Sunday, April 08, 2018

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 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

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


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