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Federal Court Says Medical Marijuana Rider Blocks DOJ Appeals



A federal appeals court issued an opinion on Monday determining that a congressionally-approved provision can be invoked to block the Department of Justice from spending money to defend against appeals from people convicted of medical marijuana activity that was in compliance with state laws.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, which previously ruled in 2016 that the budget rider (known commonly as “Rohrabacher-Farr” or § 542) protects people who are complying with state medical cannabis laws from being prosecuted for their activities, went even further in the current opinion.

The case at issue concerns Noah Kleinman, who was sentenced to federal prison for various federal marijuana-related crimes on December 8, 2014, just weeks before Congress approved the medical cannabis protections.

“Preliminarily, we clarify that the government’s approach to this case is mistaken,” the court wrote in the Monday opinion. “[Kleinman] argues that § 542 prohibits continued DOJ expenditures on his case since its enactment, which in this case refers to the DOJ’s ongoing litigation on appeal. We determined in [the 2016 ruling] that § 542 can prohibit continued DOJ expenditures even though a prosecution was properly initiated prior to § 542’s enactment…and the same reasoning applies to continued expenditures on a direct appeal after conviction.”

Unfortunately for Kleinman, however, the court ruled that he personally cannot take advantage of the medical marijuana protections because not all of his cannabis actions were in strict compliance with California’s medical use program. Specifically, he was convicted of sending product out of the state, which is a violation of California law.

In the earlier 2016 Ninth Circuit case, known as McIntosh, the court ruled against Department of Justice arguments that the spending provision only stops the government from blocking the implementation of state medical marijuana laws and doesn’t shield patients or providers who are operating in accordance with those laws.

But the court made clear that because the spending rider only concerns individual annual appropriations bills, its protections for states and for persons are temporary.

“We note the temporal nature of the problem with these prosecutions,” the court wrote at the time. “The government had authority to initiate criminal proceedings, and it merely lost funds to continue them. 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.”

Now, in the opinion in Kleinman’s case, the court elaborates on its reasoning and adds the caveat that DOJ could be blocked from spending money to defend against appeals:

“§ 542 does not require a court to vacate convictions that were obtained before the rider took effect. In other words, when a defendant’s conviction was entered before § 542 became law, a determination that the charged conduct was wholly compliant with state law would not vacate that conviction. It would only mean that the DOJ’s continued expenditure of funds pertaining to that particular state-law-compliant conviction after § 542 took effect was unlawful. That is because, as we explained in McIntosh, § 542 did not change any substantive law; it merely placed a temporary hold on the expenditure of money for a certain purpose… When § 542 took effect, the DOJ was obligated to stop spending funds in connection with any charges involving conduct that fully complied with state law, but that temporary spending freeze does not spoil the fruits of prosecutorial expenditures made before § 542 took effect. Instead, as it pertains to this case, because § 542 became law after Kleinman’s conviction and sentence, but before this appeal, § 542 (if it applies at all) might operate to bar the DOJ from continuing to defend this prosecution on appeal insofar as it relates to those counts that may be determined to involve only conduct that wholly complies with California medical marijuana law.”

However, the court sidestepped the question of whether the medical marijuana protections prevent federal prisons, which fall under the Department of Justice, from spending money to incarcerate people convicted of state-legal medical cannabis activity.

In a footnote in the new opinion, Judge Milan D. Smith, Jr., on behalf of a three-judge panel of the court, said:

“Kleinman separately argues that § 542 compels the Bureau of Prisons, as a subdivision of the DOJ, to stop spending money to incarcerate persons for medical marijuana convictions based on activity that fully complies with state law. We need not resolve this issue in this case. As we have explained, at least two of Kleinman’s convictions fall outside the scope of § 542 because they involved conduct that violates California law. Those two convictions (Counts 1 and 6) carried the longest terms of imprisonment (211 months) and all terms for each count were sentenced to run concurrently. Thus, even if the DOJ could not separately continue to expend funds to incarcerate Kleinman on the remaining counts because of § 542, Kleinman’s custodial status would not be changed because § 542 does not bar his continued incarceration for his conspiracy convictions. Further, Kleinman makes no argument that the Bureau of Prisons would calculate his credit for early release any differently without those concurrent sentences. Thus, we do not decide in this case the impact of § 542 on the Bureau of Prisons’ expenditure of funds to incarcerate persons who were convicted only of federal drug offenses involving conduct that was fully compliant with state medical marijuana laws.”

The state medical cannabis protections temporarily expired over the weekend as part of a federal government shutdown, but have now been extended through February 8 as part of a short-term appropriations deal. It is unclear if they will be included in a longer-term Fiscal Year 2018 spending package that congressional leaders are currently negotiating.

Government Shutdown Would Let Sessions Attack Medical Marijuana

(The new Ninth Circuit opinion is actually an amended version of a ruling the court issued last June, and adds additional analysis about other aspects of Kleinman’s case which don’t directly concern the congressional rider. While the original opinion received some press coverage, most of it focused on jury nullification aspects of the case and the broader interpretation of the medical cannabis protections to cover the appeals process was mostly overlooked at the time.)

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Tom Angell is the editor of Marijuana Moment. A 20-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he founded the nonprofit Marijuana Majority. Previously he reported for and MassRoots, and handled media relations and campaigns for Law Enforcement Against Prohibition and Students for Sensible Drug Policy.


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