If you don't have time to read the whole thing, at least read the bold parts.
SEAN K. KENNEDY (No. 145632)Federal Public Defender (E-mail: SeanDKennedy@fd.org
)REUVEN COHEN (No. 231915)Deputy Federal Public Defender(E-mail: Reuven_Cohen@fd.org
)JOHN LITTRELL (No. 221601)(E-mail: John_Littrell@fd.org
) 321 East 2nd Street Los Angeles, California 90012-4202 Telephone (213) 894-4454Facsimile (213) 894-0081
Attorneys for DefendantCHARLES LYNCH
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, )NO. CR 07-689-GW )Plaintiff, )DEFENDANT'S REQUEST FOR)JUDICIAL NOTICE
v. ))CHARLES LYNCH, ))Defendant. ))
Defendant, Charles Lynch, respectfully requests that the Court takes judicial
notice of the following.
I. INTRODUCTIONDefendant Charlie Lynch is currently on trial in this Court, charged with
possession and distribution of marijuana in violation of 21 U.S.C. § 841 et seq. The
Government’s position has been that marijuana has no recognized medical use or
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26 27 28In fact, the United States government owns a patent on the medicinal use of marijuana. During the patent process various United States government officials had to approve the research project, the researchers themselves,1 and finally, the patent on the medicinal use of THC and other deriviates of Cannabis saliva, or marijuana.
To the extent that the patent itself and the statutes delineating the process of approval for testing of Schedule I narcotics is inconsistent with the government's characterization of United States law, this Court may take judicial notice of both. Furthermore, the contents of the Patent itself is admissible to the jury for the truth of the matter on two grounds: an admission by a party-opponent, namely the United States under Federal Rule of Evidence 801(d)(2), and in the alternative as the public record of a public agency under Federal Rule of Evidence 803(.
II. STATEMENT OF FACTS
United States Patent No. 6, 630,507, dated October 7, 2003 is a patent entitled “Cannabinoids as Antioxidants and Neuroprotectants.” See Exhibit A (“the patent”). The inventors are Aldan Hampson, Julius Axelrod and Maurizio Grimaldi and the patent is assigned to the United States of America represented by the Department of Health and Human Services. Id. The patent covers the use of cannabinoids to treat oxidation associated diseases and neurodegenerative diseases. Exhibit A at Column 3; Column 6-7 (listing neurodegenerative diseases.) Cannabinoid is defined as “a chemical compound found in Cannbis salivas (marijuana).” Exh. A at Column 10. The patent describes in particularity the “excellent absorption of the compounds via an inhaled route,” and concludes with the statement that “variation in the materials
1 That is, assuming arguendo that the researchers and the governmental entities involved followed federal law. Marijuana and Tetrahydrocannabinols are bothSchedule I drugs under federal law. 21 U.S.C. § 812(c)(c)(10) and (17). 21 UnitedStates Code section 823(f) requires any person conducting bona fide research usingSchedule I drugs to register with the Secretary of Department of Health and HumanServices, who “shall determine the competency of each practitioner as well as themerits of the research period.” 21 U.S.C. § 823(f)(5). The Secretary must consultwith the Attorney General before the project can move forward. 21 U.S.C. §823(f)(5).
and methods for practicing the invention will be apparent to one of ordinary skill in the art.” Exh. A at Column 20, 27.
A. The Patent is Relevant.
The patent is relevant for two reasons: because it tends to prove an element of Mr. Lynch’s defense, and because it is fundamentally inconsistent with, thus tending to disprove, the statements and argument of the prosecutor. Fed. R. Evid. 401. Because there is no risk of prejudice in permitting the patent to be presented to the jury, this Court must admit it. Fed. R. Evid. 402.
First, the patent is relevant to the defense of entrapment by estoppel. One of the elements of the affirmative defense of entrapment by estoppel is Mr. Lynch’s reasonable belief that use of marijuana has bona fide medical benefits. The Patent proves, or tends to prove, exactly the fact that marijuana does have medical benefits and is therefore relevant. Fed. R. Evid. 402.
