Legal Marijuana Citizenship Denials

Oswaldo Barrientos walks among marijuana plants at the grow facility where he works near downtown Denver on Wednesday, April 3, 2019. He said U.S. immigration officials blocked his application for citizenship because he works in the marijuana industry. Barrientos was brought to the U.S. from El Salvador illegally as a child and started working in the industry in 2014.

A federal agent who applied for a search warrant against an Aurora resident suspected of trafficking marijuana failed to realize that he had actually been investigating two different people with similar Chinese names.

A judge called it a “screw up,” but declined to suppress the evidence seized from the house of You Lan Xiang, and a jury found her and her husband guilty of marijuana cultivation and distribution crimes.

On Thursday, the federal appeals court based in Denver upheld the convictions of Xiang and her husband, Huanyu Yan, deciding that the Drug Enforcement Administration agent did not realize he was monitoring two different, unconnected people whose names both contained "You Xiang." Therefore, he had not acted recklessly in alleging a criminal link in order to receive a warrant.

Ordinarily, evidence is allowed in court if it was seized in good faith according to a magistrate judge’s warrant, even if the warrant ends up being illegal. But the evidence is suppressed if the person applying for the warrant knowingly or recklessly omits key information.

Law enforcement searched the home of Yan and Xiang in October 2018 as part of a DEA sting operation to crack down on illegal marijuana grows. Officers seized 878 plants from the couple’s home on East Doane Drive. Colorado law only permitted the cultivation of up to 12 plants per residence.

But how authorities gained access to the home was the subject of legal controversy.

Raymond Padilla, an officer with the DEA, was investigating drug trafficking by Chinese nationals. The government identified several houses in Aurora with high electricity use as potential marijuana grow operations. The Doane Drive home was one, with electricity use between six and nine times that of the average home.

Padilla discovered the home was registered to Yan and “You Xiang.” While Padilla was monitoring a different house on East Nevada Place, he spotted a car that an analyst told him was also owned by “You Xiang.” In applying for a search warrant, Padilla believed the evidence linked "You Xiang" to two homes with excess electrical use, indicating criminal drug activity.

It was only after the search that Padilla learned You Lan Xiang of Doane Drive was a different person than You Tang Xiang, who resided on Nevada Place.

Kathleen Shen, a federal public defender representing Xiang on appeal, told a three-judge panel of the U.S. Court of Appeals for the 10th Circuit that no information other than high energy usage on Doane Drive generated probable cause for a warrant, given that her client was not actually connected to both houses.

“As a matter of common sense, different people can have similar names. We know this from everyday experience. You can’t assume that two people with similar names are the same person,” Shen said. “Second, the names are actually different. ‘You Xiang’ is not the same as ‘You Lan Xiang’.”

She added that the two individuals named Xiang had different birthdates, different "middle" names and were not seen at each other’s addresses. 

"However strange the Chinese names may have appeared to the officer, surely he understood that Chinese people can only have one birthday," Shen remarked, labeling Padilla's conduct as reckless.

“The case intrigues me,” observed Chief Judge Timothy M. Tymkovich during oral arguments, “because there is another Timothy Tymkovich in town that’s my cousin.”

A jury convicted Xiang and Yan in December 2019 on three counts each involving the illegal grow operation, and sentenced to between two and three years in prison. U.S. District Court Judge Raymond P. Moore previously denied the defense’s motion to suppress evidence seized from the home. He acknowledged that the law enforcement analyst had an ability to clear up the identity of “You Xiang” through further investigation before communicating with Padilla, but did not believe the failure to do so was reckless.

“I find it to be, at best, negligence or just a — a, frankly, screw up,” Moore said.

Padilla explained the oversight by saying simply, "They use their names in all different types of ways when they spell them."

Aaron Teitelbaum of the U.S. Attorney’s Office defended the admissibility of the marijuana evidence, echoing the judge’s rationale that the case of mistaken identity was "really, at most, just a failure to conduct additional due diligence that would have been possible.”

The defendants pointed out that Teitelbaum could not identify any 10th Circuit precedent establishing that a home's high electricity consumption alone is sufficient grounds for probable cause. Judge Carolyn B. McHugh was similarly critical of the government’s heavy reliance on energy usage in its case, notwithstanding the name error.

“You’ve got two homes with elevated electricity usage and a mistaken belief that there’s interaction between the two homes,” she said. There were no indications at the Doane Drive home of illegal activity — such as a marijuana odor or people waiting to take out their trash until the garbage truck arrived.

“My neighbor might be running a meth lab, but you gotta connect my house to that operation, not to another house that happens to have a pool and a hot tub and has high energy use,” McHugh added.

Ultimately, the 10th Circuit panel sided with the government. Judge Joel M. Carson III, who authored the September 8 opinion, responded to an argument from Yan that if You Lan Xiang and You Tang Xiang had Anglo names — Rob and Roberta or Al and Allison — instead of Chinese names, a reasonable person would have believed them to be different people.

“But we find this argument unpersuasive because Rob and Roberta are facially different first names, as are Al and Allison,” Carson wrote.

The panel also upheld the conspiracy convictions of the couple. Even though Xiang testified she knew nothing about her husband's criminal activities, the 10th Circuit found that improbable given the scale of the operation in the home's basement.

The cases are United States v. Xiang and United States v. Yan.

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