United States v. Anthony Pisarski

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10428

Plaintiff-Appellant,

D.C. Nos.

v. 3:14-cr-00278-RS-1

3:14-cr-00278-RS-2

ANTHONY PISARSKI; SONNY 3:14-cr-00278-RS

MOORE,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Northern District of California

Richard Seeborg, District Judge, Presiding

Argued and Submitted December 3, 2019

San Diego, California

Filed July 10, 2020

Before: J. Clifford Wallace, Eugene E. Siler, * and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown;

Dissent by Judge Wallace

*

The Honorable Eugene E. Siler, United States Circuit Judge for the

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

2 UNITED STATES V. PISARSKI

SUMMARY **

Criminal Law

The panel affirmed the district court’s pre-sentencing

order enjoining the government from spending additional

funds on the prosecution of Andrew Pisarski and Sonny

Moore, who pled guilty to federal conspiracy to manufacture

and possess with intent to distribute marijuana.

Before sentencing, Congress enacted an appropriations

rider that prohibited the Department of Justice from using

congressionally-allocated funding to prevent states from

implementing their medical marijuana laws. The district

court stayed sentencing. Applying United States v.

McIntosh, 833 F.3d 1163 (9th Cir. 2016), the district court

found that Pisarski and Moore strictly complied with

California’s medical marijuana laws, and enjoined

government expenditures on the case until and unless a

future appropriations bill permits the government to proceed.

As a threshold mater, the panel held that the

appropriations rider does not bar the government from

spending funds on this appeal. The panel then held that the

district court did not err in its legal analysis, properly

focused its McIntosh hearing on the conduct underlying the

charge, and did not clearly err in determining that Pisarski

and Moore proved by a preponderance of the evidence that

they were in strict compliance with California’s Medical

Marijuana Program Act at the time of their arrest.

**

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. PISARSKI 3

Judge Wallace dissented because, in his view, the district

court did not properly interpret California law bearing on the

question presented under McIntosh: whether defendants’

conduct was completely authorized by California law such

that it could be said that defendants strictly complied with all

conditions of California law as to the use, distribution,

possession, and cultivation of medical marijuana. Following

Ninth Circuit precedent, Judge Wallace would hold that the

district court’s errors all turned on its faulty legal

conclusions about how California law applies to criminal

defendants charged with cultivating distributable quantities

of marijuana for prospective sales.

Judge Wallace explained that at the time of defendants’

charged conduct, there was a general prohibition against

possession or distribution of marijuana in

California. California established statutory exemptions

from prosecution only in narrow and carefully-delineated

circumstances. In Judge Wallace’s view, defendants failed

to provide evidence bearing on the question whether those

narrow circumstances applied in this case. Judge Wallace

would hold that the defendants therefore necessarily failed

to carry their burden under Ninth Circuit precedent.

First, Judge Wallace explained that at the time of

defendants’ charged conduct, a medical marijuana grower in

California could not lawfully earn a profit. The California

Attorney General’s Guidelines, which California state courts

have said must be given “considerable weight,” require

collectives and cooperatives to document each member’s

contribution of labor, resources, or money to the

enterprise. Although it was unknown at the time of the

marijuana seizure how many of defendants’ 327 marijuana

plants were female and therefore capable of maturity, Judge

Wallace observed that defendants did not provide the district

4 UNITED STATES V. PISARSKI

court with an estimate of their expected revenue or an

accounting of their labor and operational costs from

cultivating the plants. Examining an analogous California

intermediate appellate decision, Judge Wallace would hold

that the district court erred in concluding that California law

“does not speak to the issue of prospective

compliance.” Applying de novo review, Judge Wallace

concluded that the district court failed to assess whether

defendants would have earned an unlawful profit from the

expected sale of their 327 plant-grow.

Second, Judge Wallace explained that at the time of

defendants’ charged conduct, a criminal defendant in

California was required to prove that every member of the

collective for which he was cultivating marijuana was a

qualified patient or a primary caregiver. In other words, the

exemptions in California medical marijuana law did not

apply to criminal defendants who failed to establish that the

members of the collective were either qualified patients or

primary caregivers. Judge Wallace observed that defendants

did not present any evidence showing whether “other

patients” were qualified patients or primary caregivers even

though defendants’ evidence referred to “other” unidentified

patients and collectives. In Judge Wallace’s view,

California case law states that even when sales are expected

to be made at an unknown time in the future, the membership

status of a charged grow should be identified before a

criminal defendant may benefit from the narrow exemption

under California medical marijuana law. Following Ninth

Circuit precedent, Judge Wallace would hold that where a

district court, as here, fails to make necessary findings of fact

bearing on the McIntosh inquiry, the parameters of strict

compliance have not been followed.

UNITED STATES V. PISARSKI 5

Third, Judge Wallace would hold that the district court’s

conclusion that “the presence of cash, precious metals, and

weapons” were “equally consistent with the operation of a

rural, cash-intensive enterprise” necessarily failed to satisfy

Evan’s preponderance of the evidence standard. In Judge

Wallace’s view, if defendants’ evidence made it equally

possible that defendants complied or did not comply with

California law, defendants necessarily failed to meet their

burden under Evans.

In sum, Judge Wallace would hold that the district court

committed reversible legal error. He would reject the

majority opinion’s application of clear error as inconsistent

with Ninth Circuit precedent because the district court’s

errors all turned on an incorrect statement of California state

law. Judge Wallace fears that as a result of the majority

opinion, district courts may now adopt a proportionality

approach in a case in which a resident is charged with

possession of distributable quantities of marijuana, staying a

federal marijuana prosecution so long as there is a theoretical

possibility of compliance with a state’s medical marijuana

law at an unknown time in the future. Judge Wallace would

hold that this outcome is inconsistent with both Ninth Circuit

precedent and with the relevant California medical

marijuana law governing defendants’ charged conduct.

COUNSEL

Vijay Shanker (argued), Attorney; Matthew S. Miner,

Deputy Assistant Attorney General; Brian A. Benczkowski,

Assistant Attorney General; United States Department of

Justice, Criminal Division, Appellate Section, Washington,

D.C.; J. Douglas Wilson, Helen L. Gilbert, and Merry Jean

Chan, Assistant United States Attorneys, United States

6 UNITED STATES V. PISARSKI

Attorney’s Office; San Francisco, California; for Plaintiff-

Appellant.

