and Submitted April 4, 2017 Pasadena, California
from the United States District Court for the Central
District of California Otis D. Wright II, District Judge,
Presiding D.C. No. 2:11-cr-00893-ODW-2
S. James (argued) and Rachael A. Robinson, Greenberg Gross
LLP, Los Angeles, California, for Defendant-Appellant.
Shemitz (argued) and David P. Kowal (argued), Assistant
United States Attorneys; Lawrence S. Middleton, Chief,
Criminal Division; United States Attorney's Office, Los
Angeles, California; for Plaintiff-Appellee.
M. Mitchell, Ninth Circuit Appellate Clinic, Alarcón
Advocacy Center, Loyola Law School, Los Angeles, California,
for Amici Curiae Members of Congress.
I. Roots, Livingston, Montana, for Amicus Curiae Fully
Informed Jury Association.
Alexandra W. Yates, Deputy Federal Public Defender; Hilary
Potashner, Federal Public Defender; Office of the Federal
Public Defender, Los Angeles, California; for Amici Curiae
Federal Public and Community Defenders for Alaska; Arizona;
The Central, Eastern, Northern, and Southern Districts of
California; Guam; Hawaii; Idaho; Montana; Nevada; Oregon; and
the Eastern and Western Districts of Washington.
Before: DAVID M. EBEL, [*] MILAN D. SMITH, JR., and N. RANDY
SMITH, Circuit Judges.
AND AMENDED OPINION
panel granted a petition for panel rehearing, withdrew an
opinion filed June 16, 2017, filed a superseding opinion
affirming a conviction and sentence arising out of the
operation of purported medical-marijuana collective
storefronts in California, and denied on behalf of the court
a petition for rehearing en banc.
defendant argued that a congressional appropriations rider
enjoining use of United States Department of Justice funds in
certain medical marijuana cases prohibits continued
prosecution of his case, and that he is entitled to an
evidentiary hearing under United States v. McIntosh,
833 F.3d 1163 (9th Cir. 2016), to determine whether he
strictly complied with all relevant conditions imposed by
panel held that the rider only prohibits the expenditure of
DOJ funds in connection with a specific charge involving
conduct that is fully compliant with state laws regarding
medical marijuana; that the rider does not require a court to
vacate convictions that were obtained before the rider took
effect; and that the rider, if it applies to this case at
all, might operate to bar the DOJ from continuing to defend
the prosecution on appeal insofar as it relates to those
counts that may be determined to involve only conduct that
wholly complies with California medical marijuana law.
panel concluded that the defendant is not entitled to a
McIntosh remand in this case because (1) his
conviction and sentence were entered before the rider took
effect; (2) the rider does not bar the DOJ from spending
funds in connection with Counts 1 and 6, which definitively
involved conduct that violated state law; (3) even if the
rider applied to Counts 2 through 5, an open question, the
panel's rulings on Counts 1 and 6 are dispositive of all
counts since the defendant's substantive appellate claims
concern all counts equally; and (4) the defendant does not
win relief on any of his other arguments, so a
McIntosh remand on Counts 2 through 5 is
panel held that the district court erred by instructing the
jury that "[t]here is no such thing as valid jury
nullification, " and that it "would violate [its]
oath and the law if [it] willfully brought a verdict contrary
to the law given to [it] in this case." The panel held
that because there is no right to jury nullification, the
error was harmless.
panel held that the district court did not err by denying the
defendant's motion to suppress, because the
dispensary's practice, as described in the warrant
affidavit, of requiring members to designate the dispensary
as their primary caregiver and then allowing members to
purchase marijuana immediately after, provided probable cause
to believe that the dispensary was operating illegally. The
panel held that the district court did not err by denying the
defendant a Franks hearing, or by declining to
instruct the jury on the defendant's joint-ownership
panel held that the district court did not abuse its
discretion by considering the government's late-filed
objections to the presentence report, and that the sentence
is substantively and procedurally reasonable.
petition for panel rehearing is GRANTED. The opinion filed
June 16, 2017, and reported at 859 F.3d 825, is hereby
withdrawn. A superseding opinion will be filed concurrently
with this order.
M. Smith and Judge N.R. Smith vote to deny the petition for
rehearing en banc, and Judge Ebel so recommends. The full
court has been advised of the petition for rehearing en banc,
and no judge requested a vote on whether to rehear the matter
en banc. Fed. R. App. P. 35. The petition for rehearing en
banc, filed the same date, is DENIED. No further petitions
for panel rehearing or rehearing en banc will be entertained.
SMITH, Circuit Judge.
