United States v. Jayde Evans

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30185

Plaintiff-Appellee,

D.C. Nos.

v. 2:12-cr-00016-WFN-6

2:12-cr-00016-WFN-5

JAYDE DILLON EVANS, AKA

Jayde D. Evans; BRICE

CHRISTIAN DAVIS, AKA Brice OPINION

C. Davis,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielsen, District Judge, Presiding

Argued and Submitted March 27, 2019

San Francisco, California

Filed July 9, 2019

Before: Diarmuid F. O’Scannlain, Carlos T. Bea,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge O’Scannlain

2 UNITED STATES V. EVANS

SUMMARY *

Criminal Law

The panel affirmed the district court’s judgment on

remand denying a motion by two medical marijuana growers

to enjoin their federal prosecutions for violations of the

Controlled Substances Act.

In the prior appeal, the panel held that a congressional

appropriations rider prohibited the Department of Justice

from spending appropriated funds to prosecute individuals

who engaged in conduct permitted by state medical

marijuana laws; and remanded to the district court with

instructions to hold an evidentiary hearing to determine

whether the defendants’ conduct was completely authorized

by state law. On remand, the district court found that the

defendants were not in strict compliance with Washington’s

Medical Use of Cannabis Act (MUCA).

In this appeal, the panel held that because the

appropriations rider authorizes the defendants to seek to

enjoin prosecution, the defendants – not the Government –

bear the burden of proof regarding whether the state’s

medical-marijuana laws completely authorized the

defendants’ conduct.

Explaining that this court looks to the state law’s

substantive authorizations but not to the state’s procedural

rules that give practical effect to its medical-marijuana

regime, the panel rejected the defendants’ contention that the

*

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. EVANS 3

Government must procure a jury verdict of noncompliance

in Washington State Court before it can prosecute them for

their federal crimes.

The panel held that the district court correctly refused to

allow the defendants to assert “common law affirmative

defenses,” and correctly focused on the defendants’

compliance with MUCA itself.

Affirming the district court’s factual finding that the

defendants did not strictly comply with MUCA, the panel

held that the district court did not clearly err in finding that

the defendants, neither of whom claimed to be a “designated

provider,” were likewise not “qualified patients.”

COUNSEL

Nicolas V. Vieth (argued), Vieth Law Offices, Chtd., Coeur

d’Alene, Idaho; David M. Miller (argued), Miller &

Prothero, Spokane, Washington; for Defendants-Appellants.

Timothy J. Ohms (argued), Assistant United States

Attorney; Joseph H. Harrington, United States Attorney;

United States Attorney’s Office, Spokane, Washington; for

Plaintiff-Appellee.

4 UNITED STATES V. EVANS

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide, once again, whether marijuana growers

may enjoin federal prosecution in a state which has legalized

medical use.

I

A

In 2011, a group of friends decided to grow and to sell

medical marijuana. Tyler McKinley, Samuel Doyle, and

Jared Kynaston identified a suitable residential property in

Spokane County, Washington. McKinley signed the lease

and the power bill, and Doyle and Kynaston moved into the

residence to manage the grow. Doyle “definitely . . . was the

one in charge,” as a former employee later testified, while

Kynaston was “the smart one on growing pot plants [who]

knew all the chemistry stuff and everything like that.”

Soon enough, Doyle and Kynaston needed help bringing

the crop to market, so they hired Jayde Evans and Brice

Davis—the defendants-appellants in this case—to work as

“trimmers.” Evans and Davis would wait for Kynaston to

harvest a marijuana plant, then “[s]it there on the couch and

trim the leaves off.” While the trimmers worked, Kynaston

would set consumable marijuana on the table, and if “[they]

wanted to smoke, [they] would smoke.”

In November 2011, the burgeoning enterprise ended

abruptly when federal and state law enforcement officers

raided the grow. Officers found 562 marijuana plants

growing in a greenhouse, the garage, and the residence itself.

Federal prosecutors soon indicted Evans, Davis, Kynaston,

UNITED STATES V. EVANS 5

Doyle, McKinley, and two other trimmers in the Eastern

District of Washington for various violations of the

Controlled Substances Act (“CSA”). See 21 U.S.C. § 821 et

seq.

B

In 2014, McKinley filed a motion (which Evans and

Davis, among other defendants, joined) seeking an “order

dismissing the indictment and/or enjoining the Government

from taking any further action of any kind in the prosecution

of this case.” They claimed that Congress enacted an

appropriations rider that forbade the Department of Justice

(“DOJ”) from spending money to prosecute them. Section

538 of the statute reads as follows:

None of the funds made available in this Act

to the Department of Justice may be used,

with respect to [several states, including

Washington], to prevent such States from

implementing their own State laws that

authorize the use, distribution, possession, or

cultivation of medical marijuana.

Consolidated and Further Continuing Appropriations Act,

2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217. 1

The movants argued that, because the State of Washington

legalized the medical use of marijuana, § 538 prohibited

DOJ from using appropriated funds to prosecute them. The

district court denied the motion, and the movants appealed

1

Congress has reenacted the same provision each year since. See,

e.g., Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 537,

133 Stat. 13, 138. Because the language in each is materially the same,

we simply refer to the provision as “§ 538” or “the appropriations rider.”

