United States v. Charles Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50219

Plaintiff-Appellee,

D.C. No.

v. 2:07-cr-00689-GW-1

CHARLES C. LYNCH,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 10-50264

Plaintiff-Appellant,

D.C. No.

v. 2:07-cr-00689-GW-1

CHARLES C. LYNCH,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted April 13, 2018

Pasadena, California

Filed September 13, 2018

2 UNITED STATES V. LYNCH

Before: John M. Rogers, * Jay S. Bybee,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Rogers;

Dissent by Judge Watford

SUMMARY **

Criminal Law

The panel (1) affirmed Charles Lynch’s conviction for

conspiracy to manufacture, possess, and distribute

marijuana, as well as other charges related to his ownership

of a marijuana dispensary in Morro Bay, California; (2) on

the government’s cross-appeal, remanded for resentencing;

and (3) instructed the district court on remand to make a

factual determination as to whether Lynch’s activities were

in compliance with state law.

The panel held that the district court’s exclusion of

testimony from a lawyer about Lynch’s phone call to the

DEA, as well as a recording of this lawyer discussing that

call on a radio program, was correct because both pieces of

evidence were hearsay to which no exception applied.

*

The Honorable John M. Rogers, United States Circuit Judge for

the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. LYNCH 3

The panel held that the district court did not abuse its

discretion in excluding repetitive and irrelevant evidence

about Lynch’s compliance with local laws.

The panel held that evidence of a dispensary employee’s

marijuana sale to a government agent was not more

prejudicial than probative, and was generally harmless given

Lynch’s concession of factual guilt. The panel held that the

district court correctly excluded as hearsay a statement the

employee made to an investigator that Lynch “didn’t know

anything about this deal.”

The panel held that there was no error in the district

court’s handling of a number of pieces of evidence that

Lynch contends were impermissibly inflammatory, and that

any would be harmless.

The panel rejected Lynch’s claim that evidence he

subsequently discovered about the United States’

prosecution priorities should have been disclosed to him

pursuant to Brady v. Maryland. The panel held that the

evidence was not exculpatory of Lynch or otherwise relevant

to his case.

The panel held that because Lynch did not show facts

providing a basis on which a reasonable jury could find that

he was entitled to the defense of entrapment by estoppel, he

was not entitled to present that defense in the first place, and

the district court did not err in any decisions it made with

respect to it.

The panel held that the district court did not commit any

error by warning during voir dire against jury nullification.

The panel held that the admonition was an appropriate

exercise of a district court’s duty to ensure that a jury follows

4 UNITED STATES V. LYNCH

the law, and was additionally justifiable given that the need

for the warning was a risk that Lynch’s counsel had invited.

The panel held that the district court did not abuse its

discretion in not allowing him to inform the jury of the

mandatory minimum sentence that he faced if convicted.

The panel rejected the Lynch’s challenges to the district

court’s handling of jury communications because the district

court did not actually permit any ex parte communications

and the other limitations were reasonable exercises of a

district court’s power to manage its trial proceedings.

On the government’s cross-appeal, the panel held that

the district court erred in not applying the five-year

mandatory-minimum sentence under 21 U.S.C.

§ 841(b)(1)(B)(viii) on the ground that Lynch was eligible

for the safety valve set forth in 18 U.S.C. § 3553(f). The

panel held that Lynch was not eligible for the safety valve,

given his role leading the dispensary, an organization

involving more than five participants; and that Lynch was

therefore required to be sentenced to the five-year mandatory

minimum. The panel rejected the government’s request that

the case be reassigned to another district judge on remand.

The panel did not need to reach the question of whether

a congressional appropriations rider (enacted following the

filing of this appeal), which this court has interpreted to

prohibit the federal prosecution of persons for activities

compliant with state medical marijuana laws, operates to

annul a properly obtained conviction. The panel explained

that a genuine dispute exists as to whether Lynch’s activities

were actually legal under California state law, and therefore

remanded to the district court for a factual determination as

to state-law compliance.

UNITED STATES V. LYNCH 5

Dissenting, Judge Watford would reverse and remand for

a new trial because, in his view, in trying to dissuade the jury

from engaging in nullification, the district court violated

Lynch’s constitutional right to trial by jury, and the

government can’t show that this error was harmless beyond

a reasonable doubt.

COUNSEL

Alexandra Wallace Yates (argued), Deputy Federal Public

Defender; Hilary Potashner, Federal Public Defender; Office

of the Federal Public Defender, Los Angeles, California; for

Defendant-Appellant.

David P. Kowal (argued), Assistant United States Attorney;

Robert E. Dugdale, Chief, Criminal Division; André Birotte

Jr., United States Attorney; United States Attorney’s Office,

Los Angeles, California; for Plaintiff-Appellee.

Joseph D. Elford, Americans for Safe Access, Oakland,

California, for Amicus Curiae Americans for Safe Access.

Jenny E. Carroll, Professor of Law, Seton Hall University,

Newark, New Jersey, for Amici Curiae Criminal Procedure

Professors.

Paula M. Mitchell, Reed Smith LLP, Los Angeles,

California, for Amici Curiae Members of Congress.

Michael V. Schafler, Benjamin B. Au, Arwen R. Johnson,

and Isabel Bussarakum, Caldwell Leslie & Proctor PC, Los

Angeles, California, for Amici Curiae Senators Mark Leno

and Mike McGuire, and Former Senator Darrell Steinberg.

6 UNITED STATES V. LYNCH

OPINION

ROGERS, Circuit Judge:

I. Introduction

Charles Lynch ran a marijuana dispensary in Morro Bay,

California, in violation of federal law. He was convicted of

conspiracy to manufacture, possess, and distribute

marijuana, as well as other charges related to his ownership

of the dispensary. In this appeal, Lynch contends that the

district court made various errors regarding Lynch’s defense

of entrapment by estoppel, improperly warned jurors against

nullification, and allowed the prosecutors to introduce

various evidence tying Lynch to the dispensary’s activities,

while excluding allegedly exculpatory evidence offered by

Lynch. However, Lynch suffered no wrongful impairment

of his entrapment by estoppel defense, the anti-nullification

warning was not coercive, and the district court’s evidentiary

rulings were correct in light of the purposes for which the

evidence was tendered. A remand for resentencing is

required, though, on the government’s cross-appeal of the

district court’s refusal to apply a five-year mandatory

minimum sentence, which unavoidably applies to Lynch.

Following the filing of this appeal and after the

submission of the government’s brief, the United States

Congress enacted an appropriations provision, which this

court has interpreted to prohibit the federal prosecution of

persons for activities compliant with state medical marijuana

laws. Lynch contends that this provision therefore prohibits

the United States from continuing to defend Lynch’s

conviction. We need not reach the question of whether the

provision operates to annul a properly obtained conviction,

however, because a genuine dispute exists as to whether

Lynch’s activities were actually legal under California state

UNITED STATES V. LYNCH 7

law. Remand will permit the district court to make findings

regarding whether Lynch complied with state law.

II. Background

The facts of this case are largely unchallenged on appeal.

In 2005 and into early 2006, Charles Lynch operated a

marijuana store in Atascadero, California, before neighbor

complaints caused the town to shut down Lynch’s

operations. In 2006 Lynch moved his activities to Morro

Bay, opening what he called Central Coast Compassionate

Caregivers (CCCC) in April of that year. Lynch’s

dispensary proved to be a popular one, employing around

10 subordinates and selling $2.1 million in marijuana and

marijuana-related products during the period in which the

dispensary operated.

Lynch’s dispensary soon also attracted the attention of

federal authorities. In March 2007, the DEA obtained a

search warrant and raided Lynch’s home, along with the

dispensary. Lynch continued to operate CCCC, but his

efforts there were short-lived. On July 13, 2007, the United

States indicted Lynch on five counts: conspiracy to

manufacture, possess, and distribute marijuana, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, 856, and 859

(Count 1); aiding the distribution of marijuana to persons

below 21 years, in violation of 18 U.S.C. § 2 and 21 U.S.C.

§§ 841(a)(1), 859(a) (Counts 2 and 3); marijuana possession

with intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B) (Count 4); and maintenance of a

drug-involved premise, in violation of 21 U.S.C. § 856(a)(1)

(Count 5). Lynch went to trial, took the stand, and admitted

what he now concedes were “sufficient facts to find him

guilty of the five counts charged.” The jury convicted Lynch

on all counts.

8 UNITED STATES V. LYNCH

Lynch’s arguments on appeal largely depend on legal

developments beginning over a decade before CCCC opened

its doors. In 1996, California voters decriminalized the use

of marijuana for medical purposes. See Cal. Prop. 215,

codified at Cal. Health & Safety Code § 11362.5. The U.S.

Supreme Court subsequently held that Congress’s

determination that marijuana was a Schedule I substance

under the Controlled Substances Act meant that marijuana

had no medical value, United States v. Oakland Cannabis

Buyers’ Co-op., 532 U.S. 483, 491 (2001), and that federal

prohibition of and prosecution for marijuana-related

activities remained permissible. Gonzales v. Raich, 545 U.S.

1, 22 (2005). Lynch maintained a somewhat different view

of the Controlled Substances Act from that of the Supreme

Court, however. Lynch testified at trial that he had thought,

based on the Tenth Amendment, that the 1996 referendum

had overridden federal law, and thus made medical

marijuana legal in California.

In accordance with this belief, Lynch claims that before

opening CCCC, he had called the DEA, and reached a man,

whose name or position Lynch did not know. Lynch stated

that he had inquired of this person “what you guys are going

to do about all of these medical marijuana dispensaries

around the State of California.” Lynch testified that the

person responded that “it was up to the cities and counties to

decide how they wanted to handle the matter.” Lynch then

allegedly also told the man that he intended to open a

dispensary, to which the man is alleged to have repeated

what he had told Lynch before, that it was “up to the cities

and counties to decide.”