Second, the patent is relevant to rebut the prosecutor's remarks in opening statement because the very existence of the patent for the medicinal use of marijuana is fundamentally inconsistent with the prosecutor's statement that there is no medical use for marijuana recognized under federal law. In a number of circuits, evidence is relevant where it is the statement of a government actor that fundamentally contradicts the subsequent statement of a government actor. United States v. Salerno, 937 F.2d 797, 811-812 (2d. Cir. 1991); Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982). When a federal prosecutor makes a statement in a criminal proceeding, the prosecutor has the power to “bind” the government to a particular assertion, making the inconsistency relevant to present to the jury. See United States v. Bakshinian, 65 F.Supp.2d 1104, 1005-06 (C.D. Cal. 1999) (citing cases).
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B. Judicial Notice of the Patent is Appropriate.
Under Federal Rule of Evidence 201,2 this Court may take judicial notice of appropriate materials at any time during a proceeding, and this court’s judicial notice is mandatory if Mr. Lynch supplies the court with the necessary information. Fed. R. Evid. 201(f); 201(d). Ninth Circuit precedent establishes that materials are appropriate for judicial notice when they are a matter of public record and their accuracy cannot reasonably be questioned. A classic example of materials suitable for judicial notice is federal statutes or regulations. See Mora v. Vasquez, 199 F.3d 1024, 1028 n7 (9th Cir. 1999) (taking judicial notice of Code of Federal Regulations). In Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006) the Ninth Circuit took judicial notice of local laws, as well as an "event application" and a City Clerk agreement because all of the documents were contained within the public record. Specifically, a trademark registration from the U.S. Office
2Rule 201 states in full:. Judicial Notice of Adjudicative Facts
(a) Scope of rule. This rule governs only judicial notice of adjudicativefacts.
(b) Kinds of facts. A judicially noticed fact must be one not subject toreasonable dispute in that it is either (1) generally known within theterritorial jurisdiction of the trial court or (2) capable of accurate andready determination by resort to sources whose accuracy cannotreasonably be questioned.
(c) When discretionary. A court may take judicial notice, whetherrequested or not.
(d) When mandatory. A court shall take judicial notice if requested by aparty and supplied with the necessary information.
(e) Opportunity to be heard. A party is entitled upon timely request to anopportunity to be heard as to the propriety of taking judicial notice andthe tenor of the matter noticed. In the absence of prior notification, therequest may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of theproceeding.
(g) Instructing jury. In a civil action or proceeding, the court shallinstruct the jury to accept as conclusive any fact judicially noticed. In acriminal case, the court shall instruct the jury that it may, but is notrequired to, accept as conclusive any fact judicially noticed.
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26 27 28 of Patent and Trademarks was judicially noticed in Metro Pub. v San Jose Mercury News, 987 F.2d 637, 641 n.3 (9th Cir. 1993)
As a publicly available record, housed with the U.S. Patent Office and available online to anyone with an internet connection,3 the patent is a matter of public record and the fact of its existence cannot be questioned. It is therefore appropriate for judicial notice by this court.
In Sinaloa Lake Owners Asso. v. Simi Valley, 882 F.2d 1398, 1402 n2 (9th Cir. 1996) (overruled on other grounds by Armendariz v. Penman, 75 F.3d 1311), the Ninth Circuit not only took judicial notice of the existence of particular public documents but also took notice of the underlying facts and figures contained within the public documents. Therefore, this court not only has the capacity to take judicial notice of the existence of the patent and the fact that the Department of Health and Human Services owns it, but also the fact that the underlying information contained within it stands for the proposition that there is a medicinal use for THC and cannabinoids. While it is possible for scientific minds to disagree about the findings, that is a matter of weight, not admissibility because the patent on its face stands clearly and accurately for the fact that certain federal government agencies have recognized, and in fact seek to benefit, from the medicinal use of marijuana.
