North Dakota v. Abuhamda

February 21, 2019 by Justia

Falesteni Ali Abuhamda appealed a trial court order approving pretrial diversion, an order deferring imposition of sentence, and an order denying his motion to dismiss. In March 2017, law enforcement officers executed a search warrant on two stores owned by Abuhamda, seizing items containing Cannabidiol ("CBD"), Delta-9-tetrahydrocannabinol ("THC"), Hashish, and Cannabis (marijuana) as well as paraphernalia used to ingest those substances. Abuhamda was charged with seven counts relating to the confiscated items. Abuhamda moved to dismiss Counts 1, 2, 4, and 5, arguing CBD was neither an illegal drug nor a controlled substance, naturally occurring THC found in CBD products at certain levels is not illegal, CBD products are legal in North Dakota, and paraphernalia is only illegal if specifically used or intended to be used with a controlled substance. Abuhamda simultaneously moved to suppress any evidence seized during the searches of his stores, arguing the searches were unreasonable due to law enforcement's reliance on a federal agency ruling for guidance rather than the laws of North Dakota. At a hearing, the State called a forensic scientist from the North Dakota State Crime Laboratory Division, who testified that CBD and Delta-9-THC were controlled substances under North Dakota law and CBD was a controlled substance under the Federal Controlled Substances Act. The district court denied the motion to dismiss and suppress evidence, holding Abuhamda failed to provide any evidence to dispute or discredit the State's witness, and the potential illegality of the advertisement of alleged drug paraphernalia was a question for the jury. Following the motion hearing, Abuhamda entered a pretrial diversion agreement on Counts 1, 2, and 5, which was accepted by the district court. Abuhamda pleaded guilty on Counts 3, 4, 6, and 7 and the district court entered orders deferring imposition of sentence. He argued on appeal the district court erred in denying his motion to dismiss Counts 1, 2, 4, and 5. The North Dakota Supreme Court dismissed the appeal on Counts 1, 2, and 5 for lack of jurisdiction because the order was not appealable under N.D.C.C. 29-28-06, and the Court declined to supervise. The Court affirmed on Count 4, concluding Abuhamda failed to preserve the issue because the record did not reflect his plea was conditional. View "North Dakota v. Abuhamda" on Justia Law