This alleged advice did not turn out to be accurate,

however. Lynch was indicted and scheduled for trial in the

Central District of California. Several of the district court’s

UNITED STATES V. LYNCH 9

actions before and during trial remain the subject of dispute

in this appeal. At voir dire, the district court responded to a

potential juror’s invocation of jury nullification with a

caution to the voir dire panel that “[n]ullification is by

definition a violation of the juror’s oath” and that, if selected

as a juror, “you cannot substitute your sense of justice,

whatever it may be, for your duty to follow the law, whether

you agree with the law or not.” Then, in its rulings in

motions in limine and at trial, the district court permitted

various evidence that Lynch contends should have been

excluded as impermissibly inflammatory, and also excluded

evidence that Lynch contends should have been allowed to

support Lynch’s defenses. Finally, Lynch alleges that the

district court engaged in improper ex parte communications

with the jury, and also did not disclose the contents of these

communications to Lynch.

At trial, Lynch took the stand in his own defense, and,

although forcefully defending his position that the DEA call

had led him to believe that his activities were permitted, he

also conceded facts sufficient to ensure his conviction if that

defense failed. Lynch therefore requested that that the court

give an instruction on entrapment by estoppel. The district

court allowed an instruction on this defense with regard to

counts 1, 4, and 5—general distribution, possession with

intent to distribute, and maintaining a drug-involved

premises—but refused to allow this defense as against

counts 2 and 3, the distribution to minors charges, because

the district court determined that Lynch’s facts, even if

believed, did not suffice to allow the defense as against those

charges.

After a day of deliberation, the jury convicted Lynch on

all counts. Lynch filed several post-conviction motions for

a new trial, including, as relevant here, a fourth new-trial

10 UNITED STATES V. LYNCH

motion claiming a Brady violation. This motion stated that

a prosecutor post-trial had said that the office focused its

resources on targeting those marijuana dispensaries “that

more clearly violated state law,” and Lynch contended that

this statement was exculpatory of him. The district court

denied this and the other new-trial motions, however.

Following Lynch’s conviction and after the failure of his

new-trial motions, Lynch faced two possible mandatory-

minimum sentences: a one-year mandatory minimum for

distribution to persons under the age of 21, see 21 U.S.C.

§ 859(a), and a five-year mandatory minimum for the total

amount of marijuana in his conspiracy, see 21 U.S.C.

§ 841(b)(1)(B)(vii). Following a lengthy sentencing

process, the district court held that Lynch was not subject to

the five-year minimum because, the court held, it had

discretion under the so-called “safety valve,” 18 U.S.C.

§ 3553(f), not to apply this sentence to Lynch. The court

determined that the safety valve could not apply to Lynch’s

§ 859(a) sentence, however, and so it sentenced Lynch to

one year and one day in prison, suspended pending this

appeal.

Lynch subsequently filed this timely appeal, challenging

his conviction and objecting to the application of the one-

year mandatory minimum. The government also cross-

appeals, arguing for imposition of the five-year mandatory

minimum.

Subsequent to Lynch’s conviction, and while this appeal

was pending, Congress passed an appropriations measure,

which, as relevant here, states that “None of the funds made

available in this Act to the Department of Justice may be

used, with respect to,” among others, California, “to prevent

such States from implementing their own State laws that

authorize the use, distribution, possession, or cultivation of

UNITED STATES V. LYNCH 11

medical marijuana.” Consolidated and Further Continuing

Appropriations Act of 2015 § 538, Pub. L. No. 113-235, 128

Stat 2130. Lynch filed a motion, claiming that the spending

provision bars the government from continuing with this

appeal. After a ruling by a Motions Panel of this court, and

a refusal of the district court to rule on the issue while the

appeal was pending, we allowed Lynch to submit these

arguments as part of his third cross-appeal brief. Lynch also

requested that the district court grant a hearing on whether

Lynch was covered by the rider, but the district declined to

do so, because Lynch’s case was on appeal.

III.

A. Evidentiary Rulings

Lynch argues that there was error in three lines of

evidentiary rulings made by the district court, but none of the

alleged rulings was reversible error.

1. Exclusion of Lawyer Testimony and Recording

Lynch objects to exclusion of testimony from a lawyer

about Lynch’s phone call to the DEA, as well as a recording

of this lawyer discussing that call on a radio program. Lynch

had sought to substantiate his entrapment by estoppel

defense by having this lawyer testify that, in January 2006,

Lynch had told the lawyer about the substance of Lynch’s

alleged phone call to the DEA. Lynch also proposed to

introduce a subsequent recording of a radio interview of the

lawyer recounting Lynch’s description of the call. The

district court did not permit the lawyer to testify about

Lynch’s statements to him, however, because the district

court reasoned that the lawyer’s statement would be hearsay,

and the testimony was also not admissible as a prior

consistent statement of Lynch’s, because any statement

12 UNITED STATES V. LYNCH

Lynch made to the lawyer would have postdated Lynch’s

motivation to fabricate the contents of that call. The court

also excluded the radio recording on those same hearsay

grounds.

The district court’s rejection of these pieces of evidence

was correct because both pieces of evidence were hearsay to

which no exception applied. In both cases Lynch sought to

introduce the evidence for the same purpose: Lynch

allegedly told the lawyer that the DEA had told Lynch that

CCCC would be legal if operated in accordance with state

law, and Lynch sought to have the lawyer testify or play the

recording to support the notion that the DEA had told Lynch

this. The evidence was thus clearly hearsay—and obviously

excludable—because it was an out-of-court statement

offered for the truth of the matter asserted, i.e., that the

government agent had told Lynch this. See Fed. R. Evid.

801(c).

Lynch nevertheless sought to permit the evidence’s

introduction as a prior consistent statement of Lynch’s trial

testimony regarding what the DEA had told him, see Fed. R.

Evid. 801(d)(1)(B), but neither the lawyer’s testimony nor

the recording was admissible as a prior consistent statement.

To be a prior consistent statement, a statement must occur

before a motivation to fabricate arises. Tome v. United

States, 513 U.S. 150, 156 (1995); see also United States v.

Bao, 189 F.3d 860, 864 (9th Cir. 1999) (same). Here,

however, the district court correctly determined that Lynch’s

motivations to fabricate predated any contact he had with the

lawyer. At the time he made his alleged statements to the

lawyer, Lynch was running a marijuana store in Atascadero,

and was also deep in plans to open CCCC. In both cases,

Lynch would have been strongly incentivized to make up or

misrepresent the call—directly in exculpating his work in

UNITED STATES V. LYNCH 13

Atascadero, and prospectively for when he began operations

at CCCC. Anything Lynch told the lawyer therefore did not

rebut the government’s attack on Lynch’s trial testimony,

that Lynch fabricated or selectively remembered the

contents of the DEA call, because Lynch’s prior statement

was subject to the same incentives for untruthfulness.

Lynch contends that his statements to the lawyer

predated any motivation to fabricate, because Lynch had not

yet begun operations at CCCC at the time he spoke to the

lawyer. This argument takes too narrow a view of what

constitutes a motivation to fabricate, however. This court

has explained that a motivation to fabricate exists when such

statements are inherently “self-serving;” for example, where

a person was under investigation, even though not yet

formally charged. United States v. Miller, 874 F.2d 1255,

1274 (9th Cir. 1989). That Lynch had not yet opened CCCC

at the time he spoke to the lawyer did not keep his statements

from being self-serving, most obviously because they

planted the seeds for a defense against the obvious threat of

prosecution for Lynch’s intended future activities. An alibi

surely does not become a prior consistent statement, just

because it is proffered before a crime occurs. For instance,

the Eleventh Circuit has held that a statement of innocent

purpose was not admissible as a prior consistent statement

because the defendant was in plans to commit the crime at

the time of the statement. See United States v. Vance,

494 F.3d 985, 994 (11th Cir. 2007), superseded by

regulation on other grounds as recognized in United States

v. Jerchower, 631 F.3d 1181, 1186 (11th Cir. 2011).

Lynch also argues that the lawyer’s testimony and the

recorded radio interview should have been allowed to

enhance Lynch’s credibility as a witness, but this was not a

permissible basis for admitting that evidence. “Prior

14 UNITED STATES V. LYNCH

consistent statements by a witness ‘may not be admitted to

counter all forms of impeachment or to bolster the witness

merely because she has been discredited.’” United States v.

Collicott, 92 F.3d 973, 979 (9th Cir. 1996) (quoting Tome,

513 U.S. at 157). Rather, as we have explained, such

statements are allowable only to rebut claims of recent

fabrication or improper motive. Id. Because Lynch’s

motivation remained the same from when he made the

statements to the lawyer to his testimony at trial—being able

to claim authorization for CCCC’s activities—the fact that

Lynch has consistently told the same story was not

ultimately probative of his veracity. The district court

therefore did not err in excluding this testimony.

2. Exclusion of Compliance with Local Laws

Lynch also argues that the district court erred in

excluding evidence Lynch sought to offer about his

adherence to Morro Bay local rules, as well as statements

made by local authorities to Lynch about the permissibility

of this operation. This exclusion fell well within a district

court’s substantial discretion to exclude improper defense

evidence, see Holmes v. South Carolina, 547 U.S. 319, 326–

27 (2006), because the evidence was both repetitive and

irrelevant.

Lynch contends that the district court erred in allegedly

preventing him from showing that he complied with local

regulations, but the district court did not so limit Lynch’s

defense. In fact, the district court allowed Lynch substantial

opportunity to present evidence about how he followed what

Morro Bay required of him, including testimony to this

effect from the mayor and city attorney. Lynch contends that

the district court erred in not allowing him to present further

evidence about CCCC’s attempts to follow local and state

law, but Lynch did not have an unlimited right to such a

UNITED STATES V. LYNCH 15

presentation. Even acknowledging a defendant’s right to

choose his defense, exclusion for repetitiveness falls within

a district court’s discretion. See United States v. Scholl,

166 F.3d 964, 973–74 (9th Cir. 1999). Here, the district

court declined to allow further testimony from the mayor and

city attorney on the grounds that there was no dispute about

Lynch’s compliance with state and local law and that the

additional proposed evidence suffered from additional

deficiencies, such as being hearsay. The district court

therefore did not abuse its discretion in excluding this

evidence, because it clearly had the power to decline to allow

otherwise-problematic evidence on an already-established

and uncontested matter.

