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Title: Neil Gorsuch Sympathizes With Drug Dealers
Source:
Reason
URL Source: https://reason.com/blog/2017/02/06/ ... ch-sympathizes-with-drug-deale
Published: Feb 6, 2017
Author: Jacob Sullum
Post Date: 2017-02-07 07:30:44 by Deckard
Keywords: None
Views: 3585
Comments: 12
In his 2006 book about assisted suicide, Supreme Court nominee Neil Gorsuch takes issue with the "libertarian principle" that requires legalization of the practice. The same principle, Gorsuch argues, would also require the government to allow "any act of consensual homicide," including "sadomasochist killings, mass suicide pacts...duels, and the sale of one's life (not to mention the use of now illicit drugs, prostitution, or the sale of one's organs)." That's right: If the government lets people kill themselves, it might also have to let them smoke pot. Despite the horror of taboo intoxicants suggested by that passage, Gorsuch does not seem to be blinded by pharmacological phobia when he hears drug cases. Two opinions he wrote in 2015—one involving mens rea, the other the Fifth Amendment's ban on compelled self-incrimination—demonstrate a sophisticated understanding of drug policy issues and suggest Gorsuch is less eager than some judges to facilitate enforcement of prohibition by compromising civil liberties. In U.S. v. Makkar, a 2015 case involving Oklahoma convenience store owners arrested for selling "incense" containing a synthetic cannabinoid, Gorsuch noted that the merchants, Iqbal Makkar and Gaurav Sehgal, seemed to be concerned about complying with the law: When questions surfaced about the incense they carried on their shelves, the men spoke with state law enforcement officers, offered to have the officers test the incense to determine its legality, and offered as well to stop selling the product until the results came in. But this cooperation with state authorities apparently won the men little admiration from federal investigators: soon enough they found themselves under indictment and convicted for violating the Controlled Substance Analogue Enforcement Act (Analogue Act), conspiracy, and money laundering. Writing for a three-judge panel of the U.S. Court of Appeals for the 10th Circuit, Gorsuch agreed with Makkar and Sehgal that they had been improperly convicted under the Analogue Act, "a curious animal" that is meant to criminalize production and distribution of psychoactive substances that are not explicitly prohibited by the Controlled Substances Act (CSA). To be covered by the Analogue Act, according to the Supreme Court's interpretation, a substance must be substantially similar in chemical structure and effect to a drug listed in Schedule I or II of the CSA. To convict a supplier of violating the Analogue Act, the government must prove he knew the drug had these features or knew the drug was banned by that law or by the CSA. Gorsuch noted in passing that the Supreme Court's construction of the Analogue Act may not adequately address "vagueness concerns," since "it's an open question...what exactly it means for chemicals to have a 'substantially similar' chemical structure—or effect." In any case, he said, prosecutors failed to prove that Makkar and Sehgal met the law's men rea requirements. "The government didn't attempt to show that Mr. Makkar or Mr. Sehgal knew the incense they sold was unlawful under the CSA or Analogue Act," he writes. No did it try to show the defendants knew the incense contained a substance with a chemical structure similar to that of a Schedule I or II drug. "As far as we can tell," Gorsuch said, "at trial the government introduced no evidence suggesting that the defendants knew anything about the chemical structure of the incense they sold." Instead prosecutors convinced the trial judge to approve "an instruction permitting the jury to infer that the defendants knew the incense they sold had a substantially similar chemical structure to JWH–18 [a synthetic cannabinoid] from the fact they knew the incense had a substantially similar effect to marijuana." That inference is "scientifically unsound," Gorsuch noted, because two substances can have similar effects despite having very different chemical structures. In effect, "the government asked for and won the right to collapse its two separate elemental mens rea burdens into one." Not cool: A court may not "issue instructions that effectively relieve the government of proving each essential element specified by Congress." Gorsuch also faulted the trial court for not letting Makkar and Sehgal "introduce evidence showing that they asked state law enforcement agents to test the incense to assure its legality under state law—and that they offered to stop selling the incense until the results came in." In light of these legal errors, Gorsuch said, the convictions cannot stand, and "it's unclear at this point whether the men can be lawfully retried consistent with the law's demands." Gorsuch—like Antonin Scalia, the late justice he would replace—is a stickler when it comes to requiring the prosecution to prove all the elements of a criminal offense, so it is not surprising he objected to the shortcut the government attempted in this case. His comments about the "vagueness concerns" raised by the Analogue Act are also reminiscent of Scalia, who took seriously the government's duty to give people clear warning of which acts constitute crimes, a basic requirement of due process. In fact, Gorsuch likened the Analogue Act to the Armed Career Criminal Act, the vagueness of which offended Scalia. Gorsuch noted that the "residual