Ronald N. Richards (argued), Law Offices of Ronald

Richards, Beverly Hills, California; T. Louis Palazzo,

Palazzo Law Firm, Las Vegas, Nevada; for Defendants-

Appellees.

OPINION

McKEOWN, Circuit Judge:

Andrew Pisarski and Sonny Moore were in a pickle. The

two men had spent months growing hundreds of marijuana

plants. Although they had not yet sold, or even harvested,

any plants, Pisarski and Moore had entered into sale

agreements with two marijuana collectives, promising to sell

them any viable plants for no profit, simply a reimbursement

of costs. Before they could benefit from the fruits of their

labor, federal law enforcement officers raided their rural

Humboldt County property. The government charged them

with federal conspiracy to manufacture and possess with

intent to distribute marijuana. With few appealing options,

Pisarski and Moore pled guilty.

Before sentencing, Congress passed the Consolidated

and Further Continuing Appropriations Act of 2015

(“Appropriations Act of 2015”), which put the kibosh on all

expenditures of federal prosecutions for marijuana use,

possession, or cultivation if the defendant complied with the

state’s medical marijuana laws. Consistent with our decision

in United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016),

the district court enjoined the government from spending

additional funds on the prosecution, finding that Pisarski and

UNITED STATES V. PISARSKI 7

Moore strictly complied with California’s medical

marijuana laws. Resolution of this appeal rests on the

application of state law and our clear error review of the

district court’s factual findings.

BACKGROUND

In 1996, California began its experiment with marijuana

legalization when voters approved the Compassionate Use

Act (“CUA”). The CUA decriminalized possession and

cultivation of marijuana for medical use, Cal. Health &

Safety Code § 11362.5, and provided immunity from

prosecution for marijuana possession and cultivation to a

“patient, or to a patient’s primary caregiver, who possesses

or cultivates marijuana for the personal medical purposes of

the patient upon the written or oral recommendation or

approval of a physician.” Id. at § 11362.5(b)(2)(d).

In 2003, the state expanded legalization in the Medical

Marijuana Program Act (“MMPA”), which permitted the

possession, cultivation, possession for sale, and sale of

marijuana to “qualified patients, persons with valid

identification cards, and the designated primary caregivers

of qualified patients and persons with identification cards,

who associate within the State of California in order

collectively or cooperatively to cultivate cannabis for

medicinal purposes.” Id. at § 11362.775(a). At the time of

Pisarski and Moore’s arrest in July 2012, California

prohibited the sale, possession, and cultivation of marijuana,

aside from the immunities in CUA and MMPA. Id.

at §§ 11357–11360.

During the almost twenty years that California provided

these immunities, the federal government continued to

prosecute marijuana-related crimes. Resolving this tension,

Congress enacted the Appropriations Act of 2015, which

8 UNITED STATES V. PISARSKI

prohibited the Department of Justice from using

congressionally-allocated funding to prevent states from

implementing their medical marijuana laws. Consolidated

And Further Continuing Appropriations Act Of 2015, Pub.

L. No. 113–235, § 538, 128 Stat. 2130, 2217 (2014) (“the

appropriations rider” or “§ 538”). The relevant section of

the appropriations rider reads:

None of the funds made available in this Act

to the Department of Justice may be used,

with respect to [those states that have

legalized medical marijuana] to prevent such

States from implementing their own State

laws that authorize the use, distribution,

possession, or cultivation of medical

marijuana.

Id. 1 A nearly identical rider has been extended in every

subsequent appropriations bill. See United States v.

Kleinman, 880 F.3d 1020, 1027 (9th Cir. 2017) (describing

legislative history).

Which brings us back to Pisarski and Moore. By the time

the appropriations rider was enacted, Pisarski and Moore had

pled guilty to conspiracy to manufacture and possess with

intent to distribute marijuana. 21 U.S.C. §§ 841(a)(1),

(b)(1)(C), and 846. The plea came on the heels of the 2012

search, which uncovered 327 marijuana plants, $416,125 in

cash, and two loaded firearms. Two additional searches in

1

When the court stayed the sentencing in this case, the rider was

contained within § 537 of the 2017 Consolidated Appropriations Act.

Pub. L. No. 115–31, 131 Stat. 135, 228.

UNITED STATES V. PISARSKI 9

2013 revealed an additional firearm, ammunition, and a

treasure trove of gold and silver bars and coins.

Fortuitously for Pisarski and Moore, the passage of the

appropriations rider intervened before their impending

sentencing date. The district court stayed sentencing until

we addressed the effect of the rider in McIntosh. The district

court then, applying McIntosh, held a hearing and found that

“any potential [marijuana] sale was sufficiently far into the

future that, by the time of such sale, [the defendants] would

have had ample time to ensure every aspect of it complied

with the [MMPA].” United States v. Pisarski, 274 F. Supp.

3d 1032, 1039 (N.D. Cal. 2017). As a consequence of this

finding, the court enjoined government expenditures on the

case “until and unless a future appropriations bill permits the

government to proceed.” Id. at 1040.

ANALYSIS

As a threshold matter, and one of first impression, we

have no trouble concluding that the appropriations rider does

not bar the government from spending funds on this appeal

and that the district court’s McIntosh finding does not

provide defendants with an impenetrable bulwark. Pisarski

and Moore argue that allowing the government to proceed in

this appeal would create a judicial remedy in contravention

of congressional intent. That approach puts the cart before

the horse.

In McIntosh, we held that defendants may seek to enjoin

the expenditure of DOJ funds only if they “strictly comply

with all state-law conditions regarding the use, distribution,

possession, and cultivation of medical marijuana.” 833 F.3d

at 1178. We reiterated this principle in United States v.

