Appeal from the United States District Court for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted December 3, 2019
San Diego, California
Filed July 10, 2020
Before: J. Clifford Wallace, Eugene E. Siler,* and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown;
Dissent by Judge Wallace
The panel affirmed the district court’s pre-sentencing order enjoining the government from spending additional funds on the prosecution of Andrew Pisarski and Sonny Moore, who pled guilty to federal conspiracy to manufacture and possess with intent to distribute marijuana.
Before sentencing, Congress enacted an appropriations rider that prohibited the Department of Justice from using congressionally-allocated funding to prevent states from implementing their medical marijuana laws. The district court stayed sentencing. Applying United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), the district court found that Pisarski and Moore strictly complied with California’s medical marijuana laws, and enjoined government expenditures on the case until and unless a future appropriations bill permits the government to proceed.
As a threshold mater, the panel held that the appropriations rider does not bar the government from spending funds on this appeal. The panel then held that the district court did not err in its legal analysis, properly focused its McIntosh hearing on the conduct underlying the charge, and did not clearly err in determining that Pisarski and Moore proved by a preponderance of the evidence that they were in strict compliance with California’s Medical Marijuana Program Act at the time of their arrest.
Third, Judge Wallace would hold that the district court’s conclusion that “the presence of cash, precious metals, and weapons” were “equally consistent with the operation of a rural, cash-intensive enterprise” necessarily failed to satisfy Evan’s preponderance of the evidence standard. In Judge Wallace’s view, if defendants’ evidence made it equally possible that defendants complied or did not comply with California law, defendants necessarily failed to meet their burden under Evans.
In sum, Judge Wallace would hold that the district court committed reversible legal error. He would reject the majority opinion’s application of clear error as inconsistent with Ninth Circuit precedent because the district court’s errors all turned on an incorrect statement of California state law. Judge Wallace fears that as a result of the majority opinion, district courts may now adopt a proportionality approach in a case in which a resident is charged with possession of distributable quantities of marijuana, staying a federal marijuana prosecution so long as there is a theoretical possibility of compliance with a state’s medical marijuana law at an unknown time in the future. Judge Wallace would hold that this outcome is inconsistent with both Ninth Circuit precedent and with the relevant California medical
Vijay Shanker (argued), Attorney; Matthew S. Miner, Deputy Assistant Attorney General; Brian A. Benczkowski, Assistant Attorney General; United States Department of Justice, Criminal Division, Appellate Section, Washington, D.C.; J. Douglas Wilson, Helen L. Gilbert, and Merry Jean Chan, Assistant United States Attorneys, United States
Case: 17-10428, 07/10/2020, ID: 11748246, DktEntry: 64-1, Page 5 of 33 (5 of 37) 6 UNITED STATES V. PISARSKI
Attorney’s Office; San Francisco, California; for Plaintiff-Appellant.
Ronald N. Richards (argued), Law Offices of Ronald Richards, Beverly Hills, California; T. Louis Palazzo, Palazzo Law Firm, Las Vegas, Nevada; for Defendants-Appellees.
McKEOWN, Circuit Judge:
Andrew Pisarski and Sonny Moore were in a pickle. The two men had spent months growing hundreds of marijuana plants. Although they had not yet sold, or even harvested, any plants, Pisarski and Moore had entered into sale agreements with two marijuana collectives, promising to sell them any viable plants for no profit, simply a reimbursement of costs. Before they could benefit from the fruits of their labor, federal law enforcement officers raided their rural Humboldt County property. The government charged them with federal conspiracy to manufacture and possess with intent to distribute marijuana. With few appealing options, Pisarski and Moore pled guilty.
Before sentencing, Congress passed the Consolidated and Further Continuing Appropriations Act of 2015 (“Appropriations Act of 2015”), which put the kibosh on all expenditures of federal prosecutions for marijuana use, possession, or cultivation if the defendant complied with the state’s medical marijuana laws. Consistent with our decision in United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), the district court enjoined the government from spending additional funds on the prosecution, finding that Pisarski and
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Moore strictly complied with California’s medical marijuana laws. Resolution of this appeal rests on the application of state law and our clear error review of the district court’s factual findings.