morning good morning or good morning your honor sir i would like to reserve three minutes of time for very well well well my briefs are very long in this case i don't believe that my oral arguments will i'm going to be concentrating today issues one touching on issue two which is a five hundred and thirty eight dollars appropriation measure and then turning to issue six which is the unreasonable most of the sentence i will of course be available to answer questions on any of the remaining issues my focus today i think is going to be issue one which i think to a certain extent has been an issue that has somehow been lost to the pages of legal history but i believe that the trial judge committed reversible error in excluding evidence of the my client's belief in legality of his conduct once the government shows to proceed on a conspiracy theory in cases which are malum prohibitum which i believe marijuana is a mistake of law be it through the advice of counsel or otherwise is in fact a defects the powell doctrine which has a long history in american law and i have now it has been a chris somewhat criticized back and survives today the level generally d which adopted well there is the case of one thousand nine hundred and eighty and a united states district court for the western district of michigan which died which did follow and so that will be within my lifetime ergo the last fifty years i mean it is it is it odd that they doctrine hasn't substance act state that it's been over oh he doesn't say to a chapter and verse and there is no case that is published that goes to the contrary and that job in pork doesn't mention it but in that extent and i guess i'm importing a british special here i believe it is per incurious i would break aside and say it even if i lose on this issue i would ask for publication are less willing so that i am the only one who has to go down this firing when i st started it there's no six circuit precedent that's over ruled it but the doctrine is if the supreme court decisions are contrary they abrogate  our decisions and why why isn't our doctor in here abrogated by supreme court precedent well my question would be which supreme court president clearly just a stone did not like  and firearms case ok so counsel i would point you st saw there's the supreme court's decision in ingram which involves conspiracy to evade and feet payment of federal taxes on lottery operations also i would assume malum prohibitum and in that case the supreme court's as there need not of course be proof that the conspirators were aware of the criminality of their objectives so ingram seems to be a supreme court case and intervening sprinker case in venice not cited by the government the government doesn't drop this case to our attention or the feel of case but that does suggest to me that perhaps i was under the general conspiracy statute that perhaps supreme court doctrine has intervening supreme court doctrine has overruled landon how would you respond to that i would ask for an opportunity to file a supplemental because the government did not brief those cases and i would go into the graves i would look at how it was briefed and i would answer it accordingly your honor what i would point out is that in this case my client had a number of state court stating that he was compliant there were there was evidence and which a reasonable person could believe that their kind don't was legal  ask let me ask this question so even if we thought that landon is still good law and you're right there's no th circuit precedent overruling or distinguishing landed lennon seems to be a one trick pony but a very old one  big u s so there you have this very complicated way of measuring the amount of liquor that druggists could dispense for medicinal purposes during prohibition  the court spends most of its time focusing on how complicated the statute was and how anybody could reasonably be confused about how to measure what's complicated about the controlled substances act that says you can't possess was whether or not this was a defense for purposes of the conspiracy to have the asli as a veteran of the michigan supreme court i think your honor st of all probably thought the moment that you got promoted to the federal court of appeals you would never have to  another michigan medical marijuana case but secondly ings state medical marijuana laws by definition are two speakers a make three left turns to avoid making a right turn they speak in the negative any ambiguity even that could arise from section five hundred and thirty eight dollars even if we thought that the appropriations act affected the merits of your claim that doesn't come into play until two thousand and fifteen right i don't believe it's in a the act it in here the statue speaks for itself and i'm sure mr faustine will be happy to correct me if i'm wrong but my reading is that it retroactively protects thirteen reasonably would have known that his conduct was in violation of federal law whether there was any ambiguity about whether his client whether you were in violation so even if we and reasonable miss my client was sentenced to a set for instead of over fifteen years for the sale of marijuana in the quantities that would be legal in many states which the more it would be was recently answered by this court in directly jones case where they pointed out that they do not have the voting form to do that so for those reasons i believe that the sentence is reasonable there are many people who are selling the exact same quantities of marijuana and are totally protected right now with fifty seven seconds left on the clock i will yield for any questions equipment have i did a further questions judge and judges mr friedman has asked permission leave to file a supplemental brief to address a supreme court case that was not cited by the government i would be inclined to grant the motion and give him five doctoring stands for the role that ignorance of the law was or mistake of law is really no defense to criminal prosecution except in very few women and instances and those instances are typically tax court you know  convicted he was convicted in ten total comprised of those substantive offenses and so my adversaries arguments with regard to landing and having this heightened mens rea are needing to be grafted on the conspiracy t show corrupt motive have simply no bearing on the remaining nine substantive offenses which mr trevino also was convicted in one of which also carried a mandatory minimum sentence of five years in prison the quote general rule that ignorance of the law or sick of law is no defense i think what mr friedman would say is well there's a you might be the general rule but there is a specific precedent on point land tha is enough where your honor i respect that that question certainly and in why it's being asked i think with respect st of all i wouldn't concede that controlled substances offenses are necessarily m prohibitum i think my adversary is trying to treat marijuana differently and i would know that although certainly i would acknowledge that there are changing societal views certainly that are coming through various state legislatures as to how marijuana should be treated congress has not changed from being a schedule one controlled substance and so many of those authorities that are being cited to that effect i think the court simply shouldn't be the crediting given that state law defenses are simply no no defense to federal criminal prosecution based on the supremacy clause of the supreme court's i decision in allison in  i'm sorry i asked the question you have heard it now i want to get you on something else absolutely can you talk to me about the appropriations issue so your response on the appropriations issue is that the appropriations bill the text of the bill doesn't cover this conduct because it applies