United States District Court, E.D. California
For Bryan R. Schweder, Defendant: John R. Duree, Jr., LEAD ATTORNEY, A Professional Corporation, Sacramento, CA.
For Paul Rockwell, Defendant: John Richard Manning, LEAD ATTORNEY, Law Office of John R. Manning, Sacramento, CA.
For Juan Madrigal Olivera, also known as Juan Olivera-Madrigal, also known as Juan Olivera Madrigal, Defendant: Dina Lee Santos, LEAD ATTORNEY, Law Offices of Dina L. Santos, Sacramento, CA.
For Manuel Madrigal Olivera, also known as Manuel Olivera-Madrigal, Defendant: Clemente Jimenez, LEAD ATTORNEY, Law Office Of Clemente M. Jimenez, Sacramento, CA.
For 1 Fred W. Holmes, Defendant: Michael Donald Long, LEAD ATTORNEY, Law Office Of Michael D. Long, Sacramento, CA.
For Effren A. Rodriguez, Defendant: Hayes H. Gable, III, LEAD ATTORNEY, Law Office of Hayes H. Gable, III, Sacramento, CA.
For Rafael Camacho-Reyes, Defendant: Michael E. Hansen, LEAD ATTORNEY, Law Offices of Michael E. Hansen, Sacramento, CA.
For Leonardo Tapia, Defendant: William E. Bonham, LEAD ATTORNEY, William E. Bonham Attorney at Law, Sacramento, CA.
For Brian J. Pickard, Defendant: Zenia Karen Gilg, LEAD ATTORNEY, Law Offices of Zenia K Gilg, San Francisco, CA; Heather Lynne Burke, Law Office of Heather L. Burke, Nevada City, CA.
Peter B Newman, Amicus, Pro se, San Rafael, CA.
For USA, Plaintiff: Gregory T. Broderick, Richard J. Bender, Samuel Wong, GOVT, LEAD ATTORNEYS, Audrey Benison Hemesath, United States Attorney's Office, Sacramento, CA.
Kimberly J. Mueller, UNITED STATES DISTRICT JUDGE.
It has been forty-five years since Congress passed the Controlled Substances Act, including marijuana in Schedule I. Defendants say the law as passed can no longer stand. The government says that is not for this court to decide. To say the landscape with respect to marijuana has changed significantly since 1970, in many ways, is an understatement. While the court is not blind to the practical context in which it operates, its duty as a resident of the third branch of our republican form of government is to resolve the legal questions presented by the parties, fairly and evenly, not as a maker of public policy. The court fulfills this duty without respect to who is arguing what position, or what the newspapers, blogs and commentators say; it does so while putting aside preconceptions and dispositions, likes and dislikes, bias and prejudice. Because defendants' motion challenges a decision made by Congress, which is the first, representative branch of government, the court treads lightly as it is required to do. In performing its duty the court takes the factual record as the parties have developed it through the introduction of documentary evidence and, in this case, an evidentiary hearing. Having approached defendants' constitutional challenges to marijuana's Schedule I status with an open mind, the court had to be prepared to grant their motion to dismiss if the law and facts supported that decision. At some point in time, in some court, the record may support granting such a motion. But having carefully considered the facts and the law as relevant to this case, the court concludes that on the record in this case, this is not the court and this is not the time.
The motion before the court was brought originally by defendant Brian Justin Pickard; he moves to dismiss the government's indictment. (ECF No. 199.) The remaining defendants join in the motion. Defendants argue the indictment must be dismissed because the classification of marijuana as a Schedule I substance under the Controlled Substances Act (CSA) is unconstitutional. For the reasons set forth below, the court DENIES the motion.
On October 20, 2011, sixteen individuals were indicted for conspiracy to manufacture at least 1,000 marijuana plants, in violation of 21 U.S.C. § § 846, 841(a)(1). (Indictment, ECF No. 30.) On November 20, 2013, Mr. Pickard moved to dismiss the indictment, arguing that the classification of marijuana as a Schedule I substance under the CSA, 21 U.S.C. § 801, et seq., violates his Fifth Amendment equal protection rights and that the government's allegedly disparate enforcement of the federal marijuana laws violates the doctrine of equal sovereignty of the states under the Tenth Amendment. (ECF No. 199 at 2-3.) In the same motion, defendant requested that this court hold an evidentiary hearing to take testimony on defendant's constitutional challenges. ( Id. at 3.) The other defendants joined in the motion. ( See ECF No. 256.) The government opposed defendants' motion (ECF No. 224), and defendants replied (ECF No. 233).
