not to prosecute when doing so would interfere with washington's implementation of its own laws authorizing medical marijuana this prosecution violates that directive because here local officials already applied washington's unique authorizing framework to this particular case and in doing so concluded that no prosecution was warranted and left plants behind for continued cultivation and use that gave practical effect to washington's l and that was before the federal government intervened and commenced this prosecution that is forcing the intended effect of washington's framework in violation of section five hundred two now the government in this case has ignored all of these key aspects of this particular case and said the government rests argument entirely on a single admission of my client that under federal law he conspired to manufacture and distribute over eight hundred marijuana plants during a two year period that is the admission but the problem is there's no explanation from the government why that is relevant under state law or how that demonstrates a state law violation and in fact there's not a assume the explanation was that one hundred is too big a number force for compliance with washington state law and that's not true your honor so the way the washington scheme is set up is that the limits are a political at any given time and you could have had no more than forty five at different points in time in the two year period well that's if you have a collective sitting still going to collect using that forty five number because it was the collective situation at the time in theory you could have had more than one hundred different plants over the couple year period but not at any point in time more than forty five that what you're saying no the first part yes the first part yes at any time you could have a certain number and those could aggregate over time but here we have a unique framework in washington in how it authorizes the cultivation and use of marijuana for medical purposes you know counting the plants as is one thing but isn't there a logical explanation here that the district judge found the activity was not protected based on the reference nineteen to the results of the search warrant that showed sales to non qualified people and a distribution type of activity contrary to law and the other then in passing you don't really challenge the findings the court made and i would think you'd agree if there's activity outside the statutory scheme this protection sa harbor call it what you will wouldn't apply so it isn't that where the district judge found the bases to deny the motion so i want to answer that just i want to flag real quick that with the collective provisions they don't apply unless they're knowingly violated that's the key there but to answer york your question your honor the judge did not make findings the judge in passing said that the government had made a suggestion based on certain records those records were before the local officials and they looked at them they had determined the prosecut wasn't warranted the reason is washington scheme authorizes noncommercial production and delivery that can include sales there was nothing in here that was expressly inconsistent with what washington authorized in determining whether he was complying with state admitting to the facts in that plea agreement but those facts don't demonstrate a violation of washington state medical marijuana laws well i mean you now raise the issue of knowing and knowingly yes knowingly usually doesn't require  knowledge of law or illegality requires knowledge of underlying facts and that's true under washington statute as well there are a few narrow exceptions that have been created but those edge exception appears to have been created and recognized yet for this statute so i'm not sure that you can say with some confidence that he may have had too many plants but he didn't know what the numerical limitation was demonstrates that he was in full compliance with washington state law subsequent to the start of this case our court issued its macintosh decision which wound up reminding the case to district court for an evidentiary hearing to address that question is there a reason we shouldn't do that here yes your honor so to start with the knowingly issue and what it means in this particular scheme yes normally knowingly would mean knowledge of what you're doing rather than the law that is true in washington's criminal code here we have a distinct scheme where that term is not defined and our confidence in what it means comes from the way that washington courts have interpreted the scheme and also the express indications it is intended to be interpreted leniently and so liberal is a good case on this issue from the u s supreme court where the court recognized knowingly is an ambiguous term and so you have to look to indicators of what it means we have the definition in the other separate context in this context the indicators are that it's intentionally lenient scheme there was there is evidence that the legislature was aware of confusion and lack of awareness of the details of these laws that's why this provision is in here it's in here because they knew people would be engaging in this without realizing that they might be violating a particular limit that applies again only if they  and in doing that you are then authorized to engage in noncommercial delivery and the like there's indications of commercial sales then that would take you outside of the states statute if it was a commercial enterprise i would say yes i did say look at shoot for example don't state versus you visit is a great place to look to you to see how the state has been interpreting its laws in these kinds of situations and the kinds of activities that are allowed she'd been involved a person who was a designated provider for over a thousand people and there were sales involved in that case that didn't matter well thousand all one thousand were qualified individuals in terms of use yes and that seems to be different at least in the references made by the district judge here the proffer by the government at the time of the motion right well that issue was never developed and there's no dispute as to it it just it hasn't been raised and the local officials here made a determination that what after seeing these records these people are in compliance with the framework of the law there's this other provision that applies if they knew about it but we don't think they know about it's are going to take the excess and washing washing framework if you go through step by step each step of this process is laid out in this framework it was it