Petition for Writ of Certiorari — Charles C. Lynch, Petitioner v. United States

Supreme Court briefMar 11, 2019

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No. __________

IN THE

Supreme Court of the United States

CHARLES C. LYNCH,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

HILARY POTASHNER

Federal Public Defender

ALEXANDRA W. YATES

Deputy Federal Public Defender

Counsel of Record

321 East 2nd Street

Los Angeles, California 90012

E-mail: Alexandra_Yates@fd.org

Telephone: 213-894-5059

Attorneys for Petitioner

QUESTIONS PRESENTED

Petitioner opened a state-legal medical marijuana dispensary after seeking

guidance from the Drug Enforcement Administration, and being told it was a

matter of local law. Nonetheless, the government charged Petitioner with violating

federal marijuana laws, and he went to trial. During voir dire, a prospective juror

mentioned jury nullification; in response, the judge instructed that jurors have no

authority to nullify, warned that nullification would violate jurors’ sworn oaths,

polled jurors individually on whether they could follow those commands, and

dismissed any who demurred. Petitioner proffered an entrapment-by-estoppel

defense based on his calls to the DEA, but the court precluded the defense on some

counts and limited it on others. The jury convicted, and the court imposed a

mandatory minimum sentence. In a split, published decision, the Ninth Circuit

affirmed the anti-nullification instruction, and held Petitioner had no right to

present a defense based on implicit government assurances at all.

The questions presented are:

1. May a trial judge issue a coercive anti-nullification instruction to criminal

jurors?

2. May a federal defendant present an entrapment-by-estoppel defense based on

implicit government assurances that his conduct is legal, as this Court and

the Second, Third, and Fourth Circuits have held, or must the assurances be

express, as the Ninth Circuit held in Petitioner’s case?

TABLE OF CONTENTS

Questions Presented ...................................................................................................... ii

Table of Authorities ....................................................................................................... v

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Constitutional Provisions Involved ............................................................................... 1

Introduction ................................................................................................................... 2

Statement of the Case ................................................................................................... 4

Reasons for Granting the Writ .................................................................................... 13

I. Whether and How a Trial Court May Dissuade Jurors from Nullifying Is a

Recurring Issue of Exceptional Importance That Has Divided the Lower Courts ... 13

A. Lower courts are divided on whether and how a trial court may dissuade

jurors from nullifying ........................................................................................ 15

1. The Sixth and Ninth Circuits condone coercive anti-nullification

instructions, in conflict with the First and D.C. Circuits, which prohibit

judges from instructing on nullification at all ...................................... 15

2. State courts of last resort also are divided on the propriety of

anti-nullification instructions ................................................................ 19

B. The question presented is recurring and exceptionally important ............ 23

C. The Ninth Circuit’s decision is wrong and, if allowed to stand, effectively

would reverse one of the most hallowed principles of Ango-American

jurisprudence—jury independence ................................................................... 26

iii

II. The Ninth Circuit’s Entrapment-by-Estoppel Ruling Conflicts with Prior

Holdings of This Court and Creates a Circuit Split ................................................... 29

A. The Ninth Circuit’s decision conflicts with this Court’s repeated holdings

that a defendant may rely on implicit government assurances to support an

entrapment-by-estoppel defense....................................................................... 30

B. The Ninth Circuit’s decision conflicts with decisions of the Second, Third,

and Fourth Circuits, which hold that implicit government assurances can

support an entrapment-by-estoppel defense .................................................... 35

C. The Ninth Circuit’s decision is wrong and unjust....................................... 38

Conclusion .................................................................................................................... 40

Appendix

Ninth Circuit’s Order Denying Rehearing (Dec. 11, 2018) ........................................ A1

Ninth Circuit’s Opinion (Sept. 13, 2018) .................................................................... A3

District Court’s Anti-Nullification Instruction (July 24, 2008) ............................... A33

District Court’s Ruling on Entrapment-by-Estoppel Defense (July 31, 2018) ........ A60

TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ................................................................................................ 14

Bushell’s Case,

124 Eng. Rep. 1006 (1670) ..................................................................................... 14

Cox v. Louisiana,

379 U.S. 559 (1965) .........................................................................................passim

Davis v. State,

520 So. 2d 493 (Miss. 1988) .................................................................................... 25

Duncan v. Louisiana,

391 U.S. 145 (1968) .......................................................................................... 25, 27

Gonzales v. Raich,

545 U.S. 1 (2005) ................................................................................................... 39

Hansen v. State,

592 So. 2d 114 (Miss. 1991) .................................................................................... 21

Horning v. District of Columbia,

254 U.S. 135 (1920) .................................................................................................. 4

Johnson v. Louisiana,

406 U.S. 356 (1972) ................................................................................................ 25

Jones v. United States,

526 U.S. 227 (1999) ................................................................................................ 25

Oregon v. Ice,

555 U.S. 160 (2009) ................................................................................................ 25

People v. Engelman,

49 P.3d 209 (Cal. 2002) .......................................................................................... 22

People v. Hochanadel,

176 Cal. App. 4th 997 (2009) .................................................................................... 4

Powell v. Comm.,

2017 WL 1536249 (Ky. Apr. 27, 2017) ................................................................... 22

R.R. Co. v. Stout,

84 U.S. 657 (1873) .................................................................................................. 13

Raley v. Ohio,

360 U.S. 423 (1959) .........................................................................................passim

Sparf v. United States,

156 U.S. 51 (1895) ...................................................................................... 24, 25, 26

State v. Bonacorsi,

648 A.2d 469 (1994) .......................................................................................... 20, 21

State v. Carter,

380 P.3d 189 (Kan. 2016) ....................................................................................... 22

State v. Elmore,

123 P.3d 72 (Wash. 2005) ....................................................................................... 24

State v. Findlay,

765 A.2d 483 (Vt. 2000) .......................................................................................... 25

State v. Hatori,

990 P.2d 115 (Haw. 1999) ...................................................................................... 25

State v. Kebbie,

2018 WL 6173595 (Vt. Nov. 21, 2018) ................................................................... 22

State v. Lynch,

309 P.3d 482 (Wash. 2013) ..................................................................................... 28

State v. Parsons,

589 S.E.2d 226 (W. Va. 2003) ................................................................................. 26

State v. Prudent,

13 A.3d 181 (N.H. 2010) ................................................................................... 22, 25

State v. Ragland,

519 A.2d 1361 (N.J. 1986) ................................................................................ 22, 23

State v. Richards,

531 A.2d 338 (N.H. 1987) ................................................................................. 19, 20

State v. Smith-Parker,

340 P.3d 485 (Kan. 2014) ....................................................................................... 19

Taylor v. Louisiana,

419 U.S. 522 (1975) ................................................................................................ 27

United States v. Abcasis,

45 F.3d 39 (2d Cir. 1995) .............................................................................. 3, 35, 36

United States v. Alba,

38 F. App’x 707 (3d Cir. Apr. 8, 2002) ........................................................ 3, 36, 37

United States v. Anderson,

716 F.2d 446 (7th Cir. 1983) .................................................................................. 25

United States v. Aquino-Chacon,

109 F.3d 936 (4th Cir. 1997) .................................................................. 3, 36, 37, 38

United States v. Carr,

424 F.3d 213 (2d Cir. 2005) .................................................................................... 22

United States v. Dougherty,

473 F.2d 1113 (D.C. Cir. 1972) .......................................................................passim

United States v. Edwards,

101 F.3d 17 (2d Cir. 1996) ...................................................................................... 18

United States v. Gaudin,

515 U.S. 506 (1995) .........................................................................................passim

United States v. Hsieh Hui Mei Chen,

754 F.2d 817 (9th Cir. 1985) .................................................................................. 30

United States v. Johnson,

462 F.2d 423 (3d Cir. 1972) .................................................................................... 22

United States v. Kleinman,

880 F.3d 1020 (9th Cir. 2017) .................................................................... 10, 16, 23

United States v. Krzyske,

836 F.2d 1013 (6th Cir. 1988) .......................................................................... 16, 17

United States v. Krzyske,

857 F.2d 1089 (6th Cir. 1988) ................................................................................ 17

United States v. Lynch,

903 F.3d 1061 (9th Cir. 2018) .........................................................................passim

United States v. McIntosh,

833 F.3d 1163 (9th Cir. 2016) ................................................................................ 10

United States v. Moylan,

417 F.2d 1002 (4th Cir. 1969) ................................................................................ 25

vii

United States v. Pa. Indus. Chem. Corp.,

411 U.S. 655 (1973) .........................................................................................passim

United States v. Pierre,

974 F.2d 1355 (D.C. Cir. 1992) .............................................................................. 22

United States v. Polizzi,

549 F. Supp. 2d 308 (E.D.N.Y. 2008) ............................................................... 23, 24

United States v. Rosenthal,

266 F. Supp. 2d 1068 (N.D. Cal. 2003) .................................................................. 23

United States v. Sepulveda,

15 F.3d 1161 (1st Cir. 1993) ............................................................................. 17, 18

United States v. Simpson,

460 F.2d 515 (9th Cir. 1972) ............................................................................ 25, 28

United States v. Spock,

416 F.2d 165 (1st Cir. 1969) ................................................................................... 28

United States v. Tallmadge,

829 F.2d 767 (9th Cir. 1987) .................................................................................... 8

Watts v. United States,

362 A.2d 706 (D.C. 1976).................................................................................. 22, 23

Woodson v. North Carolina,

428 U.S. 280 (1976) ................................................................................................ 27

Constitutional Provisions

U.S. Const., Art. III, § 2, cl. 3 .................................................................................. 1, 23

