The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
ORDER DENYING BRYAN SMITH'S DISPOSITIVE PRETRIAL MOTIONS
Defendant Bryan Smith ("Smith") moves to dismiss Counts 1, 2, 5, 7, 8 and 9 of the Indictment. (Def.'s Pretrial Mots. 1-7, 12-13, ECF Nos. 79-84, 89-90.) Smith also moves for suppression of all evidence seized at his home and business R & R Wellness, a medical marijuana dispensary, pursuant to a state search warrant. (Def.'s Pretrial Mots. 8-11, ECF Nos. 85-88.) Further, Smith argues the warrant affidavit contained material omissions and misstatements in violation of Franks v. Delaware, necessitating an evidentiary hearing. (Def.'s Pretrial Mot. 8, ECF No. 85.)
The government opposes Smith's motions and argues an evidentiary hearing is not required. (Gov'ts Consolidated Resp. to Def.'s Mots. to Dismiss ("Resp. to MTD"), ECF No. 95; Gov'ts Consolidated Resp. to Def.'s Mots. to Suppress ("Resp. to MTS"), ECF No. 95.)
Smith argues his prosecution violates the Commerce Clause of the United States Constitution, the Ninth Amendment, and the Tenth Amendment; classification of marijuana as a Schedule I substance is arbitrary and irrational in violation of the Fifth Amendment; his prosecution violates the Tenth Amendment's judicially created prohibition against federal official's "commandeering" of state law; his alleged criminal conduct is protected under the American's with Disabilities Act ("ADA"); he was selectively prosecuted; and he is entitled to the defense of entrapment by estoppel. Smith also argues that Congress's authorization of the District of Columbia's medical marijuana program, "Initiative 59," favored the District of Columbia over California in violation of Article 1 Section 9 of the United States Constitution and the Due Process and Equal Protection Clauses of the Fifth Amendment.
Smith concedes that a number of his arguments are contrary to binding precedent and/or prior orders of this Court, and that they are being made to preserve the issues since this area of the law "may evolve." (Def.'s Pretrial Mot. 1, 3:2-7; Def.'s Pretrial Mot. 3, 3 n.2; Def.'s Pretrial Mot. 4, 3 n.2; Def.'s Pretrial Mot. 7, 3 n.2.)
Smith's Commerce Clause, Ninth Amendment and Tenth Amendment arguments are foreclosed by Ninth Circuit and Supreme Court precedent, as is his argument that classification of marijuana as a Schedule I drug is irrational in violation of the 5th Amendment. See Gonzales v. Raich ("Raich I"), 545 U.S. 1, 10-33 (2005); Raich v. Gonzales ("Raich II"), 500 F.3d 850, 861-67 (9th Cir. 2007); United States v. Oakland Cannabis Buyers' Coop., 259 Fed. App. 936, 938 (9th Cir. 2007)(citing United States v. Miroyan, 577 F.2d 489, 495 (9th Cir. 1978)). The Court previously ruled on similar arguments in an order filed February 28, 2012, which granted a dismissal motion in a civil case. See Sacramento Nonprofit Collective dba El Camino Wellness Center v. Eric Holder, No. 2:11-cv-02939-GEB-EFB, 2012 WL 662460 (E.D. Cal. Feb. 28, 2012). The government relies on the February 28, 2012 order in its consolidated response to Smith's dismissal motions and attached a copy of the order as Exhibit A to its response. That order's reasoning on these issues is incorporated herein by reference.
Concerning Smith's Tenth Amendment "commandeering" argument, although Smith was arrested pursuant to a state search warrant, which resulted in a state charge in state court, "the facts . . . do not suggest that the federal government engaged in any compulsion." United States v. Stacy, 696 F. Supp. 1141, 1145 (S.D. Cal. 2010.) "Although [state law enforcement] unquestionably had involvement in the investigation and collection of evidence against [Smith], there is no evidence that they were required to do anything." Id. "As noted by the Ninth Circuit in [Raich II], '[t]he commandeering cases involve attempts by Congress to direct states to perform certain functions, command state officers to administer federal regulatory programs, or to compel states to adopt specific legislation.'" Id. (quoting Raich II at 867 n.17.)
Smith's ADA argument is foreclosed by the recent Ninth Circuit decision in James v. City of Costa Mesa, --- F.3d ----, 2012 WL 1815677, at *1 (9th Cir. 2012), which held that "medical marijuana use is not protected by the ADA."
The James decision also forecloses Smith's argument that Congress improperly favored one state over another in permitting the District of Columbia's medical marijuana initiative to take effect. Congress' decision not to block implementation of Initiative 59 did not result in the unequal treatment of District of Columbia and California residents. On the contrary, Congress' actions allow these jurisdictions to determine for themselves whether to suspend their local prohibitions on the use and distribution of marijuana for medical purposes. Local decriminalization notwithstanding, the unambiguous federal prohibitions on medical marijuana use set forth in the CSA continue to apply equally in both jurisdictions, as does the ADA's illegal drug exclusion. There is no unequal treatment, and thus no equal protection violation.
James, 2012 WL 1815677, at *7.
Further, Smith has not shown that the defense of estoppel by entrapment applies since "[n]one of the evidence submitted by Smith establishes that a federal government official . . . affirmatively told [him] that operation of a medical marijuana collective was permissible-i.e., lawful-under federal law." United States v. Stacy, 734 F. Supp. 1074, 1077 (S.D. Cal. 2010)(denying defendant's motion to present an entrapment by estoppel defense at trial, which was based upon many of the same presidential candidate statements, other statements by federal governmental officials, and United States Supreme Court denials of certiorari as those cited by Smith in support of his motion).
Lastly, Smith's selective prosecution argument fails since he has made no showing, nor even argued, that his prosecution while other medical marijuana dispensaries received an alleged warning period "was motivated by a discriminatory ...