On August 16, 2016, the Ninth Circuit U.S. Court of Appeal, in United States v. McIntosh, vacated the orders of lower courts denying relief to the appellants. The appellants had been indicted for violating the Controlled Substances Act, and sought dismissal of their indictments, or to enjoin their prosecutions, on the basis of a congressional appropriations rider.
The Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, §542, prohibits the Department of Justice (“DOJ”) from spending funds to prevent states’ implementation of their medical marijuana laws.
The Court 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 United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws.” As of now, the answer is “yes.”
The panel held that §542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by state medical marijuana laws and who fully complied with such laws.
The panel also noted that individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and that prosecuting such individuals would not violate §542.
The Court consolidated ten interlocutory appeals and petitions for writs of mandamus which arose from three district courts in two states.
Court Discussion
The facts of each of those cases were set forth in the opinion. In McIntosh, for example, “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. These co-defendants 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.”
The Ninth Circuit points out that in December 2014, Congress enacted the following rider in an omnibus appropriations bill funding the government through September 30, 2015:
“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 states that, “We note the unusual circumstances presented by these cases. In almost all federal criminal prosecutions, injunctive relief and interlocutory appeals will not be appropriate. Federal courts traditionally have refused, except in rare instances, to enjoin federal criminal prosecutions.”
In this situation, however, “Congress has enacted an appropriations rider that specifically restricts DOJ from spending money to pursue certain activities. It is ‘emphatically . . . the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for . . . the courts to enforce them when enforcement is sought.’”
“Even if Appellants cannot obtain injunctions of their prosecutions themselves, they can seek – and have sought – to enjoin DOJ from spending funds from the relevant appropriations acts on such prosecutions. When Congress has enacted a legislative restriction like §542 that expressly prohibits the DOJ from spending funds on certain actions, federal criminal defendants may seek to enjoin the expenditure of those funds, and we may exercise jurisdiction over a district court’s direct denial of a request for such injunctive relief.”
“Here, Appellants complain that DOJ is spending funds that have not been appropriated by Congress in violation of the Appropriations Clause of the Constitution. See U.S. Const. art. I, §9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .”). This ‘straightforward and explicit command . . . means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.’”
“In sum, §542 prohibits the DOJ from spending money on actions that prevent the Medical Marijuana States’ giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
The Court concluded that, “at a minimum, §542 prohibits the DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.”
But, the Court also held that “Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and prosecuting such individuals does not violate §542.”
HOW THIS AFFECTS YOUR AGENCY
This decision prevents the federal government from using federal funds to prosecute persons who comply with their states’ medical marijuana laws. It has no impact on a state’s authority to prosecute violations of state law, but it does mean that the federal government will be of no help to local government. However, the Court notes that this prohibition on the use of federal money could change at any moment.
“The government had authority to initiate criminal proceedings, and it merely lost funds to continue them. The DOJ is currently prohibited from spending funds from specific appropriations acts for prosecutions of those who complied with state law. But Congress could appropriate funds for such prosecutions tomorrow.”
Furthermore, in a footnote, the Court warns that marijuana is still illegal under federal law. “The prior observation should also serve as a warning. To be clear, §542 does not provide immunity from prosecution for federal marijuana offenses. The CSA prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime. The federal government can prosecute such offenses for up to five years after they occur.”
“Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.”
As with all legal issues, it is imperative that you seek out and secure advice and guidance from your designated legal counsel.
However, as always, if you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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