                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 16 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-30052

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00172-LRS-1

  v.
                                                 MEMORANDUM*
CLINTON LEE HALBERT,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-30053

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00172-LRS-2

  v.

WRIGHT CHRISTOPHER HALBERT,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Lonny R. Suko, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted March 8, 2012**
                               Seattle, Washington

Before: PAEZ and MURGUIA, Circuit Judges, and GWIN,*** District Judge.

      Clinton Halbert and Wright Halbert, father and son, appeal their convictions

by a jury for the manufacture of marijuana and conspiracy to manufacture

marijuana. Clinton and Wright also appeal separately on issues relating to their

trial and sentencing. We affirm the district court on all issues raised on appeal.

      Common Issues

      1. The warrantless “sneak and creep” entry by agents of the United States

Drug Enforcement Agency onto the Halberts’ property was not an illegal search in

violation of the Fourth Amendment because the agents never entered the curtilage

of the Halberts’ homes. United States v. Dunn, 480 U.S. 294, 301-03 (1987);

United States v. Davis, 530 F.3d 1069, 1077-79 (9th Cir. 2008).

      2. The district court did not clearly err by issuing either of the two search

warrants in this case, or by denying the Halberts’ motion to suppress evidence and

their request for a Franks hearing. First, the magistrate judge had a substantial



        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable James S. Gwin, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.

                                     Page 2 of 5
basis for finding probable cause in the supporting affidavits to issue the two search

warrants. United States v. Jennen, 596 F.3d 594, 598 (9th Cir. 2010). Therefore,

there was no Fourth Amendment violation in either the fly-over thermal imaging

search or the physical search of the property, and no evidence needed to be

suppressed. Second, the Halberts’ request for a Franks hearing is without merit, as

they mischaracterize the nature and meaning of the supposed “false statements and

material omissions” that they point to in the affidavits, and generally fail to “make

specific allegations, allege a deliberate falsehood or reckless disregard for the truth,

and accompany such a claim with a detailed offer of proof.” United States v.

Craighead, 539 F.3d 1073, 1080 (9th Cir. 2008); see also Franks v. Delaware, 438

U.S. 154, 155-56 (1978).

      Wright Halbert

      3. The district court did not abuse its discretion by sentencing Wright

Halbert to 18 months of imprisonment when it sentenced Clinton Halbert to 54

months of probation. Giving due deference to the district court’s weighing of the

sentencing factors at 18 U.S.C. § 3553(a) and considering the totality of the

circumstances, the district court did not impose a sentence that was illogical,

implausible, or without support in inferences that could be drawn from the record

in this case. United States v. Maier, 646 F.3d 1148, 1155 (9th Cir. 2011); United


                                     Page 3 of 5
States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc); United States

v. Autery, 555 F.3d 864, 872 (9th Cir. 2009).

      Clinton Halbert

      4. The district court was correct in excluding evidence of Clinton Halbert’s

proposed medical marijuana defense. “A district court may preclude a defense if

the defendant fails to make a prima facie showing that he is eligible for the

defense,” United States v. Schafer, 625 F.3d 629, 637 (9th Cir. 2010), and “medical

necessity is not a defense to manufacturing and distributing marijuana,” United

States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 494 (2001); see

also Schafer, 625 F.3d at 638. Moreover, neither the manufacturing nor the

conspiracy charge required the government to show that Clinton Halbert

intentionally violated the law, and therefore a good faith defense would be

irrelevant.

      5. Clinton Halbert also claims, for the first time on appeal, that his counsel

was ineffective in failing to call any witnesses. “‘As a general rule,’ we do not

review ineffective assistance of counsel claims on direct appeal.” United States v.

Benford, 574 F.3d 1228, 1231 (9th Cir. 2009) (quoting United States v. Jeronimo,

398 F.3d 1149, 1155 (9th Cir. 2005)). The only exceptions to this rule are “‘in the

unusual cases (1) where the record on appeal is sufficiently developed to permit


                                    Page 4 of 5
determination of the issue, or (2) where the legal representation is so inadequate

that it obviously denies a defendant his Sixth Amendment right to counsel.’” Id.

(quoting Jeronimo, 398 F.3d at 1156). We decline to review Clinton Halbert’s

ineffective assistance claim here because neither of the above exceptions apply.

Mr. Halbert may pursue this claim through a motion under 28 U.S.C. § 2255.

Massaro v. United States, 538 U.S. 500, 504-05 (2003).

      6. Finally, the district court did not err by seizing Clinton Halbert’s entire

interest in the property at issue in this case, parcel 237880 in Stevens County,

Washington. The district court was under no obligation to discuss explicitly the

four factors enumerated in United States v. Bajakajian, 524 U.S. 321 (1998).

United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1121 (9th Cir.

2004). Additionally, the forfeiture was not an excessive fine in violation of the

Eighth Amendment, in particular because the value of the parcel was significantly

less than the maximum fine that the district court could have imposed. Bajakajian,

524 U.S. at 334; see also United States v. 817 N.E. 29th Drive, Wilton Manors,

Fla., 175 F.3d 1304, 1309 (11th Cir. 1999).

      AFFIRMED.




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