Case o' The Week: $ to Spend, if BLM - Gilmore, Section 538, and Medical Marijuana on Fed Property

 A productive medical marijuana grow needs modern irrigation systems, detailed fertilizer schedules, and very good maps of the boundaries of federal lands.

United States v. Gilmore, 2018 WL 1631680 (9th Cir. Apr. 5, 2018), decision available here.

Players: Decision by visiting District Judge Adelman, joined by Judges Paez and Ikuta. Hard fought appeal by ED Cal AFPDs Sean Riordan and Ann C. McClintock.

Facts: In 2012, agents discovered 118 marijuana plants on a California grow. Id. at *1. 

  (Editor note: 118 plants? That’s a federal case?) 

  The marijuana garden was on federal land. Id. 

  The government indicted three defendants with conspiracy to manufacture marijuana and manufacture of marijuana. Id. Two defendants earned a mistrial when the jury could not arrive at a unanimous verdict. Id. 

  The Ninth then decided United States v. McIntosh, 833 F.3d1163, 1177 (9th Cir. 2016). Id. The Ninth “held that defendants may seek to enjoin the expenditure of [federal] funds on federal drug trafficking prosecutions of individuals who engaged in conduct authorized by state medical marijuana laws and who fully complied with such laws.” Id. at *1. 

  The defendants in Gilmore moved to enjoin the prosecution pursuant to § 538 (the “Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014)). The district court denied their motion. Id.

Issue(s): “In this case, the district court refused to issue an injunction because the subject marijuana grow operation occurred on federal land under the control of the Bureau of Land Management (“BLM”).” Id. at *1.

Held: “We affirm. The restrictions imposed by § 538 do not apply to marijuana cultivation on federal land.” Id. at *1. 

  “Section 538 does not limit the government’s ability to enforce federal drug laws on federal land. Rather, as we noted in McIntosh, the provision applies narrowly, to those specific rules of state law that authorize the use, distribution, possession or cultivation of medical marijuana. . . Nothing in California law purports to authorize the cultivation of marijuana on federal land. Even if state law tolerated marijuana cultivation on public land, federal law forbids such use . . . .  And enforcing that prohibition does not ‘prevent’ California from otherwise implementing its medical marijuana regime.” Id. at *2 (citation omitted).

Of Note: Is the 118-plant prosecution in Gilmore a sad legacy of former, less-tolerant era of federal priorities? 

  Maybe. 

  Maybe not. 

  In Maine, the U.S. Attorney appointed by President Trump explained that he would be focusing on traffickers of “hard drugs” such as opiates, cocaine, and crack – not on marijuana cases. See “Marijuana users not a priority for Maine U.S. Attorney,” available here

  We may be less progressive than Maine, here on the Left Coast. In Oregon, the Trump-appointed U.S. Attorney has described “significant concerns about the state's current regulatory framework and the resources allocated to policing marijuana in Oregon.” See U.S. Attorney: A call for transparency and action on marijuana, available here .

  And in the ED Cal, Trump-appointed U.S. Attorney McGregor “Greg” W. Scott “used to be a hardcore, anti-cannabis drug warrior,” one defense attorney has opined. See “Here’s Where US Attorneys Stand on Cannabis Enforcement, available here

   Acting US Attorney Alex Tse in the ND Cal has been carefully mum– but candidates for his gig have been famously vocal in their opposition to medical marijuana. See “Russoniello outlines top priorities,” available here.; see also article here. 

How to Use: Unfortunately, in Gilmore Judge Adelman also rejects a mens rea defense: “it is irrelevant whether they knew the garden was on federal land.” Id. at *2. 

  Beware of Gilmore if a grow case involves federal land – those BLM parcel maps are now particularly important evidence, in those rugged NorCal mountain ranges.

                                               

For Further Reading: The prohibition against the expenditure of funds for the federal prosecution of medical marijuana remains the law of the land (for another six months!). See Rohrabacher-Blumenauer Amendment is Renewed Through September 2018, available here.

