my remarks here primarily on of course the macintosh issue which we did the supplemental briefing on and and time permitting the motion to suppress issue and of course the court has questions on the other issues and time from it we'd be happy to address them i just start off at least from my first she issue it seems to me that based upon our case do with the good part of your client's claim depends on whether he was in full compliance with california's medical marijuana as a way that happens is if we send it back to the district court for a hearing to make that determination you grew with that yes you know i mean i think seems to me the question is still open well it is a little bit different it's got a narrow mom the d o j action is prohibited through prosecution that's the language so is this appeal part of the prosecution i would say yes your honor i mean traditionally that conviction is not final for example for ed but purposes or many purposes until the appeal is concluded and certainly funds continue to be expended in this litigation and in mr current climate as incarceration so and i think actually look at the terminology at the trial you prosecute at the appeal you bring an appeal and at sentencing you serve a sentence so you wouldn't say you're prosecuting a sentence when you guys in jail you'd say you're responsible for serving the sentence on appeal you don't usually say i am prosecuting an appeal i am prosecuting him by an appeal you say we are defending an appeal or bringing an appeal the prosecution word is punishment in fact the court has used that word as well and the point of mcintosh is it does interfere with state medical marijuana lies if the federal government continues to punish and issue is being addressed i think to some extent in the davies versus been off case which was just argued last month before this court but that's not presented here and davies that the conviction was  it was a motion basically for collateral relief in that case and they had discussed petition to be released and that does raise a thorny question does the court have the authority to do that very interesting issue and very interesting arguments but not presented that was all done before five forty two all you're doing now is pursuing the appeal and as i have thirty eight is not apply well and two part answer i don't think the court has to wait for davies because this is sufficiently different i i worry because the avi's is really all we all they did in davies different than this is it was a conviction it was appealed it was lost well well correct i mean all that's the only difference well it's basic and difference you're going to understand that's what i was why i'm kind of pushing you just a little bit here we have the conviction we have the going to say that but all i'm trying to do is i'm trying to just press you just a little bit because adam minimum that's that's a big word that's the question and punishing individuals the appeal is really that it's really the question well certainly the continuing incarceration does punish the intervention you think incarceration c go along shore for sure is the next and i think that's mr davies right my question was i wait for davies or can i make this decision because or can i preempt navies and just say once once convicted once sentenced five forty two is over well i think this court could could i would say preempt i think that would suggest maybe an impr trying to flesh out this law i mean time mr kleinman is in jail have argued that he should be released that a matter that ought to be determined by the district court for instance well that again going back to school today the court that's not by an exactly but i do think that the court was a was well it was roe reasoned and that the issue is you can't continue spending funds right macintosh hearing because we are men whether or not your client was in full compliance with california's medical marijuana regime great so then we have a very different situation the macintosh hearing and the district judge determines that he wasn't in compliance then all the all the davies other issues go away they're just gone because you got a person who's had not complied with california law is in violation of federal law end of story but if the mcintosh hearing goes on in the meantime your clients in jail and my question to you is in the interim period while the here in occurs and so on district court to decide whether he should remain incarcerated during that period obviously if he is found to have fully complied then we run into some of the other problems that my colleagues have pointed out what is your answer to the question about what happens to his and incarcerations status well i think this court order has released because i do think it's a question for this court it's a legal question can he stay incarcerated this determination is beyond me but we don't know whether he has violated because medical marijuana law if if he if he did then he is lawfully incarcerated there is no problem mcintosh he should stay in car straight right it's no reason to let him out of jail what i'm saying is until that determination is made who should make the determination whether this is circumstances shouldn't be the district court after question i mean think mean this is a nuance that i think was risky given well there are some things to be considered i mean that that was something i was going to add to my good colleagues question why is that question any different than the bail question which wouldn't make up here because i'm not sure it's punishment we don't know whether it's punishment or not might be just a question especially given that he would have a conviction he would be a different flight risk than weis why is that not like a bail question that i ought to send back to the vista court to make in the in the city well because this is a very unique situation really and it's unique but it's on the on what i characterize his present incarceration