Tuesday, October 18, 2016
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Ninth Circuit Declares:
Medical Marijuana Use by Probationers Still Criminal
By KENNETH OFGANG, Staff Writer
An appropriations rider that limits the Justice Department’s ability to prosecute medical marijuana users, growers and distributors who comply with state laws does not preclude judges from barring such activity as a condition of federal probation, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel—made up of Judges John B. Owens and Michelle T. Friedland and Senior Judge Stephen S. Trott—said in a per curiam opinion that the medical marijuana riders—§538 of Public Law 113-235 and §542 of Public Law 114-113—have no impact on federal probation.
Each of those provisions specifies that no funds made available by the underlying legislation may be used, with respect to 33 specified states—including California—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.”
Yesterday’s appeal was brought by Alan David Nixon, who drew three years’ probation after pleading guilty to aiding and abetting the maintenance of a drug-involved premise. After Congress passed the first rider, he moved to modify his probation conditions in order to permit the use of medical marijuana under California law.
‘No Effect’
U.S. District Judge James V. Selna of the Central District of California denied the motion, concluding that the restriction on spending was applicable only to the Justice Department and had “no effect on the Court or the Probation Office, which is an arm of the Court.”
He also concluded that the court was required to enforce the federal ban on possession and use of marijuana, which is not subject to a medical necessity exception, and that Congress did not create such an exception by passing the riders.
The appellate judges agreed, saying Nixon’s argument was contrary to the plain language of the rider and to circuit precedent. They noted that the restrictions on spending are limited to a specific department and to specific fiscal years, and that the court held two months ago that medical marijuana users can still be prosecuted under the Controlled Substances Act.
The panel noted in a footnote that Nixon’s probation was subsequently revoked. But Nixon cannot argue the issue of the DOJ’s participation in the revocation proceedings, the footnote said, because he argued successfully in the lower court that those proceedings could not take place without such participation.
Unpublished Memorandum
In a separate, unpublished memorandum, the panel rejected Nixon’s due process and cruel and unusual punishment arguments. The due process argument was not raised in the district court, nor did the defendant provide “meaningful” appellate argument on the point, as to which he bore the burden of proving clear error, the court said.
The court added that it could not find Selna’s denial of the motion to be clear error on cruel or unusual punishment grounds, in the absence of evidence of Nixon’s personal medical condition.
The case of United States v. Nixon, 16-50097, was argued in the Ninth Circuit by Marri Derby of Newport Beach for the defendant and by Kevin M. Lally, chief of the Organized Crime Drug Enforcement Task Force Section in the U.S. Attorney’s Office in Los Angeles.
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