Opinion
CR 19-02946-TUC-JAS (LAB)
10-05-2021
United States of America, Plaintiff, v. John Milton Lee, Defendant.
REPORT AND RECOMMENDATION
Honorable Leslie A, Bowman United States Magistrate Judge
The District Court referred this case to the Magistrate Judge for a hearing on the defendant's motion to dismiss Count Three of the Indictment. (Doc. 78) The defendant, John Milton Lee, argues that the 10th Amendment to the United States Constitution precludes the federal government from making possession of marijuana a crime, when the marijuana was legally purchased and taxed in the State of Arizona. He asks this Court to declare marijuana legal.
A hearing was held on 10/1/21. Mr. Lee provided the Court with a witness list of seven potential witnesses, but none were present for the hearing. No testimony was offered by the government or the defense. Mr. Lee submitted an exhibit list for the hearing, but no exhibits were admitted.
Page 4 of the exhibits was proffered to the Court in response to the government's statement that Mr. Lee was denied entry into Mexico for transporting a motorcycle without proper documentation. The photo was referenced to demonstrate that it was properly registered in the United States. The photo was not admitted into evidence.
Charges :
The defendant is charged in Count 1 of the indictment with smuggling goods from the United States, in violation of 18 U.S.C. § 2778 and 22 C.F.R. §§ 121.1, 123.1 and 127.1. He is charged in Count 2 with Impeding and Threatening a Federal Officer, in violation of 18 U.S.C. §§ 115(a)(1)(B) and (b)(1)(B)(iv). He is charged in Count 3 with Possession of Marijuana, in violation of 18 U.S.C. § 844. The indictment also includes a Forfeiture Allegation, pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c).
Motion to Dismiss Count Three of the Indictment :
The defendant argues that possession of marijuana for personal use is legal in the State of Arizona and it is unconstitutional for the U.S. government to criminalize marijuana possession. He asks the Court to declare it legal and dismiss Count Three of the indictment. The government responds that the Court has no authority to disregard or invalidate a federal criminal statute. It cites the Court to 21 U.S.C. § 844 to support the charges against the defendant. Section 844 states that it is unlawful for a person to knowingly or intentionally possess a controlled substance without a doctor's prescription. Title 21 U.S.C. § 841(b)(1)(D) provides for a penalty of up to five years in prison for possession of less than 50 kilograms of marihuana.
Mr. Lee responds that marijuana is legal because G-d created it. (Doc. 93)
The Court concludes that there is no basis for the Court to dismiss Count Three of the indictment.
RECOMMENDATION :
In view of the foregoing, it is recommended that, after its independent review of the record, the District Court DENY the motion to dismiss Count Three. (Doc. 78)
The defendant may serve and file written objections within 14 days. If objections are not timely filed, the party's right to de novo review may be waived. No reply to objections shall be filed unless leave is granted from the District Court.
The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.