Opposition Brief — Charles C. Lynch, Petitioner v. United States

No. 18-8426

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

CHARLES C. LYNCH, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCKOWSKI

Assistant Attorney General

FINNUALA K. TESSIER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTIONS PRESENTED

1.

the

Whether the court of appeals correctly determined that

district

court’s

caution

to

prospective

jurors

that

“[n]ullification is by definition a violation of the juror’s oath”

and that it “is not your determination whether the law is just or

* * *

unjust” was a permissible discharge of the court’s duty to

ensure that the jury follows the law.

2.

Whether the court of appeals correctly affirmed the

district court’s denial of an entrapment-by-estoppel instruction

on two counts on the particular facts of this case, where such an

instruction was given on other counts on which the jury found

petitioner guilty.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-8426

CHARLES C. LYNCH, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. A3-A32) is

reported at 903 F.3d 1061.

JURISDICTION

The judgment of the court of appeals was entered on September

13, 2018.

A petition for rehearing was denied on December 11,

2018 (Pet. App. A1-A2).

The petition for a writ of certiorari was

filed on March 11, 2019.

The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for the Central District of California, petitioner was convicted

of one count of conspiracy to manufacture, possess, and distribute

marijuana, in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(B), and

846; two counts of aiding the distribution of marijuana to persons

under 21 years of age, in violation of 18 U.S.C. 2 and 21 U.S.C.

841(a)(1) and 859(a); one count of marijuana possession with intent

to

distribute,

in

violation

of

21

U.S.C.

841(a)(1)

and

841(b)(1)(B); and one count of maintaining drug-involved premises,

in violation of 21 U.S.C. 856(a)(1).

Am. Judgment 1.

He was

sentenced to 12 months and one day of imprisonment, to be followed

by four years of supervised release.

Ibid.

Petitioner appealed,

and the government cross-appealed his sentence.

The court of

appeals affirmed petitioner’s convictions, vacated his sentence

and remanded for resentencing, and directed the district court to

address on remand an issue of appropriations law that petitioner

raised on appeal.

1.

From

Pet. App. A3-A32.

2005

to

early

2006,

petitioner

operated

a

commercial business selling marijuana in Atascadero, California.

Pet. App. A9.

In April 2006, after complaints from neighbors,

petitioner moved his business to Morro Bay, California.

Ibid.

Over the next year, petitioner sold $2.1 million in marijuana and

marijuana-related

products.

Ibid.

In

March

2007,

the

Drug

3

Enforcement Agency (DEA) searched petitioner’s home and business

pursuant to a warrant.

Ibid.

Petitioner continued to operate the

business after the DEA search.

2.

Ibid.

On July 13, 2007, a grand jury in the Central District

of California returned an indictment charging petitioner with five

marijuana-related offenses, including two counts of aiding the

distribution of marijuana to persons under the age of 21, in

violation of 18 U.S.C. 2 and 21 U.S.C. 841(a)(1) and 859(a).

Indictment 9.

a.

The case proceeded to trial.

On the first day of voir dire, defense counsel told

prospective jurors that “the judge is only going to tell you what

the law is, and that ultimate decision about what to do in this

case is for you and only you to decide.”

Pet. App. A20.

On the

second day of voir dire, a prospective juror stated that she would

be unable to follow the district court’s instructions on federal

marijuana

offenses

because

of

her

view

that

“federal

law

is

seriously flawed.” Gov’t C.A. Second Br. on Cross-Appeal 10 (Gov’t

C.A. Br.) (citation omitted).

During a sidebar about whether to

strike the prospective juror for cause, the government noted that

defense counsel had made statements, including the one quoted

above, that “seemed to be calling for jury nullification.”

App. A20.

Pet.

The court invited the government to object to future

such statements.

Gov’t C.A. Br. 11.

4

After the sidebar, defense counsel resumed questioning the

same prospective juror and “[w]ithin minutes” returned to a similar

line of questioning, Pet. App. A20, asking the prospective juror

whether she understood that the “ultimate decision” whether to

find guilt would be “[her] decision,” id. at A35.

juror responded:

“You finally said something I can relate to.

understand that completely.

I

I believe there is something called

jury nullification, that if you believe

* * *

The prospective

* * *

you don’t have to convict a person.

the law is wrong

That’s it.”

Id. at

A35-A36. The district court stopped her before she could continue

to describe her understanding of jury nullification in front of

the jury pool.

See ibid.

The district court excused the venire and consulted with the

parties on an appropriate response.

Pet. App. A21.

At the

government’s request, the court gave the following instruction:

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 jury -- 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.

Id. at A54.

The court then asked each prospective juror whether

he or she could follow that instruction, and each agreed that he

or she could.

b.

