9th Circ. Tells DOJ to Back Off in Medical Pot States

by Ryan Borchers, Court House News, August 16, 2016 

SAN FRANCISCO (CN) — The Ninth Circuit ruled Tuesday that the Justice Department is barred from using federal funds to prosecute individuals in states where medical marijuana is legal and the individuals are in compliance with state law.

Federal prosecutors in California and Washington state indicted Steve McIntosh, Jerad John Kynaston, Tyler Scott McKinley, Samuel Michael Doyle, Brice Christian Davis, Jayde Dillion Evans, Iane Lovan, Somphane Malathong, Vong Southy and Khamphou Khouthong under the Controlled Substances Act on a range of offenses related to the growing and distribution of marijuana plants.

The defendants moved to dismiss the indictments, arguing that an appropriations bill passed by Congress in 2014 and renewed in 2015 and 2016 explicitly bars the Justice Department from using federal funds to interfere with states that have legalized medical marijuana.

Federal judges hearing the cases denied the request, finding in two of the cases that the defendants had not shown they were in compliance with state medical marijuana laws. A judge in the third case said that determination of those defendants' compliance with state law depending on facts found by a jury and withheld making a decision until after trial.

The defendants in the cases appealed the denials of their request to the Ninth Circuit. And in a ruling issued Tuesday, Circuit Judge Diarmuid O'Scannlain acknowledged that it is rare for federal courts to enjoin the government from prosecuting defendants — but these are unusual cases.

Writing for the three-judge panel, O'Scannlain said that Congress' appropriations bill expressly prohibits the Justice Department from spending money to keep 40 states — including California and Washington — the District of Columbia, Guam and Puerto Rico from implementing their own medical marijuana laws. And federal criminal defendants may fight the use of those funds, he said.

The language of the statute is clear: state law applies, O'Scannlain said.

"By 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," O'Scannlain wrote. At minimum, the Department of Justice may not spend money from the appropriations acts to prosecute the defendants.

But while some of the defendants argued that the federal government should be prohibited from bringing any charges in medical marijuana states against anyone licensed under state law — even if they've violated state law — the panel declined to go that far.

"DOJ does not prevent the implementation of rules authorizing conduct when it prosecutes individuals who engage in conduct unauthorized under state medical marijuana laws," O'Scannlain wrote. "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 section 542."

Therefore, the trial courts must determine whether the defendants violated any state laws, and, the federal government may not spend funds from the appropriations act to prosecute them until it has been determined that they have, the panel ruled.

Marc Zilversmit from San Francisco represented McIntosh. Robert Fischer with the Federal Defenders of Eastern Washington & Idaho in Spokane, Washington, represented Kynaston. Andras Farkas, with the Federal Defenders of the Eastern District of California in Fresno, California, represented Lovan.

The government is represented by Assistant U.S. Attorney Owen Martikan in San Francisco.

A representative from the U.S. Attorney's Office said the office is reviewing the opinion and has no further comment at this time.

The defense attorneys were buoyed by the panel's opinion, though Zilversmit said he wished the opinion had gone further. Still, he described it as a step forward in defunding the war against medical marijuana.

"We are hoping that the Attorney General and the Obama administration take a step back and recognize the time has come to stop these prosecutions," Zilversmit said. "But if they insist on going forward, we are confident we will be victorious because my client was operating in compliance with state law."

Fischer said that he believes the decision is a good one, but because medical marijuana laws are in constant flux the concept of "strict compliance" is still nebulous at this point and will bear on how the evidentiary hearings proceed.

Peter Jones with the firm Wanger Jones Helsley in Fresno represented Khouthong. He said he also believes the ruling was correct, though he had not yet fully absorbed the opinion.

"[The defendants] are entitled to raise any defense they might have if they were charged in the state," Jones said.

Representing Evans, attorney Nicolas Vieth of Spokane framed the decision as a big victory for not only medical marijuana rights, but states' rights as well.

"If our folks are trying to cross the T's and dot the I's, the federal government need not meddle," Vieth said.

He predicted that the opinion will have far-reaching consequences and give the states the "backbone" to figure out their own marijuana laws.

"This opinion [is] being watched and has been watched by many of the other circuits," he said. "Every circuit is now going to be questioned on this."

PDF: Court Ruling