U.S. v. Kalash - Drug Law Constitutionality and Other Unconventional Defenses

Kalash

Bluelighter
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Apr 8, 2007
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So... uhhh....
I've been posting on http://theDEA.org forums about this - Nathan has been very helpful, but finally stopped responding... so I'm coming here...

I'm being tried for conspiracy to distribute MDMA, as well as possession and distribution. I was arrested by the FBI in California and have around 6 months before my trial date.

I don't believe the free lawyer I've gotten from the court is doing anything to defend me, so I've been doing research myself.

I'm hoping I can find people that will either assist me in making my stance more solid or ripping it apart completely so that I can plea and not take this to trial.

Any help is appreciated.

I hate to copy paste things, however... new forum, new topic... and I might as well save you all from clicking on that link. Besides - I wanted to edit a few things in there anyway...


Challenge to the drug laws/DEA/Patriot Act/congressional authority to prohibit drugs;


U.S. Supreme Court in Ex Parte Milligan 71 U.S. 2 (4 Wall.) (1866)
“Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of Constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.”

Prohibition of any plant, substance, or chemical is not a power afforded the Federal Government by the Constitution.

Prohibition of Alcohol required an amendment to the constitution.

This amendment was repealed and the rights of making alcohol legal or laws for distribution was specifically re-assigned to the States, from where this power was stripped by the 18th amendment.

Federal Scheduling of illicit substances is unconstitutional and invalid, as are federal laws criminalizing their possession or sales.

Schedule I drugs are not only prohibited in the general sense, they are prohibited beyond the extent alcohol was prohibited in the 1920's. Alcohol was permitted in medicines, and could even be prescribed by doctors. Schedule I drugs, according to the guidelines have no accepted medical use in treatment in the United States.
1.Accepted medical use is currently determined solely by the DEA.

2.MDMA's schedule I status was taken to administrative hearings twice.

3.In 1986, Administrative Judge Young declared that MDMA could not legally be placed higher than Schedule III.

4.The DEA overruled the judge's decision and claimed that there was no interstate commerce permit filed with the FDA, therefore there was no acceptable medical use.

MDMA is not a patentable chemical, therefore it is not profitable.
A single dose of MDMA can be made for around 20 cents.
It was easier and cheaper for MDMA to be made by the psychiatrists using it than creating an interstate commerce for MDMA.
An interstate shipping license would have taken on average 30 months for approval; with MDMA being so cheap to create, this step would have proved redundant, inane, and was not necessary.
NDA (new drug application) costs have doubled over the last five years and now stand at $1.7 billion placing the cost at a minimum of $500 million in 1986; far beyond the ability of a few psychiatrists to pay, especially for a drug with no profit potential.

5.When taken to court again in 1988, the administrative judge again ruled against the DEA.

6.The DEA's response was that its opinion in the matter was the only valid opinion and MDMA would be permanently placed in Schedule I despite testimony from psychiatrists currently using MDMA in their practices, and despite the judge's findings that MDMA did not meet the schedule I criteria.



Another note on this – as MDMA was not being shipped across state lines, it was not part of an interstate commerce. The clause permitting congress's involvement in interstate commerce does not permit it to interfere with intrastate distribution where interstate commerce is not substantially effected.
1.United States v. Lopez, 514 U.S. 549 (1995) stated that Congress may regulate (1) use of the channels of interstate commerce, (2) the "instrumentalities" (for example, vehicles) used in interstate commerce, and (3) activities that substantially effect interstate commerce.
2.Nowhere is Congress given the right to prohibit interstate commerce – only to regulate it.
3.Congress is not given the authority to determine what can be shipped across state lines – only HOW the items are shipped across state lines.
4.Regulation of activities substantially effecting interstate commerce is not permission to stop interstate commerce, but to stop the actions upsetting the interstate commerce – Congress is at fault for upsetting interstate commerce through the appointment of the DEA, not regulating a disturbance.




5.Despite the findings in Gonzales v. Raich, MDMA should not be subject to this ruling on the following grounds;
Marijuana must be grown in areas where it may grow.
Cultivation in an area permitting its growth would change the availability of marijuana on an interstate level.
MDMA is cheap enough to produce that shipping costs would deter interstate commerce where cultivation costs of marijuana are much greater making shipping and interstate commerce necessary.
MDMA is chemical in nature and can be made anywhere.
Before the DEA made it a schedule I substance in accordance with the Interstate Commerce clause, there was no interstate commerce, invalidating their right to regulate it.
Gonzales v. Raich was not determining the legality of the drug laws, they were determining if private cultivation of marijuana effected interstate commerce.
According to the Supremacy clause, the federal laws do indeed trump the state laws, however;
1.The clause permitting regulation of interstate commerce does not allow for the regulation of goods, merely their transportation.
2.The regulation of interstate commerce does not permit the Federal laws of prohibition.
3.The DEA does not have any constitutional authority to create laws yet continues to do so; these laws are invalid.
4.This clause was wrongfully used as a legal loophole to grant Congress executive powers.
5.History has proven through the 18th and 23rd amendments that these rights are not granted to the Federal Government.