Id. at A21; see id. at A54-A58.

Petitioner

testified

in

his

own

defense.

In

that

testimony, he admitted to what he acknowledged on appeal were

5

“sufficient facts to find him guilty of the five counts charged.”

Pet. App. A9.

Petitioner claimed, however, that a representative

of the DEA had led him to believe that his conduct was lawful.

Id. at A10.

Petitioner testified that, before opening his business in

2005, he had read that, while California law did not prohibit some

marijuana dispensaries, marijuana remained a controlled substance

under federal law -- “just like heroin, LSD, ‘ecstasy,’ and on a

higher schedule than cocaine.”

omitted).

Gov’t C.A. Br. 19-20 (citation

Petitioner, who is not an attorney, testified that he

called the local DEA field office in September 2005 to ask about

DEA policies regarding marijuana. Id. at 20. Petitioner testified

that, after several calls, he ultimately had a conversation with

a man whose name, title, and job function petitioner did not know.

Id. at 20-21.

Petitioner testified that he asked this person what

the DEA was “going to do about all of the medical marijuana

dispensaries around” California.

Id. at 20 (citation omitted).

The person purportedly told him:

“[I]t was up to the cities and

counties to decide how they wanted to handle the matter.”

21. (citation omitted)

Id. at

Petitioner testified that he then asked

what would happen if he opened his own marijuana dispensary, and

the person repeated that “it’s up to the cities and counties to

decide how they want to handle the matter.”

omitted); see Pet. App. A17.

Ibid. (citation

6

Petitioner’s phone records confirmed that he had called the

DEA in September 2005.

Pet. App. A17 n.2.

The female DEA employee

to whom the relevant phone number was assigned testified that

“neither she nor any agent in her division would have given

[petitioner]

the

information

[petitioner]

received.”

Ibid.

Petitioner

also

admitted

claimed

to

have

that,

after

his

purported conversation with the DEA representative, he had read

memos and letters from various local officials indicating that

marijuana use and distribution remained illegal under federal law.

Gov’t C.A. Br. 24; see Pet. App. A19 (describing the “vast swaths

of information [petitioner] had about marijuana’s illegality under

federal law”).

In addition, petitioner’s own business distributed

forms stating that “Federal Law prohibits Cannabis.”

A19.

Although

the

same

forms

asserted

that

Pet. App.

“California

legalization had created an exception to the federal prohibition

through the Tenth Amendment,” ibid., petitioner did not claim to

have discussed the Tenth Amendment with the unidentified DEA

representative.

And petitioner continued to operate his business

after the DEA search warrant.

See pp. 2-3, supra.

Based on his testimony about a phone call with the DEA,

petitioner requested that the jury be instructed on the defense of

entrapment by estoppel.

Pet. App. A10.

The district court gave

such an instruction, but only with respect to the three counts of

the

indictment

charging

conspiracy

to

distribute

marijuana,

7

possession of marijuana with intent to distribute, and maintaining

drug-involved premises.

Ibid.

The court declined to instruct the

jury on entrapment by estoppel for the two counts of the indictment

charging petitioner with distributing marijuana to minors, because

petitioner’s version of events, “even if believed, did not suffice

to allow the defense as against those charges.”

c.

count

of

Ibid.

The jury found petitioner guilty on all counts:

conspiracy

to

manufacture,

possess,

and

one

distribute

marijuana, in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(B), and

846; two counts of aiding the distribution of marijuana to persons

under 21 years of age, in violation of 18 U.S.C. 2 and 21 U.S.C.

841(a)(1) and 859(a); one count of possession of marijuana with

intent to distribute, in violation of 21 U.S.C. 841(a)(1) and

841(b)(1)(B); and one count of maintaining drug-involved premises,

in violation of 21 U.S.C. 856(a)(1).

Amended Judgment 1.

The

jury found that the conspiracy involved at least 100 marijuana

plants and at least 100 kilograms of marijuana. Gov’t C.A. Br. 29.

Although the jury’s findings on the conspiracy count classified

the

offense

as

one

requiring

a

five-year

minimum

term

of

imprisonment, see 21 U.S.C. 841(b)(1)(B)(vii), the district court

invoked the “safety valve” provision of 18 U.S.C. 3553(f) to

instead

sentence

petitioner

to

12

months

and

one

day

of

imprisonment on that count (with concurrent or shorter sentences

on the other counts).

Pet. App. A25; see Am. Judgment 1.

8

3.

The court of appeals affirmed petitioner’s convictions,

vacated his sentence, and remanded for resentencing in accordance

with the statutory minimum.

a.