U.S. Const. amend. VI ................................................................................................... 1

Statutes

18 U.S.C. § 3006A .......................................................................................................... 2

18 U.S.C. § 3231 ............................................................................................................. 6

28 U.S.C. § 1254 ............................................................................................................. 1

Cal. Health & Safety Code § 11362.5 ............................................................................ 4

viii

Other Authorities

Albert W. Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury

in the United States, 61 U. Chi. L. Rev. 867 (1994) .............................................. 14

Jenny E. Carroll, The Jury’s Second Coming, 100 Geo. L.J. 657 (2012) ................... 14

James Joseph Duane, Jury Nullification: The Top Secret Constitutional

Right, 22 Litigation 6 (Summer 1996) ................................................................... 24

Arie M. Rubenstein, Verdicts of Conscience: Nullification and the Modern

Jury Trial, 106 Colum. L. Rev. 959 (2006) ............................................................ 23

Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175

(1989) ...................................................................................................................... 13

OPINIONS BELOW

The opinion of the Ninth Circuit Court of Appeals is reported at United States v.

Lynch, 903 F.3d 1061 (9th Cir. 2018), and is reproduced in the Appendix at App. 331. The district court’s relevant prior decisions in the case are unreported; they are

reproduced at App. 1-2.

JURISDICTION

The Court of Appeals entered judgment on September 13, 2018 (App. 3), and

denied Petitioner’s timely petition for rehearing on December 11, 2018 (App. 1).

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Article III, Section 2, Clause 3:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such

trial shall be held in the state where the said crimes shall have been committed . . . .

Constitution of the United States, Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the state and district wherein the crime shall

have been committed . . . .

INTRODUCTION

Before Petitioner Charles Lynch opened a medical marijuana dispensary in

California, he placed four calls to the Drug Enforcement Administration, asking if

he could do so. When Lynch finally reached someone able to answer his questions,

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

to handle the matter.” This made sense to Lynch, a layperson who had researched

the law and believed the Tenth Amendment excepted state-authorized medical

marijuana from the general federal ban on the drug. Lynch contacted his city and

county officials, and opened his dispensary with their blessing and in compliance

with local rules.

Though the State never charged Lynch with any violation of California law, the

DEA—the very agency from whom Lynch sought guidance—arrested him, and the

government prosecuted him for violating federal marijuana laws carrying

mandatory minimum sentences.

This is just the sort of case where our Founders envisioned a local jury checking

the federal government’s overreach and refusing to sanction a manifestly unjust

prosecution. It is also squarely what this Court had in mind when it thrice held that

due process prohibits the conviction of one misled by a responsible authority into

believing his conduct lawful. United States v. Pa. Indus. Chem. Corp., 411 U.S. 655

(1973); Cox v. Louisiana, 379 U.S. 559 (1965); Raley v. Ohio, 360 U.S. 423 (1959).

And yet, the district court coerced jurors into abandoning their historic role as

the community’s conscience by issuing a forceful anti-nullification instruction that

any reasonable juror would have understood as threatening punishment if the jury

failed to convict. In a divided opinion, the Ninth Circuit upheld this instruction over

Judge Watford’s powerful dissent. That decision conflicts with the holdings of the

First and D.C. Circuits and two state courts of last resort, centuries of AngloAmerican jurisprudence, and an original understanding of the Sixth Amendment

right to trial by jury.

What is more, the Ninth Circuit held that Lynch had no right to present his

entrapment-by-estoppel defense because the DEA’s assurances to him were implicit,

not express. That holding conflicts with this Court’s pronouncements that a

defendant may rely on government assurances “express or implied.” Cox, 379 U.S.

at 571, i.e., not “explicit,” Raley, 360 U.S. at 439. And it creates a circuit split with

the Second, Third, and Fourth Circuits, which each correctly interpreted this

Court’s precedent to permit entrapment-by-estoppel defenses based on implicit

assurances of lawful conduct. United States v. Alba, 38 F. App’x 707 (3d Cir. Apr. 8,

2002) (unpublished); United States v. Aquino-Chacon, 109 F.3d 936 (4th Cir. 1997);

United States v. Abcasis, 45 F.3d 39 (2d Cir. 1995).

To be clear, this case does not raise questions about a defendant’s Sixth

Amendment right to inform jurors of their power to nullify though argument or

instruction; the lower courts generally agree that such affirmative steps are

unnecessary to protect jury independence. Rather, this case presents a question

that divides the lower courts: How far may a judge go in dissuading jurors from

exercising their historic power to acquit “in the teeth of both law and facts.”

Horning v. District of Columbia, 254 U.S. 135, 138 (1920).

By affirming the trial court’s coercive anti-nullification instruction, and holding

Lynch had no right to present his defense, the Circuit majority relegated the jury to

a meaningless role in exactly the kind of case where its function as a bulwark

against oppression was most needed and intended. This Court should grant

certiorari to protect the jury’s historic power to issue conscience verdicts, and to

resolve the significant legal conflicts the Ninth Circuit created. Lynch’s closelywatched prosecution, which has drawn nationwide attention, is precisely the right

case in which to address these issues of exceptional importance.

STATEMENT OF THE CASE

1. Through voter proposition in 1996, and state legislation in 2003, California

legalized medical marijuana, including its sale by non-profit dispensaries. See Cal.

Health & Safety Code § 11362.5 et seq.; People v. Hochanadel, 176 Cal. App. 4th 997

(2009). Lynch, who suffers from debilitating migraines, traveled far from his home

county of San Luis Obispo, which had no dispensary, to obtain medical marijuana.

Recognizing the need for a local dispensary, Lynch explored the possibility of

opening one. (ER 403, 2356.)

Lynch was not a lawyer, and found the legal landscape confusing. Federal law

seemed to criminalize marijuana, but California law authorized medical marijuana,

and dispensaries operated openly throughout the state. After researching the

matter, he concluded the Tenth Amendment carved out an exception to the federal

prohibition for medical use of marijuana, where legalized by a state. (ER 2357-67.)

Not content to rely on his own analysis, Lynch called the DEA. (ER 2367, 2453-55.)

Lynch’s phone bill confirmed he made four calls to the DEA. (ER 2368, 3700-02.)

The man who answered the first call directed Lynch to contact his local field office,

which Lynch did. (ER 2368-69.) However, that office was unable to answer Lynch’s

questions, and referred him to another number. (ER 2369-70.) Lynch placed a third

call, asked about the DEA’s dispensary policy, and was directed to a fourth number,

which Lynch immediately dialed. (ER 2371-73.) A woman answered, “Marijuana

Task Force,” and when Lynch explained he wanted information on dispensaries, she

put someone else on the line. (ER 2373-74.)

Lynch testified he asked that individual—apparently recruited to answer his

inquiry—“what you guys are going to do about all of these medical marijuana

dispensaries around the State of California.” The man responded that “it was up to

the cities and counties to decide how they wanted to handle the matter.” Lynch

pressed on: “[W]hat if I wanted to open up my own medical marijuana

dispensary[?]” The DEA official “seemed a little bit perturbed, . . . and he slowed

his words down to make sure [Lynch] understood him and he said it’s up to the

cities and counties to decide how they want to handle the matter.” (ER 2374.)

The DEA’s response made sense to Lynch. (ER 2374, 2456.) It accorded with his

lay understanding of the law, and explained how hundreds of dispensaries existed

across California. (ER 2458-59.) Lynch contacted city and county officials, and

opened his business with their blessing and under their rules. (ER 2460-88.)

