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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: 3249
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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Begin Trace Mode for Comment # 12.
#12. To: Deckard (#0)
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.
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Top • Page Up • Full Thread • Page Down • Bottom/Latest 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.
Replies to Comment # 12.
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