As

petitioner’s

relevant

Pet. App. A3-A32.

here,

contention

the

that

court

the

of

appeals

instruction

rejected

relating

to

nullification given by the district court during voir dire was

unduly coercive.

Pet. App. A20.

The court of appeals observed

that “no juror has a right to engage in nullification”; that “such

nullification is a violation of a juror’s sworn duty to follow the

law as instructed by the court”; and that “trial courts have the

duty to forestall or prevent such conduct, including by firm

instruction or admonition.”

quotation marks omitted).

specific

circumstances

Id. at A21 (citation and internal

The court also determined that, in the

here,

a

cautionary

instruction

was

warranted and that “the particular language chosen by the district

court accurately stated the law.”

Ibid.

In particular, the court of appeals explained that the portion

of

the

instruction

informing

prospective

jurors

that

“[n]ullification is by definition a violation of the juror’s oath

* * *

to apply the law as instructed by the court,” Pet. App.

A54, was both correct as a matter of law and was taken from a

Second Circuit decision that the Ninth Circuit had previously

“recognized

* * *

as an accurate guide to a judge’s duty to

prevent nullification,” id. at A21 (discussing United States v.

9

Thomas, 116 F.3d 606, 614 (2d Cir. 1997)); see Merced v. McGrath,

426 F.3d 1076, 1079 (9th Cir. 2005), cert. denied, 547 U.S. 1036

(2006).

The court of appeals further explained that the “district

court correctly stated that the jurors did not have any right to

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

ability to do so” and “neither said nor implied that jurors would

be subject to punishment if they acquitted [petitioner].”

Pet.

App. A21.

The court of appeals also rejected petitioner’s challenge to

the district court’s decisions regarding entrapment by estoppel,

including the district court’s refusal to permit the defense as to

the distribution-to-minors charges.

appeals

determined

that

Pet. App. A17.

petitioner

“fail[ed]

The court of

to

provide

a

sufficient factual basis to establish the defense” and therefore

“was not entitled to any instruction on, or jury consideration of,

this defense in the first place.”

Ibid.

The court reasoned that,

to establish the defense of entrapment by estoppel under its

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

government official, empowered to render the claimed erroneous

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

facts,

(3)

affirmatively

told

[the

defendant]

the

proscribed

conduct was permissible, (4) that [the defendant] relied on the

false information, and (5) that [the] reliance was reasonable.”

Id. at A18 (quoting United States v. Schafer, 625 F.3d 629, 637

10

(9th Cir. 2010) (brackets in original), cert. denied, 563 U.S.

1015

(2011)).

The

court

found

that,

“[e]ven

crediting

[petitioner’s] testimony” and assuming both that he spoke with an

authorized government official at the DEA and that he relied on

the information he purportedly received, “the other elements of

the defense [are] missing here.”

Ibid.

The court observed that

even on petitioner’s own version of events, no federal official

“told [him] that [his] proposed activities were legal,” adding

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

decide’

* * *

lacked sufficient concreteness to have served as

an affirmative authorization.”

Ibid.

The court of appeals additionally determined that “[t]o the

extent that [petitioner] might have (improperly) understood the

statement to be an affirmative authorization, any reliance on the

statement was clearly unreasonable,” because petitioner “clearly

should still have been on notice that any purported categorical

authorization to violate the federal drug laws was incorrect, or

at

least

demanded

authorization.”

evidence

at

further

inquiry

Pet. App. A19.

trial

showed

that

into

the

validity

of

that

The court explained that the

petitioner

“had

been

actively

following developments of marijuana law” and that he had “vast

swaths of information

* * *

about marijuana’s illegality under

federal law,” including repeated statements to that effect from

local officials.

Ibid.; see p. 6, supra.

The court thus found

11

that, “[e]ven crediting [petitioner’s] version of the call, a

reasonable person possessing all the information [he] had would

not have considered the call decisive of what the law required.”

Pet. App. A20.

The court of appeals also addressed two issues not presented

here.

First,

on

the

government’s

cross-appeal,

the

court

determined that petitioner was not eligible for sentencing under

the “‘safety-valve’ provision” invoked by the district court,

18 U.S.C. 3553(f), and remanded for resentencing.

Second,

petitioner

argued

that

the

Pet. App. A25.

proceedings

against

him

conflicted with an appropriations rider, first enacted during his

appeal, limiting the Department of Justice’s use of certain funds

to prevent California and other States from “implementing [their]

own laws that authorize the use, distribution, possession, or

cultivation

of

medical

marijuana.”

Id.

at

A27

(quoting

Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 537,

131 Stat. 228). In a prior case, the court of appeals had construed

the

appropriations

rider

to

limit

certain

marijuana-related

expenditures; here, the court directed the district court to

consider on remand what effect, if any, the rider has on further

proceedings in this case.

b.

