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Christopher Haberman
Attorney & Investigator Specializing in Appeals , Writs and Investigation
Attorney & Investigator Specializing in Appeals , Writs and Investigation


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A New Federal Medical Marijuana Defense?
By Raphe Goldman and Ted Cassman

In United States v. McIntosh, No. 15-10117 et al., __ F.3d __, 2016 U.S. App. LEXIS 15029 (9th Cir. Aug. 16, 2016), a panel of the Ninth Circuit adopted what amounts in some ways to a medical marijuana defense to the federal Controlled Substances Act (“CSA”). We have our doubts about whether the holding will be widely adopted, but it is the law of this Circuit for now.
The holding arises from a statute so obscure that it is not even codified in the United States Code. In December 2014, Congress enacted a rider to an omnibus appropriations bill that provided as follows:
None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014). The rider, which has been re-enacted several times in substantially similar form, is effective only for the period of the appropriations bill to which it is attached; it is presently effective until September 30, 2016. See Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015).
In McIntosh, the court consolidated ten cases in which defendants had been indicted for various violations of the CSA. In each case the defendants had moved (before trial) to enjoin their prosecutions on the ground that the Department of Justice was prohibited by the appropriations rider from spending funds to prosecute them, since they were purportedly engaged in cultivation and distribution of medical marijuana in places in which state law authorized such activity. 2016 U.S. App. LEXIS 15029 at *5-7. The Ninth Circuit panel, which comprised Judges O’Scannlain, Bea and Silverman, sided with the defendants. Id. at *4-5.
After initially finding that interlocutory appeals were appropriate in these cases, the court considered whether the defendants had Article III standing to challenge the DOJ’s expenditures of funds on their prosecutions. The panel analogized the question to the one addressed by the Supreme Court in Bond v. United States, 564 U.S. 2011 (2011) and NLRB v. Noel Canning, __ U.S. __, 134 S. Ct. 2550 (2014). In those cases, the high court found that private parties had standing to make separation-of-powers challenges to government actions that adversely affected them. See McIntosh, 2016 U.S. App. LEXIS 15029 at *16-20. The McIntosh panel found that the standing inquiry yields a similar result in the case of the appropriations rider: “if DOJ were spending money in violation of [the rider], it would be drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause. That Clause constitutes a separation-of-powers limitation that Appellants can invoke to challenge their prosecutions.” Id. at *21.
Next, the court turned to the question whether the prosecutions of the defendants violated the rider. This implicated a subsidiary issue: what does the rider mean when it says that the DOJ may not spend money “to prevent . . . States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana,” and how does that prohibition play out in the context of the prosecution of a defendant accused of cultivating or distributing medical marijuana? The court found that the rider “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.” Id. at *23. According to the panel, the DOJ need not take any direct action against the states themselves to “prevent[ ] them from implementing” their medical marijuana laws. Id. at *25. Rather, “[b]y officially permitting certain conduct, state law provides for non-prosecution of individuals who engage in such conduct. If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct.” Id.

The McIntosh court “conclude[d] that, at a minimum, [the rider] 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.” Id. at *25-26. On the other hand, the panel recognized that “DOJ does not prevent the implementation of rules authorizing conduct when it prosecutes individuals who engage in conduct unauthorized under state medical marijuana laws. Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and prosecuting such individuals does not violate” the appropriations rider. Id. at *29. Accordingly, the court remanded the cases to the district courts to conduct evidentiary hearings to determine whether the defendants’ conduct “was completely authorized by state law, by which we mean that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana. We leave to the district courts to determine, in the first instance and in each case, the precise remedy that would be appropriate.” Id. at *31.
The court concluded with a word about the remedy available to defendants:
We note the temporal nature of the problem with these prosecutions. The government had authority to initiate criminal proceedings, and it merely lost funds to continue them. DOJ is currently prohibited from spending funds from specific appropriations acts for prosecutions of those who complied with state law. But Congress could appropriate funds for such prosecutions tomorrow. Conversely, this temporary lack of funds could become a more permanent lack of funds if Congress continues to include the same rider in future appropriations bills. In determining the appropriate remedy for any violation of [the appropriations rider], the district courts should consider the temporal nature of the lack of funds along with Appellants’ rights to a speedy trial under the Sixth Amendment and the Speedy Trial Act, 18 U.S.C. § 3161.

Id. at *31-32. Although the panel left it to the trial courts to determine the appropriate remedy if a specific prosecution was found to have violated the rider, the above language suggests that the appropriate remedy might be an indefinite stay of prosecution or some similar order. But that implication runs up against the panel’s recognition that such an indefinite stay might run afoul of speedy trial principles, which might necessitate dismissal at some point.
In sum, the holding of McIntosh not only recognizes a new quasi-defense to CSA charges, it is one that has a very unusual feature: it permits defendants to bring pretrial motions to enjoin prosecution. This is, to say the least, a surprising result, especially in light of the fact that the statute in question — the appropriations rider — does not explicitly purport to create a defense or an exception to the CSA. In other words, as even the McIntosh court recognized, it remains illegal under federal law to distribute or cultivate marijuana, whether intended for medical use or not. See id. at *32 n.5 (“Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime.”). Yet the McIntosh court nonetheless held that defendants who break the law in specified circumstances may not be prosecuted by DOJ, at least for now.
We applaud the panel’s brave opinion. But we are defense attorneys, and we therefore know that a healthy dose of skepticism is warranted; the government has already requested — and been granted — extra time during which to file a request for rehearing en banc. It will be worth watching whether the panel’s opinion holds up, and whether its holding is followed by other Circuit Courts of Appeals.


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I recently finished a brief in opposition to an application for a writ from the 5th District Court of Appeals in California on an interesting Constitutional Question: Is there a clearly established constitutional right of privacy for an "adulterous" relationship? We say there is.

FACTS: A Police Department in California investigates and then fires an officer for a relationship with a married woman, who has no relationship to the department (e.g. informant, employee, suspect). Department claims Qualified Immunity on the grounds that the right was not clearly established.

Analyzing and arguing these issues like this is what I live for! (I am such a geek!) #privacy4all  
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Thinking about those who are sentenced to "Life" sentences and how fundamentally unfair the parole system can be. #unfairliferparole   

I live and practice law in the heart of California's prison country, Tulare County. We're surrounded...Corcoran (the massive prison complex) , Avenal, North Kern, Wasco, Valley State, and the ironically named Pleasant Valley.  So I shouldn't have been surprised when I was recently contacted by the wife of a "Juvenile Lifer", seeking assistance with his parole hearing. My discussion with her reminded me of how savage our prison system can be.

At the age of 17 this young man shot at a car and at a house in an act of retribution against gangbangers who tried to kill his brother. No one was one was physically harmed. Sentence? 15 to Life.

He has done 15 years in prison now (the minimum) and was denied parole at his first hearing, despite the new more "lenient" rules on releasing Juvenile Lifers. He was fortunate that his review was rescheduled to occur in only 3 years - the minimum wait time.

I can't wait to try to prepare this man to face the parole board next time around. I know that we're responsible for the effort, not the outcome; but I know that I can help him make a good case for release on parole. At the very least, we can set the stage for a solid Writ of Habeas Corpus challenging the board's denial, if it comes to that.
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