       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                          )       No. 68058-7-1                   f*o            o
                                                                                          CO o
                     Appellant,                                                           1—*CZ

                                          )       DIVISION ONE                    —**.




              v.
                                                                                  rvs        '         n




JENNIFER LEIGH YOUDE,                     )       PUBLISHED OPINION                      \'i •*••»-,

                     Respondent.          )       FILED: May 20,   2013           S9

                                                                                  en



       Becker, J. — This case involves a prosecution for delivery of marijuana.

The investigating agency was the police department of the Tulalip Tribes. The

Tribes asserted sovereign immunity in response to a defense subpoena for

information the Tribes deemed immaterial. Recognizing that a sovereign entity is

not subject to compulsory process, the superior court quashed the subpoena.

The court then granted the defendant's motion to dismiss the prosecution under

CrR 8.3(b). The State appeals the dismissal. We hold the court abused its

discretion by dismissing the case without first determining whether the

subpoenaed information was material. Because the record does not support a

finding of materiality, we reverse the order of dismissal.
No. 68058-7-1/2



       Jennifer Youde advertised on Craigslist, an online forum for goods and

services, as a seller of medical marijuana. Detective Wayne Schakel, an

undercover police officer of the Tulalip Tribes, responded to the ad by requesting

a delivery. Youde delivered marijuana to him on February 6, 2010, and was

immediately arrested by tribal officers. The arrest occurred on the Tulalip Indian

Reservation. Youde's car was searched and seized pursuant to a warrant issued

by the tribal court. The Tribes later forfeited Youde's car pursuant to tribal law.

       "Indian tribal courts do not have inherent jurisdiction to try and punish non-

Indians who commit crimes on their land. Instead, criminal offenses occurring on

a reservation by non-Indians are subject to prosecution by state or federal

governments, depending on the offense." State v. Schmuck, 121 Wn.2d 373,

379, 850 P.2d 1332 (citation omitted), cert, denied. 510 U.S. 931 (1993).

Because Youde is non-Indian, Detective Schakel referred the criminal charge of

possession of a controlled substance to the Snohomish County Prosecutor to

make a charging decision.

       On March 11, 2011, the State filed an information in Snohomish County

Superior Court charging Youde with delivery of a controlled substance, a felony.

The Tulalip Police Department was listed in the information as the "originating

agency."

       Detective Schakel is cross commissioned with the Snohomish County

Sheriff's Department, the Federal Bureau of Investigation, and the United States
No. 68058-7-1/3



Marshal. According to Detective Schakel's declaration, the investigation began

in January 2010, after Tulalip Police received a tip that someone was selling

drugs on the reservation and advertising on Craigslist.

       Detective Schakel, who was asked to follow up on the tip, found an ad on

Craigslist posted by Youde. The advertisement was captioned, "Need Medical

MJ? - $420 (Mt Vernon to Olympia)." The advertisement read in part:

      If you use medical marijuana and would like a competent, friendly
      delivery, please email me. I deliver anywhere between Arlington
      and Olympia two to four times a week. ... I don't mind meeting in a
      convenient place for you. Medicine is free. Donation is accepted
      for my time. Donation request listed below. I will never short you
      on your meds.

       Detective Schakel contacted Youde with an e-mail that said, "Just saw

your ad, are you delivering today? I'd like to try some Kush for a change. What

are your donation rates?" Youde suggested a meeting in Marysville. After

several exchanges of e-mails, the meeting eventually occurred on February 6,

2010, near a bank in Marysville that is located on the Tulalip Reservation. Youde

handed the undercover officer six grams of marijuana in exchange for $90,

without making any effort to verify that he was qualified as a medical user. This

exchange was the basis for the charge of delivery.