only to states as states as opposed to applying to individual that might or might not be right but have a slightly different question or concern and and but it is whether an individual can even assert that it's standing not as an article three standing manner but as a sort of cause of action matter what gives an individual the right to assert an appropriation as either a defense or as a reason to enjoin a federal prosecution or to dismiss a federal indictment and i wonder about that because the n t deficiency act has its own set of remedies for violations of appropriation was right so the n t deficiency acts as that if federal officials violate appropriations they spend money in excess of an appropriation once it's discovered they have to report to i think it's to the comfortable in general there are disciplinary actions for officials who do that there are even criminal prosecution for officials who do that i want to know explosive remedy and we don't often infer remedies especially where congress has already created them so the macintosh opinion doesn't deal with this either wondering if you have any but i'll try to unpack that your honor i will at least admit to you right now i didn't brief the anti deficiency act i'm not entirely familiar with it i think what judge maloney in the district court got absolutely right assuming mackintosh would provide a litigant a private remedy or privately to give a remedy such as an injunction again our position is that the th circuit expanded mackintosh well beyond the plain language of its statutory meaning but to the extent if this panel war to rule that mackintosh could be applied in could be used by a litigant such as mr trevi o that it is simply an injunctive remedy because my understanding in researching this is that there is article three standing for a private litigant to bring claims based on violations of the appropriations clause of the the appropriation in strips the five hundred and thirty eight section off there is no there is no remedy anymore and so at that point it doesn't actually get dismissal of an indictment i would argue it simply shuts off the government's ability to spend funds to do it if we were i'm clearly i work for the department of justice in the system united states attorney let's say for a hypothetical i work for the department of homeland security is in some prosecutorial division mackintosh and section five hundred and thirty eight would not apply to me whatsoever it simply prevents the government from spending funds of these th circuit  have determined in ruled that it doesn't prohibit the government from spending funds analytic getting an appeal so i think this is this is an issue where the th circuit has gone well beyond what the statute intended  which is simply to prevent the federal government from taking actions against the state itself so i would concede that if the department of justice and the drug enforcement administration were going out and prosecuting  people who worked at the michigan medical marijuana registry and state officers registering patients under the act and handing out caregiver cards and doing the administrative functions of the act we would be preventing the state from implementing yeah in my mind in our argument is this really gets to a distinction between preventing something and having the possibility of interfering with something is that getting to the definitional level d of of those two terms it certainly is but prevent is used in the appropriations act in our argument is d that the th circuit went too far in claiming that private living in such as mr trevino would have the ability to enjoin a federal criminal prosecution on the grounds that trying to prosecute them for  marijuana crimes would actually prevent the states from implementing their medical marijuana laws i would further note on this point just to close is that there is absolutely no mention of the controlled substances act in  either under the constitution or i mean i don't know i'm sure what ed so i'm struggling other than mackintosh itself is do you know of any other case in which a criminal defendant has been allowed to join federal prosecution on the basis of an approach from the changes to follow mackintosh in the th circuit if i looked at this yesterday to to be ready for this argument no other circuit courts of appeal have a job tooth mackintosh well they haven't adopted back in touch but has has anybody i mean the output of the for ill we have it with respect to marijuana and what congress is doing is telling the executive you you can't enforce th aside whether there is a claim for injunctive relief here d i would submit there is not based on the plain language of your preparation statute based on the record in this case and the evidence that came in a trial i think th can find it because the court is allowed to decide its appeal on evidence that in the record then mr trevino was nowhere near in compliance with the michigan medical marijuana a trail evidence was submitted that he law then the drug enforcement administration and federal agents searched him even after they did that in may rd of two thousand and sixteen he continued on for two more years and so a theme of this trial was he never st instead o after i was done with my directed cross examination of him bringing that issue out the fact that he this point having having knowledge and being put on notice that what he was doing could not be legal because of all these searches point i said your honor if that happens then i should be allowed to raise mr trevino's prior felony drug convictions which exclude him and preclude him from being a caregiver under the law which by the way only allows him to possess up to two dollars ounces of marijuana for up to five patients that he is specifically linked to under the michigan medical marijuana race instead he was growing in cultivating marijuana in purchasing it for distribution on an industrial scale so regardless of whether or not the individuals purchasing it from him at his dispensaries were registered and had michigan marijuana patient cards or not  that would not have wrought him into alignment with state law and for all those reasons i think the court can fine if it decides it wants to pitch the five hundred and thirty eight issue for a case where somebody in the future might look to be more in compliance with the law it can decide this appeal based on the facts in the record alone mr trevino was not in compliance even though that was not initially true ok all right any further questions for the government  prevailed on which i think may have reinforced his belief was above board that they couldn't find anything and that's one of the reasons he actually believed that he was position because i'm a veteran of many of the cases in michigan that have shut down dispensary is when people have tried to argue that they were illegal so having been in the weeds for so long the legal weeds i don't statute a tax about primary caregivers and what it doesn't address is whether there is secondary carriers and people who can provide assistance that are given to people and given immunity for assisting at least patients we're not sure about i think twelve years old that have not been resolved under michigan's medical marijuana law but this is of course not a state court and that really doesn't matter should the court not address the five  eight issue but have doubts i would encourage the court to at least put it out there to suggested so that meant many other american marijuana providers in the state of michigan and their pervasive or least and some notice so that if they continue they're doing so at their own rest because i think that here is a widespread belief in michigan that they're protected and as a lawyer obviously i see some of the problems with this protection but there are many other warriors who think