Lynch also contends that that the district court erred in

excluding video evidence of a local sheriff stating that Lynch

was welcome to reopen CCCC following the March 2007

raid, because, according to Lynch, this video was useful for

Lynch’s entrapment by estoppel defense. But the district

court correctly rejected this evidence as irrelevant to Lynch’s

defense. Compliance with local law is not a substantive

defense to a violation of federal drug law. See Raich,

545 U.S. at 29. In addition, as the district court determined,

although approval from state and local authorities was

neither necessary nor sufficient to demonstrate entrapment

by estoppel, Lynch had already offered extensive evidence

to that point. The district court therefore did not abuse its

discretion in excluding the video, because it was repetitive

of evidence already received, and not otherwise relevant to

Lynch’s defense.

3. Baxter Deal

Lynch also argues that it was error to permit the

government’s introduction of evidence that a CCCC

employee, Abraham Baxter, sold $3,200 worth of marijuana

16 UNITED STATES V. LYNCH

to a government agent, a transaction that Lynch alleges he

did not know about and was not involved in. Lynch claims

the evidence was unfairly prejudicial, in violation of Fed. R.

Evid. 403. The evidence was not more prejudicial than

probative, however, and the evidence was also more

generally harmless, given Lynch’s own concession of factual

guilt.

The evidence was not improperly prejudicial, because its

tendency was to prove the nature of the conspiracy of which

Lynch was charged with being a part. On the government’s

theory of the case, Lynch joined with Baxter and the other

CCCC employees to distribute marijuana, and Baxter’s sale

of the marijuana to the agent was part of this conspiracy.

(Indeed, the indictment identified this sale as an overt act of

the conspiracy involving Lynch.) A significant amount of

evidence did exist on which a jury could find that Lynch was

linked to this transaction or that the sale was foreseeable to

him. That Lynch might not have known about Baxter’s

transaction does not necessarily render the evidence

inadmissible, since, under Pinkerton v. United States,

328 U.S. 640, 647–48 (1946), coconspirators are “criminally

liable for reasonably foreseeable overt acts committed by

others in furtherance of the conspiracy they have joined,

whether they were aware of them or not.” United States v.

Gadson, 763 F.3d 1189, 1214 (9th Cir. 2014) (quoting

United States v. Hernandez-Orellana, 539 F.3d 994, 1007

(9th Cir. 2008)). Although the district court later stated in

its sentencing memorandum that it did not believe that the

government had proven Lynch’s actual knowledge of this

transaction, that does not bear on the question of exclusion,

because determining the nature or scope of a conspiracy “is

a question of fact, not of law, to be determined by the jury.”

UNITED STATES V. LYNCH 17

United States v. DiCesare, 765 F.2d 890, 900 (9th Cir.

1985), amended, 777 F.2d 543 (9th Cir. 1985). 1

In any event, any complaints Lynch might have about the

district court’s treatment of the Baxter deal amount at most

to harmless error. Lynch acknowledges that, when on the

stand, he conceded sufficient facts to allow the jury to find

him guilty of all charges. This fact severely limits Lynch’s

ability to complain of purported errors with regard to

evidence introduced at his trial. “[I]t is the duty of a

reviewing court to consider the trial record as a whole and to

ignore errors that are harmless, including most constitutional

violations.” United States v. Hasting, 461 U.S. 499, 509

(1983). Alleged errors are not reversible if, setting that

evidence aside, it is still “clear beyond a reasonable doubt

that the jury would have returned a verdict of guilty.” Id. at

511. Here, a jury would have convicted Lynch regardless of

any treatment of the Baxter evidence, given that Lynch

himself gave the jury all the necessary material to allow for

his conviction. Lynch’s complaints about the district court’s

handling of the Baxter-related evidence show therefore, at

most, harmless error.

1

Lynch also argues that the district court had expressed concern

about the foundation of this evidence, and contends that the district court

had stated it would offer a limiting instruction or declare a mistrial if the

government did not prove that Lynch knew about Baxter’s activities, but

this argument is not supported by the record. What the district court

stated would justify a limiting instruction or mistrial was the use of

hearsay statements by Baxter as a coconspirator admission without the

government’s having laid the foundation for those statements. The

district court never stated that evidence about the Baxter transaction

would be subject to a blanket limiting instruction if the government

failed to prove Lynch’s actual knowledge of that transaction, and

appropriately so, because such knowledge was not necessary for the

government to have offered evidence that the transaction had occurred.

18 UNITED STATES V. LYNCH

Lynch also objects to the exclusion of a statement Baxter

had made to an investigator, that “Charlie didn’t know

anything about this deal,” but the district court correctly

excluded this evidence as hearsay. Lynch contends that this

statement was nevertheless admissible as a statement against

interest, see Fed. R. Evid. 804(b)(3), but the district court

correctly held that statement was not allowable under that

exception. To be a statement against interest requires,

among other things, that “the statement so far tended to

subject the declarant to criminal liability that a reasonable

person in the declarant’s position would not have made the

statement unless he believed it to be true.” United States v.

Paguio, 114 F.3d 928, 932 (9th Cir. 1997). Stating the

negative, that another person does not know about a crime,

hardly inculpates the declarer, and certainly neither “so far”

nor so clearly that a reasonable person would not say so if

the statement were false. Id. Lynch takes the position that,

because Baxter was under investigation when he made that

statement, it might have been prejudicial to him in

unforeseen ways, but this is exactly the sort of “mere[]

speculation” that cannot serve as the basis for categorization

as a statement against interest. United States v. Monaco,

735 F.2d 1173, 1176 (9th Cir. 1984). The district court

therefore did not err in disallowing the introduction of this

statement.

4. Other Alleged Inflammatory Evidence

Lynch also objects to the admission of a number of

pieces of evidence that he contends should have been

excluded as impermissibly inflammatory, but there was no

error in the district court’s handling of this evidence, and,

even were we to find error, we would consider such error

harmless. Lynch claims that it was wrong to allow testimony

by law enforcement about Baxter-like distributions by other

UNITED STATES V. LYNCH 19

CCCC employees outside the clinic, that evidence was

introduced that a CCCC employee apparently mailed a

package of marijuana, that the government showed

surveillance videos that included “teenagers who looked

healthy,” that the government discussed the violent-

sounding “AK47” strains of marijuana, and that the

government showed a chart with the “type[s] of highs”

caused by different marijuana strains. None of this evidence

comes remotely close to what this court has identified as

inappropriately inflammatory, like a defendant’s reading of

material advocating terrorism, United States v. Waters,

627 F.3d 345, 355 (9th Cir. 2010), or the imputation of guilt

based on ethnicity, United States v. Cabrera, 222 F.3d 590,

596 (9th Cir. 2000). This evidence was also inconsequential

in light of Lynch’s own concession of guilt.

Lynch further argues that the district court should not

have permitted admission of a CCCC business check written

by Lynch to himself. The introduction of the check is also

at most harmless error, because the evidence was not

responsible for Lynch’s ultimate conviction. In any event,

the check was correctly admitted to show that Lynch

controlled CCCC’s accounts, and the district took

appropriate steps, including redaction of the amount of the

check, to avoid any unnecessary prejudice against Lynch.

B. Nondisclosure of Reuther-Related Evidence

Lynch asserts that evidence he has subsequently

discovered about the United States’ prosecution priorities

should have been disclosed to him pursuant to Brady v.

Maryland, 373 U.S. 83 (1963). This claim is without merit,

because the evidence was not exculpatory of Lynch or

otherwise relevant to his case. As relevant here, Lynch’s

fourth new trial motion included a claim based on a

statement made on March 27, 2009, by one of Lynch’s

20 UNITED STATES V. LYNCH

prosecutors. In the context of explaining a new Department

of Justice policy discouraging medical marijuana

prosecutions for facilities in compliance with state law, that

prosecutor stated: “in this district we had already made the

determination that in allocating our resources we would

focus on those [medical marijuana facilities] that more

clearly violated state law. So the attorney general’s

statement really for us has always been somewhat of a red

herring . . . those were always factors in the investigation at

the beginning.” Lynch contended that this testimony

demonstrated that the government possessed undisclosed

exculpatory information, in that the prosecutor’s statement

allegedly contradicted trial testimony from a DEA agent that

DEA “would be investigating the federal laws and the

marijuana—illegal sales of marijuana federally. It doesn’t

matter what the state or local officials say or do.” Lynch

therefore argued that he was entitled to a new trial because

the government had failed to comply with its Brady

obligations. The court denied Lynch’s new trial motion,

however, because this evidence was not exculpatory of

Lynch.

The district court was correct in rejecting Lynch’s

argument that this statement proved the existence of a Brady

violation. To justify reversal for nondisclosure, evidence

must be of the sort that, if it had “been disclosed to the

defense, the result of the proceeding would have been

different.” Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir.

2008) (quoting United States v. Bagley, 473 U.S. 667, 682

(1985)). The obvious point that the government prioritizes

its resources on prosecuting those most flagrant offenders

should not have been a surprising fact, and certainly would

not have resulted in Lynch’s acquittal. Courts have long

recognized that prosecutorial decisions inevitably involve

difficult choices about resource allocation, and the

UNITED STATES V. LYNCH 21

government possesses broad discretion to say where those

resources should be deployed. See Wayte v. United States,

470 U.S. 598, 607 (1985). The prosecutor’s statement

merely expressed what those priorities were here. It never

indicated that Lynch’s compliance or noncompliance with

state law would have had any effect on Lynch’s substantive

guilt. Lynch also would not have been entitled to acquittal

even if he had shown that he was in compliance with state

law, because such compliance was not relevant to the federal

crimes he was charged with. See Raich, 545 U.S. at 29.

Lynch suggests that the information about prosecutorial

priorities was favorable to his defense because it suggested

that testimony given by DEA Agent Reuter was perjurious

and thus violative of Lynch’s due process right not to be

convicted by testimony known by the state to be perjurious.