6.Congress itself is not regulating scheduled substances, the DEA is.
The DEA is part of the executive branch.
The DEA determines what schedule to place all substances in with no check or balance of powers and complete disregard for the Judicial review process.
With this ability, the DEA is creating laws without legislation and without legislative oversight.
The constitution does not permit congress the ability to delegate regulation to the executive branch of the Federal Government.


7.Prohibition is not regulation; it is prohibition - as determined by historically looking at the 18th and 23rd amendments, prohibition by the federal government is illegal.





I promise it looks better formatted in an office program with the bullets lining everything up...
Sorry it's so sloppy.
Anyway...
Thoughts?
Opinions?
And... more importantly, legal documentation holding up what I'm saying or ripping it apart completely?

Thanks,
Kalash
 
If you are not happy with your public defender, you should go into debt and get a better attorney. These look like serious charges. Your commerce clause arguments have an exceptionally low chance of working. Your efforts would be much better spent towards challenging FBI procedure, like search and seizure involved with your case.

Also, if you want a narrow reading of the commerce power, look to U.S. v. Morrison (overturning violence against women act). You already have U.S. v. Lopez. But again, your arguments are nearly impossible.
 
Banquo said:
If you are not happy with your public defender, you should go into debt and get a better attorney. These look like serious charges. Your commerce clause arguments have an exceptionally low chance of working. Your efforts would be much better spent towards challenging FBI procedure, like search and seizure involved with your case.

Also, if you want a narrow reading of the commerce power, look to U.S. v. Morrison (overturning violence against women act). You already have U.S. v. Lopez. But again, your arguments are nearly impossible.



Ok...

So... Lopez determined that congress could only use the commerce clause to regulate things that were directly economic in nature...

Does that apply to MDMA - again using my arguments that financially it doesn't make sense to ship it across state lines?

And... Morrison...
I'm having trouble finding the links to my case that you are...
In their arguments - stating that the commerce clause was being used to give Congress state police powers... - I can see that, creating the DEA and the drug laws to prohibit substances - a right of the states but not of the federal government...


How can I prove that MDMA would only be a state or local concern or that it wouldn't be directly economic in nature?



I have stuff about illegal search and seizure, but don't believe any of it would hold up in this case, and I'm hesitant to bring it up because of the details involved.
I think challenging the establishment of the drug laws and the DEA is honestly my best chance.
Ironically - violations of the constitution are now so commonplace that my challenge would probably go unnoticed and be completely ineffective...


As for the attorney - I have a panel attorney... not a public defender (I have a co-defendant with a public defender) so I'm not THAT screwed.

It just seems like he isn't doing his job.
I was denied a lawyer during questioning after requesting one, and he said he'd look at the evidence, listen to the tapes, and get back to me on it.

While I understand he has a lot to go through, this is something that he should have prioritized in my case...
Possibly he has... I don't know...
I need to call him tomorrow and see where he's at with the evidence.
He's only had it a week...
 
Banquo is right, the Commerce Clause argument isn't going to fly.

Re your attorney, is there something specific you think he needs to be doing right now? If your trial date is six months away, he may simply not be in full gear yet.

Some panel attorneys can be very good. My firm takes panel cases, and we've got one of the best reputations around.
 
My neighbor (a fraud attorney) showed up and represented me at my bail hearing.

He was dismissed and I was assigned the panel attorney at my second hearing (a little over a month ago.)

A week before last Friday, my neighbor received a call from the prosecuting attorney (stating he was the attorney on record) BEGGING him to request disclosure before the hearing last Monday.

My current lawyer had my case for over a month and didn't request disclosure until the pre-trial hearing where we were supposed to challenge the evidence.

Is he doing his job?
Now?
I don't know...
But that's made me VERY suspicious.

And the trial date was originally set for May 1st.
One of my co-defendants was not present at the hearing last week - the calender was mixed up or something - and the postponement of the trial date to September was pending their consent to waive their right to a speedy trial - otherwise the May date would still hold.

While realistically, yes... we have 6 months or so...
My lawyer has repeatedly told me he doesn't expect the case to go to trial (while I continue debating the positives and negatives of going to trial...) and we COULD only have 3 weeks.

Is he doing his job now? Maybe.
Was he for the last month? Definitely not.
It sure makes me wonder if he's doing anything now...
 
Kalash said:
My lawyer has repeatedly told me he doesn't expect the case to go to trial (while I continue debating the positives and negatives of going to trial...) and we COULD only have 3 weeks.
The vast majority of criminal cases do not go to trial. If you're a "small fish," then it could be that the feds have more important things to do. Or maybe the feds are having a slow month and they need to keep busy. However, it's always cheaper and more efficient to keep these things from going before a jury.