clause" of that law serves a function similiar to the Analogue Act, since it "extends the statute's punishments to other, unspecified offenses that can claim similarity to listed ones." In another 2015 case, Feinberg v. Commissioner of Internal Revenue, Gorsuch recognized the weird legal predicament of state-licensed marijuana businesses, which are still treated as criminal enterprises under federal law. The case involved Total Health Concepts, a medical marijuana dispensary in Denver owned by Neil Feinberg, Andrea Feinberg, and Kellie McDonald. The Feinbergs and McDonald challenged the federal law that prevents state-legal marijuana suppliers from claiming business expenses on their tax returns. In response to their lawsuit, the IRS demanded information about their business, which they declined to provide, since it would implicate them in federal felonies. The IRS obtained a U.S. Tax Court order compelling Feinberg et al. to produce the evidence, and they asked the 10th Circuit to overturn that order on Fifth Amendment grounds. The 10th Circuit ultimately concluded that it should not intervene before the tax court had issued a final order in the case. But Gorsuch noted the self-contradictory logic employed by the IRS in defense of the order: Officials at the Department of Justice have now twice instructed field prosecutors that they should generally decline to enforce Congress's statutory command when states like Colorado license operations like THC. At the same time and just across 10th Street in Washington, D.C ., officials at the IRS refuse to recognize business expense deductions claimed by companies like THC on the ground that their conduct violates federal criminal drug laws. So it is that today prosecutors will almost always overlook federal marijuana distribution crimes in Colorado but the tax man never will.... The Fifth Amendment normally shields individuals from having to admit to criminal activity. But, the IRS argued, because DOJ's memoranda generally instruct federal prosecutors not to prosecute cases like this one the petitioners should be forced to divulge the requested information anyway. So it is the government simultaneously urged the court to take seriously its claim that the petitioners are violating federal criminal law and to discount the possibility that it would enforce federal criminal law. Gorsuch questioned whether the DOJ's policy of restraint, which was completely discretionary and could be reversed at any point, obviated Feinberg et al.'s concerns about self-incrimination: In light of questions and possibilities like these, you might be forgiven for wondering whether, memos or no memos, any admission by the petitioners about their involvement in the marijuana trade still involves an "authentic danger of self-incrimination." Maybe especially given the fact that the government's defense in this case is wholly premised on the claim that the petitioners are, in fact, violating federal criminal law. And given the fact that counsel for the government in this appeal candidly acknowledged that neither the existence nor the language of the DOJ memoranda can assure the petitioners that they are now, or will continue to be, safe from prosecution. And given the fact that this court has long explained that, once a witness establishes that "the answers requested would tend to incriminate [him]" under the law of the land, the Fifth Amendment may be properly invoked without regard to anyone's "speculat[ion] [about] whether the witness will in fact be prosecuted." Although these ruminations had no practical effect in this case, they suggest a judge who is sensitive to the problems created by the federal government's continued enforcement of a prohibition policy that most states have rejected. Give the next attorney general's objections to marijuana federalism, that conflict could come before the Supreme Court sometime in the next few years. The SCOTUS nominee plumbs the peculiarities of prohibition in cases involving imitation pot and medical marijuana.
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#1. To: Deckard (#0)
It makes sense to me that the Justice Department does not generally prosecute federal marijuana crimes in states that have legalized the substance, but that the IRS does not permit federal deductions for the expenses of engaging in an illegal enterprise. It makes perfect sense, really: the people avoid jail for their federal crime, but they do not get off Scot free and the federal law is not disregarded, it is simply converted into a tax penalty. It's a good, civilized way to handle these federalist disputes. Your state lets you do something illegal under federal law? That's fine - we won't come in and override the state within the state (unless it's something like slavery or killing people), but states don't get to nullify the federal law either, and the tax law applies to everybody.
Damn straight...MUD "Devolve Power Outta the Federal Leviathan and Back to the States, No. It demonstrates the problems created when the federal government refuses to enforce federal laws already on the books.
That's kinda sloppy ain't it? By that token California, Texas, New Mexico and Arizona can approach immigration law in any way they wish. Taking it to another level, state and municipalities can refuse to prosecute felonies and misdemeanors committed by illegal immigrants. . . (oops!) We can be too "civilized." So civilized that we not only ignore conflict of laws, we begin to ignore our laws entirely. Sometimes I wonder just what kind of a shithouse we're running here anyway.
You're missing my point.