was followed and applied here as it was intended to be appl that's that's the implementation of the law is going to reverse preemption it death or complete deference to the state officials this house the government the feds stay away i would say this is a case of reverse preemption it's a very unique circumstance now macintosh to get to that because your are your is the macintosh issue macintosh was a situation where the only argument was because the state has passed this big complex framework all activity in the state is now in use so it was this it was a sort of field preemption argument right to take the state passed these laws everything's everything's off limits now that's what was rejected in mcintosh it's a very narrow argument it was only about a very limited type of authorization just in general the fact that activities were authorized and in a very narrow type of implementation the fact that these laws were passed in that context mcintosh says you've got to show you're in compliance with it's got to be limited to the laws that are authorizing conduct be you got to show you're actually following them this is very different i'm well i'm not i'm not so sure that the record tells it's it's very different we have judge rice's order which is all pretty mackintosh so it at least contains the seed of maybe there's a sale outside the permitted group how can we say on the record that we can be confident that full compliance with with washington law has been established i don't quarrel with what you say in terms of of looking to the local stature the state statu don't know that doing well we don't just look at the state statute we also look to the unique form of implementation at issue here the distinct form well i mean something that's troubled many of them about this suppose you've got a local prosecutor who just decides you know i'm not going to enforce any of this i really don't care about marijuana the bigger fish to fry and so forth so exercises prosecutorial discretion simply not to enforce the law is the reverse preemption so great as to preclude the department of justice from saying now wait a minute that's well in excess of what washington law permits we have to recede to the local prosecutors discretion i don't think so that's d o j position so how do you resolve that well one one i would say i think section five hundred two is that broad and would would apply there as long as the state was implementing its own laws authorizing medical marijuana that's what the statute says  decision implementing laws i would be a prosecutor citing i'm not going to enforce that law well here's that generally i agree with that and the distinction here is washington has a distinct aspect of it scheme where there's leniency and discretion baked in expressly to these various provisions with findings that there was confusion and that the legislature wanted to make sure that we have enough of a record to make those findings which sells i think even if your arguments prevail the best that can be said is that additional findings may be necessary well these are legislative findings and they're in there in the record you can look at in our findings as to whether there's been compliance in this particular case so i'm talking about this exercise of discretion to look at whatever was being done and decide you know what i'm not going to prosecute here in the abstract perhaps that's not enough to trigger five four two in a scheme here in which that kind of decision is intended to happen specifically to make sure people as the legislature said they want to make sure patients may fully participate without fear of see criminal prosecution that's directly from the legislative finding because of this confusion and so when it when it's in that context then that is implementing by making sure that people engage in the conduct that's authorized  is what i'm really contemplating and somebody says the prosecutor says you know medical should medical i don't really care i'm in the recreational me so i'm not going to do it and i got it and at that point i have a hard time seeing how the appropriations rider which plainly is tied to medical marijuana would prevent the federal government from from these taking action with regard to nothing that could be anything that could be clearly outside the realm of medical use and i suppose if you got far enough two is a political will in this case or not and as opposing counsel indicated as opposing counsel stated that the united states is holding is hanging it on one in mission of the defendant in pleading to conspiracy to manufacture and distribute one hundred or more marijuana plants but i would submit your honour's that that's not that miss is really the heart of the issue the heart of the issue is not yes i've entered a plea the heart of the issue is the admissions made within the plea agreement itself which are in the proposed sealed c r those are the facts on that sufficient for state well i think both you can look at both your honor and this is this is why i would submit both because the court's findings as the court noted on either are nineteen occurred  were written on february twelfth two thousand and fifteen and then the admission based on the plea deplete admissions were february twenty fourth two thousand fifth excuse me fifteen i think i meant to say fifteen in both of them  so in this case the defendant the defendant five forty two or at five thirty eight at the time came into effect during the pendency of the  facts that were presented by both parties and as well as to the record and then make the determination based on the the plant amount the total amount of plants the  records seized from the search as the court indicates and come to the finding that that and i know that the evidence the united states is proffered evidence to demonstrate the defendants were operating when we come before the court we have court we always bring cases that are like this precedent or like that precedent in mcintosh and this case while it's distinguishable maybe from both cases both mackintosh and the subsequent case kleinman i think that in these circumstances especially in consideration of the defendant stipulation to the facts of his own conduct that this case is more like kleinman even though five forty two came in effect before the defendant energies plea was inclined when it came into effect between the trial court prosecution and the appeal and here's what here's what i would say that's a macintosh which i am familiar with because macintosh was a combined case that also included a case out of the eastern district of washington canasta and was included combined in that case in that case a number