Id. at A28-A29.

Judge Watford dissented.

Pet. App. A29-A32.

He would

have granted petitioner a new trial on the basis of the district

court’s instruction regarding nullification.

See ibid.

12

ARGUMENT

Petitioner contends (Pet. 13-29) 1 that the district court’s

curative instruction during voir dire, after a prospective juror

responded

to

defense

counsel’s

prompting

by

discussing

jury

nullification, was unduly coercive and that the court of appeals’

approval of that instruction conflicts with the decisions of other

courts.

Petitioner also contends (Pet. 29-40) that the court of

appeals

erred

in

affirming

the

district

court’s

decisions

regarding petitioner’s entrapment-by-estoppel defense.

Neither of

those contentions warrants this Court’s review. The decision below

is correct and does not conflict with any decision of this Court

or any other court of appeals.

This case would also be an

unsuitable vehicle to address the questions petitioner seeks to

present. Accordingly, the petition for a writ of certiorari should

be denied.

1.

The

court

of

appeals

correctly

determined

that

the

district court’s cautionary instruction to prospective jurors -that “‘[n]ullification is by definition a violation of the jury’s

oath’” and that it “‘is not your determination whether the law is

just or unjust’” -- “was entirely appropriate as a discharge of

the court’s own duty to forestall lawless conduct.”

Pet. App. A21

All citations to the petition for a writ of certiorari

are to the corrected version filed on April 15, 2019.

1

13

(citation omitted).

That determination does not conflict with any

decision of this Court or any other court of appeals.

a.

The “federal courts have long noted the de facto power

of a jury to render general verdicts ‘in the teeth of both law and

facts.’”

United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997)

(quoting Horning

v.

District

of

Columbia,

254

U.S.

135,

138

(1920)). “However, at least since [this] Court’s decision in Sparf

v. United States, 156 U.S. 51, 102 (1895) (holding that, while

juries are finders of fact, ‘it is the duty of juries in criminal

cases to take the law from the court and apply that law to the

facts as they find them’), courts have consistently recognized

that jurors have no right to nullify.”

Ibid.; see United States

v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988) (“[J]ury nullification

is just a power, not also a right.”).

“A jury has no more ‘right’

to find a ‘guilty’ defendant ‘not guilty’ than it has to find a

‘not guilty’ defendant ‘guilty,’ and the fact that the former

cannot be corrected by a court, while the latter can be, does not

create a right out of the power to misapply the law.”

United

States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983) (per

curiam).

“Such verdicts are lawless, a denial of due process and

constitute an exercise of erroneously seized power.”

Ibid.

The courts of appeals have thus uniformly held that, “[w]hile

juries have the power to ignore the law in their verdicts, courts

have no obligation to tell them they may do so.”

United States v.

14

Edwards, 101 F.3d 17, 19-20 (2d Cir. 1996) (per curiam) (collecting

cases); see, e.g., United States v. Sepulveda, 15 F.3d 1161, 1190

(1st Cir. 1993), cert. denied, 512 U.S. 1223 (1994); United States

v. Dellinger, 472 F.2d 340, 408 (7th Cir. 1972), cert. denied, 410

U.S. 970 (1973).

To the contrary, “‘courts have the duty to

forestall or prevent nullification, whether by firm instruction or

admonition or

. . .

dismissal of an offending juror,’ because

‘it is the duty of juries in criminal cases to take the law from

the court, and apply that law to the facts as they find them to be

from the evidence.’”

United States v. Kleinman, 880 F.3d 1020,

1031 (9th Cir. 2017) (brackets omitted) (quoting Merced v. McGrath,

426 F.3d 1076, 1079-1080 (9th Cir. 2005), cert. denied, 547 U.S.

1036 (2006)), cert. denied, 139 S. Ct. 113 (2018); see also Thomas,

116 F.3d at 616.

The

courts

of

appeals

have

approved

jury

instructions

informing the jury of its duty to return a guilty verdict if

warranted by the facts and law, or explicitly informing juries

that they should not engage in nullification.

For example, in

United States v. Krzyske, 836 F.2d 1013 (6th Cir.), cert. denied,

488 U.S. 832 (1988), the court found no error when the district

court, in response to a jury note, informed jurors that “[t]here

is no such thing as valid jury nullification” and that it would

“violate [the jurors’] oath and the law if [they] willfully brought

in a verdict contrary to the law” as given by the court, id. at

15

1021; see also, e.g., United States v. Carr, 424 F.3d 213, 219–

220 (2d Cir. 2005) (explaining that “[n]othing in our case law

begins to suggest that the court cannot

* * *

tell the jury

affirmatively that it has a duty to follow the law, even though it

may in fact have the power not to”), cert. denied, 546 U.S. 1221

(2006); United States v. Bruce, 109 F.3d 323, 327 (7th Cir.)

