was valid, and that issue has been
clarified recently by this court, by Judge Beezer, in Norberry, in June
of this year, that those kinds of convictions -- deferred entry of
judgment and deferred judgments after participating in a drug program --
where there has been a guilty plea, as there was in this case, do in
fact constitute a conviction. The officer was not wrong when he
characterized that as a conviction in the search warrants and at the
Franks hearing. The court -- the district court -- was, we believe,
incorrect in finding that the statement was false. That is a legal
interpretation. The officer is not a lawyer, of course, but it was not
false and he truthfully stated that he believed there was a conviction.
As this court has indicated, long after the sentencing of the defendant
in this case, in June of this year, such crimes where there is a guilty
plea or a no lo contendre plea, successful participation in a drug
program, even though there's a dismissal, it is a conviction. So the
officer was not wrong. The only falsity in this case was the statement
of the officer that he had checked PG&E bills of people with homes
of comparable size that did not have indoor marijuana grows. We would
submit that that does not constitute a substantial showing necessary to
trigger a Franks hearing. Now the Franks, even though one was granted,
the evidence that was produced at the hearing did not reveal anything
more than what was already presented before.
JUDGE: How would you state the issue that is before the court? Or decision?
ESCOBAR:
If there were any false statements, and the government maintains there
was only one, or possibly only one, relating to checking the PG&E
bills, none of the false statements were deliberate misrepresentations
or in reckless disregard of the truth. And whether those statements were
material to the probable cause finding. Because if the statements were
false, this court is of course allowed to excise those from the warrant
to determine whether or not the remaining factors still establish
probable cause. And we believe there was more than ample evidence, or
more than ample factors to support a probable cause determination for
the second warrant and for the third warrant. There was more than just
an anonymous tip and thermal imaging. There was, with respect to the
probable cause determination in the second warrant, there was follow-up
surveillance by Officer Lopez, who went to the location, in Winton it
was, a little rural community near Merced. He saw two large exhaust fans
on top of a metal cargo container attached to a wooden out-building
behind the residence. And he indicated in his warrants that the wooden
out-building was obscured from the street by a very tall fence, he
stated in the second warrant. And he stated in the third warrant that
there was some kind of metal, sheet metal, atop that tall fence,
obscuring the wooden out-building, which was where, ultimately, the
marijuana clones were found, from view. And on the wooden out-building,
he observed the blue tarp, which further concealed the activities
within. He also indicated in the warrants that the two large exhaust
fans were consistent with having a sophisticated indoor grow operation
which requires the output of a large amount of energy, necessitated by
high-powered indoor lights, high-intensity lights necessary for the
grow, etc. He articulated that in both of the warrants. He also set
forth his training and experience, and, as you also indicated in Motts,
that is to be accorded a great deal of respect and deference. In the
Supreme Court, the training and experience of the officers is given a
great deal of deference and accordance in the probable cause
determination. So, his training and experience could be properly
considered his statement that the power usage at the Mercedes residence
was consistent with indoor cultivation of, quote, "a large amount of
marijuana plants," should be accorded great deference. His observations,
viewed through his training and experience, calculate in the probable
cause determination, the average electrical usage for the Mercedes
residence, 5520 kilowatts per month, was extremely high, particularly in
comparison to the other indoor grow at the same time, that was the
Detective Kirschman grow, which was 3500 kilowatts per month. At the
hearing he testified, with respect to this issue of location, singular,
versus locations, plural, Officer Lopez testified that between the time
he obtained the search warrant for the thermal imaging and the time he
obtained the search warrant to actually search the residence, he talked
to four other officers, and he named them in the Franks hearing, he
named them by name, other narcotics officers, and compared what would be
normal kilowatt usage for other indoor grows.
JUDGE: But I
assume you're not contending that high energy usage, coupled with an
anonymous tip, is enough to establish probable cause, right?
ESCOBAR: Uh, I don't believe that would be enough.
JUDGE: That's not enough. Concealment by a fence is not enough. A blue tarp's not enough, so what tips this over?
ESCOBAR: The totality of the circumstances --
JUDGE:
Besides that. Take it one at a time. So, you have -- you know that a
tip's not enough, energy usage is not enough, fencing's not enough...
ESCOBAR:
Well, I think you can consider energy usage, even if you're excising
out the statement regarding average daily electrical usage at comparable
residences, checking the PG&E of other comparable... Even if you
excise that out, you still have a criminal history that the defendant,
Dustin Costa, was involved in cultivation in the past, of marijuana, you
have kilowatt usage that is extremely high, and he states, articulates,
that based on his training and experience, which he sets forth in the
warrant, with at least a hundred participation in --
JUDGE:
Right, but we know from Clark that an anonymous tip plus high energy
usage isn't enough. So, I'm trying to get down to the specifics of your
argument. Are you saying that criminal history then, coupled with all
that, is enough?
