Sometimes judges make decisions with which I disagree.  In fact, often times I disagree with the decisions and opinons rendered by our judges and courts.  However, once in a while, a judge issues an insightful and important decision.  The Hon. David Lawson, of the United States District Court for the Eastern District of Michigan, did just that in United States v Duval.  In Duval, a father and son were attempting to defend federal marijuna cultivation and conspiracy charges by relying on Michigan’s Medical Marijuana Act.    Neil Rockind, an experienced federal criminal lawyer who has successfully defended federal drug, marijuana, fraud, white collar, organized crime and healthcare fraud cases.   the opinion says the following:

 The Court may not adjudicate the validity of a defense in advance of trial if doing so would “invade the province of the ultimate finder of fact.”  United States v. Jones, 542 F.2d 661, 664 (6th Cir.1976). According to Rule 12(b), “a defense is capable of determination [only] if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” Id. at 665 (internal quotations omitted)). That rule ought to apply to proving the defense of entrapment by estoppel, which is a fact-intensive enterprise. See Levin, 973 F.2d at 471–73 (Martin, J., dissenting); see also United States v. Knox, 396 U.S. 77, 83, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969) (reversing indictment’s dismissal based on duress defense and, citing Rule 12(b)(1), stating that “the question whether Knox’s predicament contains the seeds of a ‘duress’ defense, or perhaps whether his false statement was not made ‘willfully’ as required by s 1001, is one that must be determined initially at his trial”). attempt to bring their defense to the trial.

The defendants are entitled to attempt to prove their defense. They say, for now, that they relied on the statements of a Monroe County sheriff deputy about the legality of their operation. Perhaps they relied on others. The sheriff deputy has testified at a pretrial hearing in this case that he was working as part of a joint task force operation with the DEA. Perhaps the defendants will be able to offer evidence that the deputy spoke with the authority of the federal government or led the defendants to believe that he did. The way the Court understands it, the defendants will describe their understanding that if they complied with Michigan’s medical marijuana laws, they would not be prosecuted by any government authority. Consequently, proof of compliance with those state laws would necessarily be part of their defense. So would the conversations they had with the “authorities” upon which they allegedly relied. It is certainly possible that none of those proofs will materialize, in which case the jury will not be instructed on the entrapment by estoppel defense. And wisdom may suggest a different course, as well.  But the defendants should not be frustrated in the attempt to bring their defense to the trial.

For over a year, Neil Rockind has advocated that judges should stop trying to decide these issues prior to the trial.  Rather, according to Rockind, trial court judges should let the accused just try their cases to the jury.