(approving an instruction that the jury “must not question any

rule of law stated by [the judge]” and “must base [its] verdict on

the law given”) (citation omitted), cert. denied, 522 U.S. 838

(1997); United States v. Pierre, 974 F.2d 1355, 1357 (D.C. Cir.

1992) (per curiam) (finding that “it was proper for the district

court to instruct the jury that it had a duty to find [the

defendant] guilty if the government proved beyond a reasonable

doubt every element of the offense with which he was charged”),

cert. denied, 507 U.S. 1012 (1993).

In accord with that weight of authority, the court of appeals

correctly determined that, in this case, the “district court’s

caution to the [prospective] jurors that they should not substitute

their own sense of justice for their duty to find facts pursuant

to the law was entirely appropriate as a discharge of the court’s

own duty to forestall lawless conduct.”

Pet. App. A21.

The court

of appeals also correctly determined that “the particular language

chosen by the district court accurately stated the law.”

Ibid.

Specifically, the district court properly informed the prospective

16

jurors that nullification is a violation of the juror’s oath to

apply the law as interpreted by the court.

See, e.g., United

States v. Fattah, 914 F.3d 112, 147 (3d Cir. 2019) (“[A] juror who

* * *

commits jury nullification violates the sworn jury oath and

prevents

the

jury

from

fulfilling

its

constitutional

role.”)

(citation omitted); see also Thomas, 116 F.3d at 616; Krzyske, 836

F.2d at 1021; United States v. Trujillo, 714 F.2d 102, 106 (11th

Cir. 1983). The district court also accurately stated that a juror

“cannot substitute [her] sense of justice

* * *

for [her] duty

to follow the law” and that it is “not [a juror’s] determination

whether the law is just.”

F.3d

at

1031-1032

Pet. App. A21; accord Kleinman, 880

(approving

nearly

identical

language);

cf.

Bruce, 109 F.3d at 327 (finding that a jury was properly instructed

that it “must not question any rule of law stated by [the judge]”)

(citation omitted).

b.

Petitioner

contends

that

the

courts

of

appeals

are

divided on “whether and how a trial court may dissuade jurors from

nullifying.”

Pet.

15

(emphasis

omitted).

In

particular,

petitioner asserts that the First and D.C. Circuits “have held

that trial judges must refrain from instructing on nullification.”

Pet. 17.

But the two decisions he identifies did not adopt such

a categorical rule, and neither decision suggests that those courts

would disapprove of the instruction given in this case.

17

In Sepulveda, the First Circuit affirmed an instruction that

a district court gave after the jury sent a note during its

deliberations asking the court to “[c]larify the law on jury

nullification.”

15 F.3d at 1189 (brackets in original).

In that

instruction, the district court told the jury that “[f]ederal trial

judges are forbidden to instruct on jury nullification.”

Ibid.

The court then repeated its earlier instructions on the burden of

proof, which included the admonishment that “if the Government

proves its case against any defendant, you should convict that

defendant.”

Id.

at

1189-1190;

see

ibid.

(district

court’s

statement that “[i]f [the government] fails to prove its case

against any defendant you must acquit that defendant”).

The First

Circuit rejected the defendants’ argument that the instruction was

in effect “a judicial prohibition against the jury’s use of its

inherent power” to nullify, explaining that it was “an accurate

recitation of the law.”

indicates

that

the

Id. at 1190.

First

instruction in this case.

Circuit

Nothing in that decision

would

disapprove

of

the

In particular, the fact that the First

Circuit found that the instruction there had “no

* * *

chilling

effect,” ibid. -- and therefore that the defendants’ argument about

a “chilling effect” failed -- does not suggest that the First

Circuit would find the district court’s instruction here to be

inappropriately chilling or would otherwise disapprove of it.

18

As to the D.C. Circuit, that court has long recognized that

a jury has no right to engage in nullification and that “[s]uch

verdicts are lawless, a denial of due process and constitute an

exercise of erroneously seized power.”

494.

Washington, 705 F.2d at

In United States v. Dougherty, 473 F.2d 1113 (D.C. Cir.

1972), “the court approved of instructions that ‘never [told]

* * *

the jury in so many words that it must convict,’ in the

course of observing that defendants are not entitled to a jury

nullification instruction.”

Carr, 424 F.3d at 221 n.3 (quoting

Dougherty, 473 F.2d at 1135). But to whatever extent that decision

might be read to support petitioner’s argument here, the D.C.