Evans, explaining that because prosecution of non-

compliant defendants “does not prevent the implementation”

10 UNITED STATES V. PISARSKI

of state marijuana laws, defendants cannot enjoin their

prosecutions unless they “strictly complied with all relevant

conditions.” 929 F.3d 1073, 1076 (9th Cir. 2019) (quoting

McIntosh, 833 F.3d at 1178–79). The appropriations rider

does not, however, bar the government from spending funds

to determine whether the rider applies to the prosecution in

the first place. To hold otherwise would render a district

court’s McIntosh finding unreviewable.

Our decision in Kleinman offers Pisarski and Moore no

refuge. Because Kleinman’s underlying conduct involved

marijuana sales that were “definitively prosecutable,” the

rider did not preclude the government’s defense of the

appeal. 880 F.3d at 1030. Nothing in Kleinman suggests

that the DOJ cannot appeal a McIntosh finding.

We turn to the heart of this dispute: whether the

defendants strictly complied with California’s medical

marijuana laws. This is a question of state law. There is no

dispute that defendants bear the burden of proof. 2 To prevail

in a McIntosh hearing, Pisarski and Moore must prove by a

preponderance of the evidence that they have strictly

complied with state medical marijuana laws. Evans,

929 F.3d at 1076–77. We review de novo the district court’s

interpretation of California law. Asante v. California Dep't

of Health Care Servs., 886 F.3d 795, 799 (9th Cir. 2018)

(citing In re McLinn, 739 F.2d 1395, 1403 (9th Cir. 1984)

(en banc)). Here, the court was in command of state law

2

We acknowledge that on occasion the district court referenced the

government’s failure to present evidence. Although the government

argues that such comments signal that the court impermissibly shifted

the McIntosh burden off of Pisarski and Moore’s shoulders, these

references instead speak to the district court’s assessment of the scope of

the charged conduct and, accordingly, the scope of the McIntosh inquiry

itself. The court did not shift the burden of proof.

UNITED STATES V. PISARSKI 11

principles, laid out the statute and related cases, and well

understood the parameters of strict compliance. The district

court did not err in its legal analysis. The parties’

disagreement instead rests on the district court’s factual

findings, to which we owe considerable deference. Because

the district court’s McIntosh determination hinges on its

factual findings, we review for clear error. 3 Id. at 1078

(“[Defendants] challenge the district court’s factual finding

that they did not ‘strictly comply’ with [the MMPA].

Although we review a district court’s interpretation of state

law de novo, when the district court’s determination turns

upon factual findings, we review for clear error.”) (internal

citations omitted).

The district court characterized this case as “something

of a temporal conundrum,” explaining that on the date of the

charged conduct, it was not apparent that the MMPA would

have imposed any compliance requirements for speculative

future marijuana sales. 4 Pisarski, 274 F. Supp. 3d at 1038.

The court first outlined the statute and state law.

Importantly, it then considered the evidence in light of the

charges and underlying law.

We have no difficulty concluding that the district court

did not clearly err in determining that Pisarski and Moore

proved by a preponderance of evidence that they were in

strict compliance with California medical marijuana law at

the time of their arrest. Evans, 929 F.3d at 1078. A thorough

3

Though the dissent claims that its analysis is predicated on legal

error, its focus on factual issues paints a different picture and accounts

for the dissent’s misguided conclusions.

4

The CUA is inapplicable because it does not offer immunity from

criminal sanction for possession for sale. See CAL. HEALTH & SAFETY

CODE § 11362.5.

12 UNITED STATES V. PISARSKI

review of the record does not leave us with a “definite and

firm conviction that a mistake has been committed,” United

States v. Silverman, 861 F.2d 571, 577 (9th Cir. 1988)

(quoting United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948)), and, as such, we affirm the

district court.

Our inquiry begins with the charged conduct. McIntosh

does not allocate a Herculean burden to Pisarski and Moore;

rather, the appropriations rider “focuses on the conduct

forming the basis of a particular charge.” Kleinman,

880 F.3d at 1028 (emphasis added). Pisarski and Moore

each pled guilty to one count of conspiracy to manufacture

and possess with intent to distribute marijuana in violation

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

charges are mirrored in their laconic plea agreements, in

which each made the following factual admissions:

Beginning at an unknown date and

continuing to at least July 10, 2012, there was

an agreement between me and another

individual to manufacture and possess

marijuana on property in Humboldt County.

During this period, I knowingly grew and

possessed marijuana on this property, and I

did so with the intention to sell marijuana to

others. I agree and stipulate that the total

amount of marijuana for purposes of relevant

conduct is 32 kilograms, consisting of

320 marijuana plants.

The government did not charge any past marijuana sales.

Nor did the government detail any specific impending

marijuana sales. The men did admit that the firearms,

ammunition, cash, silver, and gold recovered during the

UNITED STATES V. PISARSKI 13

search warrants were “derived from proceeds obtained,

directly or indirectly, as a result of the violation [pleaded to],

and/or [were] used or intended to be used, in any manner or

in part, to commit or to facilitate the commission of the

violation.” Pisarski, 274 F. Supp. 3d at 1035.

The district court appropriately focused the McIntosh

inquiry on the intended future sales of the plants being grown

on the Humboldt property. With an eye toward this conduct,

the court determined that, as of the date of Pisarski and

Moore’s charged conduct, there was no provision of the

MMPA with which they were out of compliance. It then

made the following findings: that, to the extent any of the

327 5 marijuana plants were viable, Pisarski and Moore

would have sold them to two marijuana collectives for a

reimbursement of costs; that, although the men had not

shown all members of the two collectives were qualified

patients or primary caregivers, California law did not require

them to do so “well before any sale”; that the presence of

cash and precious metals on the Humboldt property was not

evidence that Pisarski and Moore profited or would profit

from unconsummated future sales and was consistent with

reimbursement for past sales; that California law did not

require Pisarski and Moore to have paid taxes at the time of

their arrest given all relevant sales of marijuana were

speculative; and that the presence of weapons and excessive

amounts of cash on the Humboldt property was “equally

consistent with the operation of a rural, cash-intensive

enterprise” as it was with an unlawful marijuana operation,

as the California Attorney General guidelines suggest. Id.

5

Although the plea agreements reference only 320 marijuana plants,

the district court found the men possessed and intended to sell

327 marijuana plants. This finding is supported by the search warrant of

the Humboldt Property.