Image of “Federal Land in California” by Phillip Reese and Nathaniel Levine, from http://www.sacbee.com/news/state/california/article53922925.html

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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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

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Case o' The Week: Ninth Dodges Pot, Shot - Davies and Plea Agreement Collateral-Attack Waivers

  A non-cap habe raises execution issues, in a Section 2241 opinion.

  Davies v. Benov, 2017 WL 2125897(9th Cir. May 17, 2017), decision available here.

Players: Decision by Judge Gould, joined by Judges Wardlaw and Callahan.

Facts: Davies owned medical marijuana dispensaries in California, which he contended complies with state law. Id. at *1. He was charged federally in the ED Cal, and plead guilty to a five year term. Id. The plea agreement had a waiver provision that read, “Regardless of the sentence he receives, the defendant also gives up any right he may have to bring a postappeal attack on his conviction or his sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence.” Id. A year into Davies’ term, Congress passed an appropriation rider. That rider prohibited the use of federal funds to prosecute offenses otherwise legal under state medical marijuana laws. Id. at *2. Davies filed a Section 2241 habeas petition, arguing that BOP’s use of federal funds to incarcerate him violated this appropriations rider. Id. The magistrate judge denied the petition, holding that the plea agreement waiver barred the challenge. Id.

Issue(s): “The sole question presented here is whether the plea agreement’s waiver provision clearly bars Davies from bringing his § 2241 petition, which challenges his continued incarceration based on the appropriations rider. “ Id. at *2.

Held: “The waiver language included in Davies's plea agreement is broad and unambiguous, and we hold that it precludes Davies’s petition on the grounds he raised.” Id. at *2.”

Of Note: Davies made an interesting, albeit unsuccessful, argument. The waiver language in this plea agreement prohibited an appeal of “any aspect of the sentence imposed in this case.” Id. at *3 (emphasis added). By contrast, the collateral-attack waiver provision did not have that “any aspect of his sentence” clause. Id.

  Davies argued that the collateral-attack waiver was less broad than the appellate waiver. It’s an – appealing – argument, given the old contra proferentem rule we learned in law school (a rule acknowledged by Judge Gould, who concedes that because the government drafted the agreement, “ambiguities are construed in favor of the defendant.” Id. at *2 (citing United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009).

  Unfortunately, the Ninth holds the waiver language is not ambiguous: “Despite differences in the language of the direct-appeal and collateral-attack waiver provisions, the collateral attack waiver provision states the scope of the waiver: Davies gives up any right to bring a post-appeal attack on his conviction or sentence. The scope of the collateral-attack waiver provision clearly covers his present challenge. Limitations on any right to attack his sentence encompasses challenges to the execution and conditions of his sentence, as his challenge is styled here, as well as to the legality of his sentence.” Id. at *3.

How to Use: What about inmates serving federal prison sentences for (medical) marijuana offenses, who pleaded open, or who were convicted after trial? Unlike Davies, they are unencumbered by these collateral-attack waivers.

  Judge Gould expressly reserves the question if the BOP can use federal funds to incarcerate these folks: “we need not reach and save for another day the issue of whether the expenditure of federal funds to incarcerate individuals who fully complied with state medical marijuana laws violates the appropriations rider.” Id. at *3. 

  Would make for an interesting § 2241 petition, for these inmates in federal prison.

                                               

For Further Reading: With any luck, Johnson warriors will be freeing another tranche of over-serving petitioners after a Dimaya victory next Tuesday. SCOTUS’s next opinion drop is May 30 at 9:30 EDT: opinions will be live-blogged here. 

Image of Medical Marijuana bag from http://i2.cdn.cnn.com/cnnnext/dam/assets/140306122410-medical-marijuana-horizontal-large-gallery.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: The Ninth Smokes Marijuana Argument - Nixon and the Scope of the Marijuana Rider to Appropriations Bill

Congress pays the Court to impose marijuana conditions on supervision.

