United States v. Pisarski, No. 17-10428 (9th Cir. 2020)
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The Ninth Circuit affirmed the district court's pre-sentencing order enjoining the government from spending additional funds on the prosecution of defendants, who pleaded guilty to federal conspiracy to manufacture and possess with intent to distribute marijuana.
The panel held that the appropriations rider that prohibited the Department of Justice from using congressionally-allocated funding to prevent states from implementing their medical marijuana laws does not bar the government from spending funds on this appeal. The panel also held that the district court did not err in concluding that defendants met their burden to show that they were strictly compliant with the Medical Marijuana Program Act at the time of their arrest. In this case, the district court properly focused the McIntosh hearing on the conduct underlying the charge, and the district court's analysis of state law was not in error and its factual findings were not clearly erroneous.
Court Description: Criminal Law. The panel affirmed the district court’s pre-sentencing order enjoining the government from spending additional funds on the prosecution of Andrew Pisarski and Sonny Moore, who pled guilty to federal conspiracy to manufacture and possess with intent to distribute marijuana. Before sentencing, Congress enacted an appropriations rider that prohibited the Department of Justice from using congressionally-allocated funding to prevent states from implementing their medical marijuana laws. The district court stayed sentencing. Applying United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), the district court found that Pisarski and Moore strictly complied with California’s medical marijuana laws, and enjoined government expenditures on the case until and unless a future appropriations bill permits the government to proceed. As a threshold mater, the panel held that the appropriations rider does not bar the government from spending funds on this appeal. The panel then held that the district court did not err in its legal analysis, properly focused its McIntosh hearing on the conduct underlying the charge, and did not clearly err in determining that Pisarski and Moore proved by a preponderance of the evidence that they were in strict compliance with California’s Medical Marijuana Program Act at the time of their arrest. UNITED STATES V. PISARSKI 3 Judge Wallace dissented because, in his view, the district court did not properly interpret California law bearing on the question presented under McIntosh: whether defendants’ conduct was completely authorized by California law such that it could be said that defendants strictly complied with all conditions of California law as to the use, distribution, possession, and cultivation of medical marijuana. Following Ninth Circuit precedent, Judge Wallace would hold that the district court’s errors all turned on its faulty legal conclusions about how California law applies to criminal defendants charged with cultivating distributable quantities of marijuana for prospective sales. Judge Wallace explained that at the time of defendants’ charged conduct, there was a general prohibition against possession or distribution of marijuana in California. California established statutory exemptions from prosecution only in narrow and carefully-delineated circumstances. In Judge Wallace’s view, defendants failed to provide evidence bearing on the question whether those narrow circumstances applied in this case. Judge Wallace would hold that the defendants therefore necessarily failed to carry their burden under Ninth Circuit precedent. First, Judge Wallace explained that at the time of defendants’ charged conduct, a medical marijuana grower in California could not lawfully earn a profit. The California Attorney General’s Guidelines, which California state courts have said must be given “considerable weight,” require collectives and cooperatives to document each member’s contribution of labor, resources, or money to the enterprise. Although it was unknown at the time of the marijuana seizure how many of defendants’ 327 marijuana plants were female and therefore capable of maturity, Judge Wallace observed that defendants did not provide the district 4 UNITED STATES V. PISARSKI court with an estimate of their expected revenue or an accounting of their labor and operational costs from cultivating the plants. Examining an analogous California intermediate appellate decision, Judge Wallace would hold that the district court erred in concluding that California law “does not speak to the issue of prospective compliance.” Applying de novo review, Judge Wallace concluded that the district court failed to assess whether defendants would have earned an unlawful profit from the expected sale of their 327 plant-grow. Second, Judge Wallace explained that at the time of defendants’ charged conduct, a criminal defendant in California was required to prove that every member of the collective for which he was cultivating marijuana was a qualified patient or a primary caregiver. In other words, the exemptions in California medical marijuana law did not apply to criminal defendants who failed to establish that the members of the collective were either qualified patients or primary caregivers. Judge Wallace observed that defendants did not present any evidence showing whether “other patients” were qualified patients or primary caregivers even though defendants’ evidence referred to “other” unidentified patients and collectives. In Judge Wallace’s view, California case law states that even when sales are expected to be made at an unknown time in the future, the membership status of a charged grow should be identified before a criminal defendant may benefit from the narrow exemption under California medical marijuana law. Following Ninth Circuit precedent, Judge Wallace would hold that where a district court, as here, fails to make necessary findings of fact bearing on the McIntosh inquiry, the parameters of strict compliance have not been followed. UNITED STATES V. PISARSKI 5 Third, Judge Wallace would hold that the district court’s conclusion that “the presence of cash, precious metals, and weapons” were “equally consistent with the operation of a rural, cash-intensive enterprise” necessarily failed to satisfy Evan’s preponderance of the evidence standard. In Judge Wallace’s view, if defendants’ evidence made it equally possible that defendants complied or did not comply with California law, defendants necessarily failed to meet their burden under Evans. In sum, Judge Wallace would hold that the district court committed reversible legal error. He would reject the majority opinion’s application of clear error as inconsistent with Ninth Circuit precedent because the district court’s errors all turned on an incorrect statement of California state law. Judge Wallace fears that as a result of the majority opinion, district courts may now adopt a proportionality approach in a case in which a resident is charged with possession of distributable quantities of marijuana, staying a federal marijuana prosecution so long as there is a theoretical possibility of compliance with a state’s medical marijuana law at an unknown time in the future. Judge Wallace would hold that this outcome is inconsistent with both Ninth Circuit precedent and with the relevant California medical marijuana law governing defendants’ charged conduct.
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