I may have. But what I see is this: "Your state lets you do something illegal under federal law? That's fine . . ." It's one thing to say that perhaps federal law has been allowed to intrude too far upon the rights of state and individual citizen of those states, and there are many here that would agree with that proposition for many reasons. But setting that question aside, trading enforcement of controlled substances provision for taxation, which seems to be a neat way of solving some of the problems prohibition has created, leaves code on the books hanging out there. It seems to me that non-enforcement is part of a corrosive tendency that is infecting our system in many of its limbs and organs. 8 USC 212(f) says "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." Shortly we will hear from a FEDERAL COURT that "any aliens or of any class of aliens" does not mean what it says. It means something else entirely. Words are re-legislated by judges or bureaucrats to suit the passing fancy of this or that group. Every day we see that increasingly the federal code does not mean what it says. That breeds disrespect for the federal law. Scrap the code or enforce what is on the books. Doing otherwise is a symptom of a tired system in disrepair. I respect your writings here. You are man who knows what he's talking about. If I've missed the point, please school me.
I respect your writings here. You are man who knows what he's talking about. If I've missed the point, please school me. Thanks for the kind words. By "fine", I didn't really mean that it was ok. I was using the term conversationally, as in "Oh, so you're going to do THAT, are you? And you're going to rely on the fact that I can't dig you out. Ok then, FINE, I'll just do THIS instead. I agree with you that it would be wonderful if we thinned out the statute books. Trump is doing that with regulations, or says he's going to try. In an ideal world, that would happen. But in the real world, it won't, and popular pressure in some states, left wing ones, has simply overridden federal law on drugs and established their own. They're not going to back down, and the President is not going to declare a rebellion and send in the army over it. So we have an impasse: drugs are illegal, but they're legal THERE, with all of the consequences that brings. Politically that can't be undone quickly. What CAN be done, though, is to enforce the part of the law that is still easily enforced: grab the money and don't let the BUSINESSES make anything like the profits they'd like. Force people in states where pot is legal who want to grow it to sell to be disadvantaged relative to legitimate lines of work, by not letting them deduct the costs of doing business. This makes perfect sense in an imperfect world. It takes the joy out of the breaking of federal law for the businessmen engaged in it, puts them at a massive disadvantage relative to legitimate work, exposes them to tax fraud prosecution when they lie, and also leaves them exposed to the fully illegal mafia who want that turf. They can still do it, but they'll pay out the nose and hurt for it. In that way, by going after their wallets and putting them in Catch-22 situations, you punish them quite harshly for trying to profit from a state getting away with flouting Federal law. They don't REALLY get away with it. If you can't take the castle by force, besiege it and throw infected carcasses over the wall so they all get diseases and die inside. Takes longer, is nastier, and in the end might not succeed, but the defiant people who raised the fist of armed rebellion when they should not STILL pay dearly and suffer a lot, even if at the end some of them survive and their cause wins. The British didn't HAVE to burn Washington DC. It served no military purpose at all. It wasn't going to conquer America. It was just plain nasty. But it taught the Americans a lesson: fear. We can't conquer you, but we CAN land forces and burn all of your cities, pretty much at will., AND WE WILL, so don't think you can just keep going to war with us. You're not strong enough. It's like the Cuba embargo. It's sort of being lifted. The Cubans "won", but it cost them 50 years of their development they will never get back. And it didn't hurt us at all. So even if you can't enforce the whole law, when people are defiant you can still hurt them, annoy them, destroy individuals, and teach them to fear, so they are no so hasty to think they can just go break ANOTHER law, and then another. They "win" the point, but they pay for it. Growing marijuana is illegal. A state rebels and protects it. That's fine. But you can't protect the MONEY of the pot growers. So, the broader government can still make its law felt by confiscating the money of the growers, through taxes. And it can essentially imprison the growers in their states as well, because they could be arrested in other places. Make them pay the cost of defiance. They may win in the end, but they'll be crippled for life for having done it. That discourages many other people from trying it. That was my point, really.
That's very interesting, but I don't know if you can provide a legal alternative to a black market while making the alternative only marginally attractive and financially questionable. The problem is that we've become too accustomed to a bad habit that now requires sustained feeding. Pot is too easy to grow - just like it's too easy to distill liquor. You can buy a still on ebay. I'm sorry to say that we won't be rid of this cultural accretion in our lifetimes no matter what gov't state or federal does.
