California Police Chief- Fall 2013 - Page 8

LEGAL

Feds Prohibited From Prosecuting Those Who Comply With A State ’ s Laws Allowing

Use Of Medical Marijuana

By : Martin J . Mayer , General Counsel California Police Chiefs ’ Association

In United States v . McIntosh , 2016 U . S . App . LEXIS 15029 ( 9th Cir . 2016 ), five co-defendants 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 .

The appellants , located in California , were indicted for conspiracy to manufacture , to possess with intent to distribute , and to distribute more than 1,000 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 of the Controlled Substances Act , 21 U . S . C . §§ 801 et seq ., based on their marijuana-related activities .
The appellants sought to dismiss their indictments , or enjoin their criminal prosecutions , on the grounds that the U . S . Department of Justice ( DOJ ) was prohibited from spending funds to prosecute them pursuant to a 2014 congressional appropriations rider . The district courts denied the motions to dismiss and Appellants filed interlocutory appeals which were consolidated by the Ninth Circuit .
On August 16 , 2016 , the Ninth Circuit U . S . Court of
Appeal vacated the orders of lower courts denying relief to the appellants .
COURT DISCUSSION
The Consolidated Appropriations Act , 2016 , Pub . L . No . 114-113 , § 542 , prohibits the Department of Justice (“ DOJ ”) from spending funds to prevent states ’ from implementing their medical marijuana laws . A rider to the Appropriations Act provided that , “ 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 .”
The Court of Appeal stated that : “ 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
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