of different defendants from the easter i believe eastern district of a california northern district california and the eastern district of washington filed interlock atory appeals challenging five forty two at the time which is interesting same counsel was involved in both cases same counsel was involved in can asked in case not for this particular defendant and for the group of defendants i was also involved in this the totality of the fire stack harvey zucker greg case at that point in time for some reason after the district court denied their motion to enjoin five forty two had come out before the actual finality the district court case the court did not have the the rulings interpretation of came up prior to the finality of the case but the definition by this court and the interpretation of five forty two did not come out and tell this case was on appeal that said this court the district court at this point have proffered evidence it didn't say merrily deny the five forty two looked at the proffered evidence which was the procedure at the time prior to mcintosh subsequent to makkah subsequent to the court's decision but prior to mackintosh and kleinman the defendant then submitted through his plea agreement factual stipulations defining his own conduct so this case there's no need to send this back for as a court suggest a mackintosh remain and because all of the evidence is not only was proffered out prior to mcintosh and the procedure that was done at the time but the defendant has already made a statement under oath or an oath full statement to the court that these facts are the facts of the case and i stipulate that these are the facts that can be proven and those are the facts in the found within the police remained so if i just read the play agreement more than once i don't know it nearly as well as you do but i didn't see anything that punched me in the nose and says this case is over me leaving is we've got the issue that was raised before about whether knowingly becomes part of this under washington state law and that doesn't seem to be discussed at all in the plea agreement in terms of defendant's knowledge of the boundaries of washington state law and the reference in the order to i know how much of this i can make reference to the commercial part of it i mean i see things in the plea agreement that give suggestions of commercial transactions but don't clearly indicate that the party on the other side of the transaction isn't somebody who would qualify under washington law maybe somebody more familiar with washington law or the facts of this case might see it but i don't and so you're telling me we don't need to have an evidentiary hearing that it's all here crystal clear and i got to say i'm looking through it and it's not crystal clear to me that we get to the conclusion the factual conclusion you think we should win here here's your here's what would be the facts of this case in terms of the police agreement compared to washington's medical marijuana statute such first the defendant play had not too growing or manufacturing fifteen plants joining in a collective garden of forty five plants defend it did not plead to actual distribution of marijuana what he pled to was an agreement with other people to manufacture marijuana in an amount in excess of washington and collective garden and individual amounts well in excess based on number  but is there anything there that spoke to the knowingly issue he said that he participated in a conspiracy to manufacture in excess of one hundred marijuana plants is there anything there that demonstrates that he knew that action was in violation or in excess of what the washington statute permitted  first your honor i would submit that in terms of knowingly in drug statute first first answer the question is there something there that speaks to the knowingly issue i know there's an argument as to whether knowingly is part of the washington scheme but that's not an argument i'm not yet i'm trying to say does the plea agreement answer the question assuming that there is a unknowingly defense or or exception for washington law the plea agreement does not reference washington law in any mens rea raf in reference to washington second the number one hundred speaks of a conspiracy period i have down as a couple different years i don't recall when within the year but an extended period of time is there anything in the plea agreement that speaks to the number of plants at any one point in time  the only the plants that were seized both by in the first search warrant by the state entities and then the second follow up search warrant it references the plants that were  seized at the time of the well and that number was never greater than one hundred it was not and so that doesn't preclude the possibility that defendant was in compliance with washington state law at least with regard to the forty five number even as he acknowledged in the plea agreement that over this two year period of time the sum of plants involved may have exceeded one hundred first and if you indicated that he was you indicate arguably that he's in compliance in terms of the forty five plants but there were seventy plants relevant to the investigation as it began so first off the playground it says the government would have evidence that somebody spotted from the air seventy plants and also that and i've not lost track of the number but a short time before there was the the carrying away by the local authorities of a number of plans but i have those numbers up and i never get to one hundred twenty nine plants were were seized initially forty four plants i believe i think believe it was forty four forty five were seized in the second time i would also work forty four forty four and i would indicate that in terms of the washington statute not only indicates how many how many plants a person has can possess but it also indicates amount of cannabis being twenty four ounces the sum total of the plants that was seized the twenty nine plus the forty four weighed approximately fourteen hundred pounds so that's well in excess of the other  of washington but i go back to the point is in in terms of a conspiracy there is a drug conspiracy there's no obviously there's no overt act required it's just the simple fact of the agreement and whether or not the defendants even grew one plant is not relevant to the elements of the charge with which the defendant has played guilty but doesn't preclude the possibility that this agreement contemplated doing what they thought washington state law permitted and if that were the case then you come right back to the question of whether this federal law enforcement is