14 UNITED STATES V. PISARSKI

at 1038–39. The court then concluded that “[i]n this

context—where defendants are charged with intent to sell

marijuana, but the details of such a prospective sale are thin

at best . . .— [Pisarski and Moore’s] suboptimal evidentiary

showing is nonetheless sufficient.” Id. at 1039–40.

The upshot of these findings is that they are thoroughly

supported by the record and the district court did not err in

concluding Pisarski and Moore were in strict compliance

with California’s medical marijuana laws. 6 Even if they

might have made a better evidentiary showing, it does not

detract from the preponderance of evidence illustrating their

strict compliance. And although the government details a

laundry list of deficiencies in the district court’s assessment

of compliance, the government cannot overcome the high

hurdle of our clear error standard.

The MMPA provides a defense to patients who

participate in collectively or cooperatively cultivating

marijuana if they “show that members of the collective or

cooperative: (1) are qualified patients who have been

prescribed marijuana for medicinal purposes,

(2) collectively associate to cultivate marijuana, and (3) are

not engaged in a profit-making enterprise.” People v.

Jackson, 210 Cal. App. 4th 525, 529 (2012); see also Cal.

Health & Safety Code § 11362.775.

6

Evidence at the McIntosh hearing indicated only that Pisarski

would distribute marijuana from the plants on the property; nothing was

said about Moore’s potential sales. Because they operated on the same

property and both pled guilty to conspiracy to manufacture and possess

with intent to distribute marijuana, the district court appropriately

evaluated Moore’s ability to invoke the collective cultivation defense on

the basis of the same evidence.

UNITED STATES V. PISARSKI 15

The MMPA “does not specify what [is] meant by an

association of persons who engage in collective or

cooperative cultivation for medical purposes,” but state

courts have declined to interpret this requirement rigidly,

explaining that the legislature did not mention formality,

permissible number of persons, acceptable financial

agreements, or distribution limitations in the statute. People

v. Orlosky, 233 Cal. App. 4th 257, 267–68 (2015). Indeed,

California state courts have applied the MMPA defense to

two roommates who informally established a collective

between themselves. Id. at 263–64, 271–72.

We note it is difficult to cherry pick a single principle

from state case law to apply in the McIntosh context, because

courts have emphasized that their findings rest on multiple

non-dipositive factors. See Jackson, 210 Cal. App. 4th at 539

(explaining that the jury may consider multiple non-

dispositive factors to determine if the MMPA defense

applies, to include the testimony of the collective operators,

the volume of the collective’s business, the number of

collective members, the non-profit status of the collective,

and the existence or nonexistence of financial records); cf

Orlosky, 233 Cal. App. 4th at 271 (“[a]lthough business

formality has been identified as a relevant evidentiary

criterion that increases in probative value as the size of the

marijuana distribution enterprise increases, it has not been

identified as a mandatory requirement that automatically

excludes all informal collective cultivation arrangements”)

(emphasis in original).

The case of People v. London illustrates the highly

factual nature of MMPA proceedings. 228 Cal. App. 4th 544

(2014). In London, a defendant grew marijuana for an

informal collective, which would then distribute it among

“[members] and the original suppliers of the plants.” Id.

16 UNITED STATES V. PISARSKI

at 550. Significantly, the defendant presented no evidence

that any of those individuals were qualified patients. Id.

at 566. Faced with testimony from a police officer that the

defendant had actually admitted to making a $20,000 profit

from the plants, the defendant offered no evidence the plants

would be distributed on a non-profit basis. Id. at 550, 566.

Considering the constellation of relevant factors, the court

concluded there was insufficient evidence to support an

MMPA jury instruction. The court in London correctly

looked to state law, case law, and the Attorney General

guidelines to make a fact-bound evidentiary conclusion—

just as the district court did here.

Ample evidence supports Pisarski and Moore’s

adherence to the collective requirements. Pisarski declared

that any future sales from the 327 plants would be to the

Covello Cut Off and Ramrattan collectives—two collectives

to which he belonged. Unlike the defendant in London,

Pisarski and Moore could account for the distribution of their

entire future harvest. See 228 Cal. App. 4th at 566. This

arrangement was confirmed by third-party declarations,

coupled with cultivation agreements. Other evidence

included multiple physician recommendations that

corroborate the collective members’ status as qualified

patients. Although the defendants did not make a showing

as to the status of all members within the two collectives,

nothing required them to establish the status of all collective

members months before any sale occurred.

Nor did the district court clearly err when it concluded

that, “to the extent any of the yield of their 327 marijuana

plants would have been sold, it would have been sold to a

collective on a not-for-profit basis.” Pisarski, 274 F. Supp.

3d at 1038. The only evidence before the court confirmed

the disclaimer of any profit.

UNITED STATES V. PISARSKI 17

The government’s reliance on People v. Solis for the

proposition that Pisarski and Moore lacked financial

documentation for unconsummated sales makes no logical

sense. 217 Cal. App. 4th 51 (2013). Importantly, in Solis,

the court determined that Solis was not entitled to an MMPA

defense because, among other things, Solis admitted to

earning a personal salary of $80,000 from the collective’s

excess income. Id. at 58–59. Here, Pisarski and Moore

expressly denied that they intended to earn a profit from

sales of the marijuana, and the record provides a cornucopia

of reasons for the presence of large amounts of cash on the

property: the cash-intensive nature of marijuana operations,

the rural nature of the Humboldt property, cash

reimbursements from past marijuana sales to the two

collectives, and income from Pisarski’s horticultural

business.

Similarly, because California law does not require a

seller to obtain a permit or pay taxes before a sale is

completed, the district court did not clearly err in concluding

Pisarski and Moore strictly complied with the tax provisions

in the MMPA. See Cal. Health & Safety Code

§ 11362.775(b)(4) (a collective or cooperative must be “in

possession of a valid seller’s permit issued by the State

Board of Equalization”).