From approximately April 2006 through March 2007, Lynch ran the Central

Coast Compassionate Caregivers medical marijuana dispensary in Morro Bay. As

the district court explained, “the purpose of the CCCC’s distribution of marijuana

was not for recipients to ‘get high’ or for recreational enjoyment. Rather, it was

pursuant to the [authorizing state law’s] goal of providing marijuana to Californians

for medical uses as prescribed by their treating physicians.” (ER 423.)

In March 2007, the DEA raided the CCCC and Lynch’s home; shortly thereafter,

the government charged Lynch with five violations of federal drug laws, including

three counts requiring mandatory minimum sentences. (ER 409, 437-49.) The

district court had jurisdiction under 18 U.S.C. § 3231. The State of California never

charged Lynch with any crime.

2. At jury selection, several prospective jurors expressed confusion and concern

over the conflict between state and federal law, prompting the court to instruct

repeatedly that state law was irrelevant to Lynch’s case and to question jurors on

whether they could follow that instruction. (See, e.g., ER 986-1012.) At one point, a

juror responded: “I will follow what you say. And I want to follow the law and I don’t

want to be put in the jail, so I will follow what you say.” The court clarified that it

had “never thrown a juror in jail.” (ER 1192.)

Later in voir dire, as counsel attempted to rehabilitate a prospective juror, the

juror raised the issue of nullification:

[DEFENSE COUNSEL]: You also mentioned that it would be

difficult for you to follow the law as instructed by the judge or that—I

believe your words were, it would be hard for you to follow the law as

the court would wish you to. Do you understand that the court is going

to instruct you on the law but will not instruct you about the decision

that you need to come to after being instructed on the law? Do you

understand the difference?

[THE PROSECUTOR]: Objection. Misstates the law.

THE COURT: I’ll sustain the objection. You can attempt to

rephrase the question.

[DEFENSE COUNSEL]: Do you understand that the ultimate

decision as to whether to find a person guilty or not guilty is your

decision?

JUROR: You finally said something I can relate to. I understand

that completely. I believe there is something called jury nullification,

that if you believe—

THE COURT: No—

JUROR: —the law is wrong—

THE COURT: No. Let me stop you—

JUROR: —you don’t have to convict a person.

(ER 1263.) The court terminated defense voir dire, and, over objection, instructed

the venire-members as follows:

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.

(ER 1282; see ER 1264-86.) The court then questioned prospective jurors one by one,

asking each, “Could you follow that instruction?” (ER 1282-85.) Those who balked

were dismissed for cause. (ER 1284-90, 1298.)

In a post-verdict letter to the judge, one seated juror wrote:

When the jury first met, I told the other jurors that the instructions

appeared to leave no room for considering that Mr. Lynch might not be

guilty, and I asked if this was fair . . . . I was assured by a number of

jury members . . . that we had promised the honorable judge to comply

with his instructions, and that we would be breaking our promise if we

did not vote to convict.

(ER 3327-28.)

3. At trial, Lynch sought to present an entrapment-by-estoppel defense, based on

his calls to the DEA. The defense is rooted in due process and fairness, and “applies

when an official tells the defendant that certain conduct is legal and the defendant

believes the official.” United States v. Tallmadge, 829 F.2d 767, 773 (9th Cir. 1987)

(internal quotation marks omitted); see Cox, 379 U.S. at 571. The court ruled Lynch

proffered sufficient evidence to present his defense on three counts, but disallowed

it on two counts of distributing marijuana to “minors” because Lynch did not tell the

DEA he planned to sell to persons under twenty-one. (ER 2413-28, 2971-72.)

Lynch objected to the court’s limitation on his right to present a defense.

California permits medical-marijuana sales to persons between eighteen and

twenty-one, and Lynch presented evidence suggesting a DEA official would have

understood that operating a dispensary meant selling to so-called “minors.” (ER

2548-53, 2862-63.) He also objected to the jury instructions, which misstated the

elements of his defense, and to rulings precluding crucial evidence supporting it.

Following a ten-day trial, the jury convicted Lynch of all charges. (ER 3157.)

4. The trial court struggled with its purported obligation to impose a mandatory

prison sentence. It recognized Lynch was “caught in the middle of the shifting

positions of governmental authorities,” which Congress could fix by rescheduling

marijuana. (ER 431.) And it explained Lynch never would have committed a crime

but for California’s legalization of medical marijuana, so incarceration served no

purpose. (ER 428-29.) “Indeed, arguably Lynch displayed his respect for the law

herein by notifying governmental authorities and law enforcement entities of his

planned activities prior to engaging in them. Were all purported criminals so

accommodating, this country would be a much safer and law abiding place.” (Id.)

Ultimately, the court interpreted federal law to support a “safety-valve”

departure below the five-year mandatory minimum. But the court found no

authority to decrease the mandatory one-year sentences for the “minors” counts,

and reluctantly sentenced Lynch to one year in prison. (ER 420-31.) Lynch remains

on bond pending appeal. (ER 353.)

5. In a split decision, the Ninth Circuit affirmed Lynch’s conviction and reversed

the district court’s application of the safety valve—effectively mandating a five-year

sentence. United States v. Lynch, 903 F.3d 1061 (9th Cir. 2018).1

The Circuit majority was not troubled by the district court’s anti-nullification

instruction because, in its view, jurors have the “power” but not the “right” to

engage in nullification, and a defendant has no concomitant right to a jury

uninhibited from exercising that power. Id. at 1080. Rather, the giving of an antinullification instruction is a “permissible” and “appropriate exercise of a district

court’s duty to ensure that a jury follows the law,” id. at 1078, and the specific

admonition in this case—that nullification would violate jurors’ oaths and that

jurors have no authority to act on their sense of injustice—“accurately stated the

law,” id. at 1079. Indeed, the instruction was particularly appropriate because

Lynch’s counsel asked a prospective juror if she understood “that the ultimate

decision as to whether to find a person guilty or not guilty is your decision?” (ER

1263.) See Lynch, 903 F.3d at 1080.

The Circuit also remanded for a hearing on the applicability of a recentlyenacted congressional appropriations rider that prohibits the Department of Justice

from spending funds on state-compliant medical marijuana prosecutions. Lynch,

903 F.3d at 1085-87. Even if Lynch prevails in those proceedings, his convictions

will remain, and he will be subject to potential incarceration. That is because, under

Ninth Circuit law, the rider is a temporary funding measure that “does not require

a court to vacate convictions that were obtained before the rider took effect.” United

States v. Kleinman, 880 F.3d 1020, 1028 (9th Cir. 2017). Moreover, “Congress could

restore funding tomorrow,” removing any barrier to Lynch serving a five-year

sentence. United States v. McIntosh, 833 F.3d 1163, 1179 n.5 (9th Cir. 2016).

Judge Watford dissented: “One of the fundamental attributes of trial by jury in

our legal system is the power of the jury to engage in nullification” and “to act as

the conscience of the community.” Id. at 1087-88 (Watford, J., dissenting) (internal

quotation marks omitted). That power “has ancient roots,” and is particularly

important in “a case of this sort [that] touches a sensitive nerve from a federalism

standpoint.” Id. at 1087.

Though Judge Watford accepted the premise that “a defendant may not insist

that the jury be instructed on its ability to nullify,” he found “the district court went

too far in trying to dissuade the jury from engaging in nullification.” Id. Specifically,

the anti-nullification instruction in this case “crosse[d] the constitutional line”

because “it state[d] or implie[d] that jurors could be punished if they engage[d] in

nullification.” Id. at 1088. “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.” Id. at 1089. “Only the hardiest of jurors would remain

committed to voting her conscience when threatened with the risk of fine or

imprisonment.” Id. at 1090. Furthermore, the instruction “affirmatively misstate[d]

the power that jurors possess.” Id. at 1088.

In a “case[] like this one, where nullification was an obvious possibility given the

popularity of medical marijuana in California,” id. at 1089, the court’s instruction

“subvert[ed] the jury’s longstanding role as a safeguard against government

oppression”—a role that “members of the Founding generation with fresh memories

of the colonists’ experiences under royal judges” believed essential, id. at 1088.

And counsel in no way invited the error by asking a question that “didn’t call for

a response mentioning jury nullification, and [that] accurately reflects black-letter

law.” Id. at 1090. In any event, counsel’s colloquy with the prospective juror “did not

by any stretch authorize the court to give” such a coercive anti-nullification

instruction. Id. Because the improper instruction violated Lynch’s Sixth

Amendment right to jury trial, Judge Watford would have reversed. Id. at 1087.

