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U.S. Constitution Title: Dopers Meet Reality - U.S. v. Walsh. 6th Cir. (29 Jun 2016 Dopers Meet Reality - U.S. v. Walsh. 6th Cir. (29 Jun 2016) http://cases.justia.com/federal/appellate-courts/ca6/15-1569/15-1569-2016-06-29.pdf?ts=1467216038 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 15-1569 (6th Cir. Jun 29, 2016) United States v. Walsh JANE B. STRANCH, Circuit Judge. NOT RECOMMENDED FOR PUBLICATION ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN OPINION BEFORE: KEITH, COOK, and STRANCH, Circuit Judges. JANE B. STRANCH, Circuit Judge. Phillip Joseph Walsh and Betty Lee Jenkins appeal the final judgments against them on one count of conspiracy to manufacture 100 or more marijuana plants and eleven counts of maintaining drug-involved premises. They raise several common claims on appeal, largely based on the district court's in-limine order precluding the defendants from introducing evidence regarding their compliance with Michigan's Medical Marihuana Act (MMMA). Jenkins also separately challenges the district court's denial of her motions to suppress statements and evidence collected during the search of her properties and challenges the reasonableness of her sentence. For the reasons set forth below, we AFFIRM the orders of the district court. Walsh and Jenkins were charged as co-conspirators (along with several others) and tried as co-defendants. On appeal, their cases were consolidated for the purposes of briefing and submission. [...] A. Claims Related to the District Court's In-Limine Order Walsh and Jenkins contend that the district court's order precluding them from arguing or introducing evidence related to their compliance with Michigan medical marijuana laws violated their due process right to present a defense. In light of Section 538 of the 2015 Appropriations Act, they contend that compliance with state law provides immunity and an affirmative defense against federal marijuana charges. In evaluating the charges against them, Walsh and Jenkins assert that the jury should have considered whether their manufacture of marijuana conformed to the MMMA. They further contend that the Government failed to comply with the district court's in-limine order to such an extent that it constituted prosecutorial misconduct. The Government responds that Walsh and Jenkins have waived these arguments, as they made no objection during trial and the arguments are raised for the first time on appeal. Even if they were not waived, the Government maintains, these claims afford no relief. 1. Evidence Relating to Michigan's Medical Marihuana Act A motion in limine is "made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." Luce v. United States, 469 U.S. 38, 40 n.2 (1984). It is "designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions." Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013) (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990)). The district court granted several of the Government's motions in limine, including motions to prevent Walsh and Jenkins from arguing or introducing evidence to suggest (1) marijuana has medical value, (2) their erroneous belief that their conduct was lawful, or (3) compliance with state law. As for the last, the Government cited People v. Redden, 799 N.W.2d 184 (Mich. Ct. App. 2010) (P.J. O'Connell, concurring), for the proposition that Michigan courts have "cautioned citizens and legal counsel not to rely upon the MMMA even for protection against criminal charges arising under state law." That concurring opinion advised that "[u]ntil our Supreme Court provides a final comprehensive interpretation of [the MMMA], it would be prudent for the citizens of this state to avoid all use of marijuana if they do not wish to risk violating state law." Redden, 799 N.W.2d at 204 n.10. In considering these motions, the district court noted that while conspiracy is a specific intent crime, conspirators must only have the "specific, willful intent to enter into the agreement with others and achieve the objective of the conspiracy," in this case, growing marijuana. The Government need not show that Walsh and Jenkins "intended to willfully violate federal drug laws or knew that their actions violated the Controlled Substances Act." The district court determined that a good faith belief in the legality of the operation was therefore irrelevant and, while this ruling hindered the ability of the defense to paint a complete picture, "irrelevant evidence is never admissible." Concluding that "the only reason to discuss compliance with Michigan's medical marijuana laws [was] to encourage jury nullification or establish a defense that [was] not valid," the court granted the Government's motion on this subject. [...] b. Analysis Marijuana is designated as a Schedule I drug by the federal Controlled Substances Act (CSA) due to its "high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment." Gonzales v. Raich, 545 U.S. 1, 14 (2005) (citing 21 U.S.C. §§ 812(b)(1) & (c)). By the terms of the Act, marijuana is "contraband for any purpose," and, "if there is any conflict between federal and state law" with regard to marijuana legislation, "federal law shall prevail" pursuant to the Supremacy Clause. Id. at 27, 29. The Supreme Court has further clarified that there is no medical necessity exception to the CSA prohibition on cultivation and distribution of marijuana. See United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 486 (2001). "Although state law may permit marijuana use for medicinal purposes under defined circumstances, federal law treats any possession, distribution, or manufacture of marijuana as a federal offense, and medical necessity is not a defense to a federal criminal prosecution for manufacturing or distributing marijuana." United States v. Brown, 801 F.3d 679, 693 (6th Cir. 2015) (citing Oakland Cannabis Buyers' Coop., 532 U.S. at 493-94). In Gonzalez v. Raich, the Supreme Court held that the CSA's prohibition of the manufacture and distribution of marijuana was a valid exercise of congressional power pursuant to the Commerce Clause. 