thank you your honor may it please the court cynthia jones for the appellant lance glor i would like to plan to reserve four minutes for about all the issue before the court today is whether mr glore is entitled to an evidentiary hearing to determine whether the seventy three plants at issue here were in compliance with washington state law and the answer here is yes in this course decision in mcintosh the series of consolidated cases there were thirty thousand plants that issue in one of those cases and this court remanded for an evidentiary hearing and so coots a bay which is an unpublished case but persuasive there are one thousand plants at more than one patient and under law each patient is allowed fifteen plants now if you bear that out into mr gloria's case he would like it an evidentiary hearing to show a color bull argument that he was providing for at least five or more patients which would put him squarely in the fifteen plant per patient under washington state law doesn't the record all if i that argument we already have a trial record that seems to show your client is neither a collective garden or a designated provider isn't that clear from the record that's already been created in the hearing changed the hearing would allow mr glow to bring forth some evidence that he was in compliance with washington state law i think here if you'll pardon the expression i think the district court in granting a motion in limine a barring mr glover from bringing any evidence of compliance with washington state law was putting the cart before the horse we still have not had an evidentiary hearing to show whether or not considering all of the evidence and an evidentiary hearing he was in compliance and under state law i think what's really important to note is washington mandates that when you're looking at the sufficiency of evidence for an affirmative defense and medical marijuana the courts must construe the evidence most strongly in favor of the defendant here the district court didn't allow any evidence of compliance with washington state law and further one more note under state law and state we constantine the appellate courts instructed washington litigants that a provider does not have to show that a person that he's providing marijuana for has a specific element for that medical marijuana ali has to show it instances that there was a doctor's note that that person has been here we have a trial record isn't that right that's right i think the similar they haven't they don't really have much especially in mcintosh mcintosh was the very first gets the deal with the section five thirty eight i think the distinction prestigious one and so coots a bit they had pled guilty to the title twenty one offenses without waving their right to appeal and there had been some preliminary pretrial testimony below and and issues there i think here where we have a conviction like silk you disobey there's a conviction with a bar of allowing the defendant to show and any evidence of compliance with washington state law that's what makes this case different i see that i'm nearer my time for rebuttal and are there any more questions from the court before i reserve the rest of my time thank  you your honors may please the court michael morgan for the united states assuming that compliance with the washington affirmative defense would satisfy mcintosh which is an assumption the government disputes but taking that assumption for right now the record provides provided in the trial proves conclusively that the defendant did not qualify for the affirmative defense with respect to the grove operation because he refused to provide documentation when requested by law enforcement that is a statutory prerequisite for the affirmative defense failure to produce that precluded in the records of the buyers i mean at the buyers that the people came in to what he was required to produce was quote valid documentation which is copies of the patient's authorizations if even assuming that he was trying to grow multiple plants for multiple patients when confronted by law enforcement law requires him to present those documents to law enforcement law enforcement specifically asked him is on page e r three ninety of the record due to the time of his arrest yes this was the time as arrest and he had been given miranda and waived and he specifically was asked do you have the documentation for medical marijuana grow and he refused to provide it he didn't answer you just did he later turn it over when you don't later have it now there's no evidence that he ever had it but the fact of the matter is even if he did have it failure to produce it precluded the affirmative defense so he had no affirmative defense as to the manufacture count in count three and as we know from this course decision in kleinman if there is a count that is not precluded by the writer because the count by count analysis that count stands and since concurrent one hundred twenty month sentence is one posed on counts one and three if count three stands that's sufficient to affirm the judgment even if there's an argument about whether or not count one is is ri compliant that was the exact situation that the court had before it in kleiman so given that there is no affirmative defense to run a count three rather that is in and of itself sufficient to affirm there's also no affirmative defense to count three because one on a single day in two thousand and eleven he possessed far more than the minimum the maximum is required permitted under washington law to qualify as a collective garden that's clear in the record that was the seizure there's no evidentiary hearings going to change the amount of marijuana that was seized so there's just no need for a hearing in this case and i should point out that the defense has kind of mischaracterized slightly the district courts  or the court did was say i'm not going to allow you to argue that compliance with state law is a defense to the federal charges mr greer was free to present and did present any evidence he wanted with respect to how  his business is operated in fact the ruling specifically says quote the quote expects the parties will present evidence that was operating purported medical marijuana dispensary and so he was free to present whatever he argued whatever evidence for g operation he wanted he just wasn't allowed to make the legal argument so he had his shot his chance to try to prove that he was in compliance he did and he could on this record to the record stablish it was a for profit venture these quote donations unquote were really sales transactions the employees testified that they weren't actually growing any marijuana they were obtaining the marijuana from wholesale suppliers that precluded from being a collective garden cut the guns aren't even allowed to sell quote cannabis products the collective garden statute at issue allowed only plants and usable marijuana so all of these gardens to the extent that they sold anything beyond plants and usable marijuana were non compliant just curiosity under today's state of the law regarding the legalization of marijuana here in washington with his conduct the