       On August 10, 2011, Youde filed a request for discovery from the Tribes

pursuant to CrR 4.7(d). This section of the criminal discovery rule sets forth the

prosecutor's responsibility to assist a defendant in obtaining material held by

others which "would be discoverable if in the prosecutor's control." The request
No. 68058-7-1/4



asked the Snohomish County Prosecutor to attempt to obtain (1) the telephonic

application for the search warrant, (2) Tulalip police department policies

regarding "buy/bust" operations in general, and "specifically the targeting of

individuals who provide medical marijuana," and (3) written and electronic

communications among members of the tribal police department, and between

members of that department and the Tribes' legal department, "in regards to

medical marijuana and its status on tribal lands."

       The prosecutor was unable to obtain the requested materials. On August

26, 2011, on Youde's motion and without opposition from the State, the trial court

issued a subpoena duces tecum for the requested materials, directed to the

Tribes' legal representative.

       Through their prosecutor, the Tribes formally objected that there were no

materials responsive to the first and second parts of the request. The Tribes said

that the audio recording of the telephonic warrant application was no longer

available due to an office relocation in the summer of 2010, and the only police

department policy regarding "buy/bust" operations pertained to the use of

confidential informants.

       As to the third category in the subpoena, the Tribes objected to the

production of attorney-client privileged communications and further objected that

the production of internal law enforcement communications was unduly

burdensome, likely to compromise other police investigations, and unlikely to
No. 68058-7-1/5



lead to admissible evidence. In addition, and of chief significance to this case,

the Tribes objected that the request "exceeds the scope of permitted discovery

under CrR 4.7 and fails to meet the discretionary disclosure standards of

materiality under Cr.R 4.7(e)(1)."

       Responding to the Tribes' objections, Youde explained why she viewed

the requested information as material. She said she was considering asserting a

"somewhat hybrid defense" combining elements of the medical marijuana statute

and entrapment. She explained that under the statute as it existed at the time of

her arrest, a person acting as a "designated provider" of medical marijuana could

not be found guilty of a crime for assisting a "qualifying patient" with the medical

use of marijuana. See former RCW 69.51A.005 (2007). Because the

undercover officer was not in reality a qualifying patient, Youde conceded she

could not rely solely on the statute to show she was not guilty of a crime.

Instead, she explained, she might have to rely upon an entrapment defense.

That is, she would show that she would not have provided medical marijuana to

the officer "in the absence of her belief that he was a medical marijuana patient

requesting that she be a provider of medical marijuana, actions that are legal in

Washington State." Youde hypothesized that the Tribes deliberately lured her

onto tribal lands so she would not have the protection afforded by state law to

providers of medical marijuana:

       In this case the Tulalip Tribe, a sovereign nation, elected to target
       an individual who was acting within the laws of our state, lure her
No. 68058-7-1/6



      onto Tribal Lands, and then arrested her and seized and forfeited
      her car. In presenting a defense of entrapment, the defendant must
      be allowed to investigate whether the Tulalip Police acted to
      specifically target medical marijuana providers and what motivated
       such action.
              It was the Tribe that chose to seek out a medical marijuana
       provider and use subterfuge in an attempt to either push that
       provider's conduct outside the protections of the Medical Marijuana
       statute or, perhaps, in an effort to bring that provider onto tribal
       lands, where the tribe may believe Washington's Medical Marijuana
       laws have no power. That is why it is not only communications
       between members of the Tribal Police Department, but also the
      Tribal Legal Department, that are relevant to the defense in this
       case, and must be disclosed.

       On September 23, 2011, the superior court held a hearing on the Tribes'

objections to the subpoena. With respect to the internal communications

requested in the third part of the subpoena, the Tribes argued that an entrapment

defense would not be viable given the facts of the case. The Tribes

acknowledged making no effort to determine whether or not documents

responsive to the subpoena existed because the information was considered by

the Tribes to be immaterial. Finally, the Tribes stated that ifthe court ruled that

the information sought was material and the Tribes was obliged to produce it, the

Tribes was reserving the right to assert sovereign immunity:

       the Tribes has not made an effort to determine if these documents
       exist because the documents are so far outside the scope of what
       is material under 4.7 that there should be no obligation to do so.
              And, your Honor, Ithink it's important to articulate for the
       court that the Tribes, particularly through the police department,
       wants to ensure that the Snohomish County Prosecutor's Office is
       able to meet all of its legal and ethical obligations under 4.7. And
       all the discovery that the department has was provided through the
       prosecutor's office in the normal course.
No. 68058-7-1/7




              Now there's an additional issue that I'd like to reserve time to
       address should the court take the position that there's - that there
       is a basis to respond to this subpoena, that the materials sought
       are not only material, but ones that the Tribes has an obligation to
       answer, and that argument is based on the principle of immunity.
       But I would simply reserve that issue at this time and address it
       should it be necessary with the court.