See Napue v. People of State of Ill., 360 U.S. 264, 269

(1959). But this argument also depends on a misreading of

that testimony. Agent Reuter stated that neither she nor

anyone in her office would have told Lynch that dispensaries

were permissible if in compliance with state and local law,

because “federal law has nothing to do with state and local

officials. We would be investigating the federal law . . . . It

doesn’t matter what the state or local officials say or do.” It

is entirely reconcilable—and thus not at all suggestive of

perjury—to say that a dispensary is always subject to

investigation when illegal under federal law, but practically

most likely to be prosecuted when also committing state law

violations too. Moreover, Agent Reuter was testifying about

the investigative practices of her DEA office, while the

prosecutor’s statement explained the charging decisions of

that office. It is also not suggestive of perjury that two

different government agencies operate differently or explain

their roles in different terms.

22 UNITED STATES V. LYNCH

Lynch finally suggests that this information would have

allowed him to question Agent Reuter on the proposition

that, if Lynch had been in compliance with state law, he

would not have been investigated or prosecuted. Such an

argument would border on the frivolous, however. Lynch

may be correct that his chances of being caught would have

been lower if he had been in compliance with state law, but

this is not the same as saying that Lynch was actually

innocent of any crimes of which he was convicted.

For those reasons, then, Lynch does not demonstrate any

error in the district court’s handling of the evidence at his

trial.

C. Entrapment by Estoppel Defense

Lynch contends that the district court committed various

errors with respect to Lynch’s entrapment by estoppel

defense. The court allegedly misinstructed the jury about

this defense’s elements, refused to allow the defense as

against the distribution-to-minors charges, and did not

permit the jury to consider evidence of Lynch’s compliance

with state law. All of Lynch’s arguments on this point fail,

however, because Lynch did not prove facts sufficient to

establish a basis for entrapment by estoppel. Lynch

therefore has no grounds to object to the district court’s

treatment of this defense, because Lynch’s failure to provide

a sufficient factual basis to establish the defense meant that

Lynch was not entitled to any instruction on, or jury

consideration of, this defense in the first place.

Lynch’s proposed basis for the entrapment by estoppel

defense was Lynch’s trial testimony that, in September 2005

and before opening CCCC, Lynch had allegedly called the

local DEA office and reached a man at the office, whose

name or position Lynch did not know. Lynch stated that he

UNITED STATES V. LYNCH 23

had inquired of this person “what you guys are going to do

about all of these medical marijuana dispensaries around the

State of California.” Lynch testified that the person

responded that “it was up to the cities and counties to decide

how they wanted to handle the matter.” Lynch then

allegedly specifically told the man that he intended to open

a dispensary, and the man repeated that same thing that he

had told Lynch before, that it was “up to the cities and

counties to decide.” Lynch contends that he relied on this

statement in opening CCCC, and would not have

commenced operations if he had been told that his proposed

activities were illegal. 2 At trial, the district court allowed

Lynch to seek to claim this defense with regard to counts 1,

4, and 5—general distribution, possession with intent to

distribute, and maintaining a drug-involved premises—but

refused to allow this defense as against counts 2 and 3—the

distribution to minors charges—because it held that Lynch

had not established any foundation for that defense to apply

to these charges.

Lynch contends that the information allegedly given to

him in his phone call to the DEA sufficed to allow him a

defense of entrapment by estoppel and that the district court

committed various errors with respect to that defense, but

this phone call was insufficient to provide a basis for the

defense. Although it is true that a defendant is generally

2

The government contends that Lynch’s testimony on this point is

highly doubtful because, although Lynch’s phone records reflected that

he had in fact called the DEA, the agent whose number Lynch dialed was

female rather than the man identified by Lynch, and that agent also

testified at trial that neither she nor any agent in her division would have

given Lynch the information Lynch claimed to have received. We do

not reach the issue of the credibility of Lynch’s testimony, however,

because even taking his account as true, Lynch did not provide a

sufficient factual basis for any instruction on entrapment by estoppel.

24 UNITED STATES V. LYNCH

“entitled to have the jury instructed on his or her theory of

defense,” this entitlement does not apply “where the

evidence, even if believed, does not establish all of the

elements of a defense.” United States v. Perdomo-Espana,

522 F.3d 983, 986–87 (9th Cir. 2008) (quoting United States

v. Arellano-Rivera, 244 F.3d 1119, 1125 (9th Cir. 2001)

(internal quotation marks omitted)). Even crediting Lynch’s

testimony that the phone call occurred and that he was told

that “it was up to the cities and counties to decide how they

wanted to handle the matter” of marijuana dispensaries,

Lynch still lacked crucial elements to shield himself under

the defense of entrapment by estoppel.

To establish the defense of entrapment by estoppel, a

defendant has the burden to show: “(1) an authorized

government official, empowered to render the claimed

erroneous advice, (2) who has been made aware of all the

relevant historical facts, (3) affirmatively told [the

defendant] the proscribed conduct was permissible, (4) that

[the defendant] relied on the false information, and (5) that

[the] reliance was reasonable.” United States v. Schafer,

625 F.3d 629, 637 (9th Cir. 2010) (quoting United States v.

Batterjee, 361 F.3d 1210, 1216 (9th Cir. 2004)). Assuming

that Lynch’s testimony could be believed to show that Lynch

spoke to an authorized official and that Lynch relied on the

information given to him, the other elements of the defense

were missing here.

The statement that “it was up to the cities and counties to

decide how they wanted to handle the matter” was not the

affirmative authorization that Lynch needed to identify to

have been entitled to any instruction or evidence introduced

on entrapment by estoppel. At most, Lynch’s evidence

suggests that federal authorities were confused about how to

handle a complex and evolving area, but this is not the same

UNITED STATES V. LYNCH 25

as saying that Lynch was actively told he could violate

federal law. “[T]o invoke estoppel against the Government,

the party claiming estoppel must show ‘affirmative

misconduct’ as opposed to mere failure to inform or assist.”

Lavin v. Marsh, 644 F.2d 1378, 1382 (9th Cir. 1981). Even

on Lynch’s version of the facts, the person he talked to may

have been unhelpful in failing to remind Lynch that

marijuana remained illegal under federal law, but he never

told Lynch that Lynch’s proposed activities were legal. We

generally refuse to recognize a defense of entrapment by

estoppel where a defendant shows that a government agent

only failed to tell a defendant that proposed conduct was

illegal, as opposed to affirmatively stating that it was legal.

See United States v. Brebner, 951 F.2d 1017, 1026 (9th Cir.

1991). Even crediting Lynch’s testimony for all that it is

worth, Lynch never received the sort of clear sanction that

entrapment by estoppel requires.

In particular, the ambiguity of the statement that it was

“up to the cities and counties to decide” means that the

statement lacked sufficient concreteness to have served as an

affirmative authorization for Lynch’s activities. To establish

affirmative authorization, a “defendant must do more than

show that the government made ‘vague or even

contradictory statements.’” United States v. Ramirez-

Valencia, 202 F.3d 1106, 1109 (9th Cir. 2000) (quoting

Raley v. Ohio, 360 U.S. 423, 438 (1959)). Instead, the

defendant “must show that the government affirmatively

told him the proscribed conduct was permissible.” Id. Even

if Lynch took the statement as implicit authorization for his

actions, this is not the same as saying that the statement was

an affirmative and unambiguous grant of permission. The

statement could have meant other (and more plausible)

things: that the federal government would prioritize

prosecuting those dispensaries most violative of state and

26 UNITED STATES V. LYNCH

local law; that, although such dispensaries were not legal, the

government would generally not investigate without a state

or local government requesting investigation; that, in the

absence of federal prohibition, regulation would be up to the

cities and states. The vagueness and ambiguity of the

statement therefore did not allow it to serve as a basis for a

claim of entrapment by estoppel.

In addition, even to the extent that Lynch might have

(improperly) understood the statement to be an affirmative

authorization, any reliance on the statement was clearly

unreasonable. The determination of reasonable reliance is a

relatively common-sense inquiry: reasonable reliance occurs

if “a person sincerely desirous of obeying the law would

have accepted the information as true, and would not have

been put on notice to make further inquiries.” United States

v. Batterjee, 361 F.3d 1210, 1216–17 (9th Cir. 2004)

(quoting Ramirez-Valencia, 202 F.3d at 1109). Thus, for

example, in Batterjee, we held that a defendant dealing with

the complicated intersection of immigration and criminal

law, who had been told by a federal licensee that he was

“legally purchasing and possessing a firearm,” could

reasonably rely on those assurances, because there was no

reason for him to have believed he need inquire any further.

Id. at 1217.

Here, by contrast, Lynch clearly should still have been

on notice that any purported categorical authorization to

violate the federal drug laws was incorrect, or at least

demanded further inquiry into the validity of that

authorization. Before he made the call, Lynch had been

actively following developments of marijuana law in

California and throughout the United States. Indeed, about

six months before the alleged call, Raich had established that

the federal government had the power to prosecute crimes

UNITED STATES V. LYNCH 27

even if legal under state law, and Lynch had testified that he

was aware this case was ongoing. Even if it might be too

much to say that Lynch should be charged with precisely

understanding Supreme Court doctrine, a reasonable person

with the knowledge Lynch had would, at minimum, have

understood the relationship between state and federal

regulation of marijuana to be a subject of significant legal

complexity. It was not reasonable to think that two questions

posed to an anonymous and apparently confused source

could have definitively resolved all legal questions relating

to Lynch’s operations.

In particular, Lynch’s alleged reliance on the call could

not have been reasonable because it required Lynch to ignore

vast swaths of information he had about marijuana’s

illegality under federal law. For example, in the controversy

leading to the closure of the store in Atascadero, the city

attorney had told Lynch that marijuana distribution was

illegal for all purposes under federal law. Lynch also

testified that before making the call to the DEA, he had gone

on the DEA website and discovered the fact that marijuana

was illegal under federal law, specifically that it is a

Schedule One drug. In addition, Lynch collected books,

legal memoranda, and other materials on the legal status of

marijuana, and many of these indicated that marijuana was

illegal under federal law, regardless of state legality. Nor

had Lynch somehow missed the point contained in all these

materials. Even after making the call, Lynch distributed

forms stating that CCCC recognized “that Federal Law

prohibits Cannabis,” although the forms also included an

incorrect statement that California legalization had created

an exception to the federal prohibition through the Tenth

Amendment.