545 U.S. at 29. The commerce power is "superior to that of the States to provide for the welfare or necessities of their inhabitants, however legitimate or dire those necessities may be." Id. (internal quotation marks omitted). This precedent proved fatal as applied to a case similar to the one now before us, where defendants challenged their federal conviction for manufacturing more than 100 marijuana plants on the basis that the CSA was "unconstitutional as applied to caregivers operating in compliance with the MMMA." United States v. Marcinkewciz, 543 F. App'x 513, 516 (6th Cir. 2013). There, we determined that defendants had offered no way to distinguish their arguments from those rejected by the Supreme Court, and we held them foreclosed by Raich. Id. Walsh and Jenkins contend that Section 538 of the 2015 Appropriations Act changed the legal landscape in which Raich was decided. In support, Walsh cites United States v. Marin Alliance for Medical Marijuana, a civil case from the Northern District of California that interpreted Section 538 to preclude enforcement of a permanent injunction prohibiting distribution of medical marijuana by a dispensary to the extent that it complied with California law. No. C 98-00086 CRB, 2015 WL 6123062, at *6 (N.D. Cal. Oct. 19, 2015). Section 538 states in relevant part: Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130 (2014) (extended until Dec. 11, 2015, by the 2016 Appropriations Act, Pub. L. No. 114-53, § 103, 129 Stat. 502 (2015)). After considering this plain language, and the relevant legislative history, the Marin Alliance court interpreted Section 538 to provide an exception to the rule that state law offers no defense to violations of federal marijuana law. The court acknowledged that "[t]he CSA remains in place" and committed to "enforce it to the full extent that Congress has allowed in Section 538, that is, with regard to any medical marijuana not in full compliance with 'State law [ ] that authorize[s] the use, distribution, possession, or cultivation of medical marijuana.'" Marin All., 2015 WL 6123062, at *4 (citing 2015 Appropriations Act § 538) (alterations in original). Walsh and Jenkins argue that Section 538 changed the legal environment surrounding medical marijuana, by "prohibit[ing] the Government from prosecuting individuals who are acting in accordance with their state's medical marijuana laws." Therefore, they conclude, the district court "violated Defendant's due process right to present a defense" by granting the relevant motion in limine, and by failing to "reconsider its decision in light of the enactment of Section 538," which deprived them of the opportunity to establish immunity or an affirmative defense under the MMMA. To demonstrate immunity, which Walsh contends is a question of law, "a defendant must prove by a preponderance of the evidence that at the time of the charged offense the defendant possessed a valid registry card, no more medicine than allowed under section 4, that the plants were kept locked in an enclosed facility, and that the charged conduct was for medical use." (Walsh Appellant Br. at 23) (citing People v. Hartwick, 870 N.W.2d 37, 42 (Mich. 2015)). For cases that fall outside of the immunity parameters, Walsh argues that Section 8 of the MMMA can provide an affirmative defense if a defendant establishes the existence of a bona fide physician-patient relationship, that the amount of marijuana was an amount reasonably necessary to prevent an interrupted supply, and that the alleged conduct was for medical use. (Walsh Appellant Br. at 24) (citing Mich. Comp. L. § 333.26428). He contends this is a question of fact. Id. (citing Hartwick, 870 N.W. at 56). We cannot conclude that the district court abused its discretion by precluding evidence of compliance with Michigan medical marijuana laws. Though the legal treatment of marijuana, both medical and recreational, has continued to change in the ten years since Gonzalez was decided, it remains good law. The district court granted the motions in limine on the basis that the manufacture and distribution of Schedule I drugs, including marijuana, is prohibited under the terms of the CSA. The district court explained that satisfaction of state law is not a defense to breaching federal law; thus, compliance with Michigan law is irrelevant when considering a defendant's guilt or innocence under federal law. Section 538 did not render this legal standard incorrect. While, by its terms, Section 538 instructs the Department of Justice on where to spend its funds with respect to marijuana cultivation and distribution, it was not an abuse of discretion to determine that Section 538 did not require the court to halt or alter this criminal prosecution in its final stages. The district court's failure to reconsider its order regarding the Government's motions in limine on the basis of Section 538, when the 2015 Appropriations Act came into effect just weeks before the trial and no party raised the matter at trial, is not a clear error of judgment. See Louzon, 718 F.3d at 560. [snip] Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 10.