On the issue of your panel attorney -- it's tough to know. There are expensive private attorneys who will put on a show for their client and waste a court's time just to show how hard they are working. There are also brilliant public defenders. It can go different ways, which is why it's best to ask around and find an attorney who is reputable.

My current lawyer had my case for over a month and didn't request disclosure until the pre-trial hearing where we were supposed to challenge the evidence.
Different courts handle evidentiary issues at preliminary hearings differently. Some judges won't allow it to be raised at all (owing to the low burden for establishing a case here), so the fact that your attorney didn't raise evidence issues at a preliminary hearing is not cause for alarm.

or was this after your prelim hearing?
 
This was the pre-trial hearing - the preliminary hearing was April 2nd.

Again - it wouldn't bug me, but my neighbor got that phone call 3 days before the hearing (the 2 days between were the weekend) begging him to request disclosure.

If the prosecuting attorney feels this was neglected - enough to contact whom he thought was my attorney and request him to do his job - it seems fairly obvious that my attorney isn't doing his job correctly.
 
Wasn't a preliminary hearing...
I just have my terms messed up...
The arraignment was April 2nd...
Pre-trial hearing was last Mondy...
 
Small update... and more questions...

I got ahold of my attorney today...
And (big surprise) he knows nothing more about my case than he did when we started.

HOWEVER, he did receive a call from the prosecuting attorney requesting my cooperation and to begin talks of plea bargaining.


My lawyer's comment - if you bring up any of this constitutional stuff, he's going to push for you to go to prison.
If you cooperate, you'll get a good deal.


So... I guess... what are my options?

Legally I'm entitled to a trial.
A trial would make things fair, however with mandatory minimum sentencing and things of that nature, it wouldn't be fair if I'm convicted.

I'm entitled to my constitutional rights (even those deprived of my by the patriot act) and again, I can challenge these - if not in court, in an appeal.
I have numerous arguments about constitutional violations.

Why is it WRONG for me to bring up constitutional violations of the government in my case?
Why would bringing up these arguments PRECLUDE me from making a deal and cooperating?
Why couldn't these be used to entice the prosecutor to give me a better deal?

Is this just my lawyer saying, "I'm a lazy bastard that doesn't want to work, so make the plea and get over it." or is there some merit to his words?


If he wanted my cooperation, he should have discussed it with the FBI agent interrogating me (the FBI agent called him during my questioning telling him I was cooperating, and they were going to be digging in for more information) before telling them to use me, and using the knowledge they gained to double my bail and increase the charges against me after telling me explicitly that it would be helping my case.

He's already had my cooperation and he used it to stab me in the back.
Why should I continue to cooperate when all it's gotten me so far is more charges against myself?

I'll stop now to keep from ranting and getting pissed off...

But basically - why would me bringing up constitutionality of the laws make the prosecutor unwilling to work with me?
Why would questioning their evidence make it so I'm not capable of getting a plea bargain?
Is this stuff true, or is it my lawyer trying to get out of doing his job?
 
Kalash said:
Why is it WRONG for me to bring up constitutional violations of the government in my case?
It's not wrong in the moral sense, but it would appear confrontational and wouldn't be helpful in reaching a plea deal. The constitutional claims are not good arguments. Sorry.

If your case goes to trial, it would be a better time for longshot defenses. Argue your constitutional claims there, and they will be preserved for appeal. (And then all you need are some new more sympathetic Supreme Court justices and you'll be set.)

If he wanted my cooperation, he should have discussed it with the FBI agent interrogating me (the FBI agent called him during my questioning telling him I was cooperating, and they were going to be digging in for more information) before telling them to use me, and using the knowledge they gained to double my bail and increase the charges against me after telling me explicitly that it would be helping my case.
Prosecutors can cut deals. They are held to a higher standard of conduct. Law enforcment cannot. They should not be trusted.
 
merging with other thread. let's keep all the posts on this case in one thread so that they are easier to find.
 
Banquo said:
Prosecutors can cut deals. They are held to a higher standard of conduct. Law enforcment cannot. They should not be trusted.


They called him before continuing with the interrogation...

I guess it's just a sign of manipulation...
Bastards :X
 
Banquo said:
It's not wrong in the moral sense, but it would appear confrontational and wouldn't be helpful in reaching a plea deal. The constitutional claims are not good arguments. Sorry.


So... he would be less willing to work with me because I was attacking him?

My thought process on all this;
I cooperated during questioning (and regret it).
They gained a LOT of valuable information during my questioning.
Without that information, 2 of my co-defendants will most likely walk, and the charges against me are cut in half.

