May 21, 2018

Colorado Supreme Court: Controlled Substances Act Preempts State Medical Marijuana Redistribution Law

The Colorado Supreme Court issued its opinion in People v. Crouse on Monday, January 23, 2017.

Robert Crouse was arrested by the Colorado Springs Police Department for cultivating and possessing marijuana with the intent to manufacture. He was charged with one felony count of cultivation of more than thirty marijuana plants and one felony count of possession of between five and one hundred pounds of marijuana with intent to distribute. At trial, Crouse asserted that he was a registered medical marijuana patient, and that state law authorized his cultivation and possession of medical marijuana. The jury acquitted him of both charges.

After trial, Crouse requested that the court order the police to return the marijuana plants and marijuana pursuant to article XVIII, § 14(2)(e) of the Colorado Constitution, which provides that “marijuana and paraphernalia seized by state or local law enforcement officials from a patient . . . in connection with the claimed medical use of marijuana shall be returned immediately upon . . . the dismissal of charges, or acquittal.” The People opposed the motion, arguing the provision conflicts with the federal Controlled Substances Act (CSA) and is therefore preempted. The district court ruled in Crouse’s favor and ordered the return of the property.

The People appealed, and the Colorado Court of Appeals affirmed the district court in a split opinion. The court of appeals ruled that returning Crouse’s property would not violate the CSA because the statute expressly provides immunity for officers lawfully engaged in the enforcement of any law relating to controlled substances. The Colorado Supreme Court granted certiorari.

On appeal, the supreme court found that the return provision necessarily required officers to violate the CSA, and therefore it “positively conflicts” with federal law. The supreme court dismissed the court of appeals’ reasoning that the officers were exempted by the language in 21 U.S.C. § 885(d) only if they were “lawfully engaged” in the practice of law enforcement. The court reasoned that because distribution of marijuana is unlawful under the CSA, the exemption would not apply. The court relied on its prior opinion in Coats v. Dish Network, 350 P.3d 849 (Colo. 2015), for the premise that any activity that is unlawful under federal law, though it may be lawful under state law, is unlawful.

The supreme court reversed the court of appeals. Justice Gabriel dissented, joined by Chief Justice Rice and Justice Hood. In his thoughtful dissent, Justice Gabriel opined that the plain language of § 885 immunized the law enforcement officers, and therefore the Colorado Constitution was not preempted by the CSA.

Ninth Circuit Enjoins Department of Justice from Prosecuting Individuals in Medical Marijuana States

On Tuesday, August 16, 2016, the Ninth Circuit Court of Appeals issued its opinion in United States v. McIntosh, a group of ten consolidated interlocutory appeals addressing whether an appropriations ban applies to prosecutions of individuals accused of marijuana crimes in states with medical marijuana laws. All of the appellants were indicted for various infractions of the Controlled Substances Act based on their participation in their respective states’ medical marijuana schemes. The appellants moved to dismiss their indictments or enjoin their prosecutions based on a rider in a federal appropriations bill, which stated:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332–33 (2015). The rider was extended and is currently effective through September 30, 2016.

The appellants in the various cases moved to dismiss or enjoin on the basis of the rider, arguing that the Department of Justice was prohibited from using funds to pursue prosecutions. The Department argued that it was merely prohibited from prosecuting states with medical marijuana schemes, but was still free to use the appropriated funds to prosecute individuals who violated the Controlled Substances Act regardless of their compliance with state medical marijuana laws.

The Ninth Circuit first noted that although the Medical Marijuana States had enacted laws permitting the use of marijuana for medicinal purposes, marijuana remains illegal under the federal Controlled Substances Act for all purposes. The Ninth Circuit concluded that the superior authority, the federal government through the Controlled Substances Act, could prevent a subordinate authority, the Medical Marijuana States, from implementing rules permitting the conduct by punishing individuals who are engaged in the conduct officially permitted by the subordinate authority. In this instance, the Department of Justice can prevent the Medical Marijuana States from implementing their rules permitting the use of marijuana in medicinal settings by prosecuting individuals for use, possession, distribution, or cultivation of marijuana. The Department of Justice need not take any official action against the states in order to prevent implementation of the states’ rules. The Ninth Circuit therefore concluded that § 542 prohibited the Department of Justice from spending any funds to prosecute individuals in Medical Marijuana States who were engaging in conduct fully permitted by their states’ laws.

Some appellants requested that the Circuit enjoin the Department of Justice from prosecuting any individuals for marijuana violations in Medical Marijuana States, arguing that the implementation of laws necessarily includes all aspects of giving effect to the laws, including prosecutions for violations of the laws. The Ninth Circuit refused to expand the meaning of § 542 to include the prosecution of any individuals in Medical Marijuana States regardless of compliance with their states’ laws. The Circuit found that the Department of Justice was free to prosecute individuals who failed to comply with their state medical marijuana regulations. Because the district courts had not made findings about whether the individuals being prosecuted were in compliance with their respective states’ regulatory schemes, the Ninth Circuit remanded for further proceedings on this issue.

The Ninth Circuit noted the temporal nature of the proceedings, in that the Department had been authorized to prosecute the various individuals initially but lost its funding through the appropriations rider. The Circuit warned that at any moment, Congress could re-authorize the prosecutions of individuals in Medical Marijuana States, or Congress could permanently deprive the Department of funding to prosecute individuals complying with their states’ medical marijuana schemes. In the words of the Circuit, “Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.”

