United States v. McIntosh

• Decision Date: 16 August 2016
• Docket Number: No. 15–71225, No. 15–71174, No. 15–10127, No. 15–30098, No. 15–10132, No. 15–71179, No. 15–71158, No. 15–10122, No. 15–10137,No. 15–10117,15–10117
• Citation: United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016)
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

833 F.3d 1163

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.

No. 15–10117

No. 15–10122

No. 15–10127

No. 15–10132

No. 15–10137

No. 15–30098

No. 15–71158

No. 15–71174

No. 15–71179

No. 15–71225

United States Court of Appeals, Ninth Circuit.

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

Filed August 16, 2016

Marc J. Zilversmit(argued), San Francisco, California, for Defendant–AppellantSteve McIntosh.

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

Richard D. Wall, Spokane, Washington, for Defendant–AppellantTyler Scott McKinley.

Douglas Hiatt, Seattle, Washington; Douglas Dwight Phelps, Spokane, Washington; for Defendant–AppellantSamuel Michael Doyle.

David Matthew Miller, Spokane, Washington, for Defendant–AppellantBrice Christian Davis.

Nicholas V. Vieth, Spokane, Washington, for Defendant–AppellantJayde 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/PetitionerIane 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/PetitionerVong Southy.

Peter M. Jones, Wanger Jones Helsley, P.C., Fresno, California, for Defendant–Appellant/PetitionerKhamphou 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.

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.¹All Appellants have been 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)and21U.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, 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).Various short-term measures extended the appropriations and the rider through December 22, 2015.On December 18, 2015, Congress enacted a new appropriations act, which appropriates funds through the fiscal year ending September 30, 2016, and includes essentially the same rider in § 542.Consolidated Appropriations Act, 2016,Pub. L. No. 114–113, § 542,129 Stat. 2242, 2332–33(2015)(adding Guam and Puerto Rico and changing “prevent such States from implementing their own State laws” to “prevent any of them from implementing their own laws”).

Appellants in McIntosh, Lovan, and Kynaston filed motions to dismiss or to enjoin on the basis of the rider.The motions were denied from the bench in hearings in McIntosh and Lovan, while the court in Kynaston filed a short written order denying the motion after a hearing.In McIntosh and Kynaston, the court concluded that defendants had failed to carry their burden to demonstrate their compliance with state medical marijuana laws.In Lovan, the court concluded that the determination of compliance with state law would depend on facts found by the jury in a federal prosecution, and thus it would revisit the defendants' motion after the trial.

Appellants in all three cases filed interlocutory appeals, and Appellants in McIntosh and Lovan ask us to consider issuing writs of mandamus if we do not assume jurisdiction over the appeals.

II

Federal courts are courts of limited subject-matter jurisdiction, possessing only that power authorized both by the Constitution and by Congress.SeeGunn v. Minton , ––– U.S. ––––, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72(2013).Before proceeding to the merits of this dispute, we must assure ourselves that we have jurisdiction.SeeSteel Co. v. Citizens for a Better Env't , 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210(1998).

A

The parties dispute whether Congress has authorized us to exercise jurisdiction over these interlocutory appeals.“Our jurisdiction is typically limited to final decisions of the district court.”United States v. Romero–Ochoa , 554 F.3d 833, 835(9th Cir.2009).“In criminal cases, this prohibits appellate review until after conviction and imposition of sentence.”Midland Asphalt Corp. v. United States , 489 U.S. 794, 798, 109 S.Ct. 1494, 103 L.Ed.2d 879(1989).In the cases before us, no Appellants have been convicted or sentenced.Therefore, unless some exception to the general rule applies, we should not reach the merits of this dispute.Appellants invoke three possible avenues for reaching the merits: jurisdiction over an order refusing an injunction, jurisdiction under the collateral order doctrine, and the writ of mandamus.We address the first of these three avenues.

Under 28 U.S.C. § 1292(a), “the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United...