The problem is that we've become too accustomed to a bad habit that now requires sustained feeding. Pot is too easy to grow - just like it's too easy to distill liquor. You can buy a still on ebay. I'm sorry to say that we won't be rid of this cultural accretion in our lifetimes no matter what gov't state or federal does. We will never be free of murder or rape or any other social ill either. Legislating against things and punishing those who break the law doesn't fully stop anything. But what it DOES do is torture those who choose to be defiant, breaking their lives and leaving their broken lives as public examples for everybody else. Sure, you can defy us, and we cannot stop you all. But we can catch SOME of your defiant assholes, and when we do, we will torture you and wreck your lives. You will never recover from it - your life will be effectively over. You will be in poverty, despised as a criminal, and unable to get a good life for yourself. You will have to live out your days with the other low lives with whom you chose to cast your lot. And WE DON'T CARE that you suffer, because you defied us. We WANT you to suffer and die miserably, and an EXAMPLE to the REST of people that defying the law has consequences. There is a place for cooperative, law abiding citizens in our society, and we will help you out. You may not have a lot, there will always be problems. But if you decide to stick up your middle finger at our rule of law, and do it your way in defiance of us, who do have the power, it's true we don't have the power to stop it all, but we DO have the power to torture you, if we catch you, and keep on torturing you and limiting you for the rest of your life, and you will. And young people look at that and see that if they get themselves in trouble, a whole apparatus of society monitors criminal records and keeps on beating and tormenting criminals their whole lives. So choosing to go into crime is choosing to have the vast apparatus of social power beat you and keep beating you for the rest of your life. It's a test of the young. Those who pass it can go on to have middle class lives and better, and have peace, and have the chance to raise children in peace, all of the nice things of our society. We enforce the rules for our own benefit. One of the benefits that power gives us is the power to torture and keep on torturing, forever, those who give us the finger. Yep, you made money on that drug run, but we eventually caught you, and now you will NEVER have a good job - we won't hire you, we will track you, we will sweep away every good thing you have. And the police won't "treat you fair" because you're a defiant lawbreaker and we WANT the police to beat down and break the heads and teeth, and lives, of the defiant. We HIRE police to do that, not simply to keep the criminals AWAY from our middle class neighborhoods, but ALSO to crush any OTHER WAY to get to a nice life other than the lawful way we have ordained. Drug dealers COULD make nice lives for themselves, but the police are there to ACTIVELY TAKE IT ALL AWAY and NEVER let those people have peace. The point is that you might make some money, but you can NEVER HAVE WHAT WE HAVE - you can never have the peace, because our agents will actively, relentlessly, seek to take it away from you, to break you. Civil forfeiture is theft, but it's legal theft. Your money belongs in a bank, where we can monitor it and where we can freeze it if you start to break the law. The whole point of the system is that it is efficient for those who are within the system and obey the laws, but that it is lethal, toxic and aggressively destructive of any COMPETING system, so that the CHOICE is to obey the law and get in line, or face torment and poverty, BY OUR AGENTS, for the rest of your life. It is not INTENDED to be "fair". It is INTENDED to give people the choice of being law abiding, or being victims of endless torture in the arena. This not for our amusement (though, make no mistake, millions DO enjoy the suffering of the criminal class, for the same reasons overseers and slavemasters enjoyed a good whipping: it reminds everybody of their place). It is necessary for the survival of our system. Law and order, and middle class life, requires a lot of sacrifices. There are easier ways to get buy with more than to have to submit to 17 years of education, bosses, taxes, laws. But middle class life is safer, longer lived, more secure, and just generally BETTER for more people than any of the alternatives. It cannot be sustained, however, if people drug themselves out - the intellectual level and levels of obedience and attention required to sustain middle class economics cannot be sustained with people whose brains are damaged by drugs. Alcohol kills people at home, but they can still work. Cigarettes kill people at retirement age, but they can still work. Drugs anesthetize the pain now, and make people less obedient and less educated - because they won't endure the pain required to GET educated. And therefore, drugs - unlike tobacco and alcohol - are a threat to our way of life. Also, drug dealers make money selling poison, and its hard for middle class to keep their children on the path of education and obedience. Because education and obedience are HARD, they are not in our nature. They are what permit us to live to 80, instead of 28, and they let us live in nice houses and clothes, with heat and a good food supply and safety. But they come at a price. We're not Vikings living in huts and raiding, and we're not Indians riding the high plains. We are NOT FREE TO DO WHATEVER THE FUCK WE WANT, because if we DO that, the whole system will all fall apart. And yes, sacrificing all that liberty and initiative it WORTH IT to triple our lifespans, in peace, and die in bed rather than