i said as punishment and i might lean toward maybe i need to make the decision but i if i don't characterize it as punishment i characterize it as i don't know what it is and therefore maybe it's like a bail why wouldn't i send it back the district court just well i think because the nature of the appropriations action here th the government spending money and that's the violation and itself the government only under mcintosh if you was in full compliance the california medical marijuana law and that's why were hung up on this issue it if it were a given if it were very clear that the government could not spend money on this what we call five forty two and that's a different issue but here we don't know we need to find out whether he's violated that laws on the interim cannot spend the money until unless until there is a determination regarding stock imply and why didn't you got it backwards i mean basically normally that it's their role to provide you prosecute carry things on a under the macintosh case by forty two doesn't even apply unless he has been with the medical marijuana law i've said on a number of cases not the so in the california one where people have been selling drugs out the back door clearly not compliance with some of the state laws that they've been dealing with and there's no problem with those at all that was standing the existence of the statute so here we are in kind of ecuador's we don't know what he has to determine that but and it is your position that we have to assume that he was in full compliance and pretend that they can't spend anything until this issue is resolved is that your position where you are i do that was the direction that macintosh was going here which is that you cannot become a cannot use a prohibition is a prohibition a department of justice activity so until the government can show that they are not within that prohibition then they cannot act so i do believe that obviously macintosh allows them to litigate the macintosh he lost his convict mean there was some defenses that he couldn't he couldn't put together but nonetheless he lost well he lost but there but he was precluded from litigating the state law compliance issue and that so that is why the remount is required i mean he did not have any opportunity to litigate that issue the court made no finding on that because the corporate clude of the issue and in fact i'll just quote this opening with the quote for a quote from the corps this report which indicates exactly why we need the reem and the court said if we were across the street in state court this would be hard man we would have a lot of stuff to deal with whether or not all the intricacies of state law have been complied with so that exactly the court the district court in south recognizes is pretty mackintosh but recognize that if i had to make that decision that would be a really hard honor when a defendant uses a new statute to prevent the enforcement of a previously entered judgment and sentence that is a retroactive effect when a defendant uses it  i get your point in some things but there are ongoing expenses in the past i get your point but their ongoing expenses your being here is an expensive cars ration is an expense there are all kinds of ongoing expenses forward looking you're not arguing are you that that's a retroactive application of the statute i absolutely am i'm doing it for three reasons i can remember what they're trying to do here your honor they're trying to say you can no longer in force the judgment the district court issued this person was sentenced to a crime and under the general saving statute any diminishment of a punishment any diminishment of a liability brings in application of the statute so these timing issues is exactly what section one section one zero nine was designed to do you're not making a constitutional argument here or you are retroactive application of the statute to the detriment of only as defendant argued in their reply brief to repeal as the supreme court said in the dorsey case it says case law makes clear that the world or word of p repeal plies when a new statute simply diminishes the penalties that the older statute sets forth no nothing can more diminish a penalty then in this case where the defendant is asking for dismissal of the case for the defendant is asking for the incarceration to stop it's clearly a diminishment of a penalty a liability of a forfeiture therefore there's a retroactive effect therefore as a matter of statutory interpretation the general saving statute comes in or the general rule against retroactive application of a statute which is separate and apart but they both come to the same point which is unless congress tells this court and in the course struggling with these difficult times as well what do we do this new statute has come up  implication from their argument now i concede that macintosh did not address these retroactivity questions similarly the davis case did not because in those cases the government was focused on the pressure the issue decided america did apply to prosecutions at all in this case we thankfully you gave us the opportunity for supplemental briefing as you can see our initial brief was focused on that same issue does does there are preparations right apply to prosecutions at all but because you've given us a chance to supplement the briefing we're showing if it does apply as macintosh as it does who does it apply to and when does it apply as issue waived by chance no it's not it's the political rule of law and you've of that the rider should be applied only prospect of early but of course again following what we thought was a good decision in the all of case we thought that the writer would apply to prosecutions at all that it would be focused on the authorization of the state and we lost that argument and macintosh but it's fair based on the new law for us to say well macintosh does say it applies to prosecution but does it apply retroactively