Finally, although the government argues that the

excessive amounts of cash and precious metals and the

firearms and ammunition found on the property are

suspicious, they are just that—suspicious. In the absence of

other evidence, we credit the district court’s finding that

these items are “equally consistent with the operation of a

rural, cash-intensive enterprise.” While the California

Attorney General counsels that “excessive amounts of cash”

and “weapons” are indicia of illegal marijuana sales, these

18 UNITED STATES V. PISARSKI

guidelines are non-binding and do not trump evidentiary

findings. See California Attorney General, “Guidelines for

the Security and Non-Diversion of Marijuana Grown for

Medical Use” at 11 (August 2008).

Because the district court properly focused the McIntosh

hearing on the conduct underlying the charge, and because

the district court’s analysis of state law was not in error and

its factual findings were not clearly erroneous, the court did

not err in concluding that Pisarski and Moore met their

burden to show that they were strictly compliant with the

MMPA at the time of their arrest.

AFFIRMED.

WALLACE, Senior Circuit Judge, dissenting:

I.

In July 2012, federal government agents searched

Defendants’ property in California, seizing 327 marijuana

plants, $416,125 in cash, multiple firearms, some of which

were loaded, ammunition, gold, silver, an 18-foot tandem

axle trailer, and a marijuana manufacturing machine. The

seized cash was found bundled by rubber bands, then

vacuum sealed in plastic, and then further wrapped in thick

black plastic. Defendants pleaded guilty to a charge of

conspiracy from an unknown date to July 10, 2012, to

manufacture and possess with intent to distribute marijuana.

Before sentencing, Congress enacted an appropriations

rider known as the Rohrabacher-Farr amendment, which

under our decision in McIntosh, required district courts to

enjoin federal marijuana prosecutions when the charged

UNITED STATES V. PISARSKI 19

conduct was “completely authorized” by state medical

marijuana law. United States v. McIntosh, 833 F.3d 1163,

1177 (9th Cir. 2016). After presiding over an evidentiary

hearing, the district court granted Defendants’ motion to stay

the prosecution under McIntosh. The government now

appeals.

II.

A.

I agree with the majority that a district court’s order

staying a federal prosecution under McIntosh is appealable.

“Congress intended to remove all statutory barriers to

Government appeals and to allow appeals whenever the

Constitution would permit.” United States v. Wilson,

420 U.S. 332, 337 (1975). Without a congressional mandate

divesting us of our jurisdiction, we retain the power to

review lower court decisions. See McIntosh, 833 F.3d

at 1172–73.

Our statement that the appropriations rider “can prohibit

continued DOJ expenditures even though a prosecution was

properly initiated prior to [the rider’s] enactment . . . and the

same reasoning applies to continued expenditures on a direct

appeal after conviction,” United States v. Kleinman,

880 F.3d 1020, 1028 (9th Cir. 2017), does not suggest

otherwise. In context, we meant to say that the Department

of Justice could not expend funds in either the trial or our

court if the appropriations rider applied, i.e., if a criminal

defendant strictly complied with state medical marijuana

law. We did not say that the Department of Justice could not

expend funds to challenge a district court’s threshold

determination that the appropriations rider applied so as to

enjoin the prosecution. We therefore have jurisdiction to

20 UNITED STATES V. PISARSKI

resolve the government’s appeal from the district court’s

stay of prosecution.

B.

As a threshold matter, the government argues that the

district court erred by addressing only the 327 marijuana

plants seized on July 10, 2012. In the government’s view,

the charged conduct was not limited to those plants, and the

district court accordingly failed to assess Defendants’

compliance against the full scope of the conspiracy. I agree

with the majority that the district court properly focused its

analysis on the 327 marijuana plants.

In evaluating the application of the appropriations rider,

we “focus[] on the conduct forming the basis of a particular

charge.” Kleinman, 880 F.3d at 1028. Although Defendants

were charged with conspiracy to manufacture and possess

with intent to distribute marijuana from “an unknown date

and continuing until at least until July 10, 2012,” and

although there is evidence of Defendants’ past sales to a

collective as far back as 2010—which hundreds of thousands

of dollars in cash found on Defendants’ property

corroborates—Defendants had fortuitously entered into Plea

Agreements circumscribing the scope of their charged

conduct. 1 In their Plea Agreements, Defendants stipulated

that “the total amount of marijuana attributable [] for

purposes of relevant conduct is 32 kilograms, consisting of

1

If Defendants had not entered into the Plea Agreements, the plain

meaning of the Information would have governed the scope of the

McIntosh analysis. See Kleinman, 880 F.3d at 1028. We engage in a

“count-by-count analysis to determine which charges, if any, are

restricted by” the appropriations rider. Id. I do not interpret the

Information to limit the scope of the charged conduct to the cultivation

of the 327 marijuana plants seized on July 10, 2012.

UNITED STATES V. PISARSKI 21

320 marijuana plants.” The language in Defendants’ Plea

Agreements therefore controls the scope of the McIntosh

inquiry in this case.

In any event, the government cannot now argue that the

district court’s McIntosh analysis should have extended to

Defendants’ conduct beyond the 327 marijuana plants.

Recognizing that the Plea Agreements had limited the

conspiracy to the marijuana plants seized on July 10, 2012,

the government told the district court that “the best reading

of McIntosh is that we look to their conduct that is the basis

of the charge, and the basis of the charge is the 320 plants.”

Relying on the parties’ shared understanding, the district

court evaluated Defendants’ compliance based on their

conduct connected with the 327 marijuana plants. As a

former district court judge, I cannot fault him for doing so.

C.

The majority next suggests that this appeal turns on the

district court’s factual findings, which we must review for

clear error. See United States v. Evans, 929 F.3d 1073, 1078

(9th Cir. 2019) (citation omitted). However, this appeal

turns instead on the district court’s interpretation and

application of state law, which we must review de novo. See

id., quoting Garmon v. Cty. of Los Angeles, 828 F.3d 837,

842 (9th Cir. 2016); see also United States v. Hinkson,

585 F.3d 1247, 1259 (9th Cir. 2009) (reviewing de novo the

district court’s “application of fact to law” when it “requires

reference to the values that animate legal principles”).