Circuit “later held squarely that juries may be instructed on their

duty to convict upon a finding of guilt beyond a reasonable doubt.”

Ibid. (citing Pierre, 974 F.2d at 1357) (emphasis added).

Petitioner also contends (Pet. 19-23) that the decision below

conflicts with decisions of two state courts of last resort.

But

none of the decisions he identifies purported to rest on an

interpretation of federal law.

Thus, no conflict would exist for

this Court to resolve even if the state courts had adopted a rule

against “anti-nullification” instructions.

Sup. Ct. R. 10(b).

any event, the decisions did not adopt such a firm rule.

In

See State

v. Bonacorsi, 648 A.2d 469, 470-471 (N.H. 1994) (finding no error

where the trial court twice instructed the jury that it “may”

convict the defendant if it found that the government carried its

19

burden

of

proof,

while

declining

to

give

a

more

specific

instruction on nullification); State v. Richards, 531 A.2d 338,

342 (N.H. 1987) (per curiam) (finding no reversible error where

the trial court “took upon itself the task of telling the jury of

its nullification power” and “explain[ed] the law correctly”); cf.

State

v.

Smith-Parker,

340

P.3d

485,

506-507

(Kan.

2014)

(disapproving of an instruction on reasonable doubt that came “too

close to

* * *

“essentially

directing a verdict for the State” and thus

forbade

the

jury

from

exercising

its

power

of

nullification”). 2

Like the dissenting judge below (Pet. App. A30), petitioner

suggests that the Ninth Circuit itself previously “disapproved of

an anti-nullification instruction” similar to the one given here.

Pet. 16 n.3 (citing Kleinman, 880 F.3d at 1031-1033).

As the court

of appeals explained, however, its prior decision in Kleinman in

fact “explicitly recognized that” an instruction like a portion of

the one challenged by petitioner is “generally permissible.”

App. A21.

Pet.

As the court further explained, the precise language it

had found to be problematic in Klienman did not appear in the

instruction given here.

Ibid.; see Kleinman, 880 F.3d at 1032

In Smith-Parker, the Supreme Court of Kansas concluded

that an instruction on alternative theories of liability

“contained a misstatement of law with respect to reasonable doubt,”

where the instruction stated that jurors “will enter a verdict of

guilty” if the government carried its burden of proof. 340 P.3d

at 506. That decision, however, did not address a trial court’s

authority to caution against nullification in an appropriate case.

2

20

(disapproving of statements the court of appeals viewed as implying

that “jurors could be punished for jury nullification” or than “an

acquittal resulting from jury nullification is invalid”).

In any

event, the court of appeals is fully capable of resolving any

tension between Kleinman and the decision below in a future case,

if necessary.

See Wisniewski v. United States, 353 U.S. 901, 902

(1957) (per curiam) (“It is primarily the task of a Court of

Appeals to reconcile its internal difficulties.”).

c.

This case would in any event be an unsuitable vehicle

for addressing any question about the general propriety of an

instruction that juries must follow the law.

here found the “caution was

* * *

The court of appeals

particularly justified because

it occurred on the second day of [petitioner’s] counsel’s asking

questions suggestive of nullification, and after the [district]

court’s explicit admonishment to [his] lawyer not to ask such

impermissible questions.”

Pet. App. A22.

The court of appeals

thus viewed the caution as effectively invited by petitioner.

Ibid.

Petitioner does not suggest that he has a right to a pro-

nullification instruction, see Pet. 25 & n.6, and this case does

not provide an occasion to consider when, if ever, a caution about

nullification might be improper in the absence of suggestive

conduct by defense counsel.

2.

The

court

of

appeals

also

correctly

affirmed

the

district court’s denial of an entrapment-by-estoppel defense on

21

the charges of distributing marijuana to minors.

A17-A20.

Pet. App. A10,

The court of appeals’ factbound determination does not

conflict with any decision of this Court or any other court of

appeals and does not warrant this Court’s review.

a.

Any defense of entrapment by estoppel “is a narrow

exception to the general principle that ignorance of the law is no

defense.”

United States v. Etheridge, 932 F.2d 318, 321 (4th

Cir.), cert. denied, 502 U.S. 917 (1991).

Such a defense could be

available only where a responsible government official actively

misleads a defendant into believing that certain conduct is legal

and

the

defendant

statements.

reasonably

relies

on

those

misleading

See United States v. Pennsylvania Indus. Chem. Corp.,

411 U.S. 655, 674-675 (1973) (PICCO); Cox v. Louisiana, 379 U.S.

559, 571 (1965); Raley v. Ohio, 360 U.S. 423, 425-426 (1959).

As

petitioner recognizes, to support the defense, the “relied-upon

assurance cannot be ‘vague or even contradictory.’”