screaming at the end of an enemy's gun. The bulk of society has made the trade, but their children have not. Children have to be brought up and disciplined to obey law and rules that constrain them more than they'd like to be constrained RIGHT NOW, so that they can live to 80 or 90 and not die of AIDS at 23 like lawless Africans. Individuals won't make the wise trades, particularly young people, so their parents have to guide them, and society has to provide the support, the pillars, the guardrails, to help parents. Drug dealers offer the young an escape from the hard work of growing up to be a hardworking citizen. They offer immediate relief from the stress and pain. We invest so much energy, pain and money in our children. We simply don't want to see our investment lost, and their lives destroyed, by drugs they take to escape the painful process of growing and being disciplined to be a modern man or woman. We don't want them to have access to the drugs that let them escape that - and that stunt their ability to rise. So we have outlawed the drugs. This has made an economic niche for those willing to break the law. In truth, therefore, we want to kill the drug peddlers, but we don't go that far. What we DO do is torment them for life. We give them records and beat them down and speak of them and treat them as human shitstains. We put them in prisons where they are beaten and raped. This makes them tougher, and more criminal, and ultimately leads to the day when our bull-necked, 'roid- raging cops CAN shoot them down for something. And we hold their lives up as examples to everybody else, particularly child, of why crime doesn't pay, and why it's best not to slide into drugs. The kids who avoid drugs end up being the social and economic superiors of those who did them, in virtually all cases. And the ones who did them but survived and joined the middle class, see what snakes drug dealers are who would addict THEIR children. And so the whole society is hostile - inveterately hostile - to drug dealers, the sale of drugs. Hence the desire to NOT legalize, the desire to crush, the desire to make an example. California, Colorado, Massachussetts have decided they're going to vote to be able to smoke pot when they want to. The country at large does not agree, the federal law has no changed. It is, therefore, very important that the people involved in the drug trade continue to be tormented and have their lives wrecked by federal power, and sudden intrusions and confiscations. Most of us don't agree with what Mass. and Cali and Colo have done here. We have not changed the laws. There's no reason to cave and let them just defy us and have nice lives. They have defied us, so now it is important to torture them so they cannot ever get comfortable. They choose to be defiant, so we choose to make their lives as miserable as we can, using the awesome power of government to do it. That's the way the world works, and if we want to have middle class society, it has to.
You can't. And you don't have to try. People can engage in the black market. And if you catch them, you destroy their lives in a public spectacle as an example to the rest not to do that. Their suffering serves as useful instruction for everybody else.
Unimaginable things in the time of our parents and their neighbors and their parents and neighbors. Who would have ever conceived the notion of smoking and herb or sniffing a powder for a thrill? My father liked to have a beer now and then socially and with some good chow. He once said to me: "Son, I love a cold beer, but if all the breweries in the world burned down tomorrow, I wouldn't shed a tear." He realized, although he might not have said so in so many words, that alcohol is a luxury, and no one's life is diminished much by its absence. That's how it is in my experience with everyone I've known that's smoked pot. I can't see that pot has improved their lives in any way, and most could have lived their live to better advantage without it. For some it was a springboard to serious substance abuse. I really haven't seen much good come of it. We really don't see people seriously questioning how this change in our mores and habits came about. It's plain to me that there's a conscious hand behind all this. There is a mortal force at work that does not love the rest of us at all. Some joker set a snare for a generation knowing that a trap once sprung cannot be unsprung. And we're stuck with it. In the myth of Pandora - the Greek Eve - all the ills of the world escape from the jar she's opened, but Hope is in there too, unable to free herself, and she remains trapped there forever when Pandora shuts the lid.
No, accepting an absurd libertarian principle would require a legal recognition of absurd results. Federal law does not prevent state marijuana suppliers from claiming business expenses on their tax returns. That is just bullshit. The actual opinion states, "officials at the IRS refuse to recognize business expense deductions claimed by companies like THC on the ground that their conduct violates federal criminal drug laws." These dirtbags, involved in an unlawful business, wanted their claimed business deductions along with an exemption from documenting what they were claiming. Federal law did not prevent Al Capone from declaring his income, from all sources, and sent him to prison for his failure to do so. The Feinbergs and McDonald were involved in unlawful activity. That they engage in this unlawful activity does not relieve them of their responsibility to file accurate tax returns. - - - - - - - - - - And, what the hell, when all else fails just read the actual court opinion without the special sauce added by the yellow journalist. [boldface added] Neil FEINBERG; Andrea E. Feinberg; Kellie McDonald, Petitioners, No. 