Because the district court did not properly interpret or apply

state law “bearing on whether [California] expressly

authorized the use of medical marijuana,” I respectfully

dissent. Evans, 929 F.3d at 1078.

22 UNITED STATES V. PISARSKI

Applying the McIntosh inquiry, we “focus . . . on the

statutory text.” McIntosh, 833 F.3d at 1175. The

appropriations rider prohibits the Department of Justice

“from spending money on actions that prevent the Medical

Marijuana States’ giving practical effect to their state laws

that authorize the use, distribution, possession, or cultivation

of medical marijuana.” Id. at 1176. By contrast, those “who

do not strictly comply with all state-law conditions regarding

the use, distribution, possession, and cultivation of medical

marijuana have engaged in conduct that is unauthorized”

may still be prosecuted. Id. at 1178.

Under Mcintosh, criminal defendants charged with

violating federal marijuana laws must overcome an exacting

burden—their conduct must be “completely” authorized by

state law and must “strictly” comply with all conditions of

state law as to the use, distribution, possession, and

cultivation of medical marijuana. Id. at 1179. Criminal

defendants must show “that it is more likely than not that the

state’s medical-marijuana laws ‘completely authorized’ their

conduct.” Evans, 929 F.3d at 1077.

In July 2012, the sale and possession of marijuana was

generally unlawful in California. See Cal. Health & Safety

Code §§ 11359, 11360. The Medical Marijuana Program

Act (MMPA) exempted from prosecution qualified patients

and their primary caregivers who cultivated marijuana for

medicinal purposes. See id. § 11362.775(a). As mandated

by statute, California’s Attorney General issued guidelines

defining the scope of the MMPA to “ensure the security and

nondiversion of cannabis grown for medicinal use.” Id.

§ 11362.81(d); Guidelines for the Security and Non-

diversion of Marijuana Grown for Medical Use (Aug. 2008)

(Guidelines). Although the Guidelines “are not binding on

the courts,” they “are entitled to considerable weight.”

UNITED STATES V. PISARSKI 23

People v. London, 175 Cal. Rptr. 3d 392, 402 (Ct. App.

2014) (internal quotation marks and citations omitted).

The majority says that the Guidelines “do not trump” the

district court’s “evidentiary findings.” But that

pronouncement puts the cart before the horse. In evaluating

whether Defendants strictly complied with California law,

the district court was required to consider the Guidelines, the

MMPA, and all relevant California judicial decisions. Cf.

Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (observing

that “whether the law of the state shall be declared by its

Legislature in a statute or by its highest court in a decision is

not a matter of federal concern”). 2

To effectuate the narrow protections in the MMPA,

criminal defendants in California may invoke a cultivation

defense by showing that the members of the collective or

cooperative: (1) are qualified patients who have been

prescribed marijuana for medicinal purposes;

(2) collectively associate to cultivate marijuana, and (3) are

not engaged in a profit-making enterprise. See People v.

Jackson, 148 Cal. Rptr. 3d 375, 377 (Ct. App. 2012).

Criminal defendants carry the “minimal burden” of raising a

“reasonable doubt as to whether the elements of the

defense[] have been proven.” Id. at 380. 3

2

We may also “consider unpublished state decisions even though

such opinions have no precedential value.” Employers Ins. Of Wausau

v. Granite State Ins. Co., 330 F.3d 1214, 1220 (9th Cir. 2003), citing

Nunez v. City of San Diego, 114 F.3d 935, 943 n.4 (9th Cir. 1997).

3

Once a criminal defendant raises a reasonable doubt about the

medical marijuana defense to permit the defense, the burden shifts to the

government to disprove the defense. See People v. Orlosky, 182 Cal.

Rptr. 3d 561, 571 (Ct. App. 2015). I rely on California state court

24 UNITED STATES V. PISARSKI

Thus, at the time of Defendants’ charged conduct, a

medical marijuana grower in California could not lawfully

earn a profit. See Cal. Health & Safety Code § 11362.765(a)

(providing that nothing in the provision exempts from

prosecution “any individual or group to cultivate or

distribute cannabis for profit”). Instead, a qualified patient

or valid identification cardholder could only receive

reasonable compensation for his labor or services rendered

in cultivating medical marijuana for other qualified patient

members of his nonprofit group, plus reimbursement for his

out-of-pocket expenses incurred. See London, 175 Cal. Rptr.

3d at 411–412, citing Guidelines § IV.B.1, B.6.

The California intermediate appellate court decision,

People v. London, highlights the legal principles underlying

California’s rule against profit-making. See 175 Cal. Rptr.

3d 392. In London, the defendant was charged with

cultivating marijuana and possessing marijuana for sale

under California law. Id. at 397. The defendant was given

100 immature marijuana plants from the collective of which

he was a member. Id. at 398. In total, the defendant had

invested $10,000 in his growing operation, and he claimed

to expect to be reimbursed for his costs of growing the

plants, including the time and effort involved in growing the

plants. Id. at 399. At his trial, the defendant invoked the

MMPA cultivation defense, saying that he did not expect an

“unlawful profit for cultivating the 100 marijuana plants for

the collective.” Id. at 406. The defendant tried to introduce

expert testimony to prove that he had not expected to earn an

decisions addressing a criminal defendant’s threshold minimal burden,

and not the more onerous burden imposed on the government “to

disprove the defense beyond a reasonable doubt.” Id.

UNITED STATES V. PISARSKI 25

unlawful profit based on future sales. Id. However, the trial

court limited the scope of the expert testimony. Id.

The court held that the defendant’s expert “lacked a

sufficient evidentiary foundation to opine that defendant was

earning an unlawful profit for cultivating the 100 marijuana

plants for the collective.” Id., citing Cal. Health & Safety

Code § 11362.765(a); Guidelines, § IV. B.6. The court

reasoned that the defendant had not explained “how much he

expected to earn from his 100-plant grow and any additional

‘grows’ for the collective.” Id. The defendant had also

failed to “estimate the amount of time and effort he had

invested and expected to invest in his 100-plant grow and in

his planned additional grows, or tie that amount of time and

effort to the amount of compensation he expected to earn for

cultivating marijuana for his collective.” Id., citing

Guidelines, § IV.B.4 (stating that “collectives and

cooperatives should document each member’s contribution

of labor, resources, or money to the enterprise”). The

defendant was required to supply “evidence tying the

reasonable value of defendant’s cultivation services to the

amount of compensation he expected to be paid for the

marijuana plants he was growing.” Id.