Pet. 33

(quoting Raley, 360 U.S. at 438). Instead, the government official

must have engaged in “active misleading.”

Raley, 360 U.S. at 438.

The court of appeals correctly rejected petitioner’s argument

for application of the defense here.

in

a

September

2005

call

with

a

Petitioner testified that,

representative

of

the

DEA,

petitioner asked “what you guys are going to do about all of these

medical marijuana dispensaries around the State of California,”

and the DEA representative purportedly told him that “it was up to

22

the cities and counties to decide how they wanted to handle the

matter.”

Pet. App. A17; see pp. 5-6, supra.

The court correctly

determined that the “vagueness and ambiguity” of that statement

“did not allow it to serve as a basis for a claim of entrapment by

estoppel.”

Pet. App. A19.

Even by petitioner’s own account, no

federal official told him that “he could violate federal law” or

that his “proposed activities were legal.”

Id. at A18.

The court

thus found that the statement was not the kind of “clear sanction

that entrapment by estoppel requires.”

Ibid.

The court also

correctly determined that an entrapment-by-estoppel defense was

not supported by the facts of this case for the separate reason

that “any reliance on the statement was clearly unreasonable.”

Id. at A19. The evidence showed that petitioner had been “actively

following

developments

of

marijuana

law”;

that

he

was

told

(repeatedly) by local officials that the distribution of marijuana

remained illegal under federal law; that he had read on the DEA’s

website that marijuana remained “illegal under federal law”; and

that his own business distributed forms stating that “Federal Law

prohibits Cannabis.”

Ibid.

At a minimum, it was unreasonable for

petitioner to proceed to run a multi-million dollar marijuana

business based on a short, non-specific conversation with a DEA

employee whose name and position he did not know (or at least

failed to record), without even attempting to follow up or seek

more detailed guidance.

23

b.

Petitioner contends (Pet. 29-38) that the decision below

conflicts with prior decisions of this Court and three other

circuits because the decision below required that the “official

misleading” be “express” rather than “implicit” to support an

entrapment-by-estoppel defense.

That contention is unsound.

The decision below did not turn an any putative distinction

between “express” and “implicit” assurances.

The court of appeals

instead relied on well-established precedent that the defense of

entrapment

by

estoppel

is

“affirmatively

told

defendant

permissible.”

Pet. App. A18 (brackets and citation omitted).

the

available

the

only

if

proscribed

an

official

conduct

was

Although the court noted that “[e]ven if [petitioner] took the

statement as implicit authorization for his actions, this is not

the same as saying that the statement was an affirmative and

unambiguous grant of permission,” ibid., the court did not hold

that implicit assurances can never establish the defense.

Rather,

the court simply determined that in this particular case, “[t]he

vagueness and ambiguity” of the statement precluded the defense.

Id. at A19.

By contrast, the affirmative misrepresentations in Raley,

Cox, and PICCO (cited at Pet. 30-33) were neither vague nor

ambiguous.

Raley,

for

example,

involved

the

State

of

Ohio

“convicting a citizen for exercising a privilege [against selfincrimination] which the State clearly had told him was available

24

to him.”

360 U.S. at 426.

Three of the defendants were expressly

told that they were entitled to invoke their privilege against

self-incrimination.

. . .

Id. at 430-431.

A fourth was “never told

in so many words” that the privilege was available, but the

government’s statements and “actions were totally inconsistent

with

a

view

on

its

part

that

incrimination was not available.”

U.S. at 430, 431-432).

the

privilege

against

self-

Pet. 33-34 (quoting Raley, 360

Here, the unnamed DEA representative did

not, even on petitioner’s version of events, “obviously g[i]ve the

* * *

impression” that petitioner’s conduct -- a complicated

business enterprise about which he provided almost no detail -was legal.

Cox

Raley, 360 U.S. at 437.

likewise

involved

unambiguous

representations

to

the

defendants that their demonstration across the street from a

courthouse was permitted.

* * *

Cox, 379 U.S. at 569–570.

The “record

clearly show[ed] that the officials present gave permission

for the demonstration.”

Id. at 569.

The defendant’s testimony

that he was given “permission to conduct the demonstration” was

“corroborated” by government witnesses, including the sheriff, who

told the defendant that “you have been allowed to demonstrate” and

that the

sheriff

had

“no

objection”

to

the

demonstration

if

confined to a certain area. Id. at 569-570 (citation and quotation

marks omitted).

Indeed, the State “conceded” that “permission had

been granted to demonstrate.”

Ibid.

25

The representations at issue in PICCO were even clearer.