and the answer is no and all these continuing appropriations do have a retroactive effect because what the case law for the general saving statute says and that's the supreme court case law in dorsey in a number of ninth circuit cases this is it's retroactive if you are diminishing a penalty if you are changing the liability of a criminal defendant and that liability goes back to the time of the criminal transaction that's this court's decision in the vandenberg case which is in the same line if it's in the dorsey case then that is an interesting argument because ordinarily if if the statute is addressing conduct that individuals can or can't do you would go back to when that conduct occurred yes this statute is different this  is not reporting to regulate conduct of what this defendant did it's purporting to relate to regulate expenditures on on and going current real time basis of the government so the it's quite a different  retroactivity analysis than the one you're just postulating not exactly your honor in the sense that by regulating the government's kind of as it were working on the interpretation of this appropriations writer and macintosh when it's saying that it can prevent the government from moving forward with  prosecution that's the real world thing that we're dealing with the if that is the case then what is the consequences of that for a defendant raising it as a defense and it goes back to the same principles we have it is diminishing a penalty or a liability it has a retroactive effect and but even if you do you say it's not part of legally it's not it doesn't give the definitive get outed i mean it may give the get out of jail card but it didn't give him a you're not guilty cord well that's what they're asking for and it's certainly giving a suspension of prosecution a suspension of his criminal sentence all of these are exactly those if we can maintain the appeal you'd have to discharge the conviction so you are right that he is asking for that you are now here by declared not guilty or at least not yet found guilty and i would say the fact that we can maintain the appeal is a retroactive effect on the meaning of the original notice an appeal in this court's normal standing orders for how we you i thought about that as i was contemplating this goes certainly a big issue and i just say ok we'll hold this appeal and remain and for this hearing i don't think you should for two reasons well that would eliminate what you're really saying no i don't think so your honor if he's to reason i'm not going to eliminate the appeal at that point it's still on my desk judgment is not changed it's still on my desk there's nothing that's been changed i'm just sending it back for this theory and move on let's be fair would suggest you shouldn't do that for two reasons your honor first you shouldn't be remaining for hearing on an appropriations rider that doesn't apply before you are the arguments as to whether this rider applies to this case and it's been well briefed and well joint it is the correct rule of law as we argue it to you you should decide that threshold legal argument before you remain and based likely untrue your honor because the same issue of whether it applies retroactively would still be had to be decided and we've again briefed to you it's well set in the record as well clear for you moreover as to and there's no need we have as we argued also in a supplemental briefing this is unlike macintosh not just because macintosh didn't address the retroactivity analysis it's also unlike it in terms of its procedural posture remember mcintosh comes to us on an interlocutory appeal is the silex ab unpublished case also comes to us based on just a plea agreement here you had extensive litigation on the state law issue and i want to just correct something the record from the defense counsel presentation that quote from the district court comes from the earlier trial phase of the case when he's just talking during the trial but nothing prevented the defendant after trial from fully presenting any evidence they wanted on the state  fact they tried to do so remember these further excerpts of record that have been prevented you were presented to the district court at the sensing face showing purportedly that he complied mistake law there was the district court also heard he had before him all of the business records that you have now before him and he found quite clearly at sentencing where there's no prevent nothing preventing the family from bringing anything they want including a declaration from the defendant as they did in the suppression hearing saying here's what the evidence is and then just in just a quick clearly found that state law did not apply and said it again pending appeal all those things are those all in the record yes or could we look at those things without a further hearing even better for the government now because mcintosh had the standard of strictly complied with all a political state law strictly and fully complied with just a court was just making a typical sentiency judging a preponderance of the evidence there wasn't even that evidence of that in the record but what's not in the record is my response to those things and i'm entitled under this year two points for that your honor one and i don't i do want to leave some time for my co counsel but i do want to dress of course questions one as we s forth in the brief he conceded some of his violations of state law for example he as we pointed out the exact record citations he conceded in the district court that when he was selling to known drug dealers in philadelphia and i believe it was new york that that had nothing to do a state law and even on that fact given that macintosh requires strict compliance with all state laws not with some exceptions not mostly not nearly all fully completely based on that concession that i do i know if that's all you're talking about now is what you put in your supplemental brief i've