On March 25, 2014, the court granted defendants' request for an evidentiary hearing. (ECF No. 262). The evidentiary hearing occupied five days between October 24, 2014 (ECF No. 347) and October 30, 2014 (ECF No. 351). During the evidentiary hearing, the court heard testimony from Gregory T. Carter, M.D., Carl L. Hart, Ph.D., Philip A. Denney, M.D., Christopher Conrad, and Bertha K. Madras, Ph.D. (See ECF Nos. 347-350). After the evidentiary hearing, the court set a post-evidentiary hearing briefing schedule and a date for closing arguments. (ECF Nos. 359, 371.) The government filed its post-evidentiary hearing brief on December 31, 2014 (ECF No. 374), and defendants filed theirs on January 5, 2015 (ECF No. 378). The parties replied on January 21, 2015. (ECF Nos. 381, 382.) The parties presented their closing arguments on February 11, 2015, after which the court submitted the motion (ECF No. 386).
In addition, on February 6, 2015, defendants filed a request for judicial notice, asking that the court take notice of (1) certain statements made by the United States Surgeon General on February 4, 2015, and (2) the introduction of H.R. 5762, the Veterans Equal Access Act of 2014, in the House of Representatives on November 20, 2014. (ECF No. 385 at 8-9.) The court takes judicial notice of the fact that the U.S. Surgeon General, during a televised interview on " CBS This Morning" on February 4, 2015, made a statement about marijuana's efficacy for some medical conditions and symptoms. Fed.R.Evid. 201; see Davis v. Granger, No. 12-1746, 2014 WL 3797966, at *5 (W.D. La. Aug. 1, 2014) (taking judicial notice of a report by the Surgeon General). However, the court declines to take judicial notice of H.R. 5762, as it does not have the force of law. See Davis v. United States, 569 F.Supp.2d 91, 98 (D.D.C. 2008) (declining to take judicial notice of a proposed bill because it does not carry the force of law and hence, is irrelevant).
Defendant also asked the court to consider a new piece of evidence identified as exhibit AAA, a study published on January 28, 2015, which defendant argues " directly refutes the methods and findings" of government exhibit 209. ( Id. at 9-10.) The court grants that request under the rule of completeness. See United States v. Castro-Cabrera, 534 F.Supp.2d 1156, 1160-61 (C.D. Cal. 2008) (citing Fed.R.Evid. 106). Government exhibit 209 is a study published in the Journal of Neuroscience in April 2014. That study, titled " Cannabis Use is Quantitatively Associated with Nucleus Accumbens and Amygdala Abnormalities in Young Adult Recreational Users," concludes that marijuana exposure is associated with brain changes. ( See Gov't Ex. 209.) Exhibit AAA is also a study published in the Journal of Neuroscience, in January 2015. (ECF No. 385-3.) The study, titled " Daily Marijuana Use is not associated with Brain Morphometric Measures in Adolescents or Adults," concludes otherwise. The latter study cites the former study and argues it was erroneous. It is fair to allow exhibit AAA into evidence, for what it is worth.
II. LEGAL STANDARD ON A MOTION TO DISMISS
Under Federal Rule of Criminal Procedure 12(b), " [a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." There is no prohibition against the consideration of extrinsic evidence for purposes of a Rule 12(b) motion to dismiss. Rule 12(b) " permits factual hearings prior to trial if necessary to resolve issues of fact peculiar to the motion." United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969). Here, the court determined a hearing was necessary to resolve issues of fact relating to defendants' motion to dismiss the indictment. (ECF No. 256.)
" [A] district court may make preliminary findings of fact necessary to decide the questions of law presented by pre-trial motions so long as the court's findings on the motion do not invade the province of the ultimate finder of fact." United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986) (quoting United States v. Jones, 542 F.2d 661, 664 (6th Cir. 1976), cert. denied, 478 U.S. 1007, 106 S.Ct. 3301, 92 L.Ed.2d 715 (1986)). " The District Court [is] not limited to the face of the indictment in ruling on the motion to dismiss." Jones, 542 F.2d at 665. To the extent the court makes findings below, they are necessary to resolution of defendants' motion to dismiss.
