address is the burden of proof issue i think that is the most important thing to decide today the burden of proof as applied correctly  puts the onus on the defense the issue that we saw in going through the state law to determine whether or not we had an affirmative defense was  at the onset to show compliance and because the burden of proof is a state issue and because compliance is an entirely state issue we propose that upon an initial or a threshold showing that one of the affirmative defenses whether it's in whether it's in a common law to fans whether or not we can show that initial showing that our clients  why shouldn't we simply apply the standard burden of proof as plaintiff you are seeking to give an injunction the plaintiff has the burden of proving every moment of the normal that and then also looking at the previous holding that this court and the previous opinion that this court held showing a strict compliance by a preponderance standard is the tussle  here because that sets up in a possibility for the defense in looking at our clients well our is your problem really with the strict compliance language of macintosh because we're bound by our point the language of mackintosh hearing to determine whether apology have complied with state law but in the first paragraph under roman numeral for it says by which we mean that they strictly complied with all the relevant conditions imposed by state law and who has the burden to show that is the issue right but it's well this is my question it seems like you're trying to do two things one is who has the burden and whether it's a preponderance standard because you're seeking an injunction and then i guess the other thing is what is it that you have to prove it we would have to prove that one of the affirmative defenses would apply and then that puts it back on to the government to show you either l y and that why is it that rather than just that  why is it one affirmative defense instead of that that the operation are these individuals are actually in compliance with the state law requirements any of the affirmative defense is because there is no medical marijuana is not legal in washington state we only have the from of defenses to rely upon so anyone can be prosecuted and then you utilize whether it's an affirmative defense within or whether it's an affirmative defense under common law and for or why do we have any reason to think that congress intended to stop prosecutions where the defense was some common law defense that had nothing to do with medical marijuana law could you repeat that so i mean you have like an argument that entrap entrapment i think is as an affirmative defense under common law but that has nothing to do with medical marijuana law it seems that the rider is purpose was to support the state's decisions about medical marijuana and it doesn't i have no reason to understand why you're arguing that congress would have been trying to help a state  honor i look at it as the writer is there to protect states and their implementation of their medical marijuana laws to just look at the medical marijuana laws in a box or under mucus is inappropriate because if my client were to be prosecuted at the state level he would have every affirmative defense of able to present a jury i think that it is spent is there anything in the legislative history of this rider that out of the states way but i mean states way as to medical marijuana specifically right correct but in the in the implementation or the argument is that by the department of justice continuing to meddle with the state's ability to implement we should be able to employ every defense to congress that that's not what the bride reads it's to prevent some states from implementing their own state laws that authorizes the use distribution position or cultivation of medical marijuana the doesn't talk about it other than the specific state laws on those four of subjects and your honor that and i guess i would  advance that the implementation of medical marijuana whether it's in california whether it's an organ whether it's in washington employees all sorts of laws whether it's administrative whether it is you know gro was completely legal there was a also a defense where the power company was notified that they were going to be needing a lot of power because they needed that power to operate a medical marijuana grow there was and i i know i named several in my briefing but those are just you know to those there are problems here with the individual compliance how do you have any state defenses that would speak to those problems with the case my client's individual compliance so mind my client complied with every rule within he there is not one example that the government's going to be able to give you all the district in think that the district court used the illegality of the owners to instill basically strict liability standard upon the my client was a trimmer he didn't have the a but that's not how i read i read the district court to decide that the smoking that the two defendants did was not authorized individually even aside from the rest of the operation and that is not illegal under mukul you can correctly director and there was also evidence from other co defendants that indicated that they had their green cards while they were there the other issue is the declarations that  provided by the owners before they were forced to take their fifth amendment rights and those declarations outlined that they did indeed have all of these green cards in their possession and that this was a collective garden where people could that goes through the whole operation on these on the issue of whether each of the defendants had a valid card presented to the district court to justify the smoking that they individually did i had this question earlier and i don't think i've got an answer about whether any of your state law by the declarations provided by the owners that's where this standard that the district court employed was in air because what the district court did was up that standard too strict compliance we can't show strict compliance with a  preponderance standard it's it it rubs up against each other because the judge judge nelson wanted to prove strict compliance by a preponderance so if you had been strictly in compliance you could prove it right correct but if they weren't then why should they get the why should they be able to get an injunction because we were shut down by the government because they would not give us the opportunity to cross examine or at least examine the owners which we believed would have established that they were in strict compliance as individuals for their individual smoking yes what do you think you would have been on the show is that in that way well the judge also in their individual smoking the evidence that was provided for my client was that he was in possession of a medical marijuana card and remember that he wouldn't produce it in time much later right so i mean that's a problem that has nothing to do with the other owners or anyone that's his problem it definitely is his problem right but the he was given that card in two thousand and eleven this was six