As Judge Watford would have vacated Lynch’s convictions on instructional

grounds, he did not address Lynch’s right to present an entrapment-by-estoppel

defense. The majority, however, held that the district court’s limitations on that

defense were irrelevant because Lynch had no right to present the defense to the

jury in the first place. Id. at 1075-78. As the Ninth Circuit viewed the matter,

Lynch’s calls to the DEA were “insufficient to provide a basis for the defense”

because “[e]ven crediting Lynch’s testimony for all that it is worth,” he was not

“actively told he could violate federal law” or given “the sort of clear sanction that

entrapment by estoppel requires,” but received only “implicit authorization.” Id. at

1075-76. In other words, the DEA’s statements “lacked sufficient concreteness to

have served as an affirmative authorization for Lynch’s defense.” Id. at 1076. The

majority did not explain how its conclusion accorded with this Court’s prior holding

“that the Due Process Clause prevent[s] conviction of persons . . . when they relied

upon assurances . . . either express or implied.” Cox, 379 U.S. at 571.2

Lynch unsuccessfully petitioned the Ninth Circuit for rehearing.

REASONS FOR GRANTING THE WRIT

Whether and How a Trial Court May Dissuade Jurors

from Nullifying Is a Recurring Issue of Exceptional

Importance That Has Divided the Lower Courts

Jury nullification, or the power of jurors to vote their consciences, has a vaunted

history in Anglo-American jurisprudence. The right of jurors to issue conscientious

acquittals without fear of reprisal goes back centuries, and was front and center in

The Ninth Circuit also rejected Lynch’s defense because it believed, contrary to

the considered view of the trial court, that his reliance on the DEA’s assurance was

unreasonable as a matter of law. Lynch, 903 F.3d at 1077-78. But this holding was

premised in part on the court’s mistaken understanding that a defendant cannot

reasonably rely on an implicit government assurance, and is inextricably

intertwined with that error. Id. at 1077 (“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.”).

Moreover, reasonableness is a quintessential “question of fact—which means not

only that it is meant for the jury rather than the judge, but also that there is no

single ‘right’ answer. It could go either way.” Antonin Scalia, The Rule of Law as a

Law of Rules, 56 U. Chi. L. Rev. 1175, 1181 (1989); see also R.R. Co. v. Stout, 84

U.S. 657, 664 (1873) (“It is assumed that twelve men know more of the common

affairs of life than does one man, that they can draw wiser and safer conclusions

from admitted facts thus occurring than can a single judge.”). Whether

reasonableness is a pure question of fact or one mixed with law, its determination

was for the jury. See United States v. Gaudin, 515 U.S. 506, 510-15 (1995);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility

determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge . . . .”).

the minds of our Founders when they included the right to trial by jury of one’s

peers in both the Constitution and the Bill of Rights.

Perhaps its most celebrated example in pre-Colonial England culminated in

Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670). It began as the trial of William

Penn for unlawful assembly and disturbing the peace, based on his public preaching

to Quakers. Penn did not dispute he had so preached, but asked the jury to acquit

him nonetheless based on their sense of justice. Such arguments were common at

the time. But the case acquired notoriety when jurors refused to convict, prompting

the trial court to throw them in prison. Juror Bushell appealed. See Jenny E.

Carroll, The Jury’s Second Coming, 100 Geo. L.J. 657, 664-66 (2012); Albert W.

Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury in the United States,

61 U. Chi. L. Rev. 867, 912 (1994). “[I]n a ruling that effectively ended longstanding

controversy over the issue, Chief Justice Vaughan declared that judges could

neither punish nor threaten to punish jurors for their verdicts.” Alschuler & Deiss,

supra, at 912. Bushell’s Case, in time, “came to be understood as exalting the juror

as a worthy barometer of what was truly just and moral,” and effectively cemented

the right of jury nullification. Carroll, supra, at 667-68.

In Petitioner’s case, the Ninth Circuit failed to protect the jury’s role as the

community’s conscience, affirming an anti-nullification instruction that misstated

the jury’s power and implicitly threatened punishment if jurors resisted. That

decision puts the appeals court on the wrong side of a circuit split over the extent to

which judges may dissuade jurors from nullifying. And it effectively reverses one of

the most hallowed principles of Anglo-American jurisprudence—jury independence.

A. Lower courts are divided on whether and how a trial

court may dissuade jurors from nullifying

The Ninth Circuit’s decision to allow coercive anti-nullification instructions

aligns only with the positions of the Sixth Circuit and the Supreme Court of

Mississippi, while directly conflicting with decisions of the First Circuit, D.C.

Circuit, Supreme Courts of Kansas, and Supreme Court of New Hampshire.

1. The Sixth and Ninth Circuits condone coercive

anti-nullification instructions, in conflict with

the First and D.C. Circuits, which prohibit judges

from instructing on nullification at all

The position of the Ninth Circuit, set forth in Petitioner’s case, is that a judge

may instruct jurors that they will violate their sworn oaths if they nullify, and that

they lack authority to act on their sense of injustice. Though such an instruction is

coercive, implying jurors could be punished for nullifying, and plainly misstates the

jury’s historic power to “find a verdict of guilty or not guilty as their own

consciences may direct,” United States v. Gaudin, 515 U.S. 506, 514 (1995) (internal

quotation marks omitted), the Ninth Circuit held the instruction “accurately

state[s] the law,” Lynch, 903 F.3d at 1079, and its issuance is an “appropriate

exercise of a district court’s duty to ensure that a jury follows the law,” id. at 1078.

Only one other federal court of appeals has gone as far as the Ninth Circuit, and

endorsed an anti-nullification instruction both coercive and legally incorrect: the

Sixth Circuit, in a divided decision.3 United States v. Krzyske, 836 F.2d 1013 (6th

Cir. 1988). In Krzyske, the defendant “mentioned the doctrine of jury nullification in

his closing argument,” and the jury subsequently “asked the court what the doctrine

stood for.” Id. at 1021. In response, the court instructed:

There is no such thing as valid jury nullification. Your obligation is to

follow the instructions of the Court as to the law given to you. You

would violate your oath and the law if you willfully brought in a

verdict contrary to the law given you in this case.

Id. A majority of the three-judge panel, treating the question presented as whether

the trial judge should have affirmatively instructed on nullification in response to

the jury’s inquiry, id. at 1015, 1021, held that “[t]he right of a jury, as a buffer

between the accused and the state, to reach a verdict despite what may seem clear

law must be kept distinct from the court’s duty to uphold the law and to apply it

Arguably, even the Ninth Circuit once recognized that coercive anti-nullification

instructions are problematic. In an earlier case, the Ninth Circuit disapproved of an

anti-nullification instruction similar but not identical to the one issued in

Petitioner’s case. United States v. Kleinman, 880 F.3d 1020, 1031-33 (9th Cir. 2017)

(as amended). Though the court was troubled by part of the instruction—“There is

no such thing as valid jury nullification. You would violate your oath and the law if

you willfully brought a verdict contrary to the law given to you in this case.”—it

nonetheless affirmed the defendant’s convictions. Id. (alteration omitted); see id. at

1033-36. And the court specifically approved of language instructing the jury, “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 is not for you to determine whether the

law is just or whether the law is unjust. That cannot be your task.” Id. at 1031; see

id. at 1032. Whatever remains of Kleinman’s holding following Lynch, that decision,

too, rejected the premise that an anti-nullification instruction sufficiently interferes

with a defendant’s jury trial right to require reversal.

impartially,” and affirmed. Id. at 1021. The majority did not address whether the

instruction was coercive, and, notably, the trial judge made no effort to poll jurors

individually on whether they could follow his instruction. See id.

Judge Merritt dissented. Id. at 1021-22. He would have vacated the defendant’s

conviction because the trial court “gave short shrift to [the Anglo-American] legal

tradition” of conscientious acquittal by failing to “explain to the jury its historical

role as the protector of the rights of the accused in a criminal case.” Id. at 1022.

What is more, the instruction “conveyed a sense of threat to the jurors that a

nullification verdict ‘willfully’ taken would ‘violate . . . the law’ and, by implication,

invite sanctions”—something “contrary to the venerable rule to the contrary

established in the London prosecution of William Penn more than three centuries

ago.” United States v. Krzyske, 857 F.2d 1089, 1094 (1988) (Merritt, J., dissenting

from order denying reconsideration) (alteration in original). Because “the

instruction given to the jury deprived the defendant of his Sixth Amendment right

to trial by jury,” Judge Merritt would have reversed. Id. at 1095.

In conflict with the Sixth and Ninth Circuits, the First and D.C. Circuits have

held that trial judges must refrain from instructing on nullification.

