Free Reply to Opposition - District Court of California - California

Case 4:07-cv-03885-CW

Document 29

Filed 03/21/2008

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division MICHAEL T. PYLE (CSBN 172954 ) [email protected] Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7322 FAX: (415) 436-6748 Attorneys for Defendants Scott N. Schools, former U.S. Attorney for the Northern District of California and Karen P. Tandy, former Administrator, U.S. Drug Enforcement Administration UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) Plaintiff, ) ) v. ) ) CITY OF OAKLAND, CALIFORNIA, ) KAREN P. TANDY, Administrator, U.S. ) Drug Enforcement Administration, SCOTT ) N. SCHOOLS, U.S. Attorney for the ) Northern District of California, ARNOLD ) SCHWARZENEGGER, Governor of the ) State of California, ) ) Defendants. ) ) JOHN PHILLIPS, 0No. 07-03885 CW FEDERAL DEFENDANTS' REPLY TO DEFENDANT'S OPPOSITION TO MOTION TO DISMISS No Hearing Hon. Claudia Wilken

I. INTRODUCTION Plaintiff's opposition brief (which does not yet appear on Pacer but was served on the undersigned) only serves to confirm that this case should be dismissed with prejudice. Not only does he have no answer to the binding authority cited in the Federal Defendants' moving papers, he offers no suggestion that he could or would be able to amend his complaint to allege any facts that would state a viable claim against the Federal Defendants.
FEDERAL DEFENDANTS' REPLY BRIEF ISO MTD 07-03885 CW 1

Case 4:07-cv-03885-CW

Document 29

Filed 03/21/2008

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The Federal Defendants respectfully submit that Plaintiff's claims against them must be dismissed with prejudice. III. ARGUMENT A. Plaintiff's Fourth Cause of Action Should Be Dismissed With Prejudice.

Plaintiff's fourth cause of action founders on United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir. 1977): "given the constitutionally-based independence of the three actors court, prosecutor and grand jury we believe a court may not exercise its `supervisory power" in a way which encroaches on the prerogatives of the other two unless there is a clear basis in fact and law for doing so." Plaintiff says Chanen is "a house built on sand" (Opp. Br. at 4), but he cites no authority that gives that phrase any credence. Plaintiff has not alleged any basis in law or fact, let alone a "clear" one, that would empower this Court to take the extraordinary step of convening a grand jury on Plaintiff's behalf. Chanen, 549 F.2d at 1313; In re Grand Jury 89-2, 728 F. Supp. 1269 (E.D. Va. 1990) (requiring "compelling reason" for Court to direct presentation of certain evidence to grand jury). Plaintiff's opposition does little more than express Plaintiff's displeasure with the grand jury process. Plaintiff's claim that the "modern federal grand jury" is "almost worthless" (Opp. Br. at 9) is not only patently false but an insult to each and every grand juror in this District. B. Plaintiff's Fifth Cause of Action Should Be Dismissed With Prejudice.

Plaintiff concedes that "the Federal Defendants' citation of case law is correct" (Opp. at 9) with regard to United States v. Miroyan, 577 F2d. 489, 495 (9th Cir. 1978) ("constitutionality of the marijuana laws has been settled" law in the Ninth Circuit since 1976). Far from being "self-evident" that "all modern federal drug laws enacted after 1970" are unconstitutional (Opp. Br. at 10), the case law uniformly holds that such laws are constitutional. It is not surprising that Plaintiff fails to acknowledge the holding in Gonzales v. Raich, 545 U.S. 1, 13 (2005), in which the United States Supreme Court definitively upheld the Controlled Substances Act's application to allegedly intra-state non-commercial cultivation of marijuana as a legitimate exercise of the power vested in Congress by the Commere Clause. //
FEDERAL DEFENDANTS' REPLY BRIEF ISO MTD 07-03885 CW 2

Case 4:07-cv-03885-CW

Document 29

Filed 03/21/2008

Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13

C. Dismissal Should Be With Prejudice Plaintiff does not ask for leave to amend. With binding authority foreclosing his claims, any attempt to amend the complaint to state a claim against the Federal Defendants would be futile. This Court should dismiss the case with prejudice. See, e.g., Albrecht v. Lund, 845 F.2d 193, 195-96 (9th Cir. 1988) (affirming district court's denial of request for leave to amend); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990) (same). III. CONCLUSION The Federal Defendants respectfully request that this Court dismiss this case with prejudice. Dated: March 21, 2008 Respectfully submitted, JOSEPH P. RUSSONIELLO United States Attorney

By: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/s/ Michael T. Pyle Assistant U.S. Attorney Attorneys for Federal Defendants

FEDERAL DEFENDANTS' REPLY BRIEF ISO MTD 07-03885 CW

3