       The court asked for supplemental briefing on sovereign immunity. The

Tribes first repeated the argument that the information sought was immaterial but

argued alternatively that the subpoena should be quashed in its entirety because

the court lacked jurisdiction over the Tribes. The Tribes asserted that the Tulalip

Tribal Court was the court with jurisdiction to issue such a subpoena.

       Youde argued she had a constitutional right to investigate possible

defenses and the requested materials were within the scope of discovery. She

also contended the Tribes had implicitly waived sovereign immunity by entering

into a cooperative law enforcement agreement with Snohomish County.

       On October 10, 2011, after reviewing the cooperative agreement, the

superior court issued an order quashing the subpoena. The court concluded the

Tribes had not waived sovereign immunity: "Nowhere in this agreement do the

Tribes either expressly or implicitly waive their right to control the policies and

procedures of either their Police agency or Legal Department.. . . The mere fact

that the Tribes and the County have chosen to share jurisdiction of the

prosecution of crimes does not confer any implied waiver of sovereign immunity

on the part of the Tribes." The court found that the Tribes' invocation of
No. 68058-7-1/8



sovereign immunity was "dispositive of the issues before the Court.. . . Because

the Tribes have successfully invoked sovereign immunity, there is no need to

address any of the other issues raised by either party."

        The order quashing the subpoena on the basis of sovereign immunity has

not been appealed. It is well established that a waiver of sovereign immunity

must be unequivocally expressed; it cannot be implied. Ecl, United States v.

Testan. 424 U.S. 392, 399, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976).

        On November 15, 2011, Youde filed a motion to dismiss pursuant to CrR

8.3(b). She maintained that the information sought was material to a potential

defense of entrapment. She said, "The State may argue that Ms. Youde is not

going to prevail on an entrapment defense. But that is entirely beside the point,

as Ms. Youde is being prevented from even investigating that defense." The

State responded that the assertion of sovereign immunity was not arbitrary action

or governmental misconduct and that the extraordinary remedy of dismissal

should not be granted because Youde had failed to show material prejudice to

her right to a fair trial.

        On November 18, 2011, the court heard arguments on the motion to

dismiss. In an oral ruling granting the motion, the court concluded that allowing

the State to proceed in the face of an assertion of sovereign immunity by the

investigating agency would violate due process and deny Youde the opportunity

to develop a defense:



                                         8
No. 68058-7-1/9



      [Tribal police] requested that the State prosecute her as a
      Washington State case. The alternative would have been to seek
      prosecution by the US Attorney in Federal Court.
              The Tribes had a choice here of providing the information
      necessary to this defense so the defense could determine if it had
      an affirmative defense to the case. They didn't do that. Instead,
      they asserted sovereign immunity.
              I think then it becomes a constitutional issue, a due process
       issue here. It rises to constitutional levels. I think it's a violation of
      due process here at this point to allow the State to proceed when
      the Tribes who developed the case and requested prosecution has
      asserted sovereign immunity as a reason not to provide the
      requested discovery.
              At the same time, I think it's denial of effective assistance of
      counsel if counsel can't then build his defense or seek to build a
      defense in this case because the Tribes has denied them.

The order of dismissal was consistent with the oral ruling: "It is hereby ordered

that the assertion of sovereign immunity by the investigating law enforcement

agency is equivalent to governmental misconduct as it denies due process and

effective assistance of counsel, and the motion is granted and case dismissed."