In United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993), the First Circuit

considered a trial court’s response to jurors—who inquired about nullification at the

defense’s urging—that “[f]ederal trial judges are forbidden to instruct on jury

nullification,” and that repeated “its earlier instruction that if the government

proved its case the jury ‘should’ convict, while if the government failed to carry its

burden the jury ‘must’ acquit.” Id. at 1189-90. The circuit affirmed because the first

statement was not “a judicial prohibition against the jury’s use of its inherent

power” to nullify, “convey[ed] no such chilling effect,” and was combined with the

“should” language, leaving “pregnant the possibility that the jury could ignore the

law if it so chose.” Id. at 1190. The First Circuit’s decision suggests it would not

have allowed the chilling anti-nullification instruction in Petitioner’s case.

Likewise, in United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C. Cir. 1972),

the D.C. Circuit cautioned that instructing the jury on nullification would disrupt a

well-balanced system that permits jurors to vote their consciences if justified.

Because, in Dougherty, nothing impeded the jury’s ability to issue a conscience

verdict, the appeals court affirmed the denial of a pro-nullification instruction. See

id. But its holding contained an explicit warning: “The way the jury operates may

be radically altered if there is alteration in the way it is told to operate.” Id. at 1135.

This language suggests the D.C. Circuit, too, would have ruled differently in

Petitioner’s case. See also United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996)

(per curiam) (citing Sepulveda to support affirmance of instruction that did “not go

so far as to suggest that the jury could not nullify the law”).

2. State courts of last resort also are divided on the

propriety of anti-nullification instructions

Two state courts of last resort have issued rulings directly in conflict with the

Ninth Circuit’s decision in this case. Most recently, the Supreme Court of Kansas

held it was “clear error” for a judge to “essentially forb[id] the jury from exercising

its power of nullification.” State v. Smith-Parker, 340 P.3d 485, 507 (Kan. 2014).

The problematic instruction at issue in that case? “If you do not have a reasonable

doubt from all the evidence that the State has proven murder in the first degree on

either or both theories, then you will enter a verdict of guilty.” Id. at 506 (alteration

in original). According to the Supreme Court of Kansas, although a defendant has

no right to an affirmative nullification instruction, the “judge’s instruction in this

case went too far in the other direction.” Id. 507. It “fl[ew] too close to the sun of

directing a verdict for the State”—something a judge cannot do. Id. A fortiori, if the

Kansas high court found the rather mild Smith-Parker instruction untenable, it

would reverse in Petitioner’s case.

Two rulings of the Supreme Court of New Hampshire similarly conflict with the

Ninth Circuit’s decision. In State v. Richards, 531 A.2d 338 (N.H. 1987), the court

considered a trial judge’s affirmative nullification instruction, which told jurors,

“You take an oath when you take the jury duty to follow the law as the court gives it

to you, but this jury and every jury has the power to return a verdict of not guilty if

that be their unanimous, conscientious conviction. I think you all know that, too.”

Id. at 342. The high court held that, the trial court having taken “upon itself the

task of telling the jury of its nullification power . . . , it was bound to explain the law

correctly.” Id. Though the reviewing court found the “explanation not so clear as it

could be,” and did “not urge it as a standard instruction,” it held the instruction did

“not so distort the law as to constitute reversible error.” Id. The plain import of the

decision being that it would have been reversible error, had the trial judge

misinformed the jury of its power to nullify—as it did in Petitioner’s case.

The Supreme Court of New Hampshire underscored that point in State v.

Bonacorsi, 648 A.2d 469 (1994). There, when the jury inquired about nullification,

“[t]he trial judge refused the defendant’s request to inform the jury of ‘the

prerogative to return not guilty verdicts, even if the State has proven the defendant

guilty,’” id. at 470—though the judge permitted the defense to argue nullification to

the jury, id. at 469, and “twice instructed the jury that if it found the State had

proved all the elements of the offenses charged beyond a reasonable doubt, it ‘may’

find the defendant guilty,” id. at 470. Defendant complained on appeal that these

instructions “left the jurors with the mistaken impression that the prerogative did

not exist, thus superseding the exercise of their own judgment.” Id. at 470. The high

court disagreed, finding the instructions sufficiently apprised the jury of its power

to nullify. Id. at 470-72. But, the court explained, “[h]ad the trial court answered in

the negative” when the jury asked if it had legal authority to nullify, “the jury might

have understood the response to remove nullification from their consideration.” Id.

at 471-72. Because the judge did not do so, there was no error. Id. Implicit in that

holding is the converse conclusion: that an instruction informing jurors they have

no power to nullify—as was given in Petitioner’s case—constitutes reversible error.

To Petitioner’s knowledge, the only state high court to approve a comparably

coercive anti-nullification instruction is the Supreme Court of Mississippi, which,

with little analysis, found proper the following admonition in a capital case:

[Y]ou made an oath that you would follow and apply these rules of law

which I shall now state to you. You are not to be concerned with the

wisdom of any rule of law. Regardless of any opinion you may have as

to what law ought to be, it would be a violation of your sworn duty to

base your verdict upon any other view of law than that given you in

these instructions by the Court.

Hansen v. State, 592 So. 2d 114, 140 & n.10 (Miss. 1991).

Though a small handful of state courts of last resort have endorsed antinullification instructions, with a single exception, those instructions are far more

tepid than what the Sixth and Ninth Circuits allow.

For example, the Vermont Supreme Court recently approved the following

instruction in response to a complaint by one seated juror that another was

discussing nullification:

You must follow the law we’ll give you and its instructions. You must

find the facts from the evidence in the case and you must apply the law

that the Court gives you. Juries do not have the power to decide

questions of law and are not permitted to override the law laid down by

the Court and to declare the law for themselves. You should not

concern yourself with the wisdom of any rule or any opinion you might

have about what the law should be. You must decide the facts based on

the evidence that has been presented and you must apply the law that

the Court gives you in its instructions. You may not base any verdict

on bias, prejudice, or sympathy.

State v. Kebbie, 2018 WL 6173595, at *1-3 (Vt. Nov. 21, 2018) (unpublished)

(alteration omitted). While that instruction misstated the law, it was not coercive.

The California Supreme Court found a pattern instruction obliging jurors to inform

the judge “should any juror refuse to deliberate or express an intention to disregard

the law or to decide the case based on penalty or punishment, or any other improper

basis” did not require reversal, but disapproved of its use in future cases. People v.

Engelman, 49 P.3d 209, 211 (Cal. 2002) (alterations omitted). And the Supreme

Court of Kentucky upheld a short instruction “that ‘Not to follow the law would be a

breach of your duty. It violates the very system in which we are participating.’”

Powell v. Comm., 2017 WL 1536249, at *2 (Ky. Apr. 27, 2017) (unpublished).

Similarly, various state high courts permit instructions that jurors “must”

convict if the government proves its case beyond a reasonable doubt, despite

objection that those instructions undermine the jury’s right to nullify. See, e.g.,

State v. Ragland, 519 A.2d 1361, 1365-73 (N.J. 1986); Watts v. United States, 362

A.2d 706, 711 (D.C. 1976) (collecting cases).4 Notably, there are dissenting voices on

whether even this mild language improperly impinges on the jury’s powers. See,

e.g., State v. Carter, 380 P.3d 189, 205 (Kan. 2016); State v. Prudent, 13 A.3d 181,

Several federal circuits likewise allow judges to instruct jurors that they have a

“duty to” convict if the government proves its case beyond a reasonable doubt. See,

e.g., United States v. Carr, 424 F.3d 213, 218-21 (2d Cir. 2005); United States v.

Pierre, 974 F.2d 1355, 1356-57 (D.C. Cir. 1992) (per curiam); United States v.

Johnson, 462 F.2d 423, 429 (3d Cir. 1972).

184-85 (N.H. 2010); Ragland, 519 A.2d at 1374-78 (Handler, J., concurring in part

and dissenting in part); Watts, 362 A.2d at 713-17 (Fickling. J., dissenting).5

B. The question presented is recurring and exceptionally

important

Whether and to what extent judges may instruct jurors that they cannot nullify

is an issue of exceptional importance given the well-established right of jurors to

vote their consciences without fear of punishment. And it’s one that arises with

surprising frequency, as the cases above demonstrate. At least in the Ninth Circuit,

anti-nullification instructions apparently have become the norm in medical

marijuana cases. See Lynch, 903 F.3d at 1079; United States v. Kleinman, 880 F.3d

1020, 1031 (9th Cir. 2017) (as amended); United States v. Rosenthal, 266 F. Supp.

2d 1068, 1085 (N.D. Cal. 2003), rev’d on other grounds, 454 F.3d 943 (9th Cir. 2006).