C. In the Alternative, the Contents of the Patent are Admissible as Exceptions to the Hearsay Rule.
If this Court declines to take judicial notice of the veracity of the facts contained within the patent, this court must still admit the contents of the patent. Two exceptions to the hearsay rule are applicable: first, the patent is admissible as the authorized admission of a party-opponent and second, the patent is admissible as a
3 See http://patft.uspto.gov/
1. Federal Rule of Evidence 801(d)(2) provides that certain statements are not hearsay when they are offered against a party and are either adoptive or authorized admissions.4 Within the Ninth Circuit, statements made by federal government agencies are admissible as admissions against the prosecution when the federal government actors are “relevant” and “competent” to make such statements. United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989). In Van Griffin, a criminal defendant at trial sought to introduce a publication from the Department of Transportation that tended to contradict the testimony of a ranger. Id. at 636, 638. The manual should have been admitted, the Van Griffin court held on appeal, because the Department of Transportation was the proper governmental authority on the issue.
4 Federal Rule of Evidence 801(d)(2) states in full: Statements which are not hearsay. A statement is not hearsay if-*
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
In this case, it is true that the U.S. Patent Office may not be the definitive authority on the medicinal use of marijuana. But the patent itself indicates that it is owned by the Department of Health and Human Services, which surely is a “competent” governmental authority for recognizing the medicinal potential of marijuana. The patent is therefore admissible as an authorized admission of the United States government, the same government charging Mr. Lynch in this case.
2. Federal Rule of Evidence 803( provides an exception to the hearsay rule for records and reports of public agencies offered against the Government in a criminal case, where the records set forth factual findings resulting from an investigation made pursuant to authority granted by law.5 It has been recognized by sister circuits that Rule 803((C) bars the use of governmental reports against the accused but carves out a specific exception for use by a criminal defendant against the government. United States v. Oates, 560 F.2d 45, 77-78 (2d Cir. 1977). The scope of 803(’s provision for matters observed and reported as a duty imposed by law is broad. The Ninth Circuit held that the report of a city’s financial review committee was admissible as a public record because the committee was charged under local law. Gilbrook v. City of Westminster, 177 F.3d 839 , 858-859 (9th Cir.1999). Such records, the Ninth Circuit held, are presumptively “authentic and trustworthy,” and the burden of establishing otherwise falls on the opponent of the
5 Fed. R. Evid. 803( states in full:The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
( Public records and reports. Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth (A)the activities of the office or agency, or (B) matters observed pursuant toduty imposed by law as to which matters there was a duty to report,excluding, however, in criminal cases matters observed by policeofficers and other law enforcement personnel, or (C) in civil actions andproceedings and against the Government in criminal cases, factualfindings resulting from an investigation made pursuant to authoritygranted by law, unless the sources of information or other circumstancesindicate lack of trustworthiness.
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26 27 28evidence, who must come forward with enough negative factors to persuade a court that a report should not be admitted. Id. (internal citations omitted).
The Eighth Circuit has considered this issue on more than one occasion and has held that even reports by non-governmental third parties and non-agency research reports are admissible under 803( unless they are shown to be untrustworthy. Kehm
v. Procter and Gamble, 724 F.2d 613, 618 (8th Cir. 1983); Boerner v. Brown & Williamson, 394 F.3d 594, 600-01 (8th Cir. 2005). Because the reports in both instances were conducted “pursuant to lawful authority,” they are presumptively reliable. For that reason, reports of the Centers for Disease Control were admissible in Kehm, while reports of the Surgeon General regarding smoking were admissible in Boerner. Kehm at 618; Boerner at 600-01.
As detailed above, the research conducted in order to receive the patent was conducted with the knowledge of, and in compliance with, various actors of the United States government.6 The U.S. Patent Office approved the patent pursuant to a lawful authority, and the Department of Health and Human Services has the lawful authority to conduct health and social sciences research in order to protect the health of all Americans. /// /// /// /// /// /// /// /// ///
6 Supra footnote 1.
For the foregoing reasons, Defendant Lynch respectfully requests that this Court take judicial notice of U.S. Patent No. 6630507 or in the alternative to admit the patent under an exception to the hearsay rule, and to permit the patent to be placed in front of the jury.
SEAN K. KENNEDY Federal Public Defender
DATED: August 1, 2008 By /s/
GUY C. IVERSEN
Deputy Federal Public Defender