28 UNITED STATES V. LYNCH

It was therefore flatly unreasonable for Lynch to have

relied on this purported statement from the DEA, because

Lynch had ample cause to recognize that anything he took to

be an authorization for his activities might have been

incorrect or incomplete. A defendant’s reliance on an

alleged authorization is unreasonable where such reliance

ignores other relevant information the defendant has about

the subject. For example, we have recently held that

marijuana distributors who allegedly received bad

information from a state sheriff’s department could not claim

entrapment by estoppel, because they knew that marijuana

remained illegal under federal law. United States v. Schafer,

625 F.3d 629, 638 (9th Cir. 2010).

The same principle applies here. Even crediting Lynch’s

version of the call, a reasonable person possessing all the

information Lynch had would not have considered the call

decisive of what the law required. Rather, a reasonable

person would at least have sought to resolve the two

apparently contradictory conclusions Lynch had about what

the law was. In contrast, in Batterjee, we emphasized the

reasonableness of a defendant’s reliance on incorrect but

apparently plausible advice on the basis that he had made

further inquiries even after receiving that advice. See

Batterjee, 361 F.3d at 1216–17. Because Lynch instead

simply cut off his inquiries when he allegedly heard what he

wanted to hear, ignoring all information he had to the

contrary, any reliance he made on the call was unreasonable,

and the call was therefore insufficient to sustain a defense of

entrapment by estoppel.

In short, because Lynch did not show facts providing a

basis on which a reasonable jury could find that he was

entitled to this defense of entrapment by estoppel, he was not

entitled to present this defense in the first place. The district

UNITED STATES V. LYNCH 29

court therefore did not err in any decisions it made with

respect to entrapment by estoppel, because that defense

simply did not apply to Lynch.

D. Caution Against Nullification

Lynch assigns error to a warning against nullification

given by the district court at voir dire. This warning was

permissible, however, because it was an appropriate exercise

of a district court’s duty to ensure that a jury follows the law,

and it was additionally justifiable given that the need for the

warning was a risk that Lynch’s counsel had himself invited.

In the run-up to Lynch’s trial, Lynch’s lawyer, perhaps

recognizing that Lynch’s guilt was clear, appears to have

sought to encourage prospective jurors that they did not need

to convict Lynch even if he was factually and legally guilty

of his crimes. For example, on the first day of voir dire,

Lynch’s lawyer told prospective jurors that, among other

things, “the judge is only going to tell you what the law is,

and that ultimate decision about what to do in this case is for

you and only you to decide,” and “there is nobody above you

and . . . you [are] the person that’s got to decide what to do.”

On the second day of voir dire, the government objected that

these statements seemed to be calling for jury nullification,

and the district court cautioned Lynch’s counsel at a sidebar

not to ask questions seeking jury nullification. Within

minutes of receiving this warning, however, Lynch’s

counsel returned to the line of statements he had been

making before, asking jurors whether they agreed that

“whether to find a person guilty or not guilty is your

decision.”

Finally, one juror got the drift and responded to Lynch’s

counsel, “I understand that completely. I believe there is

something called jury nullification, that if you believe the

30 UNITED STATES V. LYNCH

law is wrong, you don’t have to convict a person.” The

district court halted voir dire, and, after consultation with the

attorneys, gave the following caution to the prospective

jurors:

Nullification is by definition a violation of

the juror’s oath which, if you are a juror in

this case, you will take to apply the law as

instructed by the court. As a . . . juror, you

cannot substitute your sense of justice,

whatever it may be, for your duty to follow

the law, whether you agree with the law or

not. It is not your determination whether the

law is just or when a law is unjust. That

cannot be and is not your task.

The district court then asked each individual prospective

juror if he or she could abide by that instruction. Each juror

agreed to so abide.

The district court’s caution against nullification was

permissible. It is clear that “no juror has a right to engage in

nullification,” that such nullification is “a violation of a

juror’s sworn duty to follow the law as instructed by the

court,” and, to that end, “trial courts have the duty to forestall

or prevent such conduct,” including “by firm instruction or

admonition.” Merced v. McGrath, 426 F.3d 1076, 1079–80

(9th Cir. 2005) (quoting United States v. Thomas, 116 F.3d

606, 617 (2d Cir. 1997)). The district court’s caution to the

jurors that they should not substitute their own sense of

justice for their duty to find facts pursuant to the law was

entirely appropriate as a discharge of the court’s own duty to

forestall lawless conduct.

Moreover, the particular language chosen by the district

court accurately stated the law. The first part of the

UNITED STATES V. LYNCH 31

statement, that “nullification is, by definition, a violation of

the juror’s oath to apply the law as instructed by the court”

is a quote from United States v. Thomas, 116 F.3d 606, 614

(2d Cir. 1997), a case recognized by this court as an accurate

guide to a judge’s duty to prevent nullification. See Merced,

426 F.3d at 1079. The other part of the statement, that a juror

“cannot substitute your sense of justice . . . for your duty to

follow the law” and that it was “not your determination

whether a law is just . . .” comes from United States v.

Rosenthal, 266 F. Supp. 2d 1068, 1085 (N.D. Cal. 2003),

affirmed in part, reversed in part, 454 F.3d 943 (9th Cir.

2006). This court has explicitly recognized that these

sentences from Rosenthal are generally permissible as

instructions to a jury to follow the law. United States v.

Kleinman, reissued as 880 F.3d 1020, 1032 (9th Cir. 2018).

The district court’s caution was therefore allowable, both in

the choice to have given it, as well as the language chosen to

convey that message.

Lynch argues that the caution was impermissible

because this court in its recent Kleinman opinion has

determined that an anti-nullification instruction will be

improper if it “state[s] or impl[ies] that (1) jurors could be

punished for jury nullification, or that (2) an acquittal

resulting from jury nullification is invalid.” Kleinman,

880 F.3d at 1032. We held that one portion of the instruction

given in Kleinman crossed this line because it “could be

construed to imply that nullification could be punished,

particularly since the instruction came in the midst of a

criminal trial,” and that another portion was also incorrect

because it “could be understood as telling jurors that they do

not have the power to nullify, and so it would be a useless

exercise.” Id. at 1032–33. In this case, in contrast, there was

no indication that nullification would place jurors at risk of

legal sanction or otherwise be invalid. The district court

32 UNITED STATES V. LYNCH

correctly stated that the jurors did not have any right to

nullify, but it did not tell them that they lacked the actual

ability to do so. It also neither said nor implied that jurors

would be subject to punishment if they acquitted Lynch.

Lynch identifies a post-conviction letter written by one juror

stating he was concerned “we would be breaking our

promise if we did not vote to convict.” This appears to be

nothing more than a reflection of the fact that the evidence

against Lynch was so overwhelming that a juror could not

acquit Lynch without violating the juror’s duty to find facts

according to the law, however, given that Lynch had

admitted all facts necessary and sufficient to find him guilty.

The district court’s warning involved no language like

that determined to be impermissible in Kleinman. Indeed,

the strongest portion of the district court’s caution in this

case was specifically approved in Kleinman. See Kleinman,

880 F.3d at 1032. This case is also factually distinguishable

from Kleinman because of the circumstances in which the

anti-nullification instruction came about. In Kleinman, the

district court issued its warning against nullification during

jury instructions, sua sponte, and without any indication that

nullification was on any juror’s mind. See Kleinman,

880 F.3d at 1031. Here, by contrast, the warning directly

followed from a potential juror at voir dire indicating an

unwillingness to follow the law.

The court’s caution was, moreover, particularly justified

because it occurred on the second day of Lynch’s counsel’s

asking questions suggestive of nullification, and after the

court’s explicit admonishment to Lynch’s lawyer not to ask

such impermissible questions. As we have stated, albeit in a

somewhat different context, “an error that is caused by the

actions of the complaining party will cause reversal only in

the most ‘exceptional situation.’” United States v. Schaff,

UNITED STATES V. LYNCH 33

948 F.2d 501, 506 (9th Cir. 1991) (quoting Guam v. Alvarez,

763 F.2d 1036, 1038 (9th Cir. 1985) (internal quotation

marks omitted)). A legally accurate warning given in

response to a potential juror proposing to disregard the law

clearly is not such an exceptional situation.

Lynch more generally suggests that the district court’s

instruction inhibited the jurors from being willing to nullify

the charges against him, but this was also not a violation of

any legal right. “[W]hile jurors have the power to nullify a

verdict, they have no right to do so.” Merced, 426 F.3d at

1079. The district court’s admonition that nullification was

a violation of a jury’s duty to follow the law did not deprive

the jurors of their ability to nullify, since nullification is by

its nature the rejection of such duty. The district court

therefore did not commit any error in issuing its caution

against nullification.

E. Jury Ignorance about Mandatory Minimums

Lynch argues that the district erred in not allowing him

to inform the jury of the mandatory minimum sentence that

he faced if convicted. This argument is without merit,

however, because “[i]t is well established that when a jury

has no sentencing function, it should be admonished to

‘reach its verdict without regard to what sentence might be

imposed.’” Shannon v. United States, 512 U.S. 573, 579

(1994) (quoting Rogers v. United States, 422 U.S. 35, 40

(1975)); see also United States v. Frank, 956 F.2d 872, 879

(9th Cir. 1991) (same). The district court therefore did not

abuse its discretion in not allowing the jury to consider

information that was beyond the jury’s purview.

Lynch contends that Shannon and the principles it

embodies have been undermined by Crawford v.

Washington, 541 U.S. 36, 51 (2004), and Apprendi v. New

34 UNITED STATES V. LYNCH

Jersey, 530 U.S. 466, 490 (2000), which Lynch argues

support the very general proposition that the Sixth

Amendment protects any jury power that existed at the time

of the amendment. The Second Circuit has squarely rejected

this argument for reasons that are also decisive here. See

United States v. Polouizzi, 564 F.3d 142, 160 (2d Cir. 2009).

