Movement in three Fitzpatrick marijuana cases

Two medical marijuana caregivers in Havre are seeing movement in three separate cases alleging the sisters have violated the law while providing the herb to patients in the area.

The state Supreme Court has set a date for oral arguments in an appeal of the dismissal of a case filed against Delaine Fitzpatrick, born in 1977, and Malisa Fitzpatrick, born in 1982.

The court has scheduled a hearing Sept. 12 in Billings.

A case filed this year alleging the sisters illegally sold marijuana has a new judge.

After the charges were filed in May, with 12 felony counts against Delaine Fitzpatrick and six against Malisa, the two pleaded not guilty before state District Judge Dan Boucher.

Boucher then recused himself and Judge Brad Newman of Butte took jurisdiction.

After the defense again requested a new judge, Judge David Cybulski of Plentywood took jurisdiction this week.

No hearings yet have been scheduled in that case.

In an out-of-state case, a trial has been scheduled on charges filed against Delaine Fitzpatrick and Garrett Briere of Havre.

The trial on charges that law enforcement officers found 12 pounds of marijuana in the trunk of the car Delaine Fitzpatrick and Briere were driving when they were pulled over outside of Roseburg, Ore., in November is set for Sept. 5 in Roseburg.

In the 2010 case, the sisters were accused of selling, on several occasions, marijuana to an undercover agent who had a medical marijuana patient card — for which the agent applied under an assumed name — but was not their patient.

The state argued that the law then in effect only allowed medical marijuana caregivers to provide the herb to people registered as their patient. The state also argued that on several occasions the Fitzpatricks sold more than they were allowed to sell even if the agent had been their patient.

The law allowed caregivers to provide one ounce of marijuana to their patients and to have a maximum of six marijuana plants per patient. The state alleged that the sisters sold up to four ounces to the agent. When their operations were searched, the state alleged, officers found more than 10 pounds of marijuana more than would be allowed by the Fitzpatrick's 47 registered patients.

District Judge David Rice of Havre first took jurisdiction on the case, then recused himself at the request of the defendants.

Judge Laurie McKinnon of Shelby took jurisdiction, then recused herself at the defendant's request.

Judge Julie Macek of Great Falls then took jurisdiction, and on Aug. 30 last year granted the defense's motion to dismiss the charges.

The state appealed that decision, which is the issue now before the Montana Supreme Court.

When issuing her decision, Macek said that she did not find any authority for undercover operatives to conduct themselves in a way that would be illegal if they were simply a private citizen, specifically citing the agent applying for a driver's license under a false name and then using that false license to obtain a fraudulent medical marijuana patient card.

"The court finds no authority for the proposition that there is frankly a good-guy exception to law enforcement in order to obtain what is required so that they can then attempt to get drugs under a false situation."

The state appealed the decision, and, in its brief, argues that it had received information, from witnesses and confidential informants, suggesting that the Fitzpatricks were the source of marijuana being sold illegally. The state's information suggested that the sisters might be using their legal medical marijuana business as a screen to sell the herb illegally, the brief says.

The brief goes on to cite numerous state Supreme Court, federal circuit court and U.S. Supreme Court cases where convictions involving undercover work where agents actually broke laws such as by purchasing or soliciting the sale of drugs were upheld, and, in some cases, actually specify in the decision that some participation in illegal activities may be necessary in investigating drug-related offenses.

"Contrary to the district court's conclusion, the Due Process Clause does not prohibit government agents from engaging in otherwise illegal activities under all circumstances, and a majority of justices of the United States Supreme Court as well as courts throughout the country have concluded that limited government involvement in criminal activities is both constitutionally acceptable and necessary," the state writes in its brief.

One 1960 U.S. Supreme Court decision cited in the state's brief says "Such infiltration is a recognized and permissible means of investigation . . . [and] can hardly be said to violate 'fundamental fairness' or shocking to the universal system of justice."

The brief also states that the investigation was done under the authority and supervision of legal bodies, including the state Department of Justice, the Tri-Agency Safe Trails Task Force and the state District Court, which approved warrants allowing the undercover agent to wear electronic recording devices and monitor conversations during the investigation.

In its response, the defense argues that the state violated "a 'plethora' of laws, including but not limited to: false swearing, tampering with public records, official misconduct, issuance of a fake driver's license, and fraudulently obtaining dangerous drugs."

It goes on to say that in its case the state failed to show that those actions were allowed under the law and the Constitution.

"The government has failed to cite any authority from any jurisdiction that allows it to intentionally and repeatedly violate the law in order to attempt to enforce it"

The Fitzpatrick reply brief also cites Macek's comments during the dismissal hearing that the state did not have sufficient evidence that the sisters were predisposed to selling marijuana to people other than their own patients to proceed with the investigation.

The state disagreed in its reply.

"Prior to (the agent's) involvement in the investigation, the State had received information from numerous sources indicating that the Fitzpatricks were illegally distributing marijuana," the reply brief says, asserting that the business of selling marijuana illegally, outside of the allowances of the medical marijuana act, had existed before the investigation and "undoubtedly" would have continued if the investigation had not occurred."