United States v. Walsh, 15-1569
| Decision Date | 29 June 2016 |
| Docket Number | No. 15-2071,No. 15-1569,15-1569,15-2071 |
| Parties | UNITED STATES OF AMERICA Plaintiff-Appellee, v. PHILLIP JOSEPH WALSH and BETTY LEE JENKINS Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0353n.06
JANE B. STRANCH, Circuit Judge. Phillip Joseph Walsh and Betty Lee Jenkins appeal the final judgments against them on one count of conspiracy to manufacture 100 or more marijuana plants and eleven counts of maintaining drug-involved premises.1 They raise several common claims on appeal, largely based on the district court's in-limine order precluding the defendants from introducing evidence regarding their compliance with Michigan's Medical Marihuana Act (MMMA). Jenkins also separately challenges the district court's denial of her motions to suppress statements and evidence collected during the search of her properties and challenges the reasonableness of her sentence. For the reasons set forth below, we AFFIRM the orders of the district court.
On November 6, 2013, a Kent County Sheriff's Department and Drug Enforcement Administration investigation of marijuana manufacturing operations involving Walsh, Jenkins, and others led to the search of several properties, including the residence that Walsh and Jenkins shared, two apartment buildings owned by Jenkins and rented out (the Gaines Street apartments), and additional properties.2 In total, the search yielded more than 250 marijuana plants and more than 18 pounds of processed marijuana.
On April 22, 2014, a grand jury issued a twelve-count indictment including one count of conspiracy to manufacture 100 or more marijuana plants, 21 U.S.C. §§ 841, 846, and eleven counts of maintaining drug-involved premises, 21 U.S.C. § 856.3 Five co-conspirators, Gregory A. Kuldanek, Kathleen Anne Rosengren, Cynthia Wessel, Steven Hawkins, and Parker Wilcoulter Smith, eventually pleaded guilty and entered into plea agreements with the United States.
Walsh and Jenkins elected to proceed to trial. A jury trial was held on January 5 to January 12, 2015.4 According to the Government's theory of the case, Walsh and Jenkins were the organizers of a marijuana manufacturing scheme operated under a company owned by Jenkins, BL Boop Enterprises, LLC. The Government alleged at trial that Walsh and Jenkins recruited several co-conspirators, many of whom were in financial need and willing to assist inthe cultivation of marijuana in exchange for free or reduced rent in the Gaines Street apartment buildings.
Walsh and Jenkins allegedly assisted their co-conspirators by building grow rooms, providing startup costs, and training them. The co-conspirators were registered as "caregivers" to grow and distribute marijuana under the MMMA. One of the co-conspirators, a physician, helped the operation to obtain patient cards, which he would sign for "patients" without conducting a physical examination or even meeting the patient.
The Government alleged that with the combined efforts of the co-conspirators, including Jenkins's son and son-in-law, the operation grew marijuana in six of the eight units located in the Gaines Street apartments, as well as an attached garage. Five of the eight apartments were used exclusively for the manufacture of marijuana. At some later point, Walsh and Jenkins began growing marijuana in additional locations, including a lake house owned by the physician supplying patient cards. The Government alleged at trial that the operation reached beyond Michigan customers to buyers in Ohio and on the East Coast.
After a six-day trial on the merits, the jury returned a guilty verdict against Walsh and Jenkins on all counts. On May 4, 2015, Walsh received a sentence of 168 months imprisonment, to be followed by a five-year supervised release period. On August 31, 2015, Jenkins received a sentence of 126 months and a four-year period of supervised release. Walsh filed a notice of appeal on May 12, 2015, and Jenkins's notice of appeal followed on September 8, 2015.
We begin with the claims raised by both Walsh and Jenkins. The first common claim asks whether the district court's motions-in-limine order deprived defendants of due process by precluding them from establishing a defense against federal marijuana charges, or at least allowing the jury to render a verdict based on "the full story." The second considers whether, inlight of the district court's order, the Government committed prosecutorial misconduct by offering evidence of defendants' violations of the MMMA.