III. JURISDICTIONAL CONSIDERATIONS
1. The Parties' Arguments
The government contends defendants lack standing to argue that " the continued inclusion of marijuana as a Schedule I controlled substance in Title 21 of the federal statutes passes constitutional muster" (ECF No. 271 at 3), because " neither their criminal liability nor their eventual criminal sentence depend on marijuana's status as a Schedule I substance" (ECF No. 279 at 1). The government points out that defendants are charged with violating 21 U.S.C. § 841(a), which applies to any controlled substance; thus, it says " their charges are not dependent upon marijuana's status as a Schedule I substance." ( Id. at 1.) The government argues that the sentences provided for in the statute " apply regardless of whether marijuana is on Schedule I" as long as " marijuana is treated as a controlled substance at all." ( Id. at 1-2) (emphasis in original). " Put plainly, a decision holding that it is unconstitutional for marijuana to be treated as a Schedule I substance will have no impact on whether [d]efendants go to jail or for how long." ( Id. at 2.)
Defendants counter that they are " not petitioning this [c]ourt to reschedule marijuana, but rather [are] contesting the constitutionality of [21 U.S.C. § 812(c)(10), (17)], the Congressional Act which classifies marijuana as a Schedule I [c]ontrolled [s]ubstance. Should the defense prevail, these statutory provisions are deemed invalid, and thus marijuana and THC would be removed from the CSA, not simply replaced within the Schedule. In effect, no controlled substance could be identified to support a prosecution under 21 U.S.C. [ § ] 841(a)." (ECF No. 287 at 2 n.1 (emphases in original).)
2. Legal Standards
Article III of the Constitution limits the jurisdiction of federal courts to " cases" and " controversies." See, e.g., Clapper v. Amnesty Int'l, __ U.S. __, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). As the Supreme Court has observed, " [n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation marks omitted). The party invoking federal jurisdiction has the burden of establishing constitutional standing. Clapper, 133 S.Ct. at 1146; see also Bond v. United States, __ U.S. __, 131 S.Ct. 2355, 2361, 180 L.Ed.2d 269 (2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To establish Article III standing, a party must show an injury that is " [(1)] concrete, particularized, and actual or imminent; [(2)] fairly traceable to the challenged action; and [(3)] redressable by a favorable ruling." Clapper, 133 S.Ct. at 1147 (internal quotation marks omitted). " [This] irreducible constitutional minimum" requires that the party suffer " an invasion of a legally protected interest . . . ." Lujan, 504 U.S. at 560.
Here, defendants have established Article III standing. Defendants are charged with conspiracy, 21 U.S.C. § 846, to manufacture marijuana, a controlled substance, id. § 841(a)(1). (ECF No. 30.) The indictment specifies defendants allegedly conspired to manufacture at least 1,000 marijuana plants on private property. ( Id. at 2-4.) Section 846 punishes " [a]ny person who . . . conspires to commit any offense defined in this subchapter" with " the same penalties as those prescribed for the offense, the commission of which was the object of the . . . conspiracy." 21 U.S.C. § 846. Section 841 makes it unlawful " to manufacture . . . a controlled substance." Id. § 841(a)(1). In turn, § 812(c) lists " Marihuana" and " Tetrahydrocannabinols" as Schedule I controlled substances. 21 U.S.C. § 812(c)(10), (17). If defendants are convicted, their sentences will be calculated based on marijuana's Schedule I status. See 21 U.S.C. § § 841, 846.
Defendants have shown concrete and imminent injury: incarceration as a result of their charged violations of the CSA, if they are convicted. See Spencer v. Kemna, 523 U.S. 1, 7-8, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Defendants have also shown that inclusion of marijuana as a Schedule I controlled substance is the cause of their injury. If this court were to find that Congress acted unconstitutionally in placing marijuana on Schedule I, marijuana would no longer be considered a controlled substance because it is classified as a controlled substance only under Schedule I and not under any other schedule. Stated simply, if marijuana were absent from that schedule, defendants could not be charged with violation of sections 841(a), and 846 and the sentences provided for in sections 841 and 844 would not apply.
As to the redressability element of standing, defendants must show that it is " 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" Lujan, 504 U.S. at 561 (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 38, 43, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). " In deciding whether a [party's] injury is redressable, courts assume that [a party's] claim has legal merit." Bonnichsen v. United States, 367 F.3d 864, 873 (9th Cir. 2004). Defendants have met their burden under Lujan to show that invalidating the statute at issue would redress their injury. If defendants receive a favorable ruling, finding the statutory classification of marijuana violative of the Constitution, the court would, in effect, decriminalize marijuana. Consequently, defendants' charge of conspiracy to manufacture marijuana, a controlled substance, would be dismissed. See Ex parte Siebold, 100 U.S. 371, 376-77, 25 L.Ed. 717 (1879) (a conviction under an unconstitutional law is illegal and void, " and cannot be a legal cause of imprisonment" ). It is therefore likely the injury suffered by defendants would be redressed by a favorable decision.
