833 F.3d 1163 (9th Cir. 2016), 15-10117, United States v. McIntosh

Docket Nº:15-10117, 15-10122, 15-10127, 15-10132, 15-10137, 15-30098, 15-71158, 15-71174, 15-71179, 15-71225
Citation:833 F.3d 1163
Opinion Judge:O’ SCANNLAIN, Circuit Judge:
Party Name:United States of America, Plaintiff-Appellee v. Steve McIntosh, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Iane Lovan, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Somphane Malathong, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Vong Southy, Defendant-Appellant. United...
Attorney:Marc J. Zilversmit (argued), San Francisco, California, for Defendant-Appellant Steve McIntosh. Robert R. Fischer (argued), Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant Jerad John Kynaston. Richard D. Wall, Spokane, Washington, for Defendant-Appell...
Judge Panel:Before: Diarmuid F. O’ Scannlain, Barry G. Silverman, and Carlos T. Bea, Circuit Judges.
Case Date:August 16, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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833 F.3d 1163 (9th Cir. 2016)

United States of America, Plaintiff-Appellee

v.

Steve McIntosh, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Iane Lovan, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Somphane Malathong, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Vong Southy, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Khamphou Khouthong, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Jerad John Kynaston, AKA Jared J. Kynaston, AKA Jerad J. Kynaston; Samuel Michael Doyle, AKA Samuel M. Doyle; Brice Christian Davis, AKA Brice C. Davis; Jayde Dillon Evans, AKA Jayde D. Evans; Tyler Scott McKinley, AKA Tyler S. McKinley, Defendants-Appellants.

In re Iane Lovan, Iane Lovan, Petitioner,

v.

United States District Court for the Eastern District of California, Fresno, Respondent,

United States of America, Real Party in Interest.

In re Somphane Malathong, Somphane Malathong, Petitioner,

v.

United States District Court for the Eastern District of California, Fresno, Respondent,

United States of America, Real Party in Interest.

In re Vong Southy, Vong Southy, Petitioner,

v.

United States District Court for the Eastern District of California, Fresno, Respondent,

United States of America, Real Party in Interest.

In re Khamphou Khouthong, Khamphou Khouthong, Petitioner,

v.

United States District Court for the Eastern District of California, Fresno, Respondent,

United States of America, Real Party in Interest.

Nos. 15-10117, 15-10122, 15-10127, 15-10132, 15-10137, 15-30098, 15-71158, 15-71174, 15-71179, 15-71225

United States Court of Appeals, Ninth Circuit

August 16, 2016

Argued and Submitted December 7, 2015, San Francisco, California

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Appeal from the United States District Court for the Northern District of California, Maxine M. Chesney, Senior District Judge, Presiding. D.C. No. 3:14-cr-00016-MMC-3.

Appeals from the United States District Court for the Eastern District of California, Lawrence J. O’ Neill, District Judge, Presiding. D.C. Nos. 1:13-cr-00294-LJO-SKO-1, 1:13-cr-00294-LJO-SKO-3, 1:13-cr-00294-LJO-SKO-2, 1:13-cr-00294-LJO-SKO-4.

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Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Senior District Judge, Presiding. D.C. No. 2:12-cr-00016-WFN-1

Petitions for Writ of Mandamus. D.C. Nos. 1:13-cr-00294-LJO-SKO-1, 1:13-cr-00294-LJO-SKO-3, 1:13-cr-00294-LJO-SKO-2, 1:13-cr-00294-LJO-SKO-4.

Marc J. Zilversmit (argued), San Francisco, California, for Defendant-Appellant Steve McIntosh.

Robert R. Fischer (argued), Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant Jerad John Kynaston.

Richard D. Wall, Spokane, Washington, for Defendant-Appellant Tyler Scott McKinley.

Douglas Hiatt, Seattle, Washington; Douglas Dwight Phelps, Spokane, Washington; for Defendant-Appellant Samuel Michael Doyle.

David Matthew Miller, Spokane, Washington, for Defendant-Appellant Brice Christian Davis.

Nicholas V. Vieth, Spokane, Washington, for Defendant-Appellant Jayde Dillion Evans.

Andras Farkas (argued), Assistant Federal Defender; Heather E. Williams, Federal Defender; Federal Defenders of the Eastern District of California, Fresno, California; for Defendant-Appellant/Petitioner Iane Lovan.

