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The ounce had originally been seized by the Humboldt County sheriff's department, but a state court ordered it returned upon finding that Giauque was a legal Prop. 215 patient. Humboldt County Sheriff Dennis Lewis refused and appealed to the U.S. district court for relief. Judge Charles Legge obliged by ordering the DEA to seize the ounce from Lewis's custody, thereby relieving him from liability for contempt of the state court.
Giauque's attorney, Bryce Kenney, filed a motion for return of property, arguing that the federal government (1) had no authority to remove property from state court jurisdiction, and (2) had overstepped its powers under the interstate commerce clause, since Giauque was never charged with distribution, only possession.
U.S Attorneys argued that Giauque had no right to the pot, since marijuana is contraband under federal law according to the recent Supreme Court decision.
Judge Patel complained that the Supreme Court had left a legal "thicket" by failing to clarify the legality of possession under federal law. She wondered whether Giauque's marijuana had been destroyed, and, if so, how to put a value on it given the lack of a legal market.
Should Giauque win, he may have to collect his pot in prison, since he has pled guilty in a separate case involving cultivation of some 200 plants for the 70-member Salmon Creek Cannabis Cooperative. Although he might have been acquitted in state court, his case was turned over to the feds, a highly unusual move in so small a case. Giauque's attorney, Randy Daar, argues that he was the victim of selective prosecution by Humboldt County authorities. Giauque agreed to plead guilty to possession charges, but this is not expected to impact the disposition of his other case.
Judge Patel called Giauque's suit "an interesting case." Her decision is expected shortly