United States v. Pickard, 2:11–cr–449–KJM.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Citation100 F.Supp.3d 981
Docket NumberNo. 2:11–cr–449–KJM.,2:11–cr–449–KJM.
PartiesUNITED STATES of America, Plaintiff, v. Brian Justin PICKARD, et al., Defendants.
Decision Date17 April 2015

100 F.Supp.3d 981

UNITED STATES of America, Plaintiff
Brian Justin PICKARD, et al., Defendants.

No. 2:11–cr–449–KJM.

United States District Court, E.D. California.

Signed April 17, 2015.

100 F.Supp.3d 987

Gregory T. Broderick, Richard J. Bender, Samuel Wong, Audrey Benison Hemesath, United States Attorney's Office, Sacramento, CA, for Plaintiff.

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John R. Duree, Jr., A Professional Corporation, John Richard Manning, Law Office of John R. Manning, Dina Lee Santos, Law Offices of Dina L. Santos, Clemente Jimenez, Law Office of Clemente M. Jimenez, Michael Donald Long, Law Office of Michael D. Long, Hayes H. Gable, III, Law Office of Hayes H. Gable, III, Michael E. Hansen, Law Offices of Michael E. Hansen, Michael Bradley Bigelow, Law Office of Michael B. Bigelow, Robert M. Holley, Attorney at Law, Danny D. Brace, Jr., Law Office of Danny D. Brace, Jr., William E. Bonham, William E. Bonham Attorney at Law, Arturo Benavidez, Benavidez, David Delmer Fischer, Law Offices of David D. Fischer, APC, Sacramento, CA, Christopher Haydn–Myer, Haydn–Myer Law Office, Roseville, CA, Gilbert A. Roque, Law Office of Gilbert A. Roque, Woodland, CA, Zenia Karen Gilg, Law Offices of Zenia K. Gilg, San Francisco, CA, Heather Lynne Burke, Law Office of Heather L. Burke, Nevada City, CA, for Defendants.


KIMBERLY J. MUELLER, District Judge.

It has been forty-five years since Congress passed the Controlled Substances Act, including marijuana in Schedule I. Defendants say the law as passed can no longer stand. The government says that is not for this court to decide. To say the landscape with respect to marijuana has changed significantly since 1970, in many ways, is an understatement. While the court is not blind to the practical context in which it operates, its duty as a resident of the third branch of our republican form of government is to resolve the legal questions presented by the parties, fairly and evenly, not as a maker of public policy. The court fulfills this duty without respect to who is arguing what position, or what the newspapers, blogs and commentators say; it does so while putting aside preconceptions and dispositions, likes and dislikes, bias and prejudice. Because defendants' motion challenges a decision made by Congress, which is the first, representative branch of government, the court treads lightly as it is required to do. In performing its duty the court takes the factual record as the parties have developed it through the introduction of documentary evidence and, in this case, an evidentiary hearing. Having approached defendants' constitutional challenges to marijuana's Schedule I status with an open mind, the court had to be prepared to grant their motion to dismiss if the law and facts supported that decision. At some point in time, in some court, the record may support granting such a motion. But having carefully considered the facts and the law as relevant to this case, the court concludes that on the record in this case, this is not the court and this is not the time.


The motion before the court was brought originally by defendant Brian Justin Pickard; he moves to dismiss the government's indictment. (ECF No. 199.) The remaining defendants join in the motion. Defendants argue the indictment must be dismissed because the classification of marijuana1 as a Schedule I substance under the Controlled Substances Act (CSA) is unconstitutional. For the reasons set forth below, the court DENIES the motion.

On October 20, 2011, sixteen individuals were indicted for conspiracy to manufacture

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at least 1,000 marijuana plants, in violation of 21 U.S.C. §§ 846, 841(a)(1). (Indictment, ECF No. 30.) On November 20, 2013, Mr. Pickard moved to dismiss the indictment, arguing that the classification of marijuana as a Schedule I substance under the CSA, 21 U.S.C. § 801 et seq., violates his Fifth Amendment equal protection rights and that the government's allegedly disparate enforcement of the federal marijuana laws violates the doctrine of equal sovereignty of the states under the Tenth Amendment. (ECF No. 199 at 2–3.) In the same motion, defendant requested that this court hold an evidentiary hearing to take testimony on defendant's constitutional challenges. (Id. at 3.) The other defendants2 joined in the motion. (See ECF No. 256.) The government opposed defendants' motion (ECF No. 224), and defendants replied (ECF No. 233).

