Three judges from the 9th Circuit Court of Appeals have rejected the appeal of Aaron Sandusky, the California man sentenced to 10 years in federal prison for selling medical marijuana in a state where such activity is completely legal. Reason has covered the Sandusky case extensively here.
In short, the appeals court ruled that the judge acted properly in prohibiting Sandusky from mentioning in his trial that medical marijuana was legal in California and that the attorney general, deputy attorney general, and the president of the United States himself stated that enforcement against legal dispensaries would not be a priority.
Sandusky's lawyers had attempted an "entrapment by estoppel" defense during the original trial, meaning they hoped to argue that statements made personally to him by FBI agents, and publicly by the Department of Justice and President Obama, led him to reasonably conclude that opening and operating a medical marijuana dispensary would not subject him to federal prosecution. The judge in that case prohibited Sandusky from making this argument, and the appeals court upheld that decision, concluding that "no authorized government official ever affirmatively told Sandusky that his marijuana operations were permissible" [italics added].
The court also rejected Sandusky's constitutional argument that the federal government lacked the power under the commerce clause and the 10th Amendment to prosecute someone operating within state law. Here, the court simply cited the Raich v. Gonzales case, wherein the Supreme Court concluded that the ever-expansive commerce clause authorizes the federal government to prohibit the growth of medical marijuana in one's home even absent an intention to ever sell it.
Other rejected arguments included claims that Sandusky was the subject of "vindictive or selective prosecution" and that the court imposed a mandatory minimum sentence in the face of insufficient evidence and inappropriately excused jurors who might be sympathetic to jury nullification.
Sandusky has served a little more than a year of his 10-year sentence, which he is serving in Big Spring, Texas, far away from any friends and family.
"Aaron is having tough time with all of this right now especially with all the new developments going on in Colorado," his girlfriend Darlene Buenrostro said in an email. "He doesn't understand how he can be sitting in prison for something that was legal within his state's law, and Colorado is booming the way it is with their state laws, but yet the federal government is not taking action the way they did to him."
In the wake of the historic law changes in Colorado and Washington, with the public on the side of legalization, and the feds taking a wait-and-see approach, will Obama free the legal marijuana distributors he's already imprisoned? When his administration has prosecuted 80 percent more medical marijuana cases than his predecessor's—and yet another California dispensary worker was thrown in jail just two weeks ago—optimism begins to look a lot like credulity.
Sandusky will appeal to have his case heard en banc in the 9th Circuit and, failing that, hopes for a trip to the Supreme Court. He has a legal defense fund here.