Daniel L. Harralson, Daniel L. Harralson Law Corp., Fresno, California, for Defendant-Appellant/Petitioner Somphane Malathong.

Harry M. Drandell, Law Offices of Harry M. Drandell, Fresno, California, for Defendant-Appellant/Petitioner Vong Southy.

Peter M. Jones, Wanger Jones Helsley, P.C., Fresno, California, for Defendant-Appellant/Petitioner Khamphou Khouthong.

Owen P. Martikan (argued), Assistant United States Attorney; Barbara J. Valliere, Chief, Appellate Division; Brian Stretch, United States Attorney; United States Attorney’s Office, San Francisco, California, and; Russell E. Smoot and Timothy J. Ohms, Assistant United States Attorneys; Michael C. Ormsby, United States Attorney; United States Attorney’s Office, Spokane, Washington; Camil A. Skipper, Assistant United States Attorney; Benjamin B. Wagner, United States Attorney; United States Attorney’s Office, Sacramento, California; for Plaintiff-Appellee/Real Party in Interest United States.

Before: Diarmuid F. O’ Scannlain, Barry G. Silverman, and Carlos T. Bea, Circuit Judges.

SUMMARY

[*]

Criminal Law

In ten consolidated interlocutory appeals and petitions for writs of mandamus arising from three district courts in two states, the panel vacated the district court's orders denying relief to the appellants, who have been indicted for violating the Controlled Substances Act, and who sought dismissal of their indictments or to enjoin their prosecutions on the basis of a congressional appropriations rider, Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015), that prohibits the Department of Justice from spending funds to prevent states' implementation of their medical marijuana laws.

The panel held that it has jurisdiction under 28 U.S.C. § 1292(a)(1) to consider the interlocutory appeals from these direct denials of requests for injunctions, and that the appellants have standing to invoke separation-of-powers provisions of the Constitution to challenge their criminal prosecutions.

The panel held that § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by state medical marijuana laws and who fully complied with such laws. The panel wrote that 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 that prosecuting such individuals does not violate § 542.

Remanding to the district courts, the panel instructed that if DOJ wishes to continue these prosecutions, the appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law. The panel wrote that in determining the appropriate remedy for any violation of § 542, the district courts should consider the temporal nature of the lack of funds along with the appellants' rights to a speedy trial.

OPINION

O’ SCANNLAIN, Circuit Judge:

We are asked to decide whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws.

I

A

These ten cases are consolidated interlocutory appeals and petitions for writs of mandamus arising out of orders entered by three district courts in two states within our circuit. 1 All Appellants have been

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indicted for various infractions of the Controlled Substances Act (CSA). They have moved to dismiss their indictments or to enjoin their prosecutions on the grounds that the Department of Justice (DOJ) is prohibited from spending funds to prosecute them.

In McIntosh, five codefendants allegedly ran four marijuana stores in the Los Angeles area known as Hollywood Compassionate Care (HCC) and Happy Days, and nine indoor marijuana grow sites in the San Francisco and Los Angeles areas. These codefendants were indicted for conspiracy to manufacture, to possess with intent to distribute, and to distribute more than 1000 marijuana plants in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(l)(A). The government sought forfeiture derived from such violations under 21 U.S.C. § 853.

In Lovan, the U.S. Drug Enforcement Agency and Fresno County Sheriff’s Office executed a federal search warrant on 60 acres of land located on North Zedicker Road in Sanger, California. Officials allegedly located more than 30,000 marijuana plants on this property. Four codefendants were indicted for manufacturing 1000 or more marijuana plants and for conspiracy to manufacture 1000 or more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1), 846.

In Kynaston, five codefendants face charges that arose out of the execution of a Washington State search warrant related to an investigation into violations of Washington’s Controlled Substances Act. Allegedly, a total of 562 “ growing marijuana plants,” along with another 677 pots, some of which appeared to have the root structures of suspected harvested marijuana plants, were found. The codefendants were indicted for conspiring to manufacture 1000 or more marijuana plants, manufacturing 1000 or more marijuana plants, possessing with intent to distribute 100 or more marijuana plants, possessing a firearm in furtherance of a Title 21 offense, maintaining a drug-involved premise, and being felons in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A)(i) and 21 U.S.C. §§ 841, 856(a)(1).

B

In December 2014, Congress enacted the following rider in an omnibus appropriations bill funding the government through September 30, 2015: 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,...

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