Kleinman appeals his jury conviction and 211 month sentence
for conspiracy to distribute and possess marijuana,
distribution of marijuana, maintaining a drug-involved
premises, and conspiracy to commit money laundering. His
offenses arose out of purported medical marijuana collective
storefronts that he operated with his co-defendants in
California, which he alleges complied with state law. On
appeal, Kleinman argues that (1) a congressional
appropriations rider enjoining use of United States
Department of Justice (DOJ) funds in certain medical
marijuana cases prohibits continued prosecution of his case;
(2) the district court gave an anti-nullification jury
instruction that effectively coerced a guilty verdict; (3)
the district court erroneously denied Kleinman's motion
to suppress evidence seized pursuant to a faulty search
warrant; (4) the district court erred by not granting an
evidentiary hearing on the validity of the affidavit
supporting the search warrant; (5) the district court erred
by refusing to instruct the jury on Kleinman's defense
theory; and (6) the 211 month sentence was substantively and
procedurally unreasonable. For the reasons described herein,
we AFFIRM Kleinman's conviction and sentence.
AND PRIOR PROCEEDINGS
along with defendant Paul Montoya and others, began operating
purported medical marijuana collectives in California around
2006. In 2007 or 2008 they opened their fourth store, NoHo
Caregivers (NoHo), which the government alleged was the hub
of a large conspiracy to distribute marijuana. At trial,
witnesses testified that Kleinman and his associates sold 90%
of their marijuana outside of their storefronts, used
encrypted phones and burner phones to communicate, drove
rented cars to escape detection, hid drugs and money in
"stash apartments" rented for that purpose, and
shipped marijuana hidden in hollowed-out computer towers to
customers in New York and Philadelphia.
2010, pursuant to a Los Angeles Police Department (LAPD)
investigation of medical marijuana collectives, two
undercover officers entered Kleinman's dispensary Medco
Organics (Medco) and purchased marijuana. The LAPD then
obtained a search warrant and seized evidence, and California
initiated criminal proceedings against Kleinman. He moved to
dismiss the case, arguing that he had complete immunity from
prosecution pursuant to California medical marijuana laws.
The state did not file an objection. During a preliminary
hearing on the dismissal motion, the deputy district attorney
stated that he did not see a basis on which to deny
Kleinman's motion, and the state court dismissed the
charges. After the case was dismissed, the United States Drug
Enforcement Administration (DEA) seized the evidence in the
2011, a federal grand jury indicted Kleinman, Montoya, and
five others for conspiracy to distribute and possess
marijuana, distribution of marijuana, maintaining a
drug-involved premises, and conspiracy to commit money
laundering. Kleinman moved to suppress the evidence seized by
the DEA on the ground that it was obtained pursuant to a
search warrant that lacked probable cause. In the
alternative, Kleinman moved for an evidentiary hearing on the
validity of the affidavit supporting the warrant due to
alleged material omissions in the affidavit. The district
court denied the motions.
pretrial hearing, the district court concluded that any
references to medical marijuana would be irrelevant at trial
because state law compliance is not a defense to federal
charges. During jury selection, the district court emphasized
that jurors should not question any purported conflict
between federal and state law, and should consider the case
under federal law only.
jury convicted Kleinman on all counts and found that the
amount of marijuana involved in the offenses exceeded 1, 000
kilograms. The district court held a sentencing hearing on
December 8, 2014, determined that the applicable United
States Sentencing Guidelines (Guidelines) range was 188 to
235 months, and sentenced Kleinman to 211 months. Shortly
after Kleinman's convictions and sentence, on December
16, 2014, Congress enacted an appropriations rider that
prohibits the DOJ from expending funds to prevent states from
implementing their laws authorizing the use, distribution,
possession, and cultivation of medical marijuana.
Consolidated and Further Continuing Appropriations Act, 2015,
Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014).
Kleinman is not entitled to remand for an evidentiary hearing
on his state law compliance.
1996, California voters approved the Compassionate Use Act
(CUA), which decriminalized possession and cultivation of
marijuana for medical use. Cal. Health & Safety Code
§ 11362.5. In 2003, the California legislature enacted
the Medical Marijuana Program (MMP), permitting qualified
patients to form collectives for the cultivation and
distribution of medical marijuana. Id. §§
11362.7-11362.9. Federal law, however, still prohibits the
use or sale of marijuana, even if distributed and possessed
pursuant to state-approved medical marijuana programs.
See United States v. McIntosh, 833 F.3d 1163, 1179
n.5 (9th Cir. 2016) ("Anyone in any state who possesses,
distributes, or manufactures marijuana for medical or
recreational purposes (or attempts or conspires to do so) is
committing a federal crime.").
December 16, 2014, congressional appropriations riders have
prohibited the use of any DOJ funds that prevent states with
medical marijuana programs (including California) from
implementing their state medical marijuana laws. Consolidated
and Further Continuing Appropriations Act, 2015, 128 Stat. at
2217; Consolidated Appropriations Act, 2016, Pub. L. No.
114-113, § 542, 129 Stat. 2242, 2332-33 (2015);
Consolidated Appropriations Act, 2017, Pub. L. No. 115-31,
§ 537, 131 Stat. 135, 228 (2017). All of these riders
are "essentially the same, " see United States
v. Nixon,839 F.3d 885, 887 (9th Cir. 2016) (per
curiam), and the current rider will remain in ...