Having established (1) injury-in-fact, (2) causation, and (3) redressiblity, defendants have sufficient Article III standing to raise a constitutional challenge to the inclusion of marijuana as a Schedule I substance under 21 U.S.C. § 812(b)(1).
The government's citation to three cases does not alter this conclusion. The cases are United States v. Osburn, 175 Fed.Appx. 789 (9th Cir. 2006); United States v. McWilliams, 138 Fed.Appx. 1 (9th Cir. 2005); and United States v. Tat, No. 12-81, 2014 WL 1646943 (W.D. Pa. Apr. 24, 2014). As an initial matter, the court notes that both Osburn and McWilliams are unpublished memoranda dispositions issued before January 1, 2007. Accordingly, those decisions have no precedential value, see CTA9 Rule 36-3 (" Unpublished dispositions and orders of [the Ninth Circuit] are not precedent . . . ." ), and are not citable to a court in this circuit, see id. (" Unpublished dispositions and orders of [the Ninth Circuit] issued before January 1, 2007 may not be cited to the courts of this circuit . . . ." ); Fed. R. App. P. 32.1. Even assuming they have some persuasive value, they are distinguishable.
In McWilliams, the defendant apparently was producing marijuana for intrastate medical purposes, in compliance with California's Compassionate Use Act, Cal. Health & Safety Code § 11362.5. 138 Fed. App'x at *2. He pled guilty to manufacturing marijuana and then appealed the district court's denial of his motion to dismiss the indictment, apparently arguing, among other things, for reclassification: " the classification of marijuana as a 'Schedule I' controlled substance, rather than in a less restrictive classification, is 'irrational . . . .'" 138 Fed.Appx. at 2. The appellate disposition concludes that McWilliams did not have standing because " [a]nyone who manufactures any controlled substance, must, to avoid conviction for illegal manufacture, obtain an annual registration from the Attorney General . . . something McWilliams did not do." Id. (emphasis in original, internal citation omitted).
In Osburn, in finding defendants did not have standing to bring an equal protection challenge to the indictment, the panel phrased the question before it as a rescheduling of marijuana, which is not the question before this court. 175 Fed.Appx. at 790.
Tat is citable but is a decision by a sister district court outside of the Ninth Circuit, the Western District of Pennsylvania, and is at most persuasive authority. See Burton v. Time Warner Cable Inc., No. 12-06764, 2013 WL 3337784, at *7 n.1 (C.D. Cal. Mar. 20, 2013). In Tat, the defendant was charged with a single count of conspiracy to distribute marijuana. Tat, 2014 WL 1646943, at *1. The defendant moved to dismiss the indictment, arguing, inter alia, " the charge should be dismissed because marijuana is allegedly no longer properly classified as a Schedule I controlled substance and enforcement of the same violates his rights under the Due Process Clause of the Fifth Amendment." Id. at *3. To support his argument, the defendant referenced changes in other states' laws, which legalized the sale of marijuana for personal and medicinal purposes, although he did not demonstrate his compliance with any state law. Id. at *3, 5. In denying the defendant's motion, the court in Tat reached essentially the same conclusion as did the Ninth Circuit panel in the unpublished McWilliams disposition: " a criminal defendant who has not sought authorization from the Attorney General prior to manufacturing or distributing a Schedule I controlled substance lacks standing to challenge a drug's classification in Schedule I . . . because reclassification is clearly a task for the legislature and the attorney general and not a judicial one . . . ." Id. at *4 (internal citation and quotation marks omitted).
Tat is distinguishable. Unlike the defendant in Tat, who brought a due process challenge, defendants here challenge the classification of marijuana as violative of their equal protection rights under the Fifth Amendment. Further, in Tat, the defendant's argument was based on changes in state laws only; the defendant did not argue that marijuana should be decriminalized, as defendants argue in this case. Moreover, to the extent the government cites Tat for the general proposition that a criminal defendant never has standing to raise a constitutional challenge to a controlled substance's classification unless that person has sought prior authorization from the Attorney General, this court finds that proposition unsupported by precedent and the argument unpersuasive. As the Second Circuit observed in a case considering the constitutionality of marijuana's classification more than thirty years ago, the Attorney General " does not have the power to declare the [CSA] unconstitutional." United States v. Kiffer, 477 F.2d 349, 351 (2d Cir. 1973). Most importantly, " even assuming the existence of a viable administrative remedy, application of the exhaustion doctrine to criminal cases is generally not favored because of 'the severe burden' it imposes on defendants." Id. at 352. This court declines to place the heavy burden of exhaustion on the defendants in this case.