15–1333. Decided: December 18, 2015 Before GORSUCH, HOLMES, and MORITZ, Circuit Judges.James D. Thorburn of The Law Office of James D. Thorburn, LLC, Greenwood Village, CO (Richard A. Walker of The Law Office of Richard A. Walker, P.C., Longmont, CO, with him on the petition) for Petitioners. Patrick J. Urda, Attorney, Appellate Section, Tax Division (Caroline D. Ciraolo, Acting Assistant Attorney General, Tax Division, and Gilbert S. Rothenberg and Richard Farber, Attorneys, Appellate Section, Tax Division, with him on the response) of the United States Department of Justice, Washington, D.C., for Respondent. This case owes its genesis to the mixed messages the federal government is sending these days about the distribution of marijuana. The Feinbergs and Ms. McDonald run Total Health Concepts, or THC, a not-so-subtly-named Colorado marijuana dispensary. They run the business with the blessing of state authorities but in defiance of federal criminal law. See 21 U.S.C. § 841. Even so, officials at the Department of Justice have now twice instructed field prosecutors that they should generally decline to enforce Congress's statutory command when states like Colorado license operations like THC. At the same time and just across 10th Street in Washington, D.C ., officials at the IRS refuse to recognize business expense deductions claimed by companies like THC on the ground that their conduct violates federal criminal drug laws. See 26 U.S.C. § 280E. So it is that today prosecutors will almost always overlook federal marijuana distribution crimes in Colorado but the tax man never will. Our petitioners are busy fighting the IRS's policy. After the agency disallowed their business expense deductions and sent them a large bill, the Feinbergs and Ms. McDonald challenged that ruling in tax court. Among other things, they argued that the agency lacked authority to determine whether THC trafficked in an unlawful substance and, as a result, they suggested that their deductions should have been allowed like those of any other business. As the litigation progressed, though, the IRS issued discovery requests asking the petitioners about the nature of their business—no doubt seeking proof that they are indeed trafficking in marijuana, just as the agency alleged. The Feinbergs and Ms. McDonald resisted these requests, asserting that their Fifth Amendment privilege against self-incrimination relieved them of the duty to respond. It's here where the parties' fight took an especially curious turn. The IRS responded to the petitioners' invocation of the Fifth Amendment by filing with the tax court a motion to compel production of the discovery it sought. Why the agency bothered isn't exactly clear. In tax court, after all, it's the petitioners who carry the burden of showing the IRS erred in denying their deductions—and by invoking the privilege and refusing to produce the materials that might support their deductions the petitioners no doubt made their task just that much harder. See Tax Ct. R. 142(a)(1). And harder still because in civil matters an invocation of the Fifth Amendment may sometimes lawfully result in an inference that what you refuse to produce isn't favorable to your cause. See, e.g., Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Still, the IRS chose to pursue a motion to compel. And in support of its motion the agency advanced this line of reasoning. Yes, of course, the IRS said, it thinks THC's deductions are impermissible precisely because they arise from activity proscribed by federal criminal statutes. Yes, the Fifth Amendment normally shields individuals from having to admit to criminal activity. But, the IRS argued, because DOJ's memoranda generally instruct federal prosecutors not to prosecute cases like this one the petitioners should be forced to divulge the requested information anyway. So it is the government simultaneously urged the court to take seriously its claim that the petitioners are violating federal criminal law and to discount the possibility that it would enforce federal criminal law. Ultimately, the tax court sided with the IRS and ordered the petitioners to produce the discovery the agency demanded—and it is this ruling the Feinbergs and Ms. McDonald now ask us to overturn. Because the tax court proceedings are still ongoing and no final order exists that might afford this court jurisdiction in the normal course, the petitioners seek a writ of mandamus. But, of course, courts of appeals only rarely intervene in ongoing trial court proceedings, and winning a writ of mandamus poses a special challenge. To secure a writ, the petitioners must show that no other adequate means exist to secure the relief they seek. They must also show a clear and indisputable entitlement to that relief. And even if they can satisfy these two requirements, the petitioners still must convince this court that exercising its discretion to intervene in an ongoing trial court proceeding is “appropriate” in the interests of justice. