Marijuana Prosecutions Limited: Feds Lose in 9th Cir.

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By Melissa Heelan Stanzione

Aug. 16 — A federal appropriations law prohibits the government from using certain funds to prosecute individuals who fully comply with state medical marijuana laws, the U.S. Court of Appeals for the Ninth Circuit held Aug. 16 ( United States v. McIntosh, 9th Cir., No. 15-10117, 8/16/16 ).

But this prohibition might be fleeting, the court warned.

“DOJ is currently prohibited from spending funds from specific appropriations acts for prosecutions of those who complied with state law. But Congress could appropriate funds for such prosecutions tomorrow,” Judge Diarmuid F. O'Scannlain wrote for the court.

Here, individuals in different cases were charged with violations of the federal Controlled Substances Act.

They argued that the Department of Justice is prohibited from spending funds to prosecute them under section 542 of the Consolidated Appropriations Act.

The cases were consolidated on interlocutory appeal from the district courts' orders denying their relief.

Textual Analysis

To determine whether the government's expenditures on the prosecutions violated section 542, the Ninth Circuit looked to the statutory text.

The language states that no “funds made available in this act to the Department of Justice may be used with respect to” 43 jurisdictions “to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana,” the court said.

This means that the DOJ can't spend money from relevant appropriations acts to prosecute “individuals who engaged in conduct permitted by State Medical Marijuana laws and who fully complied” with them, it said.

Footnote's Warning

In a footnote, the court warned that section 542 doesn't provide immunity from prosecution for federal marijuana offenses under the CSA.

The court vacated and remanded for the district courts to conduct evidentiary hearings to determine whether the defendants complied with state law.

Judges Barry G. Silverman and Carlos T. Bea joined in the opinion.

The U.S. attorney's office represented the government.

Marc. J. Zilversmit of San Francisco, Federal Defenders of Eastern Washington & Idaho and Federal Defenders of the Eastern District of California represented the defendants.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at and Jeffrey D. Koelemay at

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