But the right of jurors to refuse to sanction an unjust prosecution goes back

centuries, to Bushell’s Case. Unquestionably, our Founders had this history in mind

when they enshrined the right to trial by a local, lay jury in the U.S. Constitution.

U.S. Const., Art. III, § 2, cl. 3; see Arie M. Rubenstein, Verdicts of Conscience:

Nullification and the Modern Jury Trial, 106 Colum. L. Rev. 959, 964 & nn.28-31

(2006). Indeed, at the time our nation adopted the Bill of Rights, courts regularly

instructed juries on their power to issue conscience verdicts. See United States v.

In Watts, the D.C. Court of Appeals thought the wiser course, going forward, was

to abandon the “must” language. Watts, 362 A.2d at 711.

Polizzi, 549 F. Supp. 2d 308, 404-21 (E.D.N.Y. 2008) (describing historical practice),

rev’d sub. nom. United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009).

Though a juror’s right to vote his conscience was well-established, there

remained, throughout America’s first century, active debate over whether jurors

also had the “power to determine . . . pure questions of law in a criminal case.”

Gaudin, 515 U.S. at 513 (emphasis omitted). “[M]any thought” they did. Id. This

Court settled the matter in a divided opinion in Sparf v. United States, 156 U.S. 51

(1895). Sparf clarified that federal jurors may not engage in statutory or

constitutional construction; the law is for the judge to decide, the facts for the jury.

Id. at 99-107 (1895). “But [that] decision in no way undermined the historical and

constitutionally guaranteed right of criminal defendants to demand that the jury

decide guilt or innocence on every issue,” including bringing “a verdict of guilty or

not guilty as their own consciences may direct.” Gaudin, 515 U.S. at 513-14

(internal quotation marks omitted). After Sparf, “[l]aw-defining by juries is no more,

but the jury’s right to acquit for conscience’s sake lives on.” State v. Elmore, 123

P.3d 72, 78 (Wash. 2005) (internal quotation marks omitted).

Given this history, one might argue that denial of an affirmative nullification

instruction infringes on the right to trial by jury, as originally understood. Some

have. See, e.g., James Joseph Duane, Jury Nullification: The Top Secret

Constitutional Right, 22 Litigation 6 (Summer 1996); Polizzi, 549 F. Supp. 2d at

423-25; cf. Dougherty, 473 F.2d at 1138-44 (Bazelon, C.J., dissenting in part) (urging

pro-nullification instructions on policy grounds). That position is supported by Sparf

itself, where this Court left undisturbed the judge’s instructions that jurors had the

power to nullify. Sparf, 156 U.S. at 60-62 & n.1. And by this Court’s repeated

recognition that our Founders adopted the Sixth Amendment’s jury trial right with

the knowledge and intent that the jury, and nullification specifically, would serve as

“the grand bulwark” protecting defendants from overzealous prosecutions. Jones v.

United States, 526 U.S. 227, 244-48 (1999); Gaudin, 515 U.S. at 510-15; Duncan v.

Louisiana, 391 U.S. 145, 151-58 (1968). This history is consequential because “the

scope of the constitutional jury right must be informed by the historical role of the

jury at common law.” Oregon v. Ice, 555 U.S. 160, 170 (2009); see Johnson v.

Louisiana, 406 U.S. 356, 370-71 (1972) (Powell, J., concurring) (“The reasoning that

runs throughout this Court’s Sixth Amendment precedents is that, in amending the

Constitution to guarantee the right to jury trial, the framers desired to preserve the

jury safeguard as it was known to them at common law.”).

But Petitioner did not request a pro-nullification instruction at his trial, and he

does not protest the judge’s failure to provide one.6 Rather, over Petitioner’s

The federal circuits consistently have interpreted Sparf to preclude affirmative

instruction on a jury’s power to nullify. See, e.g., United States v. Anderson, 716

F.2d 446, 449-50 (7th Cir. 1983); Dougherty, 473 F.2d at 1130-37; United States v.

Simpson, 460 F.2d 515, 518-20 (9th Cir. 1972); United States v. Moylan, 417 F.2d

1002, 1005-07 (4th Cir. 1969). State courts of last resort largely agree. See, e.g.,

State v. Findlay, 765 A.2d 483, 488-89 (Vt. 2000); State v. Hatori, 990 P.2d 115, 122

(Haw. 1999); Davis v. State, 520 So. 2d 493, 494 (Miss. 1988) (collecting cases). But

not uniformly. See Prudent, 13 A.3d at 184-85 (approving pattern instruction that

jurors “must” acquit if evidence is wanting, but “should” convict if case is proved

beyond a reasonable doubt, intended as “the equivalent of” a pro-nullification

objection, the judge issued a forceful, chilling anti-nullification instruction. This

case thus presents an arguably easier question—but one that nevertheless divides

the lower courts: May a judge affirmatively mislead the jury into believing it lacks

the power to nullify, and may the court do so with implicit threats of punishment?

That is an issue of exceptional importance over which the lower courts require

guidance. Though this Court has never retreated from its statement that a criminal

defendant’s jury trial right encompasses the right to a jury with the power to issue

conscience verdicts, see Gaudin, 515 U.S. at 513-14, it has not addressed jury

nullification directly since Sparf. Because the propriety of an anti-nullification

instruction is an exceptionally important question that has divided the lower courts,

and because the Ninth Circuit sanctioned a coercive instruction that significantly

departs from accepted and usual trial practice, this Court should grant the petition.

C. The Ninth Circuit’s decision is wrong and, if allowed

to stand, effectively would reverse one of the most

hallowed principles of Anglo-American

jurisprudence—jury independence

Even courts that refuse to instruct jurors affirmatively on their power to nullify

recognize the value of conscience verdicts in our democracy. In its influential

Dougherty decision, the D.C. Circuit described how “[t]he pages of history shine on

instruction (internal quotation marks omitted)); State v. Parsons, 589 S.E.2d 226,

238 (W. Va. 2003) (per curiam) (finding no right to pro-nullification instruction, but

taking no position on whether trial court could exercise its discretion to issue one).

instances” of jury nullification, Dougherty, 473 F.2d at 1130, and extolled

nullification’s virtue “as a protection against arbitrary action” that, in the words of

Judge Learned Hand, “introduces a slack into the enforcement of law, tempering its

rigor by the mollifying influence of current ethical conventions,” id. at 1131 & n.34

(internal quotation marks omitted).

This Court similarly has explained that conscience verdicts play a valuable role

in “guard[ing] against the exercise of arbitrary power” by “mak[ing] available the

commonsense judgment of the community as a hedge against the overzealous or

mistaken prosecutor and in preference to the professional or perhaps

overconditioned or biased response of a judge.” Taylor v. Louisiana, 419 U.S. 522,

530 (1975). For “when juries differ with the result at which the judge would have

arrived, it is usually because they are serving some of the very purposes for which

they were created and for which they are now employed.” Duncan, 391 U.S. at 157.

Nullification’s benefits in our constitutional democracy are, perhaps, at their

apex in cases, like Petitioner’s, where a central federal government seeks to punish

a citizen for conduct deemed lawful by his state. Conscience verdicts in cases rife

with federalism concerns provide valuable feedback to distant legislators and

potentially-out-of-touch prosecutors. Our nation’s early cases of “pious perjury”—

where jurors acquitted despite evidence of guilt to avoid oppressive punishment—

spurred Congress to authorize greater sentencing discretion for federal crimes. See

Woodson v. North Carolina, 428 U.S. 280, 293 (1976) (plurality). That tradition of

feedback from jury to legislature continues to this day. See State v. Lynch, 309 P.3d

482, 496 (Wash. 2013) (explaining nullification verdicts prompted state legislature

to divide rape statute into multiple degrees).

In recognition of the importance of conscience verdicts, we do not permit judges

to request specific verdicts in criminal cases, see United States v. Spock, 416 F.2d

165, 180-83 (1st Cir. 1969); direct guilty verdicts, see id.; or overturn acquittals, see

Dougherty, 473 F.3d at 1130-32. So, too, must courts refrain from interfering with a

jury’s power to nullify through direct instruction.

Importantly, pro-nullification instructions have been deemed unnecessary only

because, in their absence, “jurors often reach ‘conscience’ verdicts without being

instructed that they have the power to do so” and “American judges have generally

avoided such interference as would divest juries of their power to acquit an accused,

even though the evidence of his guilt may be clear.” United States v. Simpson, 460

F.2d 515, 520 (9th Cir. 1972); see Dougherty, 473 F.2d at 1130-37. Thus, in the usual

case, “existing safeguards”—the jury’s independent role in the judicial system and

courts’ non-interference with this role—“are adequate” to protect a defendant’s right

to a jury with the power to nullify. Simpson, 460 F.2d at 520.