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81 (2004); Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 (1976); United States v. Copar Pumice Co., 714 F.3d 1197, 1210 (10th Cir.2013).1 When it comes to establishing a clear and indisputable entitlement to relief, you might wonder if the petitioners are indeed able to bear the burden the law imposes on them. Of course it's true, as the IRS argues, that to invoke the Fifth Amendment you must “face some authentic danger of self-incrimination.” United States v. Rivas–Macias, 537 F.3d 1271, 1277 (10th Cir.2008) (internal quotation marks omitted). And it's true, as the IRS stresses, that two consecutive Deputy Attorneys General have issued memoranda encouraging federal prosecutors to decline prosecutions of state-regulated marijuana dispensaries in most circumstances.2 But in our constitutional order it's Congress that passes the laws, Congress that saw fit to enact 21 U.S.C. § 841, and Congress that in § 841 made the distribution of marijuana a federal crime. And, frankly, it's not clear whether informal agency memoranda guiding the exercise of prosecutorial discretion by field prosecutors may lawfully go quite so far in displacing Congress's policy directives as these memoranda seek to do. There's always the possibility, too, that the next (or even the current) Deputy Attorney General could displace these memoranda at anytime—by way of illustration look no further than DOJ's (still) evolving views on corporate waivers of the attorney-client privilege expressed in so many memoranda by so many Deputy Attorneys General over so many years.3 In light of questions and possibilities like these, you might be forgiven for wondering whether, memos or no memos, any admission by the petitioners about their involvement in the marijuana trade still involves an “authentic danger of self-incrimination.” Maybe especially given the fact that the government's defense in this case is wholly premised on the claim that the petitioners are, in fact, violating federal criminal law. And given the fact that counsel for the government in this appeal candidly acknowledged that neither the existence nor the language of the DOJ memoranda can assure the petitioners that they are now, or will continue to be, safe from prosecution. And given the fact that this court has long explained that, once a witness establishes that “the answers requested would tend to incriminate [him]” under the law of the land, the Fifth Amendment may be properly invoked without regard to anyone's “speculat[ion] [about] whether the witness will in fact be prosecuted.” United States v. Jones, 703 F.2d 473, 478 (10th Cir.1983). But even if their Fifth Amendment objection bears merit, the petitioners still face a problem. As we've seen, a writ of mandamus isn't available when an appeal in the normal course would suffice to supply any necessary remedy. And in Mid–America's Process Service v. Ellison, 767 F.2d 684 (10th Cir.1985), this court expressly held that any error in a district court's order compelling production of civil discovery that the petitioners believed protected by the Fifth Amendment could be satisfactorily redressed in an appeal after final judgment. Id. at 685–86. A holding that would seem to cover the very situation we now face. Admittedly, the government unearthed Mid–America's Process only after briefing in this appeal finished, citing the case for the first time in a supplemental letter to the court. But the petitioners have now had a chance to consider and reply to the government's submission concerning Mid–America's Process. And, in our judgment, they have identified no satisfactory way to distinguish the decision. The petitioners do argue that their case involves the Fifth Amendment rights of natural persons, while Mid–America's Process involved a corporation's claim to a Fifth Amendment privilege against self-incrimination. And, they note, the Supreme Court has cast doubt on the viability of corporate invocations of the privilege. See Braswell v. United States, 487 U.S. 99, 116 (1988). But while not without some surface appeal, we don't see how on more careful examination this distinction will do. For Mid–America's Process expressly looked past the corporate form of the claimant in that case, took account of the individual petitioners' underlying privilege claims, and held that an appeal after final judgment would suffice to remedy any individual injury as well. See 767 F.2d at 685–86 & n.1.4 Besides, even if Mid–America's Process didn't control this case (it does) the petitioners still offer us no persuasive reason for thinking an appeal after final judgment would fail to remedy any wrong they might suffer. Suppose the petitioners are right and the tax court's order compelling production violates their Fifth Amendment rights. If they defy the tax court's order and that court issues an improper monetary or other sanction, this court would seem well able to undo the sanction after final judgment. By contrast, if the petitioners choose to comply with the discovery order under protest and the materials they produce are unlawfully used against them at trial, this court would still seem to enjoy ample authority to offer a remedy, maybe even in the form of a new trial without resort to the materials in question. Of course there are nuances here, but even they seem like they can be fairly addressed later. For example, if the petitioners stand on their privilege we would face the difficulty of separating out a permissible adverse inference (sometimes employable, as we've seen, in civil cases even when the Fifth Amendment is validly invoked) from an impermissible sanction. But no one suggests that task is beyond us after final judgment. Similarly, if the petitioners choose to produce the discovery under compulsion we might have to confront the question whether any error by the tax court in ordering production was harmless and so beyond our power to remedy after final judgment. But that sort of inquiry seems built into the mandamus standard too. See, e.g., Petersen v. Douglas Cty. Bank & Trust Co., 940 F.2d 1389, 1392 (10th Cir.1991). Neither is it clear that an erroneous order compelling production in this civil case would yield an unremediable negative impact for the petitioners in a later criminal proceeding. For should they elect, under threat of sanction, to comply with the tax court's order—and should it turn out that order was entered in error—the petitioners might later move to suppress any of the evidence they produced on the ground that the production was made involuntarily—a point even the