Congress pays Probation to report marijuana violations of supervision.

Congress pays us to defend marijuana violations of supervision.

(But who has Congress paid to prosecute marijuana violations?)

  United States v. Nixon, 2016 WL 6068201 (9th Cir. Oct. 17, 2016), decision available here.

Players: Per curiam decision, by Judges Trott, Owens, and Friedland.

Facts: Nixon was sentenced to three years of probation for drug charges. Id. at *1. “As a condition of probation, the district court required that Nixon refrain from unlawful use of a controlled substance and submit to periodic drug testing.” Id. Congress then enacted a rider on an appropriation bill that prohibited the use of federal funds to “prevent States [that had enacted medical marijuana laws] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Id. Nixon moved the court to modify his conditions of probation, and permit him to use medical marijuana in compliance with California’s Compassionate Use Act. Id. The court denied the motion, concluding that the rider may have impacted DOJ – but had “no effect on the Court or the Probation office, which is an arm of the Court.” Id. Nixon appealed.

Issue(s): “[W]hether a congressional appropriations rider that prohibits [DOJ] from using certain funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws impacts the ability of a federal district court to restrict the use of medical marijuana as a condition of probation.” Id. at *1.

Held: “We hold that it does not.” Id. “Nixon’s reading is not supported by the plain language of the appropriations rider and is foreclosed by our precedent. On its face, the appropriations rider restricts only the DOJ’s ability to use certain funds on particular prosecutions during a specific fiscal year. See United States v. McIntosh, . . . 2016 WL 4363168, at *11 (9th Cir. Aug. 16, 2016) (observing that the restriction on DOJ’s use of the appropriated funds is ‘temporal’ in nature.) Accordingly, we have warned that individuals still face the possibility of prosecution under the CSA . . . . Accordingly, the district court did not abuse its discretion by refusing to modify the conditions of Nixon’s probation to allow him to possess and use marijuana for medical purposes in violation of federal law.” Id. at *2-*3.

Of Note: In August, we hailed Judge O’Scannlain’s McIntosh decision on medical marijuana as an admirable and honest interpretation of Congressional intent. See blog here. 

  One wondered, however, how McIntosh would affect conditions of supervision and pretrial release. Nixon (sort of) answers that question. 

  Yet . . . read the case closely. The Ninth only holds that it was not an abuse of discretion to refuse Nixon’s requested modification. Id. at *3. It does not hold that DOJ can prosecute these violations – see “How to Use” below for thoughts on that twist.     

How to Use: Assume your client on probation, or supervised release, or pretrial release, has a lawful cannabis card and pees dirty for pot. After Nixon, a court can legally hold a violation hearing. After Nixon, Probation or Pretrial can hand up Form 12s and Form 8s. However, Probation and Pretrial Officers don’t have bar cards. What attorney has been funded by Congress to prosecute marijuana violations of supervision? That thorny question is dodged here: Nixon didn’t raise it. See id. at *2 & n.2 (“We therefore need not decide whether the appropriations rider affects the DOJ’s ability to participate in post-sentencing proceedings.”) Moreover, if DOJ doesn’t participate and the Court anoints Probation or Pretrial (“arms of the court”) to “prosecute” the violation, other problems arise. See id. (declining to resolve any problems presented by the separation of powers doctrine).

   It’s the next big issue – after the appropriation rider, who, precisely, is paying for AUSAs to litigate these violations?  

                                               

For Further Reading: Richard Nixon and pot have a long and complicated history. 

  For a fascinating account of how our thirty-seventh President once smuggled the devil’s weed into the United States, see article here.

Image of President Nixon smelling marijuana from http://www.tokeofthetown.com/2011/06/june_17_marks_40th_anniversary_of_nixon_declaring.php/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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