Apprendi and Crawford do not deal with jury knowledge of

sentencing prospects. See id. To the extent that the very

general principles in Apprendi and Crawford could also lead

the Supreme Court to overrule Shannon in the future, “that

is a decision we must leave to the Supreme Court.” Id.

Shannon remains binding law until an inconsistent decision

issues from the Supreme Court, and the district court’s

actions were appropriate in light of Shannon.

Lynch also argues that he was entitled to inform the jury

about the mandatory minimum sentence he faced on the

basis of an exception articulated in Shannon, that “an

instruction of some form may be necessary under certain

limited circumstances,” such as “to counter . . . a

misstatement.” Shannon, 512 U.S. at 587. Lynch contends

that the jury instructions that “[t]he punishment provided by

law for this crime is for the court to decide” was such a

misstatement, in that it allegedly suggested that the district

court would exercise discretion at sentencing. This

argument misreads Shannon. Shannon cautioned that such

correctives are “not to be given as a matter of general

practice” and should only be applied to correct obvious

misrepresentations, such as a statement “that a particular

defendant would ‘go free’ if found [not guilty by reason of

insanity].” Shannon, 512 U.S. at 587. Stating that a judge

sentences according to the law is not such a

misrepresentation. It was therefore not an abuse of

discretion for the district court not to have informed the jury

about the potential punishments Lynch faced if convicted.

UNITED STATES V. LYNCH 35

F. District Court Communications to the Jury

Lynch raises three challenges to the court’s handling of

jury communications—that the district court allegedly

permitted ex parte communications, declined to answer juror

questions, and barred jurors from asking substantive

questions of witnesses—but all these challenges fail because

the court did not actually permit any ex parte

communications, and the other limitations were reasonable

exercises of a district court’s power to manage its trial

proceedings.

At the start of trial, the district judge informed the jurors

that they could communicate with him via the clerk by

means of signed note. Jurors had asked the court clerk about

the possibility of asking questions, apparently of witnesses,

and the district court had informed the jury that it did not

allow questions from jurors in criminal cases, owing to the

potential for evidentiary misconduct. Five days into trial, the

court informed the attorneys that a juror had inquired about

the status of the sheriff’s department and the DEA, and that

question had been resolved by subsequent questioning.

Later that day, a juror asked the clerk about the definitions

of the terms “minor” and “hash,” and, with approval from

the attorneys, the district court read a definition of “minor”

from the proposed jury instructions. The next day, the

district court stated that several members of the jury had

inquired of the clerk what Rule 403 was, and the district

court answered that it would not explain the rule, because

those considerations were not appropriate for the jury.

Finally, a day later, the district court informed the parties that

the jurors had continued to ask the clerk questions. Defense

counsel asked what questions those were, but the district

court declined to answer.

36 UNITED STATES V. LYNCH

The district court instead summoned the jury and stated

to them, pursuant to the court’s first instruction, that “jurors

were not going to be allowed to ask substantive questions”

during trial, although the court would answer questions of

procedure. After presentation of evidence concluded, the

district court did permit the jury to ask questions about the

instructions, and also stated that it would answer any

clarifying questions if there was disagreement as to the

instructions during deliberations. No jurors asked any

questions then, however.

Lynch places a great deal of emphasis on what he views

as improper ex parte contact between jurors and the court,

but there was no error in any of these circumstances, because

those things about which Lynch now complains were neither

ex parte, nor even communications to the jury. All of the

messages went entirely in one direction: from jurors to court.

Lynch’s only allegations are that the court clerk received

information from the jurors and conveyed that to the judge,

but this is not the same as saying that either the clerk or the

judge responded with communications to the jurors.

In other words, none of this contact rose to the level of

communications, and so none could have been an improper

ex parte communication. This court has suggested that an

impermissible ex parte communication occurs only if

“anything about the facts or the law” of a case has been

imparted to the jury. Sea Hawk Seafoods, Inc. v. Alyeska

Pipeline Serv. Co., 206 F.3d 900, 906 (9th Cir. 2000).

Receiving a note and passing it along simply does not rise to

this level of conveying anything about facts or law, however.

Lynch appears to contend that a bright-line rule prohibits a

district court from receiving any note from a juror, but such

a view is clearly incorrect. The Supreme Court has held that

a juror’s conveying something to a judge does not justify

UNITED STATES V. LYNCH 37

reversal on those grounds alone, because such contact is

simply part of the “day-to-day realities of courtroom life.”

Rushen v. Spain, 464 U.S. 114, 118–19 (1983). Lynch

therefore fails to surmount the threshold hurdle to argue for

the presence of improper ex parte communications between

the court and the jurors.

Lynch also argues that the district court had an obligation

to disclose the contents of the questions asked to it by the

jury, but the court’s nondisclosure was within the district

court’s authority to manage the conduct of a trial. In this

case, this district court had stated at the beginning of trial

that it would not allow jurors to ask questions of witnesses,

and that their responsibility was to receive evidence, rather

than inquire of it for themselves. This prohibition was

clearly within the court’s power to impose, since a court has

the authority to permit limited jury questioning of a witness,

United States v. Huebner, 48 F.3d 376, 382 (9th Cir. 1994),

or to prohibit it altogether. Lynch suggests that the district

court exceeded its authorization when it subsequently told

the jury that they “were not going to be allowed to ask

substantive questions” during trial, although the district

court would answer questions of procedure. Lynch’s

argument ignores the court’s “broad discretion in

supervising trial[],” subject to reversal only for abuse of

discretion. Price v. Kramer, 200 F.3d 1237, 1252 (9th Cir.

2000). Lynch offers no reason to think that the district court

abused its discretion here, especially given that the court did

subsequently offer the jury chances to ask questions that the

court could properly answer once presentation of evidence

had concluded.

Lynch most creatively contends that the district court’s

refusal to disclose to Lynch the contents of the notes it

received from the jury violated Lynch’s right under Fed. R.

38 UNITED STATES V. LYNCH

Crim. P. 43(a) to be present at all critical stages of his trial.

But Lynch was present during all critical stages. The fact

that neither Lynch nor his counsel were told the contents of

a jury note does not go to presence. Such an argument would

preclude any ex parte communication during trial, no matter

how warranted. Lynch provides no authority for such a rule,

and this argument clearly also fails.

G. Lynch’s Sentence

Because Lynch was convicted of narcotics conspiracy,

he was subject to a five-year mandatory-minimum sentence

under 21 U.S.C. § 841(b)(1)(B)(vii), and the district court

erred in not applying that sentence to Lynch. In particular,

the district court declined to sentence Lynch to this

mandatory-minimum because it determined that Lynch was

eligible for a safety-valve provision, 18 U.S.C. § 3553(f),

allowing a court to sentence a defendant below what a

mandatory minimum would otherwise require. Lynch was

not eligible for application of the safety valve to him,

however, given his role leading CCCC, and he was therefore

required to be sentenced to the five-year mandatory-

minimum.

After his conviction, Lynch was potentially subject to

two mandatory minimum sentences: a one-year mandatory

minimum for distribution to persons under the age of 21, see

21 U.S.C. § 859(a), and a five-year mandatory minimum for

the total amount of marijuana in his conspiracy, see

21 U.S.C. § 841(b)(1)(B)(vii). The district court was

reluctant to sentence Lynch to these mandatory minimums,

given what it reasoned was the unusual fact of Lynch’s lack

of clandestine activity and general intent to comply with

state law.

UNITED STATES V. LYNCH 39

The district court therefore took advantage of the so-

called “safety-valve” provision, 18 U.S.C. § 3553(f), under

which a court need not apply an otherwise-required

mandatory minimum. The court recognized, however, that

Lynch potentially had not satisfied a precondition for the

safety valve to apply—that “the defendant was not an

organizer, leader, manager, or supervisor of others in the

offense, as determined under the sentencing guidelines.” See

18 U.S.C. § 3553(f)(4). As the Guidelines so define the

terms, the “organizer or leader” and “manager or supervisor”

enhancements apply to any person who plays such a role in

any criminal activity involving five or more participants,

U.S.S.G. § 3B1.1, and Lynch’s activities clearly did involve

more than five participants. The district court held, however,

that “being such an organizer/leader over another participant

simply qualifies a defendant for an adjustment; it does not

require it.” The district court cited to the Commentary to the

Guidelines and stated that a larger principle applied: “when

the evidence clearly shows that the defendant in question did

and does not present a greater danger to the public . . . is not

likely to recidivate, that individual should not be considered

as falling within USSG § 3B1.1 for purposes of an upward

adjustment.”

The district court did, however, also determine that it

could not apply the safety valve to Lynch’s § 859(a)

violations, because the safety valve applies only to a small

number of sections of the criminal code, of which § 859 is

not one. The district court therefore sentenced Lynch to one

year and one day in prison.

The district court erred in applying the safety valve to

Lynch. By its own terms, the safety valve does not apply to

“an organizer, leader, manager, or supervisor of others in the

offense as determined under the sentencing guidelines.”

40 UNITED STATES V. LYNCH

18 U.S.C. § 3553(f)(4). The sentencing guidelines in turn

state that a four-level enhancement applies to a defendant

who is “an organizer or leader of a criminal activity that

involved five or more participants.” U.S.S.G. § 3B1.1(a).

The relevant note further defines leadership and organizer

status as involving a totality-of-the-circumstances inquiry,

including:

the exercise of decision making authority, the

nature of participation in the commission of

the offense, the recruitment of accomplices,

the claimed right to a larger share of the fruits

of the crime, the degree of participation in

planning or organizing the offense, the nature

and scope of the illegal activity, and the

degree of control and authority exercised

over others.

Id. n.24.

Lynch’s activities at CCCC clearly made him a leader

and organizer of that enterprise, according to the Guidelines’

definition. Lynch planned the venture, hired employees, ran

the finances, and generally served as the primary person in

the enterprise. There is also no factual dispute that Lynch’s

activities involved more than five participants: CCCC had

about ten employees. The presence of those factors means

that Lynch qualified as a leader, as defined under the

sentencing guidelines, and so the safety valve was not

available to reduce Lynch’s sentence here.

