Sunday, August 06, 2017

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
  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.

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


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