and Submitted March 27, 2019 San Francisco, California
from the United States District Court No. 2:12-cr-00016-WFN-6
2:12-cr-00016-WFN-5 for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Nicolas V. Vieth (argued), Vieth Law Offices, Chtd., Coeur
d'Alene, Idaho; David M. Miller (argued), Miller &
Prothero, Spokane, Washington; for Defendants-Appellants.
Timothy J. Ohms (argued), Assistant United States Attorney;
Joseph H. Harrington, United States Attorney; United States
Attorney's Office, Spokane, Washington; for
Before: Diarmuid F. O'Scannlain, Carlos T. Bea, and
Michelle T. Friedland, Circuit Judges.
panel affirmed the district court's judgment on remand
denying a motion by two medical marijuana growers to enjoin
their federal prosecutions for violations of the Controlled
prior appeal, the panel held that a congressional
appropriations rider prohibited the Department of Justice
from spending appropriated funds to prosecute individuals who
engaged in conduct permitted by state medical marijuana laws;
and remanded to the district court with instructions to hold
an evidentiary hearing to determine whether the
defendants' conduct was completely authorized by state
law. On remand, the district court found that the defendants
were not in strict compliance with Washington's Medical
Use of Cannabis Act (MUCA).
appeal, the panel held that because the appropriations rider
authorizes the defendants to seek to enjoin prosecution, the
defendants - not the Government - bear the burden of proof
regarding whether the state's medical-marijuana laws
completely authorized the defendants' conduct.
that this court looks to the state law's substantive
authorizations but not to the state's procedural rules
that give practical effect to its medical-marijuana regime,
the panel rejected the defendants' contention that the
Government must procure a jury verdict of noncompliance in
Washington State Court before it can prosecute them for their
panel held that the district court correctly refused to allow
the defendants to assert "common law affirmative
defenses," and correctly focused on the defendants'
compliance with MUCA itself.
the district court's factual finding that the defendants
did not strictly comply with MUCA, the panel held that the
district court did not clearly err in finding that the
defendants, neither of whom claimed to be a "designated
provider," were likewise not "qualified
decide, once again, whether marijuana growers may enjoin
federal prosecution in a state ...