On March 25, 2014, the court granted defendants' request for an evidentiary hearing. (ECF No. 262). The evidentiary hearing occupied five days between October 24, 2014 (ECF No. 347) and October 30, 2014 (ECF No. 351). During the evidentiary hearing, the court heard testimony from Gregory T. Carter, M.D., Carl L. Hart, Ph.D., Philip A. Denney, M.D., Christopher Conrad, and Bertha K. Madras, Ph.D. (See ECF Nos. 347–350). After the evidentiary hearing, the court set a post-evidentiary hearing briefing schedule and a date for closing arguments. (ECF Nos. 359, 371.) The government filed its post-evidentiary hearing brief on December 31, 2014 (ECF No. 374), and defendants filed theirs on January 5, 2015 (ECF No. 378). The parties replied on January 21, 2015. (ECF Nos. 381, 382.) The parties presented their closing arguments on February 11, 2015, after which the court submitted the motion (ECF No. 386).

In addition, on February 6, 2015, defendants filed a request for judicial notice, asking that the court take notice of (1) certain statements made by the United States Surgeon General on February 4, 2015, and (2) the introduction of H.R. 5762, the Veterans Equal Access Act of 2014, in the House of Representatives on November 20, 2014. (ECF No. 385 at 8–9.) The court takes judicial notice of the fact that the U.S. Surgeon General, during a televised interview on “CBS This Morning” on February 4, 2015, made a statement about marijuana's efficacy for some medical conditions and symptoms. Fed.R.Evid. 201 ; see Davis v. Granger, No. 12–1746, 2014 WL 3797966, at *5 (W.D.La. Aug. 1, 2014) (taking judicial notice of a report by the Surgeon General). However, the court declines to take judicial notice of H.R. 5762, as it does not have the force of law. See Davis v. United States, 569 F.Supp.2d 91, 98 (D.D.C.2008) (declining to take judicial notice of a proposed bill because it does not carry the force of law and hence, is irrelevant).

Defendant also asked the court to consider a new piece of evidence identified as exhibit AAA, a study published on January 28, 2015, which defendant argues “directly refutes the methods and findings” of government exhibit 209. (Id. at 9–10.) The court grants that request under the rule of completeness. See United States v. Castro–Cabrera, 534 F.Supp.2d 1156, 1160–61 (C.D.Cal.2008) (citing Fed.R.Evid. 106 ). Government exhibit 209 is a study published in the Journal of Neuroscience in April

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2014. That study, titled “Cannabis Use is Quantitatively Associated with Nucleus Accumbens and Amygdala Abnormalities in Young Adult Recreational Users,” concludes that marijuana exposure is associated with brain changes. (See Gov't Ex. 209.) Exhibit AAA is also a study published in the Journal of Neuroscience, in January 2015. (ECF No. 385–3.) The study, titled “Daily Marijuana Use is not associated with Brain Morphometric Measures in Adolescents or Adults,” concludes otherwise. The latter study cites the former study and argues it was erroneous. It is fair to allow exhibit AAA into evidence, for what it is worth.


Under Federal Rule of Criminal Procedure 12(b), “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” There is no prohibition against the consideration of extrinsic evidence for purposes of a Rule 12(b) motion to dismiss. Rule 12(b) “permits factual hearings prior to trial if necessary to resolve issues of fact peculiar to the motion.” United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969). Here, the court determined a hearing was necessary to resolve issues of fact relating to defendants' motion to dismiss the indictment. (ECF No. 256.)

“[A] district court may make preliminary findings of fact necessary to decide the questions of law presented by pre-trial motions so long as the court's findings on the motion do not invade the province of the ultimate finder of fact.” United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.1986) (quoting United States v. Jones, 542 F.2d 661, 664 (6th Cir.1976), cert. denied, 478 U.S. 1007, 106 S.Ct. 3301, 92 L.Ed.2d 715 (1986) ). “The District Court [is] not limited to the face of the indictment in ruling on the motion to dismiss.” Jones, 542 F.2d at 665. To the extent the court makes findings below, they are necessary to resolution of defendants' motion to dismiss.


A. Standing

1. The Parties' Arguments

The government contends defendants lack standing to argue that “the continued inclusion of marijuana as a Schedule I controlled substance in Title 21 of the federal statutes passes constitutional muster” (ECF No. 271 at 3), because “neither their criminal liability...

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