6 UNITED STATES V. EVANS

the interlocutory order. We then consolidated such appeal

with several similar ones arising contemporaneously out of

the Northern and Eastern Districts of California. See United

States v. McIntosh, 833 F.3d 1163, 1168–69 & n.1 (9th Cir.

2016).

In McIntosh, which disposed of all the consolidated

appeals, we vacated the district court’s injunction denial

order in this case. Id. at 1180. If Congress “expressly

prohibits DOJ from spending funds on certain actions,” we

reasoned, then “federal criminal defendants may seek to

enjoin the expenditure of those funds.” Id. at 1173.

Interpreting § 538’s text, 2 we concluded that DOJ could not

spend appropriated funds to prosecute “individuals who

engaged in conduct permitted by the State Medical

Marijuana Laws.” Id. at 1177. Nevertheless, because

prosecution of non-compliant defendants “does not prevent

the implementation” of such laws, id. at 1178, we stressed

that defendants would not be able to enjoin their

prosecutions unless they “strictly complied with all relevant

conditions imposed by state law on the use, distribution,

possession, and cultivation of medical marijuana,” id. at

1179 (emphasis added). Accordingly, we remanded to the

district court with instructions to hold an “evidentiary

hearing[] to determine whether [the movants’] conduct was

completely authorized by state law.” Id.

2

In McIntosh, we referred to the rider as § 542, but because the

rider’s text has remained materially the same since that time, our

holdings remain unchanged.

UNITED STATES V. EVANS 7

C

On remand, the district court held a two-day hearing to

determine whether Evans and Davis complied with

Washington’s Medical Use of Cannabis Act (“MUCA”). 3

See Wash. Rev. Code § 69.51A (2013). Although MUCA

“does not decriminalize the medical use of cannabis,” it does

offer an “affirmative defense” to “qualifying patients and

designated providers.” State v. Reis, 351 P.3d 127, 134

(Wash. 2015); see also Wash. Rev. Code § 69.51A.043

(2013) (establishing the defense). Relevant here, a defendant

asserting such defense must show (1) that he was either a

“designated provider” or a “qualifying patient,” see id.

§ 69.51A.010 (2013), and (2) that he possessed no more

marijuana than authorized, see id. § 69.51A.040 (2013).

The district court placed the burden of proof on the

defendants to prove strict compliance with MUCA by a

preponderance of the evidence. Because Evans and Davis

exercised no “supervisory powers over the grow,” the

district court focused on “each individual [d]efendant’s

compliance with state law.” The court found that the two

smoked marijuana while trimming, but that each failed to

demonstrate that he was a “qualifying patient.” Accordingly,

because Evans and Davis were “not in strict compliance”

with MUCA, the district court again denied the motion to

enjoin the prosecutions. For a second time, Evans and Davis

appeal to this court.

3

The district court also considered McKinley’s compliance with

MUCA, but McKinley did not appeal the district court’s order. All of the

original defendants in this case, except for Evans and Davis, have

pleaded guilty.

8 UNITED STATES V. EVANS

II

A

Evans and Davis initially argue that the district court

erred because the Government—not the defendants—should

bear the burden of proof in such hearings. In their view,

because “having the funds to prosecute an offense is a

condition precedent to a continued prosecution,” the

Government “bears the burden to show that the Defendants’

actions did not” comply with MUCA.

Nothing in § 538’s text expressly compels a particular

burden of proof in such cases or explains who bears that

burden, but McIntosh itself defeats Evans and Davis’s

theory. There, we stated that § 538 authorizes defendants to

“seek to enjoin” the DOJ’s use of funds to prosecute those

who comply with state medical-marijuana laws. McIntosh,

833 F.3d at 1173. Generally, the party seeking an injunction

bears the burden of showing that he is entitled to such a

remedy. See eBay Inc. v. MercExchange, LLC, 547 U.S. 388,

391 (2006). In this case, then, the burden falls on Evans and

Davis because they seek to enjoin the Government’s

prosecution.

We see no good reason to depart from such baseline rule.

First, the appropriations rider does not amend the CSA to

impose a new element for federal marijuana crimes. See

McIntosh, 833 F.3d at 1179 n.5; see also United States v.

Nixon, 839 F.3d 885, 887–88 (9th Cir. 2016) (rejecting the

argument that the “appropriations rider suspended the

Controlled Substances Act”). Thus, the Government need

not prove Evans’s and Davis’s non-compliance with state

law beyond a reasonable doubt in order to convict them. See

Gilmore v. Taylor, 508 U.S. 333, 359 (1993). Second,

although the Supreme Court has said that different standards

UNITED STATES V. EVANS 9

of proof sometimes apply where “particularly important

individual interests or rights are at stake,” Herman &

MacLean v. Huddleston, 459 U.S. 375, 389 (1983), the

appropriations rider does not itself exist to protect such

interests. Instead, § 538 prohibits prosecution of individuals

only incidentally—because such prosecutions “prevent[] the

state from giving practical effect to its law providing for non-

prosecution of individuals who engage in the permitted

conduct.” McIntosh, 833 F.3d at 1177. Thus, the defendants’

liberty interests do not counsel in favor of placing the burden

on the Government.

