probation office recommended that mr mccloy you see held accountable for the count one can counsel i'm a little confused on how to deal with this it strikes me that it may be important whether it's commercial whe ther factually as the charge it has anything to do with commerce and anything to do with is that commerce among the states i don't know quite how to make that decision procedurally should should there be some sort of factual hearing as though it was a civil case or emotional suppress where you have a factual evidence rehearing on a preliminary matter and you get findings by the it totally clear for for one thing it's preliminary injunction so all rached says is that the district court was wrong in saying there is no probability of success actually there is a significant probability of success i think i don't think it would be fair to say that ray told us that as a matter of law success is certain because there is necessarily at distribution existed for getting marijuana from her caregivers that was deficient to make the theory of rate seem to be that as long as it was within the california others in the indictment not the statute is set for others within the household or outside the household and i think that we have to try to can if it's a business if you will back to me as if it's required in order for them to prove instantly assume we're not going to cut you off in ten minutes is a major constitutional and they just assign a time based on how many defendants and how many issues criminal cases presumptively ten minutes and so i had a hunch or had what i what i don't get is it seems to me that under that oakland cannabis decision by the supreme court if he's distributing to other sick people in california it may not be a violation of california law but it's still a violation of federal law unless the federal laws unconstitutional which because it exceeds congress's powers under the commerce clause at your argument about mister classification probably runs up against oakland campus so i get that far without and well i don't know if that would avoid it but it would be nice to know whether it's distributing to others lot of things violate federal law without violating state law like possession of eagle feathers  all kinds of things violate federal and state law no problem with violating federal not state law doesn't mean guy gets off it just means it's the us attorney's problem to do something about it so i get that far and now i want to know how do i find out if you distributed to others the plea bargain doesn't tell me one way or another i don't see any basis for applying the rule of lunacy to a plea bargain it's a rule for construing statutes it seems to me we need to find out what you're saying it makes sense to me to just have just like in the gun cases that we always instruct the jury and one of the things you have to find is that the gun traveled in interstate commerce and sometimes that comes up  person says it's a homemade gun or something like that or are manufactured in the state of their gun manufacturers in the state at some times it comes up and you're saying you want that here but i don't see any way that you can have the plea agreement and also a jury trial it seems to me it's one of the other and it seems perfectly clear that what you did was plead guilty reserving the constitutional question so that narrows it down for me to a little tricky the burden is certainly on the government when it's an element of the crime but you're not facing something like the gun statute nine to eighteen u s c nine twenty two one twenty four and here it's not an element of the crime here contending the statutes on constitutional and usually the burden is on the party claiming on constitutionality to establish on constitutionality i think that's where smith comes in which is at the end of my letter re for our it was the marine maritime that he distributed marijuana in interstate commerce seems like we need to find out i think a lot of merit to what you say that where you need to find out something factual like that you have to give it to a jury with a b r d instruction but restriction on speech where if there is some over breath the statute fails this is a restriction on on the conduct of selling marijuana and it may be unconstitutional if applied to a distribution that's not in interstate commerce but constitutionally within congress has power were applied to distribution that does have a substantial effect on interstate commerce and the potential over breath of want boys ok so if you're not claiming it's no one voice all together how do we know what this people is like i don't know if this guy is a big marijuana dealer or if he's just a sick guy who has a couple plants and his small number of planets being held between two people with a legitimate medical ne  conflict between the state law and the federal law the government has charged in count one as the court is aware four hundred forty eight plans and count two it was twenty five plans the government was setting up a situation in which they could take a privilege because it informs the quote if the state of california said it's ok to rob banks when the feds say no it isn't that's not a problem it just means that i stated creditors won't catch the bank robbers and the f b i well we actually think that's exactly what's happening here look at each in formulating this decision we know that probably well from our side and the congressional findings won't necessarily carry the day that's correct but in this particular case the congressional findings go even further and they talk about the low know i have not been informed in connection with what the the government has made a decision to do but maybe just just came down the other day the mandate has not issued it's still up in the air that's  whether with respect to the count of conviction under the plea agreement there was distribution with a substantial effect on interstate commerce reserving for another day the question of whether a defendant would be entitled to a jury trial on that issue in a case where the defendant did not plead guilty why shouldn't we do that prior to determining whether the statute exceeds congress's power under the commerce clause when applied to distribution of american earth to manufacture marijuana and distribution that does not have a substantial effect on interstate commerce certainly if  the class defined in right necessarily not necessarily in raich there were multiple people in the household there were caretakers and a sick person or sick people as i recall and i think the caretakers were doing the gardening and in this case it may be exactly analogous for all we now also add it is not at all plain under lopez and mar distribution that has no substantial effect on interstate commerce distribution this neither commercial nor