In this portion of London, the court relied extensively on

the Guidelines and the substantive authorizations of the

MMPA. Id. In a separate part of the opinion, the court also

held that there was insufficient evidence to support the

MMPA defense instruction. Id. at 410. Although the

marijuana plants had not yet matured and had not yet been

sold, the court engaged in a rigorous analysis of the

26 UNITED STATES V. PISARSKI

defendant’s compliance with the MMPA and the

Guidelines. 4

In this case, Defendants did not provide the district court

with an estimate of their expected revenue or an accounting

of their labor and operational costs from cultivating the

327 marijuana plants. As in London, it was unknown how

many marijuana plants were female and therefore capable of

maturity.

In addition, like Defendants did here, the defendant in

London claimed that he had not expected to earn an unlawful

profit from the sale of the marijuana plants. See London,

175 Cal. Rptr. 3d at 397 (addressing defendant’s claim that

the “$20,000 sum he expected to be paid for his

100 marijuana plants, when fully grown, did not include an

unlawful profit”). And here, as in London, there is evidence

about expected payments relating to the marijuana plants

underlying the charged conduct. In his declaration filed with

the district court, Jon Rasmussen, an agent working for the

United States Drug Enforcement Administration, said that

Anthony Stewart had told him that Anthony Pisarski would

pay him about $15,000 for the grow season.

4

California courts consider the absence of an accounting of

expenses in evaluating a criminal defendant’s compliance with the

MMPA even where the marijuana plants underlying the criminal charge

have not yet matured. See People v. Matteucci, No. F07491, 2017 WL

1533485, at *14 (Cal. Ct. App. 2017) (“The 482 marijuana plants, if

grown to maturity, would produce vastly more marijuana than [the]

recommendations. Although [the defendant] claimed he was reimbursed

only for his expenses, he did not keep close track of his expenses and

accepted monetary ‘donations’ without regard to whether the amount

covered overhead costs and operating expenses”).

UNITED STATES V. PISARSKI 27

Despite the clear guidance from London, the district

court nonetheless said that the MMPA “offers immunity

from prosecution for possession for sale” and that it “does

not speak to the issue of prospective compliance, but rather

seems concerned with contemporaneous conditions.”

United States v. Pisarski, 274 F. Supp. 3d 1032, 1038 (N.D.

Cal. 2017). Examining the principles animating the MMPA

de novo, 5 this was error. London expressly tells us that the

MMPA does speak to issue of prospective compliance. The

district court accordingly failed to assess whether

Defendants would have earned an unlawful profit from the

expected sale of their 327 plant-grow.

In addition, under the MMPA, a criminal defendant must

show that every member of the collective for which he is

cultivating marijuana is a qualified patient or a primary

caregiver. See Cal. Health & Safety Code § 11362.775(a).

At the time of the charged conduct, Defendants could

lawfully distribute medical marijuana only to “qualified

patients, persons with valid identification cards, and the

designated primary caregivers of qualified patients and

persons with identification cards.” Id. § 11362.765(a). The

MMPA “protections cannot apply” to a criminal defendant

who has not established that the “proffered” members of the

collective are “qualified patients” or “primary caregiver[s].”

5

The possibility of compliance is not a substitute for affirmative

proof of compliance with the MMPA. See People v. Rodriguez,

No. F071705, 2017 WL 2609599, at *5 (Cal. Ct. App. 2017) (“The

question is whether the record raised a reasonable doubt regarding the

existence of each element of the offense. While the evidence showing

$80 of revenue and $7 for some of the costs did not suffice to prove there

was a profit, it naturally did not tend to show the sale was not for profit

either” (emphasis in original)).

28 UNITED STATES V. PISARSKI

People v. Frazier, 27 Cal. Rptr. 3d 336, 350 (Ct. App. 2005)

(emphasis added).

London is again instructive. The defendant there

testified that “half of the marijuana he harvested from his

100-plant grow would be given to his cousin . . . .” 75 Cal.

Rptr. 3d at 411. Nonetheless, the court concluded that

defendant’s lawful cultivation MMPA defense “fell short of

raising a reasonable doubt that the defendant was lawfully

cultivating and lawfully possessing marijuana” because

there was no evidence “that any of the marijuana harvested

from defendant’s grow would be given for free or sold, on a

nonprofit basis, solely to qualified patient members of the

collective.” Id. (emphasis in original).

Here, Defendants presented evidence that the collectives

were “closed-circuit,” i.e., that there were no purchases or

sales to or from non-members of the collectives. However,

the evidence also refers to “other” unidentified patients and

collectives. Defendants did not present any evidence

demonstrating whether the “other patients” were qualified

patients or primary caregivers 6. On this record, there is no

way to ascertain whether the exemption in the MMPA

applies. The district court therefore necessarily failed to

make findings bearing on the question whether Defendants’

6

The majority says that unlike the defendant in London, the

Defendants here “could account for the distribution of their entire future

harvest.” But even if the district court made such a factual finding, that

did not obviate Defendants’ burden to show that the unidentified “other

patients” of the collectives were qualified patients or primary caregivers

under the MMPA. Nor did that obviate Defendants’ burden to show that

their expected distribution would not result in an unlawful profit under

California law.

UNITED STATES V. PISARSKI 29

conduct was “completely authorized” under California law

to justify enjoining this federal marijuana prosecution.

The majority says that the district court “understood the

parameters of strict compliance.” But where, as here, a

district court fails to make necessary findings of fact bearing

on the McIntosh inquiry, the parameters of strict compliance

have not been followed.

The majority later acknowledges that Defendants “did

not make a showing as to the status of all members within

the two collectives” but nonetheless concludes that “nothing

required them to establish the status of all collective

members months before any sale occurred.” But California

law, as interpreted in London, tells us otherwise. See

London, 75 Cal. Rptr. 3d at 411. In London, the sales were

also expected to be made at an unknown time in the future,

and the testimony about the membership status of half of the

charged grow was inadequate. Id.; see also People v.