The Ninth Circuit cautioned that marijuana remains illegal under the federal Controlled Substances Act, and anyone in any state who possesses, manufactures, or distributes marijuana is committing a federal crime for which they could be prosecuted for up to five years after the date of the offense. The Circuit reminded the district courts of the need to balance the remedy for violations of § 542 with the appellants’ Speedy Trial Act rights. The Circuit also remarked that, under the Supremacy Clause, a state cannot “legalize” any conduct that is illegal under federal law.

The orders were vacated and the cases were remanded for further proceedings to determine whether the appellants were in compliance with their states’ medical marijuana laws.

Tenth Circuit: Mens Rea Element Applies to Both Chemical Composition Issue and Substantial Similarity Issue

The Tenth Circuit Court of Appeals issued its opinion in United States v. Makkar on Monday, November 23, 2015.

Iqbal Makkar and Gaurav Sehgal ran a small town convenience store in Oklahoma. Law enforcement authorities questioned Makkar and Sehgal about some of the incense they carried at the store, and the owners offered to allow the officers to test it and stop carrying the incense while it was tested. However, despite their cooperation, federal authorities indicted and convicted Makkar and Sehgal of violation of the Controlled Substances Analogue Enforcement Act. On appeal, Makkar and Sehgal argued that the jury instructions incorrectly stated the elements of the offense and that the district court erred in granting the government’s motion in limine to exclude evidence of their cooperation. The Tenth Circuit agreed with both arguments.

The Tenth Circuit first discussed the Analogue Act and the Supreme Court’s recent ruling in McFadden v. United States, 135 S. Ct. 2298 (2015), in which the Supreme Court accepted the government’s concession that to prove that a drug violates the Analogue Act it must (1) be substantially similar in chemical structure to a schedule I or II controlled substance, and (2) have, or be intended to have, a similar effect on the central nervous system as a schedule I or II controlled substance. The government further acknowledged that the defendant knew the drug he possessed had both features or was controlled by the CSA or Analogue Act. The Tenth Circuit compared the Analogue Act to the residual clause of the Armed Career Criminal Act, noting that it was an open question whether the Analogue Act would survive a constitutional vagueness challenge.

Turning to Makkar and Sehgal, the Tenth Circuit noted that at trial, the government did not introduce evidence that defendants knew the incense was substantially similar in chemical structure to marijuana, only that they knew it had a substantially similar effect to marijuana. The district court allowed the government’s proposed instruction that the mens rea element regarding the chemical structure could be inferred from the effect. This was in error because it relieved the government of its burden of proof and also eliminated one of the elements of the charged offense. The Tenth Circuit rejected the government’s argument that the error was not plain, and also that the DEA effectively rejected the government’s inference instruction by concluding that the drug in the incense does not have a substantially similar chemical structure to marijuana. Finding that the error prejudiced defendants and impaired their right to a fair trial, the Tenth Circuit reversed the convictions.

Next, the Tenth Circuit addressed Sehgal’s argument that the district court erred in granting the government’s motion in limine to exclude evidence of the defendants’ cooperation with law enforcement during the investigation. The Tenth Circuit agreed, finding that the evidence was entirely relevant to determine whether defendants possessed the requisite mens rea to form a violation of the Analogue Act, and the district court erred by effectively bypassing the mens rea element.

The Tenth Circuit reversed Makkar’s and Sehgal’s convictions, expressing doubts as to whether the men could be retried under the Analogue Act.

Colorado Court of Appeals: Colorado Constitution Protects Medical Marijuana Patient’s Cultivation of Plants and Controlled Substances Act Does not Preempt

The Colorado Court of Appeals issued its opinion in People v. Crouse on Thursday, December 19, 2013.

Medical Marijuana—Colo. Const. art. XVIII, § 14(2)(e)—Controlled Substances Act—Supremacy Clause.

During a search of defendant’s home, Colorado Springs police officers seized marijuana and marijuana plants. The prosecution charged defendant with one felony count of cultivation of more than thirty marijuana plants and one felony count of possession of between 5 and 100 pounds of marijuana with the intent to distribute. At trial, defendant raised an affirmative defense that Colo. Const. art. XVIII, § 14 (MM Amendment) expressly authorized his possession, because he was a medical marijuana patient and the marijuana that he possessed was medically necessary to treat his condition. The jury acquitted him of both charges.

Relying on § 14(2)(e) of the MM Amendment, defendant moved the trial court to order the police to return the seized marijuana plants and marijuana. Section 14(2)(e) requires the return of marijuana seized from a medical marijuana patient to the patient if a jury acquits the patient of state criminal drug charges arising from the seized marijuana (return provision). The trial court agreed and ordered the police to return the seized items, which they did.

On appeal, the prosecution contended that the Controlled Substances Act (CSA), 21 USC §§ 801 et seq., preempts the return provision. The Court of Appeals rejected this contention for three reasons. First, the CSA cannot be used to preempt a state law under the obstacle preemption doctrine. Second, even if obstacle preemption applies, CSA § 885(d), which prevents federal prosecution of “any duly authorized officer of any State . . . who shall be lawfully engaged in the enforcement of any law . . . relating to controlled substances,” would preclude applying prohibitions in other CSA sections to police officers complying with a court order issued under the return provision. Third, and making the same assumption, the recipient patient’s involvement in the return process also does not create obstacle preemption because the federal government could not commandeer state officials to seize and hold marijuana, and the MM Amendment does not require patients to either demand return or accept returned marijuana. Therefore, the trial court’s order was affirmed.

Summary and full case available here.