There,

it

was

administering

“undisputed”

the

statute

that

in

the

agency

charged

question

had,

in

with

“published

regulation[s],” “consistently construed” the statute to permit the

defendant’s conduct. 411 U.S. at 672-673.

In light of that

“longstanding administrative construction” of the statute, this

Court determined that the district court had erred in “refus[ing]

to permit PICCO to present evidence in support of its claim that

it had been affirmatively misled into believing that the discharges

in question were not a violation of the statute.”

Id. at 673,

675.

The court of appeals’ factbound determination that the vague

statement here could not support an entrapment-by-estoppel defense

turned on the particular evidence in this case, not on any broad

conclusion about “implicit” or “express” government assurances.

The result below is consistent with not only Raley, Cox, and PICCO,

but also the circuit decisions petitioner identifies (Pet. 35-38).

None of those decisions suggests that another court of appeals

would have permitted the defense of entrapment by estoppel on these

facts.

To the contrary, each one required the kind of active

misleading that the court found to be lacking here.

See United

States v. Alba, 38 Fed. Appx. 707, 709 (3d Cir. 2002) (affirming

the district court’s refusal to permit a defense of entrapment by

estoppel

where

the

defendant

“failed

to

demonstrate

that

a

26

government official told him that he could reenter the United

States without first writing to obtain permission”) (emphasis

added); United States v. Aquino-Chacon, 109 F.3d 936, 939 (4th

Cir.)

(similar;

affirmatively

reasoning

assure

that

[the

an

immigration

defendant]

that

form

“did

reentry

not

without

permission was lawful”) (emphasis added), cert. denied, 522 U.S.

931 (1997); United States v. Abcasis, 45 F.3d 39, 42-45 (2d Cir.

1995) (reversing and remanding where the district court failed to

permit

an

entrapment-by-estoppel

defense,

in

light

of

the

“undisputed” evidence that DEA agents had “previously authorized

the defendants to engage in narcotics transactions as informants”

and the defendants “reasonably relied on that encouragement or

assurance

in

believing

they

were

once

again

authorized

to

participate in a narcotics transaction as informants”).

c.

In any event, this case would be an unsuitable vehicle

in which to address the entrapment question.

First, the court of appeals found that an entrapment-byestoppel defense was unsupported by the facts of this case for the

independent reason that “any reliance on the statement was clearly

unreasonable.” Pet. App. A19; see pp. 10-11, 22, supra; cf. PICCO,

411 U.S. at 675 (noting that the court must decide whether “there

was in fact reliance” on the government’s misrepresentations, and

“if

so,

whether

circumstances”).

that

reliance

was

reasonable

under

the

Thus, resolution of the question presented in

27

petitioner’s favor would have no effect on the outcome of this

case.

Petitioner argues (Pet. 13 n.2) that this alternative holding

was “premised in part” on the aspect of the decision that he

challenges in the petition.

however,

that

it

viewed

the

The court of appeals made clear,

two

issues

as

independent

and

alternative bases to reject the entrapment-by-estoppel defense on

these facts.

See Pet. App. A19 (“[E]ven to the extent that

[petitioner] might have (improperly) understood the statement to

be an affirmative authorization, any reliance on the statement was

clearly unreasonable.”) (emphasis added).

Second, any error was harmless.

See Fed. R. Crim. P. 52(a).

Petitioner was allowed to raise an entrapment-by-estoppel defense

as to three of the charges against him, and the jury nonetheless

found him guilty beyond a reasonable doubt.

Pet. App. A10.

Petitioner identifies no reason to think the result would have

been any different had the district court permitted him to also

raise the same defense -- based on the same purported statement

from an unnamed DEA representative -- to the two charges of

distributing marijuana to a minor.

Indeed, even assuming the

putative conversation were sufficiently germane to the specific

conduct of distribution to minors to justify an entrapment-byestoppel defense, the jury would be even less likely to conclude

28

that (if it happened at all) it provided an adequate assurance

that such conduct was lawful.

3.

Finally, the petition should be denied because the case

comes to the Court in an interlocutory posture.

This Court

“generally await[s] final judgment in the lower courts before

exercising

[its]

certiorari

jurisdiction.”

Virginia

Military

Inst. v. United States, 508 U.S. 946, 946 (1993) (opinion of

Scalia, J., respecting the denial of the petition for writ of

certiorari); see Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240

U.S. 251, 258 (1916); Brotherhood of Locomotive Firemen & Enginemen

v. Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per curiam).

In addition to remanding for resentencing, the court of appeals

also

instructed

the

district

court

to

address

on

remand

petitioner’s argument regarding the appropriations rider.

p. 11, supra.

Those proceedings are ongoing at this time.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWKSI

Assistant Attorney General

FINNUALA K. TESSIER

Attorney

MAY 2019

See