Although recognizing that “Lynch did put together

CCCC’s operations which had about ten employees,” the

district court decided that Lynch was eligible for safety-

valve relief, because it determined that the atypicality of the

way in which Lynch was a leader of CCCC justified a lower-

UNITED STATES V. LYNCH 41

than-minimum sentence. This conclusion was an error. “It

is axiomatic that a statutory minimum sentence is

mandatory.” United States v. Sykes, 658 F.3d 1140, 1146

(9th Cir. 2011). Although Lynch’s circumstances may have

been unusual, in the sense that his was not the sort of furtive

scheme typical of many drug-distribution cases, Lynch’s

role was clearly that of a leader, and he was thus ineligible

for safety-valve relief. We have explained that the safety

valve is “a narrow exception to the statutory regime

established by the Mandatory Minimum Sentencing Reform

Act,” United States v. Yepez, 704 F.3d 1087, 1091 (9th Cir.

2012), and no relief exists outside of the five specific

conditions for its application. Because the requirement that

a defendant not be a “organizer, leader, manager, or

supervisor of others” was one such precondition for

operation of the safety valve, Lynch’s unquestioned status as

such a head of CCCC closed the door on any effort to

classify him as eligible for the safety valve.

Lynch attempts to defend the district court’s sentence on

the grounds that a defendant’s qualification for § 3B1.1

enhancement allows but does not necessarily require the

rejection of safety-valve relief, but this argument fails.

Courts have consistently applied the leadership guideline to

defeat the safety valve without any consideration that this

application is discretionary. See United States v. Irlmeier,

750 F.3d 759, 764 (8th Cir. 2014); United States v. Ortiz,

463 F. App’x 798, 800 (10th Cir. 2012); United States v.

Pena-Gonell, 432 F. App’x 134, 137 (3d Cir. 2011); United

States v. Arroyo-Duarte, 367 F. App’x 420, 422–23 (4th Cir.

2010); United States v. Sainz-Preciado, 566 F.3d 708, 715

(7th Cir. 2009); United States v. Lopez, 217 F. App’x 406,

408 (5th Cir. 2007); United States v. Kerley, 230 F. App’x

919, 923 (11th Cir. 2007); United States v. Anglon, 88 F.

42 UNITED STATES V. LYNCH

App’x 428, 432 (1st Cir. 2004); United States v. Bazel,

80 F.3d 1140, 1143 (6th Cir. 1996).

A remand is required because the district court erred in

holding that it had discretion to apply the safety valve to

Lynch, given Lynch’s unquestionable status as the leader of

CCCC, an organization involving more than five

participants.

H. Reassignment on Remand

The United States requests that this case be reassigned to

another district judge for resentencing, but we reject this

request. Reassignment on remand is highly discouraged, and

such a motion will be granted “only in unusual

circumstances or when required to preserve the interests of

justice.” United States v. Wolf Child, 699 F.3d 1082, 1102

(9th Cir. 2012). Such circumstances and interests are not

present here. We have articulated three factors relevant to

the consideration of whether the particular circumstances of

a case meet the high standard required to justify

reassignment:

(1) whether the original judge would

reasonably be expected upon remand to have

substantial difficulty in putting out of his or

her mind previously expressed views or

findings determined to be erroneous or based

on evidence that must be rejected,

(2) whether reassignment is advisable to

preserve the appearance of justice, and

(3) whether reassignment would entail waste

and duplication out of proportion to any gain

in preserving appearance of fairness.

UNITED STATES V. LYNCH 43

Manley v. Rowley, 847 F.3d 705, 712 (9th Cir. 2017)

(quoting Wolf Child, 699 F.3d at 1102).

The facts of this case do not warrant reassignment under

that standard. There is no cause to expect that the district

court would reject instructions from this court, or that

reassignment would otherwise be necessary to preserve the

appearance of justice or ensure the efficiency of the federal

courts. The district court repeatedly emphasized that its

sentencing was not an act of unbounded discretion, but rather

was determined by precedents from this court, as well as

obligations from statute. That the district court adopted an

incorrect reading of the statute does not mean that it cannot

be expected to apply the correct law on remand.

The government argues that this case should be

reassigned because the district court expressed views about

the undesirability of the five-year mandatory minimum as

applied to Lynch, but this argument is a failing one. The

district court acknowledged it had a view about the sentence

it would prefer to impose if granted unbounded discretion,

but also made clear that it would only exercise its discretion

if permitted to by law.

I. Spending Provision

Following his conviction, Lynch has raised the

additional issue of whether the § 538 appropriations rider

applies to him and therefore requires dismissal of his

conviction. The rider raises several difficult questions with

respect to Lynch’s case, including, among others, whether

the provision operates to annul a conviction otherwise

properly obtained before its passage. We need not now

address the substance of how the rider operates with respect

to Lynch, however, because it is not clear that the rider

applies to him at all. The rider covers only persons in total

44 UNITED STATES V. LYNCH

compliance with state law, and it is contestable whether this

so describes Lynch and his activities. Remand is therefore

warranted to determine whether Lynch was in compliance

with state law.

As relevant here, the appropriations rider provides that:

“[n]one of the funds made available in this Act to the

Department of Justice may be used, with respect to . . .

California . . . to prevent [it] from implementing [its] own

laws that authorize the use, distribution, possession, or

cultivation of medical marijuana.” Consolidated

Appropriations Act of 2017 § 537, Pub. L. 115-31, 131 Stat

135. Congress first passed the rider in 2014, and it has been

adopted by every subsequent appropriations act, including

the currently operative one. See Consolidated

Appropriations Act of 2017 § 537, Pub. L. 115-31, 131 Stat

135, extended by Continuing Appropriations Act of 2018,

Division D, Pub. L. 115-56, 131 Stat 1129. Although not

necessarily clear from the face of the text, we have held that

this measure “prohibits DOJ from spending funds from

relevant appropriations acts for the prosecution of

individuals who engaged in conduct permitted by the State

Medical Marijuana Laws and who fully complied with such

laws.” United States v. McIntosh, 833 F.3d 1163, 1177 (9th

Cir. 2016).

To say that the rider exists is therefore not enough to end

Lynch’s prosecution because, as the McIntosh court

emphasized, the provision has a limited effect. The rider

“does not provide immunity from prosecution for federal

marijuana offenses,” and, because the provision did not

purport to repeal the Controlled Substances Act, even state-

legal marijuana activity, “remains prohibited by federal

law.” Id. at 1179 & n.5. To that end, McIntosh also

confirmed that the government continues to possess the

UNITED STATES V. LYNCH 45

power to prosecute “[i]ndividuals who do not strictly comply

with all state-law conditions,” and that “prosecuting such

individuals does not violate [the spending provision].” Id. at

11798; see also United States v. Gloor, 725 F. App’x 493,

495–96 (9th Cir. 2018) (holding that a person who does not

strictly comply with state law is not covered by the rider). In

short, the rider may mean that Lynch has some argument that

the government cannot now spend money to prosecute him,

but if and only if Lynch had been strictly compliant with

California law.

It is unclear from this record whether Lynch’s activities

were so strictly compliant with state law. California offered

two pathways for a person like Lynch to be permitted to

engage in marijuana-related activities. First, California’s

medical marijuana statute covers certain marijuana-related

activities by a patient, and by a patient’s “primary

caregiver.” Cal. Health & Safety Code § 11362.5(d). This

“primary caregiver” pathway almost certainly did not apply

to Lynch and his activities. The California Supreme Court

has held that a person in the position of Lynch, who acts only

as a supplier of marijuana, is not a primary caregiver and is

thus not in compliance with this medical marijuana statute.

People v. Mentch, 45 Cal. 4th 274, 284–85 (2008). In

consequence, the district court determined in its sentencing

memorandum that “the CCCC was not operated in

conformity with California state law . . . as held by the

California Supreme Court in Mentch.”

On appeal, Lynch contends that his actions were in

compliance with California law because there was another

California statute also allowing medical marijuana

collectives and cooperatives, and Lynch argues that CCCC

was one of these. See Cal. Health & Safety Code

§ 11362.775(a). Although potentially closer, in the sense of

46 UNITED STATES V. LYNCH

not having been expressly ruled out by California Supreme

Court precedent, it is questionable whether CCCC was a

cooperative as that statute so defines the term. Among other

things, CCCC was structured as a sole proprietorship rather

than a collectively owned non-profit, see Cal. Health &

Safety Code § 11362.765, and it is unclear whether CCCC’s

clientele consisted solely of patients or persons with an

identity card, see Cal. Health & Safety Code § 11362.71.

The district court also expressed its view that there was “no

indication” that CCCC was a collective, and Lynch had also

conceded in his response to the government’s sentencing

memorandum that he “does not dispute the government’s

assertion that he made no attempt to operate as a classic

collective.”

It is appropriate to remand this case for a factual

determination from the district court as to whether Lynch’s

activities were in compliance with state law, and particularly

whether CCCC operated under the required collective form.

A decision whether Lynch strictly complied with California

marijuana laws may depend on specific findings of fact, as

well as legal determinations, and it is proper to allow the

district court to find those facts in the first instance. If Lynch

was not compliant with state law, he is not covered by the

rider and is subject to the penalties of his conviction. Should

the district court resolve the state-law-compliance issue in

Lynch’s favor, the court may then rule in the first instance

on the legal issues that such a determination would raise.

IV. Conclusion

We AFFIRM Lynch’s conviction and REMAND the

case to the district court for proceedings consistent with this

opinion.

UNITED STATES V. LYNCH 47

WATFORD, Circuit Judge, dissenting:

I would reverse and remand for a new trial. In my view,

the district court went too far in trying to dissuade the jury

from engaging in nullification. The court’s actions violated

Charles Lynch’s constitutional right to trial by jury, and the

government can’t show that this error was harmless beyond

a reasonable doubt.