years later that we're supposed to be able to produce this he could until his mother ended up finding out are these as bad so that was and remember it's a preponderance it's not you know beyond a reasonable doubt and so i have testimony from my clients i have testimony from other defendants i have testimony not testimony but declarations from the owners that indicated that they were everything was completely legal within that operation i think you've  of this grow they had no control over it they had no ability to change anything they really didn't know what was going on in the matter now under brown which we could cited and the brief the number of plants didn't matter and what was mr davis evidence of his individual compliance his well he didn't have to comply with move judge he had he was employees the people that owned the growth had to comply with  client had to show up from eight to five and trim marijuana on an hourly basis that was his job he had a job what i point is you have any obligation to find out whether the operation is compliant i don't believe you do judge if any more than you would have an obligation to find out see if this building code you're in it you work here you my client had a job which was given a job he showed up from eight to five every day and got paid that was what he did that was all he did and but if you're going to prevent a federal prosecution for something that's illegal under federal law why shouldn't you at least need a reasonable belief that you're working somewhere that's compliant with state law he did have a reason to leave and like i said judge you did have a reason believe it and we should take a look at the declarations you notice that they were shown medical cards now you don't have to post the medical cards there were some maybe misunderstandings on the law but at the time that this took place you did not have to post your medical cards my client was shown medical cards he was told that it was legitimate the grow was they take can they talk to an attorney before they have this kind of the power company again knew that this power was going for medical marijuana it was an outside grow it was i guess open into taurus you could say for lack of a better word they weren't trying to hide this what about his own smoking his own smoking is an employment issue and i'm glad you asked that to judge she's an employment issue if you can if i catch my employee smoking marijuana at work i fire her or him that's it's an employee but it's also a federal law issue and potentially a state law issue so i mean it in order to be able to smoke legally under state law you need to have a card and authorization and then federal law is going to defer to that so what is the evidence that he was legally smoking under either set of off he probably wasn't legally smoking marijuana but that doesn't mean that he is conspiring to grow a thousand plant he was a patient under the state the hanson judge and i'm sorry we didn't cite this but this is a one thirty eight washington app three twenty two you don't have to provide anybody you don't you have to show anybody your and tell you are asked you have to provide have to provide proof to the district court judge that you qualify for the exemption no one asked if you had about a card i don't believe they did anyway judge fire him and not let him come back because he violated the employment conditions this is in the workman's comp case or even employment discrimination case this is a case where you seeking to enjoin the federal government from following the criminal statute we are change and we're asking that based upon the fact that as my co counsel argument my argument my argument basically that he was an employee of these individual does that have to do with this  has many times in the past found that people that were employees could not be held to the employer's standard and that's what i'm asking this court to do all right thank you very much  morning is whether the the marijuana grow itself complied with washington law and i think that the defense isn't arguing that the court noted in its order that nobody was seriously arguing that and in fact the court made that comment several times during the hearing that were you know the gro know what the defense really isn't arguing anymore that the gro was compliant so we're talking about a non compliant marijuana grow and the defendant want to argue that what's really what the court really had to decide was the level of knowledge of the noncompliance that the defendant that the individual defendant in other words their argument comes down to my lack of knowledge that grow was not compliant is compliant innocence but what if they i mean they say that they got advice from a lawyer what if they also tried to look at all the cards and counted them and thought there were enough and asked the employer are you in compliance and did everything that someone reasonably could to figure out whether they were in compliance and thought that they were would that get them past the overall operation when they're a low level employee well those are those are the facts in this case so that the courts asking whether or not  defendant can ever show that their lack of knowledge i think it really goes to the issue of guilt or innocence at the trial stage not to the issue of whether but why would it i mean there has to be a cut there has to be a determination of whether the prosecution is going to be enjoined at all right and for a low level employee it's a little bit unclear to me how they would ever prove now we have individual compliance issues here too but when we're just thinking about what the law should be about this i'm not sure how an individual employee if they had a reasonable belief and you may say they didn't in this case but in general for the law in general if they had a reasonable belief that the operation as a whole was compliant what else can they do when they're trying to use this writer well here's my response and i understand the concern and there but the prosecution in that in that instance doesn't prevent the state from from implementing its legal  system because we're talking about a non legal operation so we're really talking about here the equitable issues and issues relating to whether they would be guilty before a jury ultimately so i don't would of the issues of state law compliance be before the jury i mean i would have thought eventuality when the prosecution proceeds the only question before the jury is a federal law question about whether you are selling marijuana or growing and selling marijuana not any of the state law stuff that's true but we're talking about here beyond that where the defense is trying to assert common law defenses or but could you do that in a federal prosecution if it's not enjoined at the outset it depends on what the defense is i mean i can understand how you could if you could explain why that would be relevant at if the case is not enjoined i'm not sure why the state medical marijuana laws come in at all anymore once the prosecution proceeds you know i'm talking about other common law defenses that they might want to assert if they want to assert that they're not a