got it yes and we i will tell you also we did reference in our opening brief some of the additional violations of state law in the supplemental briefing i just put the most clear example they conceded point from from your perspective what you put in the supplemental briefing is in a self and nuff to clarify that there was not complete compliance with the state medical marijuana regime end of story we don't even need to get to the retroactivity issue because either way he does not get the basic of the five forty two doesn't apply to him that's correct you could go that way conviction and the sentence correct so that would be the legal issue but with you can do the factual determination on the lack of compliance the state law under mcintosh the lack of strict in full compliance based on the record before you even merely based on the concession and i set forth in a supplemental briefing this court's precedents which shows that you don't mcintosh it didn't throw out all this court's presence and when you that evidence you're hearing when the record only has one result when it's a perfect complained about was that the detective had to fill out a form for membership that stated that the dispensary was his primary pet care giver  f that it's a known shia it actually says that in the attorney general guidelines which are in the record the a patient or customer who goes into one of these medical marijuana stores is not by signing a piece of paper able to say that person is his primary caregiver and the reason for that your honor is because under the california state compassionate use that there's a very strict definition of primary caregiver which has to do with ongoing care for the health welfare and safety of the person who is designated the patient so in this case and in many cases  in california state law there is no exception for when a a person goes into a dispensary and claims that they are turning over the responsibility for primary care giver to that store that is that is not legitimate so in this case there were a number of factors mangrum nor his partner had any connection with the with the store they walked in off the street to purchase marijuana they asked three times where there was anything they had to do to participate in the collective they presented fake i d s and doctors notes they had a conversation with a clerk who even said to them if the state didn't want us to sell marijuana then why do we have a sellers permit instead of a barter permit an additional information that was included in the affidavit was it mangrum and his partners spent approximately ten days observing the store the store required members of the collective to designate the store as its primary caregiver it had a business license they they stated that and it had security guards the operator of the store had filled out a hardship temp application for the city of los angeles and utilities were registered in the name of the state of the store owner all of that was included in the affidavit so the mere fact that the is left out the specific information that he had to fill out this application for membership in the store is not something that would have cause the to make a different determination about the validity of the search warrant and they also called the old to the fact that this nobody said the security guard checked their i d s on the doctor's recommendation also complained that the security guard allowed each to enter the back room and make purchases and nobody said anything about that that while they were admitted to the store yes that's correct but that was and that was in the wire gate and the actual store itself and they even said they went into the store and there were jars of marijuana and there was a clerk there and they had a conversation with him and so on and so forth so russian colleagues i think your time is just about up i realize that you all had a lot to say we've had a lot to read so thank you for your thank you for your argument and counsel you have some rebuttal time ye change in the substantive law the controlled substances act still exists congress recognizes that it's still out there the penalties remain there's been some talk of changing that or reducing in this good rule that hasn't happened as of yet but instead  say that that we're here by saying that the cure not guilty of a federal crime if you participate in state controlled marijuana activities exactly didn't quit doesn't say you're not guilty all  if i were in this particular situation to reverse and remained seems to me at that point you're suggesting th defendant is not guilty the defendant should be able to be free to have any problem and yet you suggest that the general savings clause statute does not apply i look very carefully at the language of the general savings statute if i'm reversing and the defendant is now not guilty and he's allowed to go free decision to keep him from any punishment which will be that he has to stay in jail now during the hearing until the hearing all of that i'm i mean when i read the general savings statute and i tried to look at how it would be applied i said to myself under statutory interpretation i'm traveling to tough time knowing why i why this isn't a violation well i mean i remains to be determined in the mackintosh hearing whether this prosecution can go forward but regardless actually what you're saying if that's really what you're saying and they go back and they say then why am i worried about whether he's in or not if all we're worried about is going back and having a hearing because the only way you make your argument that i ought to get him out of jail is that now he's not guilty and i'm talking our ashes it's because of the with state law then i think that the inclusion way that the writer does not have apply i mean we would presumably appeal that determination but they would not have to then we tried the case now that would be you know their conviction could stand on this ground i mean we