interstate would be covered i for example if a caretaker was doing the gardening and rolling the marijuana cigarettes for the sick person and giving them to the sick person that's distribution but it may not have a substantial effect on interstate commerce and so i don't know i don't know the question is answered in rage or kept it in rage at as you contend and i don't know that we know the answer we certainly don't know the answer with regard to a clear understanding at that although he did distribute some of the plans that were throwing his front yard it was before he was arrested on the twenty five plants there's also already gone so the only ones we have are the ones that are probably his front yard twenty five indicating he was distributing to a number of other people out how much of a stash do you get out of twenty five plants my impression is that it would be kind of a lock to smoke but i don't really yet have any first hand knowledge actually fifteen years ago or more when i would indicate to the court that twenty five plants in my experience certainly as a drug prosecutor is more the for personal  the court adequately explained the caregiver status got to follow the opinion then you very much of the caretaker doing the gardening and giving it to the sick person it did but they found that not to be exchange of distribution in this case right so you're saying th when they say no exchange or distribution and they don't mean act now in this case what i don't know is is this fellow mcwilliams is he giving away garbage bags full of marijuana so people say wow i don't have to drive to las vegas or to want anymore well a situation this penalty that we have a situation where we have an individual with three or four planes he's rolling that's a lot in the night but now it seems to me that this is a lot like the case we had about perjury some years ago we had  non bank on it for years and years all federal circuits had had said materiality it's a question to be determined by the court and then we said in our own pocket no materiality is an element of the crime so it has to be determined by a jury beyond a reasonable doubt and the supreme court affirms that and it seems like this would be it since we're dealing with as applied everybody's agreed that the statute is the federal statute is within congress this commerce power that when there is a substantial effect on interstate commerce so it seems like there'd be a jury question of whether the sale had a substantial effect on interstate commerce just as in the gun cases it's a jury question whether had the gun traveled in interstate commerce and in bank robber jury question whether the bank is federally insured i don't understand why there's a problem with just giving that to the jury i certainly can understand the rationale in terms of the court's question  dead as a restraint on congress all it was was a permission for congress to do anything it chose to do at the end of the new deal but then it was revived by lopez and marson as having some meaning which excluded some things congress might do well i certainly think that one of the factors that probably the government seeks to show is a commercial an economic effect on the distal marijuana that would certainly be one of the factors that the more support and a to make a determination whether there was an effect on thomas i would certainly be one of the things and i would also show and seek to show by witness testimony that it's not so attenuated this particular you understand i'm not asking you how you would prove the case it seems to me it's not that difficult to imagine constructing a good jury question and constructing proofs on either side at what i'm asking is is there anything wrong with just treating that as something that goes to the jury well certainly i understand the court's question and i see that that is not the law as it is right now and i don't have an opinion whether it's wrong or right i understand it's not a there's no need for a jurisdictional look at this point in time and i don't see the necessity and i see that the congressional hearings when they look at it because of the tremendous effect that the movement of drugs has in the united states whether it's interstate or interstate there's no need to comes up in rage because of the jurisdictional way that grates came up well as an injunction certainly and i think and i don't really understand your argument on  stiction can be settled because it seems to me you're arguing justice briar's dissent in lopez he says if their guns at the schools will be violence in the schools if there was violence in the schools the kids won't study if they don't study come out of school ignorant and if they're ignorant it will be bad for commerce the majority says that's too indirect and insubstantial it has to be more direct and substantial and i asked so so we go back to drugs have a bad effect on america and on american commerce it's just like justice prior's dissent and it's a dissent whether it's right or wrong it's a dissent i don't think to the extent that the the analogy quite holds  i don't know if it is a subtext but certainly the understanding or the premise is that these individuals it's not going to enter the stream of commerce that that sense of certainly there and i would i would say what is it frankly my understanding from what i recall once i heard about this as a district judge is that one planted in a window box to be plenty for one person with cancer just plenty and maybe two plants in case one plant die and twenty five this lot of plants that was my understanding but i don't really know and i gather you don't really know i do know to the extent that twenty five plants are certainly more than sufficient to take care of the person one two and probably ten individuals so i would agree with the court as to that of now but in terms of giving you an exact what can a plant it certainly all depends on the maturity of the plant how tall of the plant the plant a six foot plan an eight foot plant is it  been interrupted and that's all that's all part of the fact that apparently this court would like to have in order to make an informed decision in  thank you counsel take a moment yes well let's give counsel a moment and then just that if you have some rebuttal to make or does this have questions will from the guidelines the guidelines specify how much of marijuana comes from an individual plant to friendship mission is already made this determination not exactly right had the guidelines don't say physically how much marijuana you looking more at social effect than residue talked about this in chapter one is that how determined the and they didn't need and what they considered to be an average they first talked about how much i want to be an average marijuana cigarette which i believe it said it was two point