legitimate today would be lawful that it wouldn't be lawful to mix it up a license i mean if you would qualify for licensing and he complied with all the licensing and regulatory requirements it would be but it's not he was not a licensed obvious you can't you can't run a a dispensary in the fashion that he ran today and have it be legal because it wouldn't be licensed mr morgan could i ask you to clarify one point on your theory when you say and evidence you're hearing wasn't needed here are you saying it wasn't needed because it's not required or are you saying that it's not needed well because of harmless because even if one's needed it's a harmless  the other evidence in the right what i have been argument essentially that it would be harmless conceding that compliance with the affirmative defense would constitute quote strict compliance within the meaning of mcintosh the government actually disputes that point mackintosh itself defined authorized conduct as conduct that if the state does not allow for prosecution that's the actual language in mackintosh on page eleven seventy six if a state law allows for non prosecution it is authorized to conduct washington long never allowed that washington law at the time relevant here allowed only an affirmative defense the washington supreme court has clarified that at the time period issue the possession sale distribution of medical marijuana was a crime in washington it has all it was always a crime it just admitted an affirmative defense cannot that admits of affirmative defense by definition can't be authorized because you can't authorize someone to commit a crime it's conduct it is excused there's a legal excuse for it but the state is free to prosecute the defendant for that conduct and under the definition that the court adopted in mackintosh that means that conduct was not authorized which means the writer was not even implicated and for that reason a hearing was not necessary but the could just probably fair to say though that if mcintosh had been on the books at the time he moved to dismiss no macintosh was on the up at the time at the time oh no not that i mean with the design i suppose you're correct your honor macintosh didn't come out until after it was the motion for reconsideration of the i suspect that if it had been on the books the district judge probably would have granted him an evidentiary hearing at that time prior to trial i don't know your honor i would say not i think judge leighton was well aware because we made this point in opposing the writer initially and didn't have the advantage of macintosh that no i understand the motion to dismiss and you know no i understand but i think our point is that whether or not a hearing is next could have ordered a hearing out of a bunch of caution caution sure but there's also the very real chance that the court would have read mackintoshes the government has which is that since washington had legalized marijuana the writer was an implication in this is that we did present that argument to the judge so it was before him but in any event the court really doesn't need to get down to go down that road because you can easily affirm harmless ms jones you've kept some powder dry for rebuttal or you thank you thank you judge girl i'd like to address the argument of the government that the writer doesn't apply or isn't implicated because medical marijuana was not legal at that time four points to that first congress clearly included washington state in the a numerated states in the writer that has to do with states that are trying to implement medical marijuana laws second there are no cases interpreting the congressional writer that supports the government's argument and finally the significance of the state supreme court case that the government refers to which is state v recess that said as the government reads it that says meant medical marijuana is not legal in washington what that case was actually saying of significance is that a defendant cannot bypass an evidentiary hearing to bring forth his affirmative defense and what reese was trying to do was bring a motion to dismiss before he had brought forth evidence of an affirmative defense that is exactly precisely what mr gore is asking the court to do here is to give him the opportunity of an evidentiary hearing so that we can figure out if he was in compliance with washington state law which you already have a context of due process it seems fundamentally unfair that on one hand the district court says an emotion in lemony i don't want you to bring any evidence that you are in compliance with washington state law and on the other allow and  the prosecutor below said your honor there's no reason for us to bring in evidence of compliance because this is a straight title twenty one charge it's just federal law and it's illegal but as this court recently said in kleinman even though they were applying that case to someone who eight days before the writer took a fact had been convicted so it didn't apply to kleinman and on january twenty second of this year  a couple of weeks ago kleinman restated based on macintosh that when the congressional writer took effect the department of justice was obligated to stop suspending funds in connection with charges involving conduct that fully complied with state law and here we have not had an evidentiary hearing to determine or talk about harmless error and we're asking you what are you going to produce there's nothing in your brief that suggests that you have that evidence why should we why should we not rely on the record that already exists when you're not giving us anything more because at this point to apply washington law should be left to those details should be left to the district appellate court should not be determining the application of washington law that should be done at the evidence or a hearing with a district court and it seems fundamentally unfair that he's barred from doing that yet the prosecutor as i was saying a moment ago said there's no need for that because it's just title twenty one i referred you to kleinman to that specific arlie to emphasize the point that had mr glora had an evidentiary hearing and then they proceeded on the title twenty one action mackintosh provided the process by which this should happen you look at some of the cases that were consolidated in mcintosh we could speculate they were way beyond and outside the scope of what the state law required but yet and due process required that they get to have their day in court to prove whether or not they were in compliance here he's barred from even bringing that and the prosecutor conceded that below we're just bringing title twenty one charges here are that is what mr nobody told judge leighton there was any other questions from the court and i would like to just take ten seconds to close to tell you that at issue here is the requirement to follow congress intent in that rider congress numerated washington is a state that is trying to a legalized medical marijuana the federal government should not involve themselves in that when they're prohibited by a congressional writer to spend funds until that