Next, we consider claims brought individually by Jenkins, who challenges the district courts orders dismissing her motions to suppress statements and evidence that she claims were collected in violation of the Fourth Amendment. Jenkins also disputes the reasonableness of her sentence.
Walsh and Jenkins contend that the district court's order precluding them from arguing or introducing evidence related to their compliance with Michigan medical marijuana laws violated their due process right to present a defense. In light of Section 538 of the 2015 Appropriations Act, they contend that compliance with state law provides immunity and an affirmative defense against federal marijuana charges. In evaluating the charges against them, Walsh and Jenkins assert that the jury should have considered whether their manufacture of marijuana conformed to the MMMA. They further contend that the Government failed to comply with the district court's in-limine order to such an extent that it constituted prosecutorial misconduct.
The Government responds that Walsh and Jenkins have waived these arguments, as they made no objection during trial and the arguments are raised for the first time on appeal. Even if they were not waived, the Government maintains, these claims afford no relief.
A motion in limine is "made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." Luce v. United States, 469 U.S. 38, 40 n.2 (1984). It is "designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions." Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013) (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990)).
The district court granted several of the Government's motions in limine, including motions to prevent Walsh and Jenkins from arguing or introducing evidence to suggest (1) marijuana has medical value, (2) their erroneous belief that their conduct was lawful, or (3) compliance with state law. As for the last, the Government cited People v. Redden, 799 N.W.2d 184 (Mich. Ct. App. 2010) (P.J. O'Connell, concurring), for the proposition that Michigan courts have "cautioned citizens and legal counsel not to rely upon the MMMA even for protection against criminal charges arising under state law." That concurring opinion advised that "[u]ntil our Supreme Court provides a final comprehensive interpretation of [the MMMA], it would be prudent for the citizens of this state to avoid all use of marijuana if they do not wish to risk violating state law." Redden, 799 N.W.2d at 204 n.10.
In considering these motions, the district court noted that while conspiracy is a specific intent crime, conspirators must only have the "specific, willful intent to enter into the agreement with others and achieve the objective of the conspiracy," in this case, growing marijuana. The Government need not show that Walsh and Jenkins "intended to willfully violate federal drug laws or knew that their actions violated the Controlled Substances Act." The district court determined that a good faith belief in the legality of the operation was therefore irrelevant and, while this ruling hindered the ability of the defense to paint a complete picture, "irrelevant evidence is never admissible." Concluding that "the only reason to discuss compliance with Michigan's medical marijuana laws [was] to encourage jury nullification or establish a defense that [was] not valid," the court granted the Government's motion on this subject.
On appeal, Walsh and Jenkins argue that the district court's in-limine ruling necessitates de novo review because it is tied to a question of statutory interpretation: whether compliance with the MMMA affords an affirmative defense to federal marijuana charges in light of Section538 of the 2015 Appropriations Act. The Government counters that the correct standard of review is plain error: Walsh did not file a response in opposition to the Government's motions in limine and, while matters of statutory interpretation are ordinarily reviewed de novo, arguments related to Section 538 were raised by Walsh and Jenkins for the first time on appeal. See Fed. R. Crim. P. 52(b) (); see also United States v. Cromer, 389 F.3d 662, 672 (6th Cir. 2004) ().
We disagree with both approaches. First, Walsh and Jenkins's challenge to the district court's order requires review of an evidentiary ruling, not an issue of statutory interpretation. Second, both arguments (opposing the motions in limine and raising an argument related to Section 538) were raised below by co-defendant Greene and by Jenkins in responses in opposition to the motions in limine, and by co-defendant Adam Paul Rumpf in a motion to dismiss the indictment on the basis of Section 538. A co-defendant's objection can preserve an issue on appeal. See United States v. Baker, 458 F.3d 513, 517-18 (...
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