In Petitioner’s case, the judge disrupted that delicate balance with his coercive

instruction and questioning, suggesting the possibility of sanctions. From the

outset, prospective jurors expressed concern they would be obliged to convict and

might face punishment if they refused. Rather than allay those fears, the judge

gave an instruction any reasonable juror would have understood as affirming them.

“Only the hardiest of jurors would remain committed to voting her conscience” in

such circumstances. Lynch, 903 F.3d at 1090 (Watford, J., dissenting).

The judge’s anti-nullification instruction deprived our democratic process of a

verdict of the People, and Petitioner of “the historical and constitutionally

guaranteed right of criminal defendants to demand that the jury decide guilt or

innocence on every issue,” including “find[ing] a verdict of guilty or not guilty as

their own consciences may direct.” Gaudin, 515 U.S. at 513-14 (internal quotation

marks omitted). Because Petitioner did not receive the trial by jury the Sixth

Amendment guarantees, the Ninth Circuit should have vacated his convictions. If

the court of appeals’ decision is allowed to stand, then Bushell’s Case—a hallmark of

jury independence in the face of tyranny—effectively becomes a dead letter.

II.

The Ninth Circuit’s Entrapment-by-Estoppel Ruling

Conflicts with Prior Holdings of This Court and Creates

a Circuit Split

This Court’s decisions unambiguously recognize a defense of entrapment by

estoppel based on implicit assurances that conduct is legal. Prior to Petitioner’s

case, each federal circuit to consider the question—the Second, Third, and Fourth—

followed that precedent. The Ninth Circuit split from the others by rejecting

Petitioner’s defense because the official misleading was implicit, not express. That

decision was wrong, and will sow confusion.

A. The Ninth Circuit’s decision conflicts with this

Court’s repeated holdings that a defendant may rely

on implicit government assurances to support an

entrapment-by-estoppel defense

In a trilogy of cases, this Court held that due process prohibits the conviction of

one misled by a responsible authority into believing his conduct lawful. United

States v. Pa. Indus. Chem. Corp., 411 U.S. 655 (1973) (“PICCO”); Cox v. Louisiana,

379 U.S. 559 (1965); Raley v. Ohio, 360 U.S. 423 (1959). The Ninth Circuit, like

other circuits, calls this “official misleading” defense “entrapment by estoppel.”

United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 825 (9th Cir. 1985). Its basis in

due process gives it constitutional underpinnings, see Cox, 379 U.S. at 571; Raley,

360 U.S. at 425, 437, 439, and it sounds in “traditional notions of fairness inherent

in our system of criminal justice,” PICCO, 411 U.S. at 674.

Raley concerned four defendants convicted “for refusal to answer certain

questions put to them at sessions of the ‘Un-American Activities Commission’ of the

State of Ohio.” Raley, 360 U.S. at 424. At those sessions, the defendants purportedly

were “informed by the Commission that they had a right to rely on the privilege

against self-incrimination afforded by” the state constitution. Id. at 425. But those

assurances were incorrect. See id. Each defendant “therefore had committed an

offense by not answering the questions as to which they asserted the privilege.” Id.

Yet this Court reversed,7 holding, “After the Commission, speaking for the State,

The Court was equally divided over whether one defendant could claim the

defense for his refusal to answer one question, where the Commission expressly

acted as it did, to sustain the Ohio Supreme Court’s judgment would be to sanction

an indefensible sort of entrapment by the State . . . .” Id. at 425-26.

Just six years later, this Court revisited the “official misleading” doctrine in Cox.

In that case, the defendant participated in a protest approximately 125 feet from a

courthouse in Louisiana, and was charged with unlawfully demonstrating “near”

the court. Cox, 379 U.S. at 560, 567-68. He testified, and the Court accepted as true,

that a police chief “gave him permission to conduct the demonstration” at that

location, “on the far side of the street.” Id. at 569-70. The specific language of the

chief was that defendant “‘must confine’ the demonstration ‘to the west side of the

street,’” id. at 570—though the chief “testified that he did not subjectively intend to

grant permission” by this statement, id. at 570 n.4. The “effect,” however, was to

“advise[] that a demonstration at the place it was held would not be one ‘near’ the

courthouse.” Id. at 571. Based on these facts, this Court unanimously held that

defendant’s conviction violated due process because, as in Raley, it “sanction[ed] an

indefensible sort of entrapment by the State.” Id.

Most recently, in PICCO, this Court considered whether a corporate defendant

could assert entrapment by estoppel to defend against a charge of criminal pollution

based on “its alleged reliance on the Army Corps of Engineers’ longstanding

administrative construction of [the relevant statute] as limited to water deposits

directed him to do so. Raley, 360 U.S. at 425, 440. As to the defense’s applicability

on all other counts, the Court was unanimous. See id. at 443 (Clark, J., concurring

in part and dissenting in part).

that impede or obstruct navigation,” PICCO, 411 U.S. at 657, where the plain

language of the statute contained no such limitation, see id. at 658, 671. Notably,

the agency’s published regulation did not except water deposits that failed to

impede or obstruct navigation from the statute entirely; rather, it explained the

agency typically only prosecuted obstructive discharges. See id. at 672. Moreover, no

federal agent directly discussed the matter with PICCO; the company relied solely

on the agency’s longstanding practice. See id. at 673. Despite all this, PICCO argued

“it was affirmatively misled by the responsible agency into believing that the law

did not apply” to its actions. Id. at 674. This Court agreed that the agency’s

regulations may have “deprived PICCO of fair warning as to what conduct the

Government intended to make criminal,” id., and on that basis held that PICCO

was entitled to present its entrapment-by-estoppel defense, id. at 670, 675.

Petitioner’s case involves precisely the sort of official misleading this Court

found problematic in Cox, Raley, and PICCO. And yet, the Ninth Circuit held that

Petitioner could not present an entrapment-by-estoppel defense, because he was not

“actively told he could violate federal law” or given “the sort of clear sanction that

entrapment by estoppel requires,” but received only “implicit authorization.” Lynch,

903 F.3d at 1076. That holding is contrary to this Court’s unambiguous precedent.

Both the facts and language of Raley make the Ninth Circuit’s misinterpretation

plain. Three of the defendants in Raley were told nothing at all before they first

(incorrectly) invoked their rights against self-incrimination. Only after each

defendant invoked several times—those times forming the basis for some of the

charges—did the Commission say anything affirmative about the privilege. See

Raley, 360 U.S. at 426-32, 439. Given these facts, Raley suggests the possibility of

an entrapment-by-estoppel defense based on silent acquiescence. See id. at 439

(reversing counts arising from conduct predating verbal assurances where “the

positive assurances given only made explicit an attitude that the Commission had

manifested throughout its interviews with these appellants”). But Petitioner’s case

does not present that thorny question, for it involves more than quiet assent.

Instead, the question here is whether implicit verbal assurances support a claim

of official misleading. The Ninth Circuit said no, but Raley held otherwise, expressly

rejecting the State’s argument that no defense could be had because “certain

refusals to answer occurred before the Chairman’s assurances to the various

appellants that the privilege existed became explicit.” Id.

True, a relied-upon assurance cannot be “vague or even contradictory”; it must

constitute “active misleading.” Id. at 438. But that is a low threshold. One of the

Raley defendants was “never told . . . in so many words” that his conduct was legal.

Id. at 430. He could claim the defense anyway, because the assuring official’s

“concern [wa]s inexplicable on any other basis than that he deemed the privilege

available at the inquiry, and his statements would tend to create such an

impression in one appearing at the inquiry.” Id. at 430-31; see id. at 437 (noting

official “by his behavior . . . gave the . . . impression” that conduct was legal). As to

the four defendants generally, their convictions violated due process because,

though the Commission’s words were not express, its “actions were totally

inconsistent with a view on its part that the privilege against self-incrimination was

not available.” Id. at 432; see id. at 437-38 (referring to “statements which were

totally inconsistent with any belief” that defendants’ invocations were unlawful).

To the extent Raley left any ambiguity on whether implicit assurances suffice,

Cox eliminated it. For in Cox, this Court unequivocally “held that the Due Process

Clause prevent[s] the conviction of persons . . . when they relied upon assurances of

[officials] either express or implied.” Cox, 379 U.S. at 571 (emphasis added).