government in this appeal does not dispute. See, e .g., Minnesota v. Murphy, 465 U.S. 420, 425, 434 (1984); Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977). In the end, then, the petitioners fail to offer a convincing reason to think that without an immediate remedy they will face an irreparable injury. Maybe we're missing something. Maybe a future party will show us what it is we're missing. But the petitioners have not done that much here. And that by itself supplies an independent reason, beyond even our controlling precedent, to withhold the extraordinary remedy of mandamus in this case. The petition is denied. FOOTNOTES 1. At times our cases have suggested that, when a petitioner seeks a writ of mandamus to vindicate a claim of privilege in response to an adverse discovery ruling, this court will apply a two-prong test before considering the merits of the petition—asking first whether “(1) disclosure of the allegedly privileged or confidential information renders impossible any meaningful appellate review of the claim of privilege or confidentiality; and (2) the disclosure involves questions of substantial importance to the administration of justice.” Barclaysamerican Corp. v. Kane, 746 F.2d 653, 654–55 (10th Cir.1984) (internal quotation marks omitted). The parties before us debate whether this test merely restates the traditional test for mandamus relief we've outlined in the text or whether it imposes a more onerous burden on the petitioner. Who's right, though, proves immaterial in light of our assessment that petitioners in this case fail even under the traditional mandamus standard. 2. See Memorandum from David W. Ogden, Deputy Att'y Gen., U.S. Dep't of Justice to Selected U.S. Att'ys (Oct. 19, 2009), revised by Memorandum from James M. Cole, Deputy Att'y Gen., U.S. Dep't of Justice (Aug. 29, 2013). 3. See Memorandum from Eric H. Holder, Jr., Deputy Att'y Gen., U.S. Dep't of Justice to All Component Heads & U.S. Att'ys (June 16, 1999), revised by Memorandum from Larry D. Thompson, Deputy Att'y Gen., U.S. Dep't of Justice (Jan. 20, 2003), revised by Memorandum from Robert D. McCallum, Jr., Acting Deputy Att'y Gen., U .S. Dep't of Justice (Oct. 21, 2005), revised by Memorandum from Paul J. McNulty, Deputy Att'y Gen., U.S. Dep't of Justice (Dec. 12, 2006), revised by Memorandum from Mark Filip, Deputy Att'y Gen., U.S. Dep't of Justice (Aug. 28, 2008), revised by Memorandum from Sally Q. Yates, Deputy Att'y Gen., U.S. Dep't of Justice (Sept. 9, 2015). 4. Despite the government's urging, we do not think the disposition of this appeal is controlled by Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009). Mohawk involved not a mandamus petition raising the Fifth Amendment privilege but an argument that a discovery order infringing upon the attorney-client privilege was an immediately appealable collateral order under the Cohen doctrine. Id. at 103. What's more, in dismissing the appeal, the Court in Mohawk relied on the fact that the appellant had at least three remaining options for challenging the discovery order: interlocutory appeal, writ of mandamus, or post-judgment appeal. Id. at 110–11. In contrast and given that the tax court denied the petitioners leave to file an interlocutory appeal, an adverse decision as to this petition would leave the petitioners with none but the final option. GORSUCH, Circuit Judge.
#2. To: Vicomte13, stoner, A K A Stone, goldilucky, randge, redleghunter (#1)
States/Localities: DEAL WITH IT!!
(Compliments of the Linux Fortune program.)
Localities, and Individuals as Prescribed in the US Constitution."
#3. To: Deckard (#0)
"... they suggest a judge who is sensitive to the problems created by the federal government's continued enforcement of a prohibition policy that most states have rejected."
#4. To: Vicomte13 (#1)
Your state lets you do something illegal under federal law
#5. To: randge (#4)
#6. To: Vicomte13 (#5)
You're missing my point.
#7. To: randge (#6)
Scrap the code or enforce what is on the books. Doing otherwise is a symptom of a tired system in disrepair.
#8. To: Vicomte13 (#7)
That discourages many other people from trying it.
#9. To: randge (#8)
That's very interesting, but I don't know if you can provide a legal alternative to a black market while making the alternative only marginally attractive and financially questionable.
#10. To: randge (#8)
I don't know if you can provide a legal alternative to a black market while making the alternative only marginally attractive and financially questionable.
#11. To: Vicomte13 (#10)
#12. To: Deckard (#0)
In his 2006 book about assisted suicide, Supreme Court nominee Neil Gorsuch takes issue with the "libertarian principle" that requires legalization of the practice. The same principle, Gorsuch argues, would also require the government to allow "any act of consensual homicide," including "sadomasochist killings, mass suicide pacts...duels, and the sale of one's life (not to mention the use of now illicit drugs, prostitution, or the sale of one's organs)." That's right: If the government lets people kill themselves, it might also have to let them smoke pot.
In another 2015 case, Feinberg v. Commissioner of Internal Revenue, Gorsuch recognized the weird legal predicament of state-licensed marijuana businesses, which are still treated as criminal enterprises under federal law. The case involved Total Health Concepts, a medical marijuana dispensary in Denver owned by Neil Feinberg, Andrea Feinberg, and Kellie McDonald. The Feinbergs and McDonald challenged the federal law that prevents state-legal marijuana suppliers from claiming business expenses on their tax returns.
United States Court of Appeals,Tenth Circuit.
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
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