Garrett, No. C079468, 2017 WL 2609544, at *8 (Cal. Ct.

App. 2017) (observing that a defendant’s failure to gather

information about the alleged collective counsels against a

MMPA cultivation defense because “business and

membership records were likely available had defendant

actually tried in advance to obtain them”). 7

Finally, Defendants have failed to rebut the various

indicia of an unlawful marijuana operation under California

7

In making this determination, the district court also appeared to

shift the burden of proof impermissibly to the government. See Pisarski,

274 F. Supp. 3d at 1039 (stating that “the government has not identified

a single member of either collective who was not a qualified patient or

caregiver” (emphasis in original)).

30 UNITED STATES V. PISARSKI

law. The Guidelines include a list of “Indicia of Unlawful

Operations:”

When investigating collectives or

cooperatives, law enforcement officers

should be alert for signs of mass production

or illegal sales, including (a) excessive

amounts of marijuana, (b) excessive amounts

of cash, (c) failure to follow local and state

laws applicable to similar businesses, such as

maintenance of any required licenses and

payment of any required taxes, including

sales taxes, (d) weapons, (e) illicit drugs,

(f) purchases from, or sales or distribution to,

non-members, or (g) distribution outside of

California.

Guidelines § IV.C.2. The government argues that the cash,

silver, gold, loaded guns, and ammunition found on the

Defendants’ property are indicia of unlawful marijuana use.

The district court rejected this argument, reasoning that “the

presence of cash, precious metals, and weapons is equally

consistent with the operation of a rural, cash-intensive

enterprise.”

But “evidence in equipoise is not enough” to satisfy the

preponderance of the evidence standard. United States v.

Alvarado-Guizar, 361 F.3d 597, 602 (9th Cir. 2004). The

only reasoning in support of the district court’s conclusion is

that the evidence equally supports two competing theories.

If Defendants’ evidence made it “equally” possible that they

complied or did not comply with state law, they have

necessarily failed to meet their burden under Evans.

UNITED STATES V. PISARSKI 31

D.

In the majority’s view, I “focus on factual issues” and

this “accounts for” my “misguided conclusions.” Again, the

majority is mistaken.

Our controlling precedent tells us that the McIntosh

analysis involves two parts. In the first part, district courts

must examine the state statutes and judicial decisions

“bearing on whether [the state] expressly authorized the use

of medical marijuana.” Evans, 929 F.3d at 1078. We have

said that district courts must determine “all relevant

conditions imposed by state law on the use, distribution,

possession, and cultivation of medical marijuana.”

McIntosh, 833 F.3d at 1079. This is a legal inquiry, which

we review de novo. See Matter of McLinn, 739 F.2d 1395,

1398 (9th Cir. 1984) (en banc) (“[A] decision to give less

than full independent de novo review to the state law

determinations of the district courts would be an abdication

of our appellate responsibility”).

In the second part, the district court must determine

whether the criminal defendant’s conduct “was completely

authorized by state law”—that the defendant “strictly

complied” with all of the state law examined in the first part.

McIntosh, 833 F.3d at 1079. We have explained that the

question “whether [a defendant] strictly complied with

California marijuana laws may depend on specific findings

of fact, as well as legal determinations.” United States v.

Lynch, 903 F.3d 1061, 1087 (9th Cir. 2018) (emphasis

added). The second part may therefore depend on specific

findings of fact, which we review for clear error, or on legal

determinations, which we review de novo.

The majority relies on language from our decision in

Evans, in which we said that “when the district court’s

32 UNITED STATES V. PISARSKI

determination turns upon factual findings, we review for

clear error.” Evans, 929 F.3d at 1078 (emphasis added). In

making this statement, we quoted from our decision in

United States v. Kent, 649 F.3d 906, 912 (9th Cir. 2011).

Our decision in Kent is instructive.

In Kent, we explained that a review for clear error is

“appropriate [] when a determination of vindictive

prosecution turned upon factual findings.” Id. (citation

omitted). However, we then said that since the law on

“vindictive prosecution has developed, [] our review is now

more commonly for mistakes of law, for which de novo

review is appropriate.” Id. (citation omitted). The statement

in Evans on which the majority relies therefore only

confirms what we said in Lynch: when the district court’s

McIntosh analysis turns on specific findings of fact, we

review for clear error, but when the analysis turns on a legal

issue, we apply de novo review.

The district court’s McIntosh analysis did not “turn[]

upon factual findings.” Evans, 929 F.3d at 1078.

Significantly, in reaching the straightforward conclusion that

the district court committed reversible legal error, I do not

reject or discount any of the district court’s factual findings.

Instead, the district court’s errors all turned on its incorrect

statement of law that California “does not offer much further

guidance with respect to how compliance can be assessed

prospectively.” Pisarski, 274 F. Supp. 3d at 1038.

The majority says that the district court exuded a

“command of state law principles.” The majority says this

is so, without adopting the district court’s proportionality

approach, and without offering an alternate framework to

assess strict compliance with California law. Instead, the

majority simply concludes that the district court did not

clearly err in its factual findings. But there must be some

UNITED STATES V. PISARSKI 33

legal framework against which compliance for expected

future sales is assessed. In my view, the district court’s

framework was faulty from the start, and the district court

accordingly erred in its application of California law.

I fear that as a result of today’s opinion, district courts

may now adopt a proportionality approach in any case in

which a California resident is charged with possession of

distributable quantities of marijuana, staying a federal

marijuana prosecution so long as there is a theoretical

possibility of compliance at the time of a future sale. Neither

our precedent nor California’s sanctions this outcome.

III.

A criminal defendant in possession of distribution

quantities of marijuana must provide more than “sub-

optimal” evidence to establish compliance with California

law. That there were no past sales charged in this case did

not obviate Defendants’ burden to prove strict compliance

with California medical marijuana law. By failing to

consider or apply the substantive conditions of the MMPA

and the Guidelines, and the principles animating them both,

the district court erred.

I respectfully dissent.