In United States v. Pisarski, --- F.3d ---, No. 17-10428 (9th Cir. 2020), a divided panel affirmed the district court’s pre-sentencing
order enjoining the government from spending additional
funds on the prosecution of two defendants for conspiracy to distribute marijuana.
As you may recall, Congress passed an appropriations rider prohibiting the expenditure of funds on federal prosecutions for marijuana use,
possession, or cultivation if the defendant complied with the
state’s medical marijuana laws.
In United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), the Court held that defendants may seek to enjoin
the expenditure of DOJ funds only if they “strictly comply
with all state-law conditions regarding the use, distribution,
possession, and cultivation of medical marijuana.”
This case follows on McIntosh. The district court held an evidentiary hearing to determine whether the defendants were in strict compliance, as required by McIntosh. It held they were and thus enjoined the federal prosecution.
The majority affirmed.
First, it concluded the rider did not prohibit the government's appeal: "The appropriations rider
does not, however, bar the government from spending funds
to determine whether the rider applies to the prosecution in
the first place."
Second, it held that the district court did not err in its legal analysis of controlling state law. Nor did it clearly err in its factual findings: "We have no difficulty concluding that the district court
did not clearly err in determining that [the defendants] proved by a preponderance of evidence that they were in
strict compliance with California medical marijuana law at
the time of their arrest."
Judge Wallace dissented on the second point.
