Case o' The Week: Blunt Words on Jury Nullification - Kleinman and Nullification Instructions
Mary Jane + Rider Refrain = Jury Constrained.
United States v. Kleinman, 895
F.3d 825 (9th Cir. 2017), decision available here.
Players: Decision by Judge Milan Smith, joined by Judge N.R.
Smith and visiting Tenth Circuit Judge Ebel.
Facts: Kleiman ran California medical marijuana collectives.
Id. at 830. The government alleged
that a majority of the sales were done outside of the storefronts, unlawfully, using
techniques found in “normal” illegal drug distribution conspiracies. Id.
The case was dismissed stateside after
Kleinman asserted the protections of California medical marijuana laws -- the
feds then picked it up. Id.
The district court emphasized during jury
selection that the jury could not question any purported conflict between
federal and state law on medical marijuana, and should consider the case under
federal law only. Id. at 831.
Kleinman was convicted after trial, and sentenced to 211 months. Id.
After the conviction and sentence, Congress
enacted an appropriations rider that prohibits DOJ from expending funds to
prevent states from implementing their laws authorizing the use, distribution,
possession, and cultivation of medical marijuana. Id.
Issue(s): “Kleinman argues that the anti-nullification jury
instruction the district court gave prior to deliberations misstated the law
and impermissibly divested the jury of its power to nullify.” Id. at 835.
Held: “The last two
sentences of the district court’s instructions could reasonably imply that the
jury could be punished for nullification, or that nullification is a moot
exercise because the verdict would be invalid . . . . Thus, the last two
sentences of the instruction were erroneous.” Id. at *837.
Of Note: Can
DOJ spend funds to defend a Cali medical marijuana conviction on direct appeal?
Nope.
The Ninth holds for
the first time that the marijuana rider, and the limitations of McIntosh, “applies to continued expenditures
on a direct appeal after conviction.” Id.
at 832.
Before you move for forfeiture of an Appellate AUSA’s salary, however,
read the pages of caveats that follow this new rule. Id. at 832- 835. In Kleinman,
the Ninth didn’t remand for an evidentiary hearing on this issue, because there
were convictions that violated state law, the arguments on those convictions
were dispositive on all counts, and there were there was no relief in sight in
any event. Id. at 834.
A nice McIntosh sentiment, the Kleinman holding, but in practice, a pretty
fine needle to thread.
How to Use:
Error - huzzah!
Reversal? Not so much.
Judge M. Smith explains that this
jury nullification overstep was not structural error, because “there is no
constitutional right to jury nullification.” Id. The Ninth assures us (without any harmless error analysis) that
the “error was not structural and was harmless.” Id.
at 838. Kleinman is now a lead
decision on jury nullification (and specifically endorses the Rosenthal instruction that came out of
Judge Breyer’s famous ND Cal case). Id.
at 836-37. The Court also specifically rejects the Sixth Circuit’s nullification
smack-down in Kryske. Id. at 837.
Have Kleinman handy in your trial arsenal, to
brush back AUSAs and D.J.’s keen on quashing a jury’s nullification power. (But
be careful to say “power,” not “right!”)
For Further
Reading: “Good people don’t smoke marijuana,” Attorney
General Sessions explained to the Senate. The Attorney General is looking for “grown
ups in charge in Washington to say marijuana is not the kind of thing that
ought to be legalized.” See Washington
Post article here.
The grown ups in the Senate have been
unpersuaded, thus far.
On July 27, despite A.G. Sessions’
objections, the Rohrabacher-Blumenauer amendment was adopted by the Senate
Appropriations Committee for the FY 2018 appropriations bill. See article here.
Of course, there is now no hope that we’ll
actually have a signed FY 2018
appropriations bill by the beginning of the new fiscal year on October 1: a continuing resolution (“C.R.”) seems inevitable.
Will McIntosh
/ Kleinman remain relevant law, as
budget breakdowns in Congress, the inevitable FY 2018 C.R. and A.G. Sessions’ steadfast
opposition, roil through the summer?
“Blunt” questions plague this “dis-jointed”
political tangle.
“Welcome to California” image
from http://www.thompsoncoburn.com/images/default-source/blogs/california-marijuana_22125486773_o.jpg?sfvrsn=2
Image of marijuana blunt from
http://www.thenug.com/sites/default/pub/041513/blunt-11.jpg
Steven Kalar, Federal Public
Defender N.D. Cal. Website at www.ndcalfpd.org
.
Labels: Jury Nullification, Medical marijuana, Milan Smith, Structural Error
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