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Exclusive: No Medical-Marijuana Exception to Federal Pretrial Release Conditions Barring Violation of Federal Law

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From U.S. v. Cannon, decided Wednesday by the Third Circuit (Judges Cheryl Krause, Luis Restrepo, and Brooks Smith):

As a [statutorily required] condition of his bond, a Magistrate Judge ordered that Cameron Cannon {“must not violate federal, state, or local law while on release” [Condition 1]} …. That includes the use and possession of marijuana, a Schedule I controlled substance.

Nonetheless, Mr. Cannon continued to use marijuana for medical purposes on the recommendation of his physician, leading the District Court to revoke his bond. Cannon appeals that decision on the grounds that a different condition of his release {that Cannon “not use or unlawfully possess a narcotic drug or other controlled substances defined in 21 U.S.C. § 802, unless prescribed by a licensed medical practitioner” [Condition 7(m)]} permitted the use of controlled substances with a doctor’s prescription.

Whether courts may excuse medical marijuana use in bond revocation hearings is an issue that has confused defendants and divided courts in the Third Circuit. But it is beyond dispute that the use and possession of marijuana—even where sanctioned by a State—remains a violation of federal law. So we will affirm the District Court’s revocation of Cannon’s bond and deny his motion for release….

[When the conditions were imposed], Cannon raised the issue of medical use of marijuana. As he explained, because he is a paraplegic and suffers from serious and painful medical conditions, his doctor had recommended medical marijuana, and had issued him a certification pursuant to Pennsylvania’s Medical Marijuana Act (“MMA”). Under the MMA, this certification—commonly referred to as a “medical marijuana card”—allows a patient to obtain medical marijuana from an approved dispensary.

The Magistrate Judge rejected the notion, responding: “[n]ope. I mean, that’s a federal rule from DOJ. It’s still federally illegal, card or not, so I can’t authorize that.” Cannon replied that he was “not worried about using medical marijuana” and that he “[did]n’t need it” before agreeing to abide by the conditions of his release.

Cannon’s bond was revoked after he had “on several occasions … either tested positive for marijuana or admitted using marijuana, and the following month moved to revoke his bond,” and the Third Circuit upheld the revocation:

When a trial judge determines that a defendant on bond has either committed a federal, state, or local crime or violated another condition of their release, the judge must … decide if there is any condition or combination of conditions that could be imposed to assure that the supervisee will not flee or pose a danger to the safety of the community. If not, the judge must enter an order of revocation and detention….

Here, the District Judge concluded that Cannon’s use of marijuana violated federal law and therefore Condition 1 of his release and determined, based on Cannon’s repeated use of marijuana despite repeated warnings, that no bond conditions would “adequately protect the public” or cause Cannon to “conform to the requirements of law.” We hold that both determinations were proper….

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District Courts in our Circuit appear to be split on whether state-sanctioned use of medical marijuana may be excused notwithstanding the requirement in 18 U.S.C. § 3142(b) that a defendant not violate federal law…. [But we do not believe that]] we disagree with Cannon that Condition 1 and Condition 7(m) are in conflict with respect to medical marijuana. The Controlled Substances Act lists marijuana as a Schedule I controlled substance, reflecting Congress’s express determination that it is illegal “for any purpose” and that it “has no acceptable medical uses.” The Act does not contain any exception for medical marijuana. It is thus illegal under federal law for medical practitioners to prescribe marijuana to patients, and doing so may subject them to both criminal penalties and revocation of their licenses to prescribe controlled substances. Pennsylvania law also does not purport to authorize medical practitioners to prescribe marijuana; rather, the MMA only permits them to issue a “certification to use medical marijuana.”

The distinction between a “prescription” and a “certification” is critical for medical professionals; the former is an order for a patient to use marijuana, whereas the latter is merely a recommendation—protected by the First Amendment—as to its potential benefits. And that distinction is critical here: Condition 7(m) prohibited Cannon from using or possessing any controlled substances “unless prescribed by a licensed medical practitioner.” Under the MMA, Cannon did not have a prescription for marijuana, only a certification, so his use of marijuana violated not only Condition 1, but also Condition 7(m). {Though the use of marijuana here violates both Condition 1 and Condition 7(m), this will not necessarily be the case for every controlled substance.