Many cases have proceeded to consider the merits of the same or similar arguments made by defendants in this case. See, e.g., United States v. Fogarty, 692 F.2d 542, 547-48 (8th Cir. 1982); United States v. Wilde, No. 12-0144, 74 F.Supp.3d 1092, 1098-99, 2014 WL 6469024, at *1-5 (N.D. Cal. Nov. 18, 2014); United States v. Heying, No. 14-30, 2014 WL 5286153, at *1-10 (D. Minn. Aug. 15, 2014). These cases are consistent with this court's finding, and none of the government's cases undercuts the finding that defendants have established Article III standing to challenge the constitutionality of the inclusion of marijuana in Schedule I of the CSA.
1. The Parties' Arguments
In its February 13, 2014 opposition to defendants' motion to dismiss the indictment, the government argued this court had no jurisdiction to hear defendants' arguments, in light of the provisions of 21 U.S.C. section 877. (ECF No. 224 at 8-10.) Defendants reply section 877 " by its terms applies to judicial review of administrative action, not Congressional Acts." (ECF No. 233 at 7-9.)
During a hearing in March 2014, the court heard argument on the question of subject matter jurisdiction and ruled it had jurisdiction, noting it would remain alert to that question as the case proceeded, in the event its initial determination required reconsideration. (ECF No. 258 at 10.) At hearing, defendants stated their position as follows:
We're not asking for reclassification. We're asking that the statute be struck because it is unconstitutional at this particular day and this particular time in the history of the evolution of the evidence with regard to the effects of marijuana.
( Id. at 9.) Defendants have not wavered from this positon. ( See, e.g., ECF No. 287 at 2 n.1; ECF No. 382 at 43-44.)
Later in March 2014, the government sought reconsideration of the court's order granting an evidentiary hearing, stating that it " initially opposed the defendants' motion to dismiss the indictment on the grounds that the [c]ourt lacks jurisdiction to consider any challenge to the scheduling of marijuana" but it now accepts the court's determination " that jurisdiction is proper." (ECF No. 264 at 3-4 (citing United States v. Moreno-Morillo, 334 F.3d 819 (9th Cir. 2003)).) The government sought reconsideration of the grant of a hearing, arguing in part that " there is no occasion for an evidentiary hearing or a fresh examination of the equal protection challenge, as the Ninth Circuit has already decided the issue." (ECF No. 264 at 4 (citing United States v. Miroyan, 577 F.2d 489, 495 (9th Cir. 1978)).)
During the April 2014 hearing on the government's motion for reconsideration, the court confirmed the government conceded jurisdiction. (ECF No. 275 at 8; see also ECF No. 271 at 2 (" The government now concedes the court has jurisdiction to entertain the defense motion . . . ." ).) The court explained it did not " think the [g]overnment has satisfied its burden of showing the [c]ourt should reconsider" its prior decision; it further explained the grant of a hearing because it " believe[s] there is a question raised about the statutory listing of marijuana as a Schedule I drug in light of the three factors [under 21 U.S.C. § 812(b)(1)(A)-(C)], applicable to maintaining that substance on the list." (ECF No. 275 at 8-9.)
In May 2014, the government renewed its section 877 argument. (ECF No. 279.) The government explained that while it previously accepted the court's jurisdiction to consider any challenge to the statute's constitutionality (ECF No. 264), the court's clarification that it is considering a challenge to maintaining marijuana as a Schedule I controlled substance provided a basis for a new argument. (ECF No. 279 at 9.) The government argued 21 U.S.C. section 877 deprives the court of jurisdiction to entertain " whether the continued inclusion of marijuana as a Schedule I controlled substance . . . passes constitutional muster," (ECF No. 271 at 3), because " the agencies assigned by Congress to make such scheduling determinations have decided not to re-schedule or de-schedule it." (ECF No. 279 at 11-12.) The government argues " [b]ecause Congress provided that the exclusive forum for making such a challenge is in the Circuit Courts after the administrative process, this [c]ourt lacks subject matter jurisdiction to ...