       The State appeals the order of dismissal. The State contends dismissal

was unwarranted because Youde did not articulate a material basis for her

request for the Tribes' internal communications. Youde responds that the

"selective invocation of sovereign immunity" by the Tribes short-circuited her right

to investigate a possible defense.

       CrR 8.3(b) provides:

       The court, in the furtherance of justice, after notice and hearing,
       may dismiss any criminal prosecution due to arbitrary action or
       governmental misconduct when there has been prejudice to the
       rights of the accused which materially affects the accused's right to
       a fair trial. The court shall set forth its reasons in a written order.
No. 68058-7-1/10




       The trial court's power to dismiss is discretionary and is reviewable only

for manifest abuse of discretion. Discretion is abused when the trial court's

decision is manifestly unreasonable, or is exercised on untenable grounds, or for

untenable reasons. State v. Blackwell. 120 Wn.2d 822, 830, 845 P.2d 1017

(1993).

       The State contends the court abused its discretion because Youde has

shown neither (1) arbitrary action or governmental misconduct, nor (2) prejudice

affecting her right to a fair trial.

       The assertion of sovereign immunity by an investigating agency in a

criminal case is not unique to tribes. A state court cannot enforce a state

subpoena issued to an agent of the Federal Bureau of Investigation, for example,

even if the withholding of the information means the state court must then grant a

defendant's motion to dismiss. F.B.I, v. Superior Ct. of Cal., 507 F. Supp. 2d

1082, 1087-88, 1094 (2007). For the purpose of our analysis under CrR 8.3(b),

we will assume the terms "arbitrary action" and "governmental misconduct" are

appropriate labels for the State's insistence on proceeding with a prosecution

despite the refusal by another sovereign to disclose material information.

          But Youde has cited no cases, and we have found none, where a

dismissal has been affirmed because a police agency—with or without sovereign

immunity—defies a subpoena for information that is immaterial. Under CrR

8.3(b), the accused must show material prejudice before a motion to dismiss is

                                         10
No. 68058-7-1/11



granted. To establish a right to discovery, a defendant "must advance some

factual predicate which makes it reasonably likely the requested file will bear

information material to his or her defense." Blackwell, 120 Wn.2d at 830.

       The trial court went straight to constitutional issues without ruling on the

materiality of the request for the Tribes' internal communications. In part, the

court reasoned that it is fundamentally unfair for an investigating agency of

another sovereign to submit a case for prosecution without waiving sovereign

immunity. ("I think it's a violation of due process here at this point to allow the

State to proceed when the Tribes who developed the case and requested

prosecution has asserted sovereign immunity as a reason not to provide the

requested discovery.") We have found no authority in the criminal rules or

elsewhere for holding that a criminal case must be dismissed whenever

sovereign immunity is asserted by the entity that developed the case or

requested prosecution.

       The more substantial question is whether the State violated Youde's

constitutional rights by exposing her to continued prosecution under

circumstances where the court could not protect her right to compulsory process.

       The right to compulsory process is "in plain terms the right to present a

defense .... This right is a fundamental element of due process of law."

Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).

The right to effective assistance of counsel is guaranteed by the Sixth


                                          11
No. 68058-7-1/12



Amendment. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). Effective assistance of counsel includes an attorney's

duty to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary. In re Pers. Restraint of Davis, 152

Wn.2d 647, 721, 101 P.3d 1 (2004). "The defendant's interest in fully

investigating every possible defense to the charges leveled against him is not to

be lightly denied." State v. Gonzalez, 110 Wn.2d 738, 748, 757 P.2d 925 (1988).

Generally speaking, the scope of discovery under the criminal rules is within the

trial court's sound discretion. State v. Yates. 111 Wn.2d 793, 798, 765 P.2d 291

(1988). The trial court is to regulate discovery in a manner which will insure a fair

trial to all concerned. Yates. 111 Wn.2d at 799.