Some Schedule V substances, such as cough medications with less than 200 milligrams of codeine per 100 milliliters, may be obtained and used legally without a prescription. Thus, their use would not violate Condition 1, but because they are nonetheless controlled substances, their use without a prescription would violate Condition 7(m).}

Nor would it resolve the issue if Condition 7(m) had been drafted to permit the use of controlled substances with a medical practitioner’s “recommendation” or “certification.” The use of marijuana would still have been in violation of federal law and therefore in violation of Condition 1, which is a mandatory condition under 18 U.S.C. § 3142(b). Under that provision, all defendants subject to federal supervision are prohibited from using medical marijuana as long as it remains illegal under federal law, regardless of whether a state has authorized its use. {We join several of our sister circuits in reaching this holding.}

We recognize that this is the first time we have spoken clearly on this question, meaning some defendants may have reasonably been confused as to whether using medical marijuana would violate their conditions of release. But that is not an issue here, as the record is clear that Cannon was well aware that he was not allowed to use marijuana, regardless of whether it was legal under Pennsylvania law. When he first raised the issue, the Magistrate Judge declined to authorize him to use medical marijuana, citing federal law. He then formally requested that the District Court modify the conditions of his release to include an exemption for medical marijuana use, only to be denied, again, on the ground that marijuana use would violate federal law. Yet in the face of this clear judicial guidance and multiple warnings from the USPO, Cannon nevertheless used medical marijuana in violation of federal law and the conditions of his release. He cannot now claim either ignorance or confusion….

Cannon protests that the District Court should have taken less drastic measures [than revocation] and instead issued a stern warning. But Cannon already received warnings from the Magistrate Judge, the District Judge, and the USPO, so the District Court did not err by deciding that yet another warning would be ineffective…. Likewise, the District Court did not err by declining to consider the existence of Pennsylvania’s medical marijuana program as a mitigating factor weighing against revocation. The Pennsylvania legislature may have determined that sanctioning medical marijuana is in the best interests of its citizens, but as a matter of federal law, Congress continues to classify marijuana in the most serious category of controlled substances….

UPDATE: I originally erroneously referred to the conditions as being probation conditions, but they were actually pretrial release conditions (though I take it the same reasoning would apply to probation conditions); my apologies, and thanks to commenter Noscitur a sociis for the pointer.

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Exclusive: Fed More Concerned About Inflation Than Recession – TalkOfNews.com

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“There are a lot of blogs and news sites claiming to understand politics, but only a few actually do. Political Wire is one of them.”

— Chuck Todd, host of “Meet the Press”

“Concise. Relevant. To the point. Political Wire is the first site I check when I’m looking for the latest political nugget. That pretty much says it all.”

— Stuart Rothenberg, editor of the Rothenberg Political Report

“Political Wire is one of only four or five sites that I check every day and sometimes several times a day, for the latest political news and developments.”

— Charlie Cook, editor of the Cook Political Report

“The big news, delicious tidbits, pearls of wisdom — nicely packaged, constantly updated… What political junkie could ask for more?”

— Larry Sabato, Center for Politics, University of Virginia

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Exclusive: This Innocent Woman's House Was Destroyed by a SWAT Team. A Jury Says She's Owed $60,000. – TalkOfNews.com

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This Innocent Woman's House Was Destroyed by a SWAT Team. A Jury Says She's Owed $60,000.

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When Vicki Baker cleared out her home in McKinney, Texas, in 2020, she filled two 40-foot dumpsters with her belongings. It wasn’t the way she’d pictured emptying the house as she prepared to begin retirement in Montana. But there was little else to be done with her tear-gas stained items after a SWAT team careened through her fence, detonated explosives to blow her garage door off its hinges, smashed several windows, and drove a BearCat armored vehicle through her front door to apprehend a fugitive that had barricaded himself inside.

