Metropolitan News-Enterprise


Monday, July 13, 2020


Page 1


Ninth Circuit:

Prosecution of Marijuana Growers Properly Barred Based on Their Compliance With California Law

Congressional Enactment Prohibiting Federal Criminal Actions Where Conduct Complies With State Legislation Does Not Preclude Appeal From Order Blocking Prosecution—Opinion 


By a MetNews Staff Writer


A District Court judge properly found that he was powerless to sentence two men who had pled guilty to a marijuana charge because a federal law has been passed barring expenditure of funds on the prosecution of persons who acted in compliance with state marijuana laws, the Ninth U.S. Circuit Court of Appeals held Friday, in a 2-1 opinion, but said the prosecution is not barred from appealing.

Circuit Judge M. Margaret McKeown, joined by Sixth Circuit Judge Eugene E. Siler, sitting by designation, wrote for the majority. Senior Circuit Judge J. Clifford Wallace dissented.

The appellants, Andrew Pisarski and Sonny Moore, pled guilty in the District Court for the Northern District of California to conspiracy to manufacture and possess marijuana with intent to distribute it. Before sentencing, Congress specified in a rider to an appropriations bill that funds are not to be devoted to prosecutions under federal marijuana laws where the conduct is authorized by the law of the defendant’s state.

2016 Precedent

In the 2016 case of United States v. McIntosh, the Ninth Circuit held that where marijuana charges are brought, a District Court judge must hold a hearing to determine if defendants “strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana” and, if so, to enjoin further prosecution.

The judge presiding in the case in which Pisarski and Moore were prosecuted, Richard Seeborg, held such a hearing and determined that the defendants’ conduct was authorized by California law.

McKeown said:

“As a threshold matter, and one of first impression, we have no trouble concluding that the appropriations rider does not bar the government from spending funds on this appeal and that the district court’s Mcintosh finding does not provide defendants with an impenetrable bulwark. Pisarski and Moore argue that allowing the government to proceed in this appeal would create a judicial remedy in contravention of congressional intent. That approach puts the cart before the horse.”

Expenditure Not Barred

She went on to say:

“The appropriations rider does not…bar the government from spending funds to determine whether the rider applies to the prosecution in the first place. To hold otherwise would render a district court’s Mcintosh finding unreviewable.”

Pisarski and Moore were growing 327 marijuana plants; none had yet been harvested; they had entered into an agreement to sell it for an amount which merely represented their costs. That, Seeborg determined, was in conformity with California’s Medical Marijuana Program Act (“MMPA”) as it existed when the duo’s Humboldt County farm was raided by federal authorities in 2012.

“We have no difficulty concluding that the district court did not clearly err in determining that Pisarski and Moore proved by a preponderance of evidence that they were in strict compliance with California medical marijuana law at the time of their arrest,” McKeown wrote.

Wallace’s Dissent

Wallace dissented, saying it was not clearly established that the defendants acted in strict compliance with California law.

He questioned whether the sale would, in fact, be without profit and whether the marijuana would all go to patients who would make medicinal use of it. The jurist rejected Seeborg’s premise that because there was time before the transfer of possession was to take place, the defendants would have an opportunity to make sure there was compliance with all aspects of the MMPA.

Wallace expressed a “fear that as a result of today’s opinion,” prosecutions will be barred “in any case in which a California resident is charged with possession of distributable quantities of marijuana…so long as there is a theoretical possibility of compliance at the time of a future sale.” He maintained:

“Neither our precedent nor California’s sanctions this outcome.”

The case is United States v. Pisarski, 17-10428.


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