consistent with the proffer in the motion practice that that that's why i asked the question initially what to look at in order to determine the question of whether defendant knowingly violated state law or that he was in fact non compliant now you say look to the police agreement and the factual basis of the plea agreement and the factual basis of the agreement in this particular case as they are so often are otherwise defendants wouldn't sign on to have to them it's more couch more in terms of what law enforcement found what law enforcement observed they came in they found this they saw this they picked that record and then some indication what the records show but it doesn't go towards whether defendant was knowingly non compliant then you say well then look at that in combination with the district court's finding and the best that you get in the district court's findings is on the very last page where the district court says essentially the according to the united states this is what the records show well that that's i don't think gets you much farther then what in the factual basis of the police which says this is  what law enforcement observed and this is what the record jack to play demonstrated so i say still not sure why it isn't a macintosh situation where an evidentiary hearing and more specific factual findings would be required first i would say your honor and then knowing knowingly in terms of drug statutes has always been a general intent situation in this case whether the defendants knew the exact parameters of medical marijuana law or whether they knowingly grew x amount of plants in this case i think it's very clear that they knowingly grew the amount of plants that were alternately it wasn't a surprise that suddenly here is this marijuana out in the field they knowingly engaged in the activity of growing the plants the plant count was well in excess of and the weight was well in excess of that washington law and then secondly i would note that the defendant himself indicated at sentencing there's argument that he has indicated well he didn't know well he made a specific statement that said well about his knowledge of this of the law on the west side of the state and how it was not being enforced the same way on the east side of the state this is a defendant with a prior  conviction this is a defendant that has stated that admitted to conspiracy at the plea then came back and later has later tried to say he was just growing fifteen plants with others but then expressed to the court at sentencing that somehow the law was different on the east side of the state in the west side of the state so i think all of that comes into play thank you overtime thank you so much honour's with the limited time i have left i just want to clarify a few record issues and then just make a couple points so as to the record this issue about the amounts versus the number of plants the wait was four hundred pounds it was of the plants themselves not the separate usable marijuana which is what the statute separates out and those were parallel to the number of plants in terms of legal compliance second there is the only testimony on whether this was knowing or not in terms of the collective issue is that your thirty nine it's very clear it wasn't knowing there's no dispute here the west versus east is about sort of the practices that are just generally allowed on the side of the state nothing to do with it and really the government has not rebutted that testimony or indicated it wants to try and rebut it so that resolves that and then finally there's actually a distinct issue in addition to the collective garden knowingly piece there's a segregation issue there's also no evidence here that my client was involved enough with the entire a ctivity at issue to call any of this into play and so that would be another issue if there were a man now getting to that point i guess a couple points on that this is not macintosh here we have an actual application of the state's unique framework and it's  set up to a certain way and was applied exactly as it set up that's why that's the end of the inquiry there's no need to remember what is the framework you get to go fifteen plants where you get to engage in this noncommercial activities there's a specific limit that applies only if it's violated knowingly there's discretion in that case to take what is deemed to be excess but then you have an express right to keep the remainder that's exactly what happened here i mean this is this framework authorizing all this activity was applied exactly as it's written the commercial element i mean addresses was implemented here on the same evidence we're talking about the local officials saw all of that they made a determination and they applied the law the local official saw the number of plants and carried away twenty nine of them they all had doesn't mean that there was awareness that there w refers to right but the only additional evidence from that search was a forensic review of a computer that found electronic copies of the documents that were already reviewed plus some photographs and it didn't add anything to his say back to the situation i talked about before then if the local prosecutor aleck's not to prosecute a for profit commercial operation which is separate and apart from what washington law permits for his medical marijuana law is the federal government obliged to accept the prosecutorial discretion decision of local prosecutor and i would say yes other than in extreme cases this is not one that's sort of where why not for him what if it's not within the medical marijuana law in the federal writers very much tied to the medical marijuana law if you've got transactions that aren't tied to the my medical marijuana law what prevents the federal government from going after those the word implementation is the key there i mean basically the point is it's not just in the abstract you look at the law in the federal government gets to decide it's you look at how they haven't disputed that they haven't said what they're going to try and prove at the hearing so to me there's no need for him and they haven't done their part to justify that but at the very least i would say the release of we have a dyno standard of review and that may be where the need comes from not necessarily what the prosecutor needs but what this court needs in order to discharge its duty agree with that and i would say there's enough here for that and that arena and based on no intent to proffer more evidence wouldn't be warranted here but at the very least  thank you thank you very much counsel for both sides of the argument the matter submitted for decision