United States v. Trevino, 1:18-cr-166
| Decision Date | 16 January 2019 |
| Docket Number | No. 1:18-cr-166,1:18-cr-166 |
| Citation | 355 F.Supp.3d 625 |
| Parties | UNITED STATES of America, Plaintiff, v. Daniel Dario TREVINO, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Joel S. Fauson, Assistant U.S. Attorney, Grand Rapids, MI, for Plaintiff.
Defendant Daniel Trevino has been charged with various violations of the federal Controlled Substances Act, but he claims that his conduct complied with the Michigan Medical Marijuana Act. He has now moved the Court to quash the indictment because, beginning in 2014, Congress prohibited the Department of Justice from using funds to prevent states from implementing their own laws regarding the use, distribution, possession, or cultivation of marijuana. Trevino thus argues that the government's prosecution of him violates this limitation on expenditures enacted by Congress and, therefore, also violates the Appropriations Clause of the Constitution and asks the Court to "quash" the indictment "unless and until the government establishes the authority" of the DEA and DOJ to expend federal funds to prosecute him.
The Court scheduled a hearing on the motion. First, it took argument on who bears the burden of proving or disproving compliance with the Michigan Medical Marijuana Act. Having heard from both parties, the Court concluded that the defendant bore the burden of proving "strict compliance" with state medical marijuana law and cited the Ninth Circuit opinion of United States v. McIntosh , 833 F.3d 1163 (9th Cir. 2016) and Judge Lawson's opinion that, as the party seeking an injunction, the defendant bore the burden of enjoining the prosecution for violation of the Appropriations Clause. United States v. Bally , No. 17-20135, 2017 WL 5625896, at *5 (E.D. Mich. Nov. 22, 2017).
The parties were then to proceed to the evidentiary hearing on the motion, and Trevino was to call his first witness. However, Trevino then raised a separate question that appears to be an issue of first impression: If he testified at the evidentiary hearing and was ultimately unsuccessful on his motion, could the United States use his testimony as substantive evidence in its case-in-chief? Of course, the question needed to be resolved before the evidentiary hearing could proceed, so the Court adjourned the hearing and ordered the parties to file supplemental briefs addressing whether Trevino's testimony could be used as substantive and/or impeachment evidence.
Now with the benefit of the parties' briefs, the Court concludes that a defendant's testimony at an evidentiary hearing to enjoin prosecution—based on a Congressional funding prohibition—does not require use immunity, and therefore, any relevant testimony given by Trevino is admissible as substantive evidence in the government's case-in-chief.
The Court has set forth the facts generally at issue in previous opinions. It suffices to say here that Defendant Daniel Trevino operated a medical marijuana business in Western Michigan beginning in 2011 and continuing through at least 2016. He maintains that his business complied with pertinent Michigan law regarding the use, distribution and transfer of medical marijuana. The federal government disagrees. It charged Trevino and three co-defendants with various violations of the federal Controlled Substances Act, including conspiracy to manufacture, distribute, and possess with intent to distribute marijuana (Count One), maintaining a drug premises (Counts Two, Six, Seven, Eight), manufacturing marijuana (Counts Three & Five), and possession with intent to distribute marijuana (Counts Four and Nine).
The advent and acceptance of medical marijuana among the states has not been matched by the federal government. While thirty or more states have legalized marijuana for medical purposes, the federal government has classified marijuana as a Schedule I controlled substance under the Federal Controlled Substances Act since 1970. Drugs must meet three criteria to be placed in Schedule I: (1) the drug must have a high potential for abuse; (2) the drug must have no currently accepted medical use in treatment; and (3) there is a lack of accepted safety for use of the drug under medical supervision. 21 U.S.C. § 812. "By the terms of the Act, marijuana is ‘contraband for any purpose,’ and, if there is any conflict between federal and state law with regard to marijuana legislation, federal law shall prevail pursuant to the Supremacy Clause." United States v. Walsh , 654 F. App'x 689, 695 (6th Cir. 2016) (quoting Gonzales v. Raich , 545 U.S. 1, 14, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) ).
The conflict between state and federal views of medical marijuana has created new frontiers for traditional issues of constitutional law and kept many legal commentators gainfully employed. See, e.g. , Raich , 545 U.S. at 16, 125 S.Ct. 2195 (holding that Commerce Clause empowered Congress to regulate solely intrastate cultivation of marijuana; id. at 57, 125 S.Ct. 2195 (O'Connor, J., dissenting) (); Robert A. Mikos, On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime , 62 VAND. L. REV. 1421, 1456–60 (Oct. 2009) ().
Congress added a new dimension to the medical marijuana debate in 2014 by imposing a spending limitation on the Department of Justice's funds relating to medical marijuana:
None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of ... Michigan ... [and 31 other states and the District of Columbia] 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). Congress has enacted an essentially identical rider in the appropriations acts for the years since 2014. See Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015); Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 537, 131 Stat. 135, 228 (2016). The rider appears once again in Section 538 in the Consolidated and Further Continuing Appropriations Act of 2018.
The Appropriations clause of the U.S. Constitution prohibits the payment of money from the Treasury unless it has been approved by an act of Congress. U.S. CONST. art. I, § 8, cl. 1. Thus, if the Department of Justice spends money in a manner explicitly prohibited by statute—here the prosecution of a criminal action for conduct purportedly in compliance with state law—the Department violates the Appropriations Clause and the maintenance of the criminal action constitutes a violation of the separation of powers.
However, Congress' actions have left uncertain crucial questions, including who may invoke its protection? Some viewed the language as preventing prosecutions only of state officers charged with implementing medical marijuana programs in their official capacity. United States v. Gouve , No. 2:14-PO-0157-JTR-1, 2015 WL 417928, at *3 (E.D. Wash. Jan. 30, 2015). Others found that Congress intended to block prosecutions for "conduct sanctioned by state medical marijuana laws." United States v. Firestack-Harvey , No. 13-CR-0024-TOR-1, at 5-6 (E.D. Wash. Feb. 12, 2015).
Although the Sixth Circuit has yet to weigh in on the scope of the spending prohibition, the prevailing view appears to be the latter—that Congress intended to block prosecutions of private individuals who were following state medical marijuana law. See United States v. McIntosh , 833 F.3d 1163 (9th Cir. 2016).1 The McIntosh court consolidated ten different cases that raised common questions relating to state medical marijuana compliance and the appropriations rider.
The McIntosh court construed the rider's language to broadly prohibit the Department of Justice "from spending money on actions that prevent the Medical Marijuana States' giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana." Id. at 1176. Thus, individuals who claimed to be in compliance with state medical marijuana law were empowered by the rider to challenge the federal government's use of funds to prosecute them. Id. The court also observed that, historically, federal courts have rarely enjoined federal criminal prosecutions and that, "in almost all federal criminal prosecutions" such injunctive relief would not be appropriate. Id. at 1172 (citations omitted). However, the court reasoned that since Congress had enacted a funding restriction to prohibit spending funds on certain activities, the defendants could seek to enjoin the DOJ from spending the funds on their prosecutions—even if they could not obtain an injunction of the prosecution itself. Id.
Finally, in a footnote, the McIntosh Court explained that it would not decide exactly how district court should resolve the claims at issue, and expressed "no view" on the precise procedures to be followed or the relief required. Id. n.2. Accordingly, the court remanded to the district courts and instructed that, if the prosecutions were to continue, the defendants were entitled to evidentiary hearings "to determine whether their conduct was completely authorized by state law ... mean[ing] that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana." Id. at 1179.
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