By its very nature, a case of this sort touches a sensitive

nerve from a federalism standpoint. At the time of Lynch’s

trial in 2008, the citizens of California had legalized the sale

and use of marijuana for medicinal purposes; the federal

government nonetheless sought to prosecute a California

citizen for conduct that arguably was authorized under state

law. Because federal law takes precedence under the

Supremacy Clause, the government could certainly bring

such a prosecution, notwithstanding the resulting intrusion

upon state sovereignty interests. See Gonzales v. Raich,

545 U.S. 1, 29 (2005). But the Framers of the Constitution

included two provisions that act as a check on the national

government’s exercise of power in this realm: one stating

that “[t]he Trial of all Crimes, except in Cases of

Impeachment, shall be by Jury”; the other requiring that

“such Trial shall be held in the State where the said Crimes

shall have been committed.” U.S. Const., Art. III, § 2, cl. 3.

The Sixth Amendment further mandates that in all criminal

prosecutions the accused shall enjoy the right to trial “by an

impartial jury of the State and district wherein the crime shall

have been committed.” Thus, to send Lynch to prison, the

government had to persuade a jury composed of his fellow

Californians to convict.

One of the fundamental attributes of trial by jury in our

legal system is the power of the jury to engage in

nullification—to return a verdict of not guilty “in the teeth

48 UNITED STATES V. LYNCH

of both law and facts.” Horning v. District of Columbia,

254 U.S. 135, 138 (1920). The jury’s power to nullify has

ancient roots, dating back to pre-colonial England. See

Thomas Andrew Green, Verdict According to Conscience:

Perspectives on the English Criminal Trial Jury, 1200–1800,

at 236–49 (1985) (discussing Bushell’s Case, 124 Eng. Rep.

1006 (C.P. 1670)). It became a well-established fixture of

jury trials in colonial America, perhaps most famously in the

case of John Peter Zenger, a publisher in New York

acquitted of charges of seditious libel. See Albert W.

Alschuler & Andrew G. Deiss, A Brief History of the

Criminal Jury in the United States, 61 U. Chi. L. Rev. 867,

871–74 (1994). From ratification of the Constitution to the

present, the right to trial by jury has been regarded as

“essential for preventing miscarriages of justice,” Duncan v.

Louisiana, 391 U.S. 145, 158 (1968), in part because the

jury’s power to nullify allows it to act as “the conscience of

the community,” Jeffrey Abramson, We, the Jury: The Jury

System and the Ideal of Democracy 87 (1994).

It’s true that a jury has no right to engage in nullification

and that courts are permitted to discourage a jury’s exercise

of this power. Sparf v. United States, 156 U.S. 51, 106

(1895); Merced v. McGrath, 426 F.3d 1076, 1079 (9th Cir.

2005). Hence a defendant may not insist that the jury be

instructed on its ability to nullify. United States v. Powell,

955 F.2d 1206, 1213 (9th Cir. 1992). But that doesn’t

resolve the question implicated here: May the court instruct

jurors that they are forbidden to engage in nullification, and

if so, how forcefully may the court deliver that message?

Our circuit has held that a court can seek to prevent

nullification “by firm instruction or admonition.” United

States v. Kleinman, 880 F.3d 1020, 1032 (9th Cir. 2017)

(internal quotation marks omitted). We have upheld an

UNITED STATES V. LYNCH 49

instruction that advised jurors “you cannot substitute your

sense of justice, whatever that means, for your duty to follow

the law, whether you agree with it or not. It’s not your

determination whether a law is just or whether a law is

unjust. That can’t be your task.” United States v. Rosenthal,

266 F. Supp. 2d 1068, 1085 (N.D. Cal. 2003), aff’d in

relevant part, 454 F.3d 943, 947 (9th Cir. 2006); see also

United States v. Navarro-Vargas, 408 F.3d 1184, 1201–04

(9th Cir. 2005) (en banc) (upholding similar instruction

given to grand jurors). I have my doubts about whether we

were right to endorse such an instruction, for it affirmatively

misstates the power that jurors possess. Jurors may not have

the right to substitute their sense of justice for what the law

requires, or to determine whether a law is just or unjust, but

they unquestionably have the ability to exercise that

power—in fact, doing so is the very essence of nullification.

Be that as it may, we held in Kleinman that a court

crosses the constitutional line when it states or implies that

jurors could be punished if they engage in nullification.

880 F.3d at 1032–35. A court may permissibly seek to

discourage jurors from returning a verdict contrary to law or

fact, but ever since Bushell’s Case, what a court may not do

is coerce jurors into obeying its instructions on the law by

suggesting that those who disobey could face fine or

imprisonment. Threats of punishment subvert the jury’s

longstanding role as a safeguard against government

oppression. See United States v. Gaudin, 515 U.S. 506, 510–

11 (1995); Duncan, 391 U.S. at 155–56. Perhaps for that

reason, even at the time of the Founding, “the ability of

jurors to disobey judicial instructions without fear of official

reprisal was not in doubt.” Alschuler & Deiss, supra, at 912.

To members of the Founding generation with fresh

memories of the colonists’ experience under royal judges,

the jury’s independence from control by the judiciary

50 UNITED STATES V. LYNCH

provided assurance that application of national law would

rest in the hands of local citizens attuned to the concerns of

their community, not in the hands of officials beholden to a

distant central government.

The court in this case crossed the line we drew in

Kleinman. During voir dire, the court gave prospective

jurors an instruction that largely tracked the one we

approved in Rosenthal. Critically, though, the court went

further by stating: “Nullification is by definition a violation

of the juror’s oath which, if you are a juror in this case, you

will take to apply the law as instructed by the court.”

(Emphasis added.) In Kleinman, we held that a materially

indistinguishable instruction—stating “[y]ou would violate

your oath and the law” by engaging in nullification—was not

only improper but an error of “constitutional dimension,” for

it carried with it the implicit threat of punishment. 880 F.3d

at 1031, 1035. That implicit threat is no less present here,

even though the court referred only to the jurors’ oath

without explicitly mentioning “the law.” Telling jurors that

nullification is a violation of their oath, standing alone,

implies the potential for punishment because violating one’s

oath could be deemed either perjury or contempt, both of

which are punishable by fine and imprisonment. See

18 U.S.C. §§ 401(3), 1621(1), 1623(a); Clark v. United

States, 289 U.S. 1, 10 (1933). So, as in Kleinman, the court’s

instruction in this case violated Lynch’s Sixth Amendment

right to trial by jury.

An instructional error of this nature would appear to defy

analysis for harmlessness, since “the effects of the error are

simply too hard to measure.” Weaver v. Massachusetts,

137 S. Ct. 1899, 1908 (2017). The harmlessness inquiry in

this context can’t turn on an evaluation of the strength of the

government’s evidence; by definition, nullification involves

UNITED STATES V. LYNCH 51

a juror’s decision to acquit notwithstanding the strength of

the evidence. What we would have to assess, then, is

whether a juror who was otherwise inclined to nullify might

have been dissuaded from doing so by the court’s

instruction. At least in cases like this one, where

nullification was an obvious possibility given the popularity

of medical marijuana in California, I don’t see how the

government could ever prove that a court’s unduly coercive

anti-nullification instruction had no effect on the outcome.

Nevertheless, we held in Kleinman that this precise

instructional error is subject to harmless error analysis.

Thus, the question remains whether the government can

show that the court’s erroneous anti-nullification instruction

was harmless beyond a reasonable doubt. Kleinman,

880 F.3d at 1035. The government cannot make that

showing, and indeed it has not even tried. In Kleinman, we

found the court’s instruction harmless because it represented

only “a small part of the court’s final instructions to the jury,

and was delivered without particular emphasis.” Id. Here,

in stark contrast, the court delivered the instruction as a

stand-alone admonition at the outset of the case, in a manner

that could not have placed greater emphasis on the coercive

message the court delivered.

The court gave its anti-nullification instruction during

voir dire because, in response to a question from defense

counsel, one of the prospective jurors stated, “I believe there

is something called jury nullification, that if you believe . . .

the law is wrong . . . you don’t have to convict a person.”

The court tried unsuccessfully to cut the juror off as soon as

she said the words “jury nullification,” and then asked to

speak with counsel at sidebar. After a brief discussion at

sidebar, the court ordered the jurors to leave the courtroom

while it continued to discuss the matter with the lawyers.

52 UNITED STATES V. LYNCH

Nearly 50 minutes later, the court called the prospective

jurors back in and immediately asked if anyone had

discussed the topic of jury nullification while they were

waiting in the hallway. None of the jurors responded

affirmatively, but the court gave the contested instruction

anyway, informing jurors that nullification would be a

violation of the oath they were required to take. The court

then polled the prospective jurors in open court and asked

each of them, one by one, whether they could follow the

court’s instruction not to engage in nullification. All but two

stated that they could, and the two who indicated that they

would have difficulty following the court’s instruction were

dismissed for cause.

In these circumstances, I do not think we can say beyond

a reasonable doubt that any juror who might have been

inclined to nullify would have done so regardless of the

court’s instruction. The instruction was inherently coercive

because it implied that any juror who engaged in

nullification could be punished for doing so. Only the

hardiest of jurors would remain committed to voting her

conscience when threatened with the risk of fine or

imprisonment. That is particularly true here, where the court

required the jurors to affirm in open court that they could

follow the court’s command not to engage in nullification.

Although this occurred at the very outset of trial, none of the

court’s closing instructions counteracted the coercive effect

of its earlier admonition. In fact, one of those instructions

drove home the message the court conveyed during voir

dire: “You must follow the law as I give it to you whether

you agree with it or not. . . . You will recall that you took an

oath promising to do so at the beginning of the case.”

Nor can we say that defense counsel “invited” the court’s

error. The question defense counsel posed to the prospective

UNITED STATES V. LYNCH 53

juror who mentioned nullification merely asked whether she

understood that “the ultimate decision as to whether to find

a person guilty or not guilty is your decision.” That question

didn’t call for a response mentioning jury nullification, and

it accurately reflects black-letter law. See Gaudin, 515 U.S.

at 510. But even if defense counsel somehow goaded the

prospective juror into mentioning nullification, that at most

gave the court a basis for issuing the instruction we approved

in Rosenthal. It did not by any stretch authorize the court to

give an instruction that suffers from the same constitutional

defect we identified in Kleinman.

In short, the court’s erroneous anti-nullification

instruction cannot be declared harmless beyond a reasonable

doubt. I would therefore reverse and remand for a new trial.