believe that under controlled substances act itself that our clients fell under a practitioner's exemption and should have been excluded from liability under the statute from criminal liability the second argument we filed the motion to dismiss argued they were in compliance with the matter with the michigan medical marijuana act i think that would have fallen under the under the umbrella of that argument but it was it wasn't specifically vance that's true interpretation argument if it gets a little it's a little complex i don't want to walk the court necessarily every every single step of it but the definition of manufacture under section eight zero two fifteen othe controlled substances act is the production of a purpose a privilege drug except for preparation in conformity with the pluggable state law by a practitioner as an incident to his administration of such drug in the course of his professional practice bearing on the on the case whatsoever as a matter of law so under the court's opinion because the michigan marijuana provisions could in no way supersede the controlled substances  marijuana generally it was addicted player to reaction and one for injunctive relief so was that it wasn't a situation where you've got the government making it affirmative action to enforce the laws and i think that's important because it confer subject matter jurisdiction on the court and in this case our position is that the manufacturing element of the crime because our our clients fell into this exemption they were there but they were exempted from criminal liability under under the control issues related to compliance and i don't think all of the ways it could have been used effectively were explored and it's a if i mean they were they were clearly guilty of possessing and and growing marijuana so that they there's a whole separate section under way of appeal one collateral tax by the defendant and it speaks completely in terms of sentencing and it's i think analogous to the bell case where in a footnote this court said where there's an appeal waiver specifically that speaks only in terms of sentencing that traditionally would not would not preclude you from from raising challenges to your conviction now in that case they ultimately granted the motion to dismiss because he was trying to challenge a pretrial motion which which wasn't allowed but that's what we're challenging here we're challenging the conviction on different grounds and i agree that there is a preservation problem but i think if you take a close look at the  the language that of that medical marijuana act that there's there's an exemption on the that controlled substances act i mean there's there's there's no crime there's no federal crime there with all these to be laid out in the  defense and i'm somewhat sympathetic with your overall view in the sense that i look upon marijuana more like alcohol do some terrible drug but the problem is you well i mean the case started legion though that suggest if you if due to a ruling by the court any any further argument on the topic would be futile that i mean it was a categorical rejection of anything related to the west michigan medical marijuana so should it have been raised in a motion to dismiss properly absolutely but once that happened there would have been opportunities down the road to make the argument that i think were were shut down you would have made jurisdiction and personal jurisdiction you know you're not precluded just because it's a question subject matter jurisdiction or making a record of right but if if the i don't know whether you know i don't know anything about how we should decide the jurisdiction or even in the absence of any real record on this but we could we could certainly approach it from from a defect from the standpoint of a defective indictment that would have considered conferred subject a this is a criminal action so we've got a further encroachments on on the right traditionally left in the states you know in a race that was really just the medical the medical regime and how that  end all challenges to the sufficiency of the indictment one issue of non waiver might be subject matter jurisdiction which is why the defendants brief is sort of shelled in this coding of subject matter jurisdiction but the government believes that the defendants underlying arguments as to subject matter jurisdiction are not valid and therefore he really has no subject matter jurisdiction issue then it states that his first is a matter of statutory interpretation and the statute in question is in the controlled substance where it states that the term manufacturer means the production preparation propagation compound or processing of a drug or other substance either directly or indirectly by extraction from substances of natural origin or independently not include the preparation compound ing packaging or labeling of a drug or other substance and compare me with applicable state or local law by a practitioner as an incident to his administration or dispensing of such drug or substance in the course of his professional practice and that's title twenty one united states code section eight zero two fifteen and it is the government's position that is merely a case of statutory construction that the court can clearly see that production and propagation meaning the growing of marijuana is not part of that exception for practitioners the government does not believe that the defendants meet the definition of practitioner within the controlled substance act but even if the court were to find that they didn't meet the definition of a practitioner under the controlled substances act even practitioners are not allowed to manufacture marijuana under the controlled substance of this has gone into in the court how much of the argument about medical practitioners state and federal problems were gone into words sport in the court below your honor the government actually raised this issue in its motion in limine made that motion in limine a was filed an outstanding for two months the bennetts never responded to the motion in limine name on the day of the final pretrial the defendants filed their motion because you are a member is that they were going to do just basically argue respond for two months in fact never responded the defendant bears the burden here before them they then they pled guilty and the court below never ruled on the problem when the court didn't rule it in a more generic way in its order on the government's motion in limine way and on the defendant's motion to dismiss or alternatively leave lee to bring this up they never raise the issue that is raised before the court now the issue of whether or not they are practitioners and whether or not they were legally operating under the michigan marijuana act which the government states they were not and it's clear in the record they were not mr mar has a prior felony drug conviction for cocaine he is barred under the michigan medical marijuana act from ever being a caregiver which means he has no rights under the michigan medical marijuana act to grow marijuana to manufacture court no the record is clear because the conviction is there and mr marson q excepted that conviction in the pre sentence report and it was filed with the court the certified judgment a conviction so there's no question that it exists and that he was not entitled but the specificity what what the defense argue repeatedly in their brief is that they were legally operating under the michigan medical marijuana act but they were not we wouldn't be here if they states a federal crime manufacture of one hundred or warm marijuana plants marijuana is a controlled substance it is a regulated federal crime the defendants want an exception by stating the exception that they want it's their burden to prove they have that exception they make no effort to prove that they've created no record below they continue to assert or search here before this court we were marijuana is a controlled substance and under ration is the ability of congress to regularly this has been determined and they have not shown any deficiency in the indictment asked for the crime that they voluntarily pled guilty to a new way he's got the subject matter jurisdiction problem raised him in  we should always decide that right that it can't be waived whether theoretically it he would charged with a crime this wasn't a crime we would always want to correct that issue correct i mean that's the reason the court says you can't waive it but in this case on the line his argument is the fact that he doesn't he doesn't even meet the criteria and the record is clear below he doesn't even meet the criteria that he's relying of how to argue this to you i think of it more of as an affirmative defense you how the law and there are exceptions in order to meet that exception is his burden to bring forward the exception it's his burden to lay the record to prove that he is subject to that exception that was never done here this whole argument that i'm a practitioner under the controlled substances act is raised for the first time on appeal he hasn't laid any foundation below and i don't think that you can make now if it was purely and a legal issue that this court could decide by looking at the terms and saying yes he's a practitioner you could make that argument but i would say state that in this case looking at statutory construction using just normal statutory construction rules you can you can say that legally he can't to be a practitioner because the controlled substance the civically excludes propagation meaning the manufacture of marijuana from practitioner court on appeal for the first time that they've they've made it extremely clear that it's it's something that can be written and we do here hold a hearing and let people come in and testify or whatever it takes here to determine  whether there is now subject matter jurisdiction i mean i just asked that question as a sort of generic question why if you haven't raised it properly in the district court and raising it properly in district court work hours putting on some proof that would show the basis for the absence of jurisdiction why haven't you exception for the for the preparation for the distribution of it and other terms that are only factory yeah the terms of the terms overlap i mean i think there's a book there is it's a venn diagram i think there's plenty that interse