A federal jury last week decided that Baker is entitled to $59,656.59 for the trouble. It’s both a controversial and surprising decision. Normally, people like Baker get nothing.

In July 2020, Wesley Little arrived at Baker’s house with a 15-year-old girl he’d kidnapped. Little had previously worked for Baker as a handyman, though she had fired him about a year and a half earlier after her daughter, Deanna Cook, expressed that something may be awry. Cook answered Little at the door that day; having seen him on recent news reports, she left the premises and called the police.

The girl was released unharmed. But Little refused to exit the home, so a SWAT team arrived and began to tear the house down around him in a process known as “shock and awe.”

They then kindly left Baker with the bill. “I’ve lost everything,” she told me in March 2021. “I’ve lost my chance to sell my house. I’ve lost my chance to retire without fear of how I’m going to make my regular bills.” Those bills include treatment for stage 3 breast cancer.

Yet the only thing perhaps more absurd than a jury having to force the government’s hand in recompensing her is that Baker almost did not have the privilege to bring her case before one. Federal courts in similar cases have ruled that the government can usurp “police powers” to destroy your property and avoid having to pay it back under the Takings Clause of the 5th Amendment, which is supposed to provide a remedy for such circumstances.

After the ordeal, Baker sought that remedy through her home insurance, which stipulated that they are not on the hook if it is the government’s fault. And though the government didn’t deny being at fault, per se, they did deny that Baker was a victim, sending her on her way with a ravaged home, thousands of dollars in destroyed personal possessions, and a dog that went deaf and blind from the chaos that July day.

In November of last year, Baker’s luck began to turn. A federal judge denied the city of McKinney’s motion to dismiss her case. In April, that same jurist, Judge Amos L. Mazzant III of the U.S. District Court for the Eastern District of Texas, described the interpretation of the law barring Baker from suing as “untenable.” And last week, the jury handed down their ruling. The city may appeal, which will delay any payout.

In coming to his decision, Mazzant invoked another unfortunate case: that of the Lech family, who had their $580,000 home ruined by a SWAT team as they pursued an unrelated shoplifter who broke in. Greenwood Village, Colorado, did more for them than McKinney would do for Baker, forking over all of $5,000. A federal court ruled that the family could not sue, and the Supreme Court declined to take up the case.

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“Even though a number of federal courts have gone the wrong way on this issue, they’ve done so with very cursory analysis,” says Jeffrey Redfern, an attorney at the Institute for Justice, the public interest law firm shepherding Baker’s case. He says this new ruling is different and should “be the one that everyone is looking at” as similar situations continue to pop up.

It does not set a precedent, however. “In this case, we put the city claims agent on the stand,” notes Redfern, “and she said, ‘Yep, I denied the claim, and I deny every claim like this, and if this happened tomorrow I would deny it again.’” Unfortunately for people like Vicki Baker, this will continue to be a familiar story.

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Exclusive: 1/6 Committee Hits Spiraling Trump Again By Subpoenaing Pat Cipollone – TalkOfNews.com

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The 1/6 Committee has subpoenaed one of the people who knows the intimate details of Trump’s coup plot, former White House Counsel Pat Cipollone.

The AP reported:

The House committee investigating the Jan. 6 insurrection issued a subpoena Wednesday to former White House counsel Pat Cipollone, who has been linked to meetings in which lawyers debated strategies to overturn former President Donald Trump’s election loss.

The Committee said that it required Cipollone’s testimony after obtaining other evidence about which he was “uniquely positioned to testify.”

Pat Cipollone Can Testify To The Plot To Overturn The Election

According to Cassidy Hutchinson’s testimony, Cipollone has intimate and wide-ranging details about the plot to overturn the election. Hutchinson testified that Cipollone warned that if Trump went to the Capitol, they would be charged with every crime imaginable.

Trump was already falling apart after Hutchinson’s testimony, and he could be in for a double whammy if his former White House Counsel testifies. The White House Counsel is not a personal lawyer to the president but represents the institutional interests of the Executive Branch.

If Cipollone testifies, it will be the bombshell that will level the rubble that was already smoldering after Cassidy Hutchinson’s testimony.

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