ESCOBAR: Criminal history, the steps taken to
conceal the activities in the residence, the exhaust, indicative of
indoor marijuana cultivation, the need to release the energy that's
output by the high-power lights, the electrical timers, all those types
of things. The fact, even, that it's in a rural environment, out of
Winton, California, a little farming community, tucked away, which the
state judge was well aware of the location of that particular area --
JUDGE: Living in a rural area can't be indicia of probable cause. Otherwise, my whole state's in trouble.
(JUDGE SIDNEY THOMAS, from Montana)
Muffled laughter.
ESCOBAR: No. No, but I think all the factors and --
JUDGE: It seems to me the only one you've come up with that's unique is the exhaust fan.
ESCOBAR:
No, the tall fence, in a community where, really, there are no fences,
out in the country, you know, I think, draws suspicion.
JUDGE: What's your best case that says fencing is enough?
ESCOBAR: You know, this case has a unique set of factors. I can't point to --
JUDGE: Does that mean there's no case?
ESCOBAR: Perhaps there is. I don't --
JUDGE: I don't mean to interrupt. I gather you don't have a case that says fencing is important. True?
ESCOBAR: There are cases that, that I may have cited to you, cases that say that steps taken to conceal may be considered.
JUDGE: Do you have any cases on exhaust fans?
ESCOBAR:
Cases on equipment...um...then the third warrant is also adds, besides
these factors besides these ones we've been discussing, is the results
of the thermal imaging, which indicated a high heat source, so
electrical usage, high heat source, training and experience, the
observations viewed through the lens of training and experience, the
rural community, the criminal history, the anonymous tip, as well, is
considered in the calculus. Even in the absence of probable cause,
however, I think the court, the district court, I think rightly found
that the good faith exception did apply, and we would ask that this
court uphold the -- either under good faith or probable cause -- the
warrants. As in Freitas, which, again, Your Honor wrote, law
enforcements who reasonably act in reliance on search warrants, should
be entitled to rely on the Leon good faith exception for good faith. And
it applies here. The only relevant exceptions to the good faith
exception, which we need to be concerned with, are whether the affidavit
was so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable, and whether the judge in
issuing the warrants was misled. And, as we've argued, as the district
court found, Officer Lopez did not mislead Judge Hanson for search
warrants 2 and 3. There were no steps taken to deliberately misrepresent
what he had done in the investigation and to support a probable cause
determination. Whether the affidavit was so lacking in indicia of
probable cause, well the district court, Judge Ishii, indicated that
this was a close case, and I believe officers who executed the warrant
reasonably relied on the warrant. They are not lawyers, obviously. I
think there was enough in the warrant for them to believe that it was a
valid warrant. They are not going to second guess a state judge's
finding that there's sufficient probable cause in the two warrants. The
good faith exception applies. The other exceptions, to the good faith
exception, do not, in the absence of evidence that Officer Lopez was
intentionally dishonest, rather than negligent, or simply inarticulate,
the application of the extreme sanction of suppression is not
appropriate. The credibility, again, of Officer Lopez, is a matter that
is generally reserved for the district court, and he found, Judge Ishii
found, that Officer Lopez was not lying, was credible, did not make any
deliberate misrepresentations. The government believes that the only
deliberate misrepresentation in this case was the defendant's
presentation of a personal use defense, knowing full well that the 908
marijuana plants found in this case, and the 8.8 pounds of processed
marijuana that were seized from his residence, were intended for
distribution. As we've indicated in our brief, when this case was at
state level, before it was adopted for federal prosecution, the
defendant and his lawyer submitted, and we have submitted this before
this court, a list of all the people to whom he was distributing for
medicinal marijuana purposes. There was also lots of evidence found
within the residence that we submitted, obviously, at trial, indicating
that the marijuana was not for personal use, and this included, besides
packaging material, and triple -- uh, digital scales, that sort of
thing, there were the labels that were used on little bottles for
distribution that stated "Grown by D.C. Hisself." Dustin Costa, hisself.
That, we would submit, is the only deliberate misrepresentation. We
would ask the court affirm the judgment and conviction. If there are
further questions, with respect to any of the issues, I would be glad to
assist in answering those questions. Thank you.
JUDGE: And we
both understand there are a lot of issues in the case, and you have
briefed those extensively and we've read the briefs, so the fact that
you didn't argue them today is understandable. We wanted to,
appropriately, hit the high points of the case. Thank you both for your
arguments.