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August 25, 2003


The opinion of the court was delivered by: Marilyn Patel, Chief Judge District


This action arises out of the seizure of approximately twenty-eight grams of marijuana by the United States Drug Enforcement Agency ("DEA"), pursuant to a warrant issued by this court. Petitioner Christopher Giauque filed a motion for return of the marijuana, arguing that the seizure constituted improper interference by a federal court in state court proceedings and challenging the constitutionality of the federal drugs as applied to his own simple possession of marijuana for personal medical use. For the reasons set forth below, the court rules on Giauque's motion as follows. [ Page 2]


I. Procedural History

On October 15, 1999, police arrested Christopher Giauque in Humboldt County and seized approximately twenty-eight grams of marijuana from his vehicle. Declaration in Support of Warrant of Arrest, Resp. Exh. 2. Giauque was charged with transporting marijuana; possessing marijuana while operating a motor vehicle; resisting, obstructing, and delaying an officer; and disturbing the peace. Criminal Complaint, Resp. Exh. 1. Pursuant to a negotiated plea, Giauque entered a plea of no contest to the single count of disturbing the peace in violation of California Penal Code section 415. Resp. Exh. 3. All other charges arising out of his April 24, 1999 arrest were dismissed.

On September 6, 2000, Giauque filed a motion in the state criminal case for the return of property seized by the Humboldt County Sheriff's Department incident to his arrest, including the marijuana. The parties stipulated that Giauque possessed a legitimate physician's recommendation card for the use of medical marijuana under California's Compassionate Use Act of 1996, Cal. Health & Safety Code § 11362.5.*fn1 See Order for Return of Property, Resp. Exh. 4 at 1 ("Order for Return of Property"). On January 18, 2001, Superior Court Judge W. Bruce Watson issued an order for return of Giauque's property including the marijuana. In so doing, Judge Watson explicitly found that under the facts before him, federal law did not "preempt the California voters from approving medical use of marijuana." See Order for Return of Property, at 1-2.

After Humboldt County Sheriff Dennis Lewis failed to follow the court's order and return the marijuana to Giauque, the court issued an order to show cause on March 26, 2001, followed by an order for contempt with a stay of enforcement filed on May 7, 2001.

On March 30, 2001, the County of Humboldt and the Humboldt County Sheriff's Department, by and through Sheriff Lewis, filed a Complaint for Interpleader and Declaratory relief in this court against Giauque, the United States Department of Justice, the Drug Enforcement Administration, and several unnamed "John Doe" federal defendants. The action sought a determination as to who was entitled to the subject marijuana. Petitioner responded with a motion to dismiss and discharge of stakeholder. [ Page 3]

On May 23, 2001, the United States Drug Enforcement Agency presented an application for issuance of a seizure warrant, pursuant to 21 U.S.C. § 881, allowing seizure and forfeiture of the marijuana at issue, to United States District Judge Charles A. Legge, to whom the civil interpleader action had been assigned. Judge Legge issued the warrant, and the subject marijuana was turned over to the Department of Justice. In issuing his decision, Judge Legge stated, "[B]ecause I am, shall I say, trumping the jurisdiction of the state court, I believe that the state court's ruling [on the legality of medical marijuana under federal law] was in error." Transcript of Proceedings, May 23, 2001, Resp. Exh. 7 at 4. On June 8, 2001, Judge Legge dismissed the civil interpleader action as moot. Following Judge Legge's retirement from the bench, the matter was transferred to this court for resolution.

On July 25, 2001, Giauque filed a motion for return of property pursuant to Federal Rule of Criminal Procedure 41(e). After discovery on the issue of Giauque's medical need, Giauque and the United States filed cross-motions for summary judgment on August 7, 2002. This court construes Giauque's summary judgment as a renewed motion for reconsideration of issuance of the search warrant for lack of jurisdiction, or alternately as a motion for return of property pursuant to Rule 41(e).*fn2 The court deems Respondent's motion for summary judgment an opposition to Giauque's motions.

II. Giauque's Conformity with California's Compassionate Use Act of 1996

In keeping with the principle that courts should avoid unnecessary determination of constitutional claims, this court ordered discovery as to Giauque's medical need for marijuana on January 7, 2002. In his deposition, Giauque provided testimonial and documentary evidence that he had been examined in the spring of 1998 by Dr. Tod Mikuriya, who had recommended use of marijuana to control pain from back injury, and that on March 12, 2002, Dr. Frank Lucido concurred with Dr. Mikuriya's earlier recommendation. Joint Statement of Undisputed Facts ("JSUF") ¶ 11. The United States, however, has declined to take a position on Giauque's medical need, instead maintaining that Giauque's qualification for medical use of marijuana under California law is irrelevant to the issue of Giauque's right to possess the marijuana under federal law. Joint Statement of July 19, 2002 ¶ 3.

Although he has presented no evidence to the court on the issue, Giauque maintains in his opposition that he grew the marijuana at issue himself. Pet. Opp. at 6 n. 1. The government does not [ Page 4]

dispute this fact. California's Compassionate Use Act of 1996 permits the cultivation and possession of marijuana for medical need by a patient or a patient's primary caregiver, but does not create exceptions to the state's prohibition on the sale, purchase, or distribution of marijuana. See Cal. Health & Safety Code § 11362.5(d).


Giauque offers a number of reasons why this court erred in issuing the warrant for seizure of the subject marijuana from the Humboldt County Sheriff's Department. Giauque's chief argument is that the federal statute banning possession of narcotics, pursuant to which the warrant was issued, exceeds Congress's powers under the Commerce Clause as applied to his own possession of a small amount of marijuana. However, he first offers jurisdictional objections, arguing that the warrant improperly interfered with the in rem jurisdiction of the state court and constituted an improper review of state court action by a lower federal court. Because this court finds the jurisdictional arguments dispositive, it does not reach Giauque's constitutional challenge.

I. Concurrent In Rem Jurisdiction

Giauque contends that the issuance of the seizure warrant and this court's continuing jurisdiction over the subject marijuana violate the rule against concurrent exercise of in rem jurisdiction. Relying on United States v. One 1985 Cadillac Seville, 866 F.2d 1142 (9th Cir. 1989), Giauque argues that the Humboldt Superior County Court exercised in rem jurisdiction over the marijuana by holding it as evidence during his criminal trial, and that the issuance of a seizure warrant by this federal court is void as the assumption of in rem jurisdiction over a res that was already under the in rem jurisdiction of another court. Id. at 1145.

Although actions on the same matter may proceed concurrently in state and federal court where suit is brought in personam for monetary damages or injunctive relief, the Supreme Court has long recognized that in suits which are in rem or quasi in rem — where control of the res at issue is essential to the court's jurisdiction — exclusive jurisdiction in one court is necessary in order "to avoid unseemly and disastrous ...

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