Furthermore, PICCO only makes sense if explicit assurances aren’t required,

because in that case the defendant received no personal assurance at all. Even the

dissenters in PICCO framed the relevant question as whether “reliance upon” the

agency’s “attitude” either “express or by implication” was reasonable. PICCO, 411

U.S. at 676 (Blackmun, J., dissenting). (According to the dissent, it was not. Id.)

In sum, under this Court’s precedent, to establish the defense of entrapment by

estoppel a defendant must prove he was given official “assurances . . . either express

or implied.” Cox, 379 U.S. at 571. While these assurances cannot be “vague or even

contradictory,” Raley, 360 U.S. at 438, the bar to meet that standard is low. The

Ninth Circuit’s decision in Petitioner’s case directly conflicts with these holdings.

B. The Ninth Circuit’s decision conflicts with decisions

of the Second, Third, and Fourth Circuits, which hold

that implicit government assurances can support an

entrapment-by-estoppel defense

True to this Court’s precedent, and in direct conflict with the Ninth Circuit’s

decision in Lynch, the Second, Third, and Fourth Circuits each countenance

entrapment-by-estoppel defenses based on implicit government assurances.

In United States v. Abcasis, 45 F.3d 39 (2d Cir. 1995), the Second Circuit

considered three defendants’ claims that their entrapment-by-estoppel defenses

should have gone to the jury. Two were prior law enforcement informants. See id. at

40-41. After their discharge from service, one of the ex-informants (Ralph) met with

an individual (Danneal) to plan the importation of a large quantity of heroin in the

United States. The other two defendants soon joined the endeavor. None realized

Danneal was, himself, a DEA informant. See id. at 41.

The following year, with the plan in motion, Ralph contacted one of his former

handlers and provided information about the illegal operation. See id. There was

some evidence to support the conclusion that Ralph did so because the defendants,

“realized their importation scheme was under observation.” Id. Not long after, the

defendants were charged with federal drug crimes. See id. at 42.

At trial, the ex-informants “testified that they believed they were authorized by

the DEA agents to engage in the importation scheme as confidential informants.”

Id. Ralph further claimed “that on the day he was terminated . . . he mentioned a

possible deal involving Danneal,” “[t]he agents told him to call when he got the

drugs,” and he remained in contact with them. Id. The third defendant, who had no

contact with law enforcement, argued she was helping the other two, “whom she

believed were authorized by the DEA to engage in the deal as informants.” Id. The

trial court refused to instruct on entrapment by estoppel. See id.

Though the agents’ communications with Ralph were “unclear and confusing,”

id. at 44; they never spoke about the scheme with the other ex-informant; and they

had no contact at all with the third defendant; the Second Circuit reversed

everyone’s convictions, and ordered the district court to instruct the jury on

entrapment by estoppel at retrial. Id. at 45. That holding, by its nature, precludes

an express-assurance requirement. But the circuit put a finer point on the matter,

holding, “On retrial, the defendants will have the burden of convincing the jury that

a government agent in fact made statements or committed acts that produced in the

defendants a reasonable belief that they were authorized to engage in the illegal

conduct . . . .” Id. (emphasis added).

Like the Second Circuit, the Third and Fourth also accept entrapment-byestoppel defenses may arise from implicit government assurances. United States v.

Alba, 38 F. App’x 707 (3d Cir. Apr. 8, 2002) (unpublished); United States v. AquinoChacon, 109 F.3d 936 (4th Cir. 1997). Both circuits addressed the issue in cases of

illegal reentry into the United States. In each, the defendant argued he was misled

by immigration Form I-294, which read in part, ‘Should you wish to return to the

United States, you must first write this office . . . as to how to obtain permission to

return after deportation. By law . . . any deported person who within five years

returns without permission is guilty of a felony . . . .” Alba, 38 F. App’x at 708 (first

and third alterations in original); see Aquino-Chacon, 109 F.3d at 937.

In the Third Circuit, the defendant claimed the text of the form “permitted him

to reasonably infer that he could enter the United States without permission” ten

years after deportation, as he tried to do. Id. at 709. The court disagreed, but not

because the form was not express. To the contrary, the Third Circuit accepted

defendant’s argument that, under PICCO and Cox, he could rely on affirmative

misleading express or “implied.” Id. (internal quotation marks omitted). The

problem was that, “regardless of what Form I-294 may or may not imply regarding

penalties for reentry after five years,” it also mandated permission to return—which

the defendant did not seek—regardless of the timeframe. See id. at 709-10. Because

“nothing in Form I-294 revoke[d] or vitiate[d], expressly or impliedly, this . . .

requirement,” there was no affirmative misleading. Id. at 709 (emphasis added).

In so holding, the Third Circuit relied on the Fourth Circuit’s earlier decision in

Aquino-Chacon that denied a similar claim because “‘[t]he language contained in

Form I-294 . . . neither states nor implies that reentry without permission after five

years is permissible.’” Id. at 709 (quoting Aquino-Chacon, 109 F.3d at 939). The

defendant in that case had “argue[d] that Form I-294 invited the charged conduct

by implying that it was permissible for him to return to the United States without

the express approval of the Attorney General as long as he did so more than five

years after his deportation,” Aquino-Chacon, 109 F.3d at 939, relying on Raley and

Cox, id. at 938. Again, the court accepted that affirmative misleading could be

express or implied. See id. at 939. But the Fourth Circuit held “[t]here was no active

misleading here because Form I-294 . . . unequivocally provided that AquinoChacon was required to obtain permission prior to entry.” Id. The form “neither

state[d] nor implie[d]” otherwise. Id. For that reason, the Fourth Circuit rejected

the defendant’s attempt to argue entrapment by estoppel.

The Ninth Circuit’s decision conflicts with each of these rulings, which correctly

derive from this Court’s unambiguous precedent.

C. The Ninth Circuit’s decision is wrong and unjust

As Raley, Cox, and PICCO make clear, Petitioner had a right to present his

entrapment-by-estoppel defense. Even assuming the Ninth Circuit correctly

categorized as “implicit” the DEA’s assurance that opening a medical marijuana

dispensary would not violate federal law, Petitioner was entitled to rely on it.8

But the Ninth Circuit’s decision not only is wrong. It is unjust.

Recall that Petitioner, an otherwise-law-abiding citizen with no legal training,

did his best to understand apparently-conflicting laws, and came to the tentative

conclusion that the Tenth Amendment must carve out an exception to the federal

Arguably, the DEA expressly assured Petitioner that local law governed the

legality of medical marijuana dispensaries.

prohibition on marijuana for its medical use, when legalized by a state. That

conclusion was wrong, but Petitioner was not alone in reaching it. See, e.g.,

Gonzales v. Raich, 545 U.S. 1, 65-66, 69-71, 74 (2005) (Thomas, J., dissenting).

A less-conscientious citizen might have stopped there. But Petitioner wished to

be certain his proposed conduct was lawful. So he called the Drug Enforcement

Administration, the agency charged with enforcing federal marijuana laws. It took

him four tries to reach someone who could answer his question. But when, after

being directed from one DEA number to another—and another, and another—

someone finally answered, “Marijuana Task Force,” and then recruited an official to

answer his inquiry, Petitioner thought he had arrived at the right place.

He asked “what you guys are going to do about all of these medical marijuana

dispensaries around the State of California,” and was told “it was up to the cities

and counties to decide how they wanted to handle the matter.” Still not content,

Petitioner reframed his question to make clear his intentions, and asked, “what if I

wanted to open up my own medical marijuana dispensary”? The DEA official

“seemed a little bit perturbed, . . . and he slowed his words down to make sure

[Petitioner] understood him and he said it’s up to the cities and counties to decide

how they want to handle the matter.” (ER 2374.) This answer made sense to

Petitioner, was consistent with his own understanding of the law, and explained

how dispensaries flourished across California. So Petitioner hung up, contacted city

and county authorities, and followed their rules to a T.

On these facts, prosecuting Petitioner and subjecting him to a mandatory

minimum five-year sentence is inconsistent with the “traditional notions of fairness

inherent in our system of criminal justice,” PICCO, 411 U.S. at 674, and due process

of law. For it “sanction[s] an indefensible sort of entrapment by the State.” Raley,

360 U.S. at 425-26. As such, the Ninth Circuit would have been well within its

authority to rule Petitioner’s entire prosecution unconstitutional, just as this Court

did in Raley and Cox. At a minimum, the circuit court should have allowed the jury

to decide whether Petitioner had a valid entrapment-by-estoppel defense. Its

decision otherwise violated Petitioner’s rights to due process and to present a

defense, and worked a grave injustice.

CONCLUSION

The Court should grant the petition for a writ of certiorari.

March 11, 2019

Respectfully submitted,