Mimesis Law
12 November 2019

9th Circuit Nixes 10 Federal Prosecutions For Medical Marijuana

August 22, 2016 (Fault Lines) — The U.S. Ninth Circuit Court of Appeals has ruled that the U.S. Department of Justice cannot use federal monies to prosecute people who have complied with state law when it comes to medical marijuana.  The Court sided with ten defendants who were facing time in the Bureau of Prisons for purportedly growing and distributing medical marijuana.

Criminal defense attorneys are called many things by many people, and one of those things is “paranoid.” Why? It’s because clients sometimes consult with a defense attorney in the hopes of getting the final green light to do something (e.g.,  possession of small amounts of pot for personal use) that most of the world — but not necessarily federal Congressmen — has finally come around to regard as kosher, and some of those clients end up disappointed.

Weed smoking clients are thus dejected when a defense attorney tells them that while possession of weed for personal use is legal in a few states, it is nonetheless a federal crime to possess it, notwithstanding the odds of getting caught and charged by the federal government.  Client, meet the Supremacy Clause of the U.S. Constitution.

The case from the 9th Circuit involved people who were in compliance with their respective state’s laws regarding medical marijuana, but their names were still placed in a U.S. District Court’s docket by the vaunted DOJ.  The Trial Insider reports on a case that can be filed in the “are we still doing this?!” bin:

One of the defendants, Steve McIntosh and four codefendants, were accused of running four medical marijuana dispensaries in the Los Angeles area and nine indoor marijuana grow sites in San Francisco and Los Angeles.

Another five defendants were charged in Washington state cases.

They all sought dismissal of charges based on a 2014 rider congress inserted into an appropriations bill that “none of the funds made available in this act to the Department of Justice may be used” in the various states with medical marijuana laws “to prevent such states from implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”

The panel interpreted this to extend to prosecution of individuals acting under the state laws.

In obvious-speak other words, this means that taxpayer money was siphoned by the feds to investigate and prosecute people who were dispensing marijuana for medical purposes while following state law to the T, and who were not violent or deemed a threat to anyone anywhere.  In an age where the war on drugs has produced some ruthless outfits who sign up to provide for Americans’ insatiable need for narcotics, anyone with their critical faculties intact would see this as an irresponsible misallocation of our limited federal resources.   There are groups south of the border that mean business, play for keeps, and will fight to the last bullet RPG before they’re placed before a U.S. District Judge.

It says plenty when one of the 9th Circuit’s most conservative judges, Judge Diarmuid O’Scannlain, wrote an opinion that granted a most unusual request by the defendants/appellants: enjoinment of an ongoing federal prosecution.  From the Court’s decision:

In almost all federal criminal prosecutions, injunctive relief and interlocutory appeals will not be appropriate. Federal courts traditionally have refused, except in rare instances, to enjoin federal criminal prosecutions.

Here, however, Congress has enacted an appropriations rider that specifically restricts DOJ from spending money to pursue certain activities.

The rider contained in the Consolidated and Further Continuing Appropriations Act of 2014 expressly stated that the DOJ could not use government funds with respect to a list of states that had legalized medical marijuana, two of which were the defendants’ place of residence (California and Washington), and the defendants argued successfully that the restriction applied to the federal prosecution of individuals.

McIntosh and his co-defendants cleverly invoked the Appropriations Clause of the Constitution, a.k.a. “the Power of the Purse,” arguing that the DOJ was violating the Appropriations Act by spending prosecutorial coin derived from the Treasury in order to collar otherwise state law-abiding citizens.  The DOJ’s rejoinder was it was not preventing the “Medical Marijuana States” from giving practical effect by going after private citizens so long as it took no legal action against a state.  In response, and in siding with the defense, the 9th Circuit called malarkey:

In sum, § 542 prohibits DOJ from spending money on actions that prevent the Medical Marijuana States’ giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

We therefore conclude that, at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.

It’s tempting to regard the DOJ’s decision to indict these folks as reckless given the circumstances.  They should’ve realized that these cases would eventually be thrown out, right? But given its incredibly successful record in prosecuting medical marijuana providers who otherwise  thought they were in the clear, it wasn’t reckless.  It’s as if the greatest baseball hitter of all time was chastised for getting a swinging strike after so many successful swings.

The 9th Circuit’s precedential decision is a rarity, and that’s why the DOJ fought tooth and nail on appeal.  This case now gets sent back to the federal judge, who is ordered to conduct an evidentiary hearing as to whether the defendants have complied with state law. The cases will then likely be dismissed, but the fact remains that the DEA still classifies marijuana as a Schedule I drug, along with heroin.  Govern yourselves accordingly.

UPDATE: Kristian Saucier, the Navy man who sought clemency in federal court by citing Hillary Clinton’s e-mail scandal (amongst other arguments), has been sentenced to one year in prison. Given that the government was seeking five years in prison, that the supposedly-only-advisory sentencing guidelines called for a range of 63 to 78 months imprisonment, and considering Saucier’s relevant obstruction conduct, this is a remarkably fair sentence for Saucier.  Regardless of whether the Judge considered or rejected his Clinton argument (we will never know), the one-year sentence can be considered a “win” for Saucier.

 

Thus, contrary to most media reports on his sentencing, Saucier didn’t “fail.” But he is still a convicted felon, and is expected to receive an “other than honorable discharge” from the Navy.  Saucier’s life will never be the same.

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