In sum, because § 538 authorizes Evans and Davis to

seek to enjoin prosecution, they bear the burden of showing

that they are entitled to such an injunction by persuading the

court that it is more likely than not that the state’s medical-

marijuana laws “completely authorized” their conduct. The

district court did not err in placing the burden on them.

B

Evans and Davis next argue that the Government must

procure a “jury verdict of noncompliance” in Washington

State Court before it can prosecute them for their federal

crimes. Because MUCA entitles them to “a jury

determination as to whether they complied with the State’s

medical-marijuana laws,” they argue, federal prosecutors

must obtain the same.

McIntosh again forecloses such argument. The

appellants there argued that § 538 forbade DOJ from

prosecuting anyone in a state that legalized medical

marijuana. Importantly, the defendants claimed that § 538’s

reference to a state’s “implementation” of medical-

marijuana laws “necessarily involve[d] all aspects of putting

the law into practical effect, including . . . procedures and

10 UNITED STATES V. EVANS

processes for determining the outcome of individual cases.”

McIntosh, 833 F.3d at 1177 (emphasis added). Rejecting

such argument, we concluded that § 538 referenced only

“those specific rules of state law that authorize the use,

distribution, possession, or cultivation of medical

marijuana.” Id. at 1178 (emphasis added). Thus, we look to

the state law’s substantive authorizations, not to the

procedural rules that give practical effect to the state’s

medical-marijuana regime. In other words, we ask whether

the defendant has fully complied with the laws that allow the

use, distribution, possession, or cultivation of medical

marijuana, not whether he would be entitled to some

procedure if the state, rather than the federal government,

were prosecuting him in its courts. We are satisfied that

Washington’s procedural rules—including its jury rules—

should not be imported into § 538.

C

Evans and Davis further argue that the district court erred

because it refused to allow them to assert “common law

affirmative defenses” to show that the Government may not

prosecute them for violating the CSA. But McIntosh held

that § 538 prohibits DOJ from prosecuting those who

“strictly comply” with those “specific rules of state law that

authorize” medical marijuana. Id. (emphasis added). Thus,

the question under § 538 is whether the defendant’s conduct

is “completely authorized” by the state’s laws authorizing

the use, distribution, possession, or cultivation of

marijuana—in this case, MUCA. Id. at 1179. The defenses

that Evans and Davis wish to assert (e.g., “entrapment by

estoppel” and “reliance upon advice of counsel”) do not arise

from MUCA itself, nor do they bear on whether Washington

expressly authorized the use of medical marijuana. Evans

and Davis may not resort to such common-law defenses to

UNITED STATES V. EVANS 11

show that MUCA authorizes their conduct, and the district

court correctly focused on their compliance with MUCA

itself.

III

Finally, Evans and Davis challenge the district court’s

factual finding that they did not “strictly comply” with

MUCA. Although we review a district court’s interpretation

of state law de novo, Garmon v. County of Los Angeles,

828 F.3d 837, 842 (9th Cir. 2016), when the district court’s

determination turns upon factual findings, we review for

clear error, United States v. Kent, 649 F.3d 906, 912 (9th Cir.

2011).

Under MUCA, one who uses or possesses marijuana

must show that he is either a “qualifying patient” or a

“designated provider” to assert the affirmative defense.

Wash. Rev. Code § 69.51A.043 (2013). Both defendants

used marijuana from the grow while trimming, and neither

claims to be a “designated provider.” Accordingly, each

must rely on proving that he is a “qualifying patient.”

Simplifying MUCA’s definition somewhat, a qualifying

patient is one who has been diagnosed with a “terminal or

debilitating medical condition,” informed by a “health care

professional about the risks and benefits of the medical use

of marijuana,” and “advised by that health care professional

that [the person] may benefit from the medical use of

marijuana.” Wash. Rev. Code § 69.51A.010(4) (2013).

The district court found that Evans and Davis were not

qualifying patients, and we agree. During the hearing,

neither defendant introduced a “green card” (i.e., a card

indicating that a doctor recommended marijuana usage), and

neither called a physician witness to testify to prescribing

marijuana to Evans or Davis. Although Evans claimed that

12 UNITED STATES V. EVANS

he had a “marijuana authorization card” that was “signed by

a doctor,” he did not produce such card until after the district

court had conducted its hearing. In any event, Evans also

admitted that his prescription for medical marijuana was for

“anxiety,” which is not a “[t]erminal or debilitating medical

condition” under MUCA. Id. § 69.51A.010(6) (2013); see

also State v. Fry, 228 P.3d 1, 7 (Wash. 2010) (lead opinion)

(stating that “anxiety” is not a “debilitating medical

condition”). The district court did not clearly err in finding

that Evans and Davis were not “qualifying patients.” See

United States v. McTiernan, 695 F.3d 882, 887 (9th Cir.

2012).

IV

The judgment of the district court is AFFIRMED.