Just to bring it up again - there's the question of them denying me an attorney during questioning.
I see the point with the Davis v. US case - however the judges ruled that if an ambiguous statement that MAY be requesting an attorney is made, clarification should be made if the accused is requesting an attorney or not.

No clarification was made in my case. I made an ambiguous statement and was told a one word answer, "No."
It was reasonable to interpret this answer as a denial of my right to council.
Just as it is reasonable to interpret my request for a phone call to get an attorney as a request for an attorney.

So... do I cooperate, let them have everything I feel they wrongfully obtained, and take what's coming, or do I fight to have that excluded and try to help 2 of my co-defendants?

How is it confrontational to require acknowledgement of my constitutional rights?
Again - I see what you're saying... but I think there are things that need to be said before I go signing any kind of deal.

I still challenge that MDMA is wrongfully scheduled - the DEA has no checks and balances - and that I should be tried (or at least offered as a plea bargain) as though it were a schedule III substance.


Ok... next question (because I can't get enough of them answered...)
With the plea process... is there a going back and forth, or is it just a, "Here. This is the best your getting kid. Suck it up and sign on the line, or go to prison for a LONG time."?

I want to know if I get a chance to say ANYTHING or if I'm pretty much just screwed.
 
Kalash said:
So... he would be less willing to work with me because I was attacking him?

My thought process on all this;
I cooperated during questioning (and regret it).
They gained a LOT of valuable information during my questioning.
Without that information, 2 of my co-defendants will most likely walk, and the charges against me are cut in half.

Just to bring it up again - there's the question of them denying me an attorney during questioning.
I see the point with the Davis v. US case - however the judges ruled that if an ambiguous statement that MAY be requesting an attorney is made, clarification should be made if the accused is requesting an attorney or not.

No clarification was made in my case. I made an ambiguous statement and was told a one word answer, "No."
It was reasonable to interpret this answer as a denial of my right to council.
Just as it is reasonable to interpret my request for a phone call to get an attorney as a request for an attorney.

So... do I cooperate, let them have everything I feel they wrongfully obtained, and take what's coming, or do I fight to have that excluded and try to help 2 of my co-defendants?

How is it confrontational to require acknowledgement of my constitutional rights?
Again - I see what you're saying... but I think there are things that need to be said before I go signing any kind of deal.

I still challenge that MDMA is wrongfully scheduled - the DEA has no checks and balances - and that I should be tried (or at least offered as a plea bargain) as though it were a schedule III substance.


Ok... next question (because I can't get enough of them answered...)
With the plea process... is there a going back and forth, or is it just a, "Here. This is the best your getting kid. Suck it up and sign on the line, or go to prison for a LONG time."?

I want to know if I get a chance to say ANYTHING or if I'm pretty much just screwed.

There is a lot of back and forth within the negotation. Get yourself a lawyer to handle the negotiations, or atleast start talking to some of the ones out there about hiring them giving details on your stance to figure out costs, and whether they can or can not help your opinion.

Be strong, but don't be stupid.
 
Bail terms; Freedom of Speech

I cannot find any cause or precedence for a violation of my freedom of speech as part of my bail conditions...

However it's listed as part of my bail terms;

"Do not personally communicate directly or indirectly with co defendants"


This limits my free speech.

I can understand the conflict of interest - in a sense...

Wherein I say one thing and it effects the possible defense of my co-defendants...

However, whom does this conflict of interest harm?
The co-defendants who otherwise may come as a united front against the prosecution?

This seems... wrong....

Legally... can I challenge this infringement on my first amendment right?
 
You voluntarily consented to the terms of the bail. Bail terms often include loss of certain liberties, especially where there is a danger that communication with witnesses, victims, and others could lead to more crime or interfere with administration of justice.

From the Uniform Rules of Criminal Procedure, 341:

If the [magistrate] determines from affidavit or testimony, or a [magistrate] [or grand jury] has determined, that there is probable cause to believe that the defendant has committed the crime charged, the [magistrate]...shall impose the least onerous one or more of the following conditions necessary to ensure the defendant's appearance in court, protect the safety of the community, and prevent intimidation of witnesses and interference with the orderly administration of justice:

...

(3) impose reasonable restrictions on the defendant's activities, movements, associations, and residences, including prohibitions against the defendant approaching or communicating with particular persons or classes of persons and going to designated geographical areas or premises;
 
I believe your freedom of speech has something to do with about what you say,not who you can hang around with.For ex. if your giving a speech,and a folon is in the audience,oh well,or,if your talking to a complete stranger.But what your saying I don't believ has anything to do with freedom of speech.
 
^
wrong. freedom of association (i.e. who you hang out with) has been inerpreted to be part of the First Amendment.
 
I have a question can the law ever take away any of your constitutional rights before a conviction? arent you innocent until proven guilty or does that only apply to the trial itself?
 
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