member of the conspiracy that they don't have sufficient control for the government to prove its elements with regard to that that's what i'm talking about but if they grow itself is not compliant with state law it doesn't it doesn't hinder the state from implementing its system by prosecuting it and that's i think that's the the specific issue here but i think we're getting off on a tangent because in fact the court did consider whether there are more that they individually had notice and  sufficient notice insufficient involvement to be culpable here and they didn't that the district court determined that analysis on their individual compliance not on the overall operation did and i think that that shows that the court went above and beyond in the sense that the court didn't just say didn't just stop with same with a gross completely and complaint i mean you sent you centrally have to felons who are on supervision running a commercial marijuana operation and and  and it's the exact thing i believe that the washing legislature wanted to prevent when they implemented all of these different standards in criteria so so the defense was allowed to present information about their individual knowledge or lack of knowledge and quick and the court considered that and what the court determined was number one when the defendants were aware of the scale of this growth they were aware of of that feature of it and although defendant evans said that he hadn't gotten into the grow rooms themselves he knew that they were growing marijuana in the garage and that there were two greenhouses built specifically for that purpose that it was large enough to employ four people grow room in the group to grow rooms in the garage and helped bring the marijuana out for the heart for the harvesting of it he personally constructed both programs he constructed both greenhouses he had seen inside the greenhouses  defendant evans even if he hadn't been inside the greenhouses said that he was aware that they had marijuana and because you can see the silhouette of the plants certain times with depend upon the lighting so they were aware of the scale of the grow that far  exceeded the that the growth was of a character that exceeded the plant limit under the law well i'm not sure how i mean the district court said that they did not have access to the full extent of the grower knowledge regarding the paperwork related to qualifying patients or designated providers so how did they if they didn't have access to the paperwork how would they know that it exceeded the amount that they were allowed to go because as a provider you can still only have so many plants as a collective garden you can still only have so many plants so  the maximum number of plants they could have had under the collective garden theory and there's no evidence for that but nonetheless i mean other than just being a commercial standard commercial grow but even if you accepted that as a possibility it still has forty five plant total even if they had valid cards for say one hundred patients or if that's a thousand patients yes so there's no way to have any operation ever grows more than forty five plants under the law as it existed at that at that point in time the only way you could have more plants was if you had a specific space you were not you were compliant in all other areas and then you had a specific directive from a doctor saying i need x amount of plants for my treatment  which which isn't isn't relevant here at all i mean but how do we know that if they didn't have access to the paperwork i mean i know that's sort of theoretical but in theory isn't it possible that there was paperwork to justify more plants well  i don't think that there's anything in the record here that suggests that there was any any serious discussion of that or need serious thought about that what they knew was that there were was was that the it was a very large grow that far exceeded the plant limit in the statute and that there was nothing exceptional that because you can't you can only be a provider to one patient at a time and it's not like you can only do that once within a fifteen day period so everything was tailored to limit the size and scale of the of these grose the other thing is it was clearly a commercial operation mr davis had an interest in the crop in the sale of the crop and that was clear from the record he was very upset when the lower burned lower green house was burglarized because that was cutting into his interest although ultimately they became apparently information about from the attorney or no information about what was what was what information was given to that attorney is for sharing the marijuana which the district court clearly focused on the testimony was that the person operat ing the grow put that marijuana out for people to use that's how this grow operation is run daily it is like a daily bowl was put out and people could use it and and mr mcdaniel said they all used it and both of these defend were just taking that that marijuana and converting it to their own use which is prohibited under the statute and i think the court focused on that as well so the court looked at the grow they grow is totally out of compliance and they also looked at the individual conduct of these defendants looked at what they knew and i think concluded based on its understanding of the law that these defendants did not strictly comply with washington state medical marijuana in my previous argument i did indicate that i would point and direct the court to a couple of exhibits and it's also in response to what the government just indicated first off an excerpt of record four eighty four that's a declaration of doug h at mr hyatt is a lawyer out of seattle and he goes into detail exactly how he would defend this case this matter if it were brought before brought before the state the other issue is that my client data evans had a medical authorization to possess and grow marijuana that is excerpt of record number five and also very importantly and in regard to this plant count the the owners of the operation filed to declaration and i would point the court to excerpt of record page five ten and that in that declaration  this individual mr doyle one of the owners says specifically some doctors specify the number of plants under authorization mine stated ninety nine plants so that doctor told doyle because he had to consume the marijuana he had to reduce it down he couldn't smoke it so we had to use more marijuana than just fifteen plants or forty five plants so just one person and one authorisation was for ninety nine and so again your honor i told you i would point those out for the record and i did if i if you have any questions for me but i think that it's important to highlight those may i simply say that i want to apologize to my colleagues and to counsel for the late i can assure you i got up at five thirty this morning for a seven thirty flight which would have gotten me to the courthouse by ten o'clock but the flight was delayed for three and a half hours because of san francisco weather so i can assure counsel that i will read or rather i will listen to the entire oral record