       We do not hesitate to say that a trial court's decision to dismiss a criminal

prosecution would be upheld in accord with these principles where, by an

assertion of sovereign immunity, a defendant was prevented from obtaining

material information in the hands of a third party not subject to the court's power.

Indeed, the State acknowledges that the assertion of sovereign immunity can

justify dismissal of a criminal case if it prevents the defendant from receiving a

fair trial. A violation of the defendant's constitutional right to counsel and the right

to compulsory process is presumed to be prejudicial. State v. Burri, 87 Wn.2d

175, 181, 550 P.2d 507 (1976). IfYoude had stated a predicate for the possible

materiality of the files, and the Tribes had declined to provide them at least for in


                                          12
No. 68058-7-1/13



camera review, dismissal would be justified. An accused cannot be left to defend

herself in a court that is unable to enforce discovery orders for material

information.


       The problem for Youde is that she has not stated a predicate for the

possible materiality of the files. She contends the materiality of the requested

items was conclusively settled when the court issued a subpoena for them and

the State did not object. But she cites no authority for the proposition that the

State must object to a subpoena at the time a court issues it in order to preserve

the issue of materiality. The issuance of the subpoena did not estop the trial

court from reconsidering the materiality of the requested information once the

Tribes objected to producing it. The State timely argued the requested discovery

was immaterial in connection with the motion to dismiss.

       Youde claimed below that the requested information was relevant to a

"somewhat hybrid" defense involving both the medical marijuana statute and the

affirmative defense of entrapment. She did not spell out how a jury would be

instructed on such a defense. On appeal, she argues only that her investigation

was aimed at a potential defense of entrapment.

       The defense of entrapment is provided by statute:

               (1) In any prosecution for a crime, it is a defense that:
               (a) The criminal design originated in the mind of law
       enforcement officials, or any person acting under their direction,
       and
               (b) The actor was lured or induced to commit a crime which
       the actor had not otherwise intended to commit.


                                          13
No. 68058-7-1/14



             (2) The defense of entrapment is not established by a
       showing only that law enforcement officials merely afforded the
       actor an opportunity to commit a crime.

RCW9A. 16.070.

       Youde suspects the police set up the transaction to occur on tribal land

because they believed a delivery of marijuana would be illegal there even if it

would be innocent elsewhere in Washington under the medical marijuana statute.

It is possible the requested materials would reveal such a belief. Possibly, the

Tribes' internal communications would even document a deliberate scheme of

arranging for sellers to make deliveries in a location where the Tribes would have

jurisdiction to initiate forfeiture actions. We therefore will assume the

subpoenaed information could be material to the first prong of an entrapment

defense: that the idea of steering Youde to a particular location was a design

that "originated in the mind" of tribal law enforcement officials.

       However, on this record, Youde fails to demonstrate any possibility of

proving that the subpoenaed information could be material to the second prong:

that tribal police lured or induced her to commit a crime she had no intention of

committing. Where the police merely give a defendant an opportunity to commit

a crime by employing a ruse, entrapment is not established. RCW 9A.16.070;

State v. Smith, 93 Wn.2d 329, 350, 610 P.2d 869, cert denied. 449 U.S. 873

(1980). Delivering marijuana was plainly Youde's intention. The undercover

operation, through a ruse, merely gave her an opportunity to deliver it.



                                          14
No. 68058-7-1/15



       On this record and at this point in the case, there is no reason to believe

that the gap in proof of the second prong of an entrapment defense would be

filled by information about the motives or beliefs that led tribal law enforcement to

target sellers like Youde. Therefore, we conclude the requirement of materiality

in CrR 8.3(b) was not satisfied when the court granted the motion to dismiss.

       Following Blackwell, we hold that a trial court must determine that

requested discovery is material before granting a motion to dismiss based on the

unavailability of compulsory process. Here, the trial court did not make that

determination. And the record lacks a colorable showing by Youde that the

requested materials could make entrapment a viable defense. We conclude the

State may proceed with the prosecution of Youde.

       The order of dismissal is reversed.




                                                   S?<J<e^
WE CONCUR:




      extAA^     , flcr.




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