#4. To: nolu chan (#0)
You highlighted the wrong parts - this is what sealed the deal: "While, by its terms, Section 538 instructs the Department of Justice on where to spend its funds with respect to marijuana cultivation and distribution, it was not an abuse of discretion to determine that Section 538 did not require the court to halt or alter this criminal prosecution in its final stages. The district court's failure to reconsider its order regarding the Government's motions in limine on the basis of Section 538, when the 2015 Appropriations Act came into effect just weeks before the trial and no party raised the matter at trial, is not a clear error of judgment."
True, but I don't believe they were in compliance with Michigan law to begin with. Meaning Section 538 wouldn't have protected them. Is this the real reason people wanted "medical" marijuana? To give them cover to set up a million dollar grow operation and engage in interstate distribution for recreational use? Sure looks that way.
Maybe not; I still don't see how that adds up to the generalization "Dopers Meet Reality". Did you mean only that THESE Dopers Met Reality? I'm sure that's why some wanted it - others, like me, wanted it because there's persuasive evidence for its medical benefits: "Until a nonsmoked rapid-onset cannabinoid drug delivery system becomes available, we acknowledge that there is no clear alternative for people suffering from chronic conditions that might be relieved by smoking marijuana, such as pain or AIDS wasting." - Marijuana and Medicine: Assessing the Science Base (1999), Institute of Medicine
True, but I don't believe they were in compliance with Michigan law to begin with. Meaning Section 538 wouldn't have protected them. Maybe not; I still don't see how that adds up to the generalization "Dopers Meet Reality". Did you mean only that THESE Dopers Met Reality? Jenkins and Walsh were only two defendants at the trial, but there was a bunch who pleaded guilty. For example, the doctor pleaded guilty, testified against Jenkins and Walsh, and got a deal for three months in Federal prison, and two years supervised probation, and paid a $25,000 fine, and forfeited property. Jenkins and Walsh and Dr. Kuldanek got Federal Bureau of Prisons numbers 18094-040 and 18095-040, and 18158-040. Federal prison is pretty real. Also pleading guilty were Kathleen Rosengren, Cynthia Wessel, John Christopher Placencia, Steven Hawkins, Parker Wilcoulter Smith. - - - - - - - - - - BETTY LEE JENKINS - - - - - - - - - - PHILLIP JOSEPH WALSH - - - - - - - - - - GREGORY A KULDANEK - - - - - - - - - - http://www.mlive.com/news/grand-rapids/index.ssf/2015/04/grand_rapids_doctor_sentenced.html Still, Dr. Gregory Kuldanek, 58, recognized he was breaking the law. Kuldanek was sentenced Monday, April 6, to three months in federal prison by U.S. District Judge Paul Maloney in Kalamazoo. The judge said Kuldanek will spend two years on supervised release once the prison term ends. Kuldanek was fined $25,000. He has already surrendered property at 13350 Seven Mile Road NE in Belding. [...] Kuldanek, whose practice focused on patients with HIV and AIDS, believed he was helping others by certifying patients for use of medical marijuana outside of his office. The government said he certified groups of patients at restaurants but sometimes did not meet them at all. Assistant U.S. Attorney Mark Courtade asked the judge to consider Kuldanek's help upon his arrest. Kuldanek testified against the alleged leaders, Betty Jenkins and Phillip Walsh, who await sentencing. [...] Perhaps it should be noted that Walsh presented no defense and called no witnesses.
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