United States v. Kleinman, No. 14-50585 (9th Cir. 2018)Annotate this Case
The Ninth Circuit granted a petition for panel rehearing, withdrew a previous opinion, filed a superseding opinion affirming a conviction and sentence arising out of the operation of purported medical-marijuana collective storefronts in California, and denied a petition for rehearing en banc. The panel held that defendant was not entitled to remand for an evidentiary hearing on his state law compliance; the district court erred by giving an overly strong anti-nullification jury instruction, but the error was harmless; the district court did not err by denying defendant's motion to suppress evidence seized pursuant to a state search warrant; the district court did not err by denying defendant's motion for a Franks hearing; the district court did not err by declining to instruct the jury on defendant's joint ownership defense; the district court did not abuse its discretion by considering the government's late-filed objections to the presentence report; and defendant's 211 month sentence was substantively and procedurally reasonable.
Court Description: Criminal Law The panel granted a petition for panel rehearing, withdrew an opinion filed June 16, 2017, filed a superseding opinion affirming a conviction and sentence arising out of the operation of purported medical-marijuana collective storefronts in California, and denied on behalf of the court a petition for rehearing en banc. The defendant argued that a congressional appropriations rider enjoining use of United States Department of Justice funds in certain medical marijuana cases prohibits continued prosecution of his case, and that he is entitled to an evidentiary hearing under United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), to determine whether he strictly complied with all relevant conditions imposed by state law. The panel held that the rider only prohibits the expenditure of DOJ funds in connection with a specific charge involving conduct that is fully compliant with state laws regarding medical marijuana; that the rider does not require a court to vacate convictions that were obtained before the rider took effect; and that the rider, if it applies to this case at all, might operate to bar the DOJ from continuing UNITED STATES V. KLEINMAN 3 to defend the prosecution on appeal insofar as it relates to those counts that may be determined to involve only conduct that wholly complies with California medical marijuana law. The panel concluded that the defendant is not entitled to a McIntosh remand in this case because (1) his conviction and sentence were entered before the rider took effect; (2) the rider does not bar the DOJ from spending funds in connection with Counts 1 and 6, which definitively involved conduct that violated state law; (3) even if the rider applied to Counts 2 through 5, an open question, the panel’s rulings on Counts 1 and 6 are dispositive of all counts since the defendant’s substantive appellate claims concern all counts equally; and (4) the defendant does not win relief on any of his other arguments, so a McIntosh remand on Counts 2 through 5 is unnecessary. The panel held that the district court erred by instructing the jury that “[t]here is no such thing as valid jury nullification,” and that it “would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case.” The panel held that because there is no right to jury nullification, the error was harmless. The panel held that the district court did not err by denying the defendant’s motion to suppress, because the dispensary’s practice, as described in the warrant affidavit, of requiring members to designate the dispensary as their primary caregiver and then allowing members to purchase marijuana immediately after, provided probable cause to believe that the dispensary was operating illegally. The panel held that the district court did not err by denying the defendant a Franks hearing, or by declining to instruct the jury on the defendant’s joint-ownership defense. 4 UNITED STATES V. KLEINMAN The panel held that the district court did not abuse its discretion by considering the government’s late-filed objections to the presentence report, and that the sentence is substantively and procedurally reasonable.
This opinion or order relates to an opinion or order originally issued on June 16, 2017.