you will hear argument now in united states versus macintosh and related cases counsel for the appellant you may proceed good morning before you do counsel i should ask you have accounted for or the other side i suppose has oh very well very well thank you i just want to understand the allocation of time counsel you may proceed you may please accord i mark silversmith for pope macintosh silversmith and i'd like to reserve three minutes for our side for a bottle and as the court noted i will friday because of the spending of december this is this spending clause expires at five thirty eight expires on this eleventh of december which is this friday that's correct and i believe that a new provision has been passed by congress and i believe that my co counsel has sent the court at twenty eight j letter with the details on that i didn't know the president signed it i would reserve that question for my just following up on scandals point suppose it hasn't yet been signed into law would have been become moot on friday would become moot for possibly for a few days the government has argued that this case is not mote and that's one of the reason they say that we can go forward let me ask you my reason that we should go forward in a locket tory appeal is because of the risk of mootness of congress does not renew th statute the government has asserted that we can continue to raise that on appeal and therefore the court should send it back and i asked jurisdiction to raise this issue but it's my it's a spending congress can change it whenever they want to and if they change it then i don't i don't have and an argument very well received with your argument counsel but the spending prohibits in is very clear the d o j can't be spending money can't be using the salaries of the prosecutors can't be using the da and all the all the law enforcement agents under the blanket of the d o j to interfere with the state implementation of state marijuana laws in california we implement those by licensing dispensaries and growers to grow and distribute me marijuana to needy patients with licenses council when i first started preparation of this case i was really quite stunned that someone in your client's was asian could have standing to invoke a provision in a spending bill out of congress and then i read bonde so will you help us figure that out and to what extent has been controlling i assume the other side may have a different view well they that was the  ery that judge has in the had trouble with but the government does not dispute that we have standing to challenge this we have article three standing because they are spending the money that they are prohibited from spending and we have a direct interest in it they're seizing my clients property and they're putting him under penalty of going to prison for ten years so he has article three standing because he has an injury that can be directly traced to the government's illegal spending of funds ok well getting into the merits of the limitation what is it that is prohibited here in your view the spending of funds to prevent this in ways that prevents the states from implementing medical marijuana well that's very generic what what is it that would have specifically apply in your case well they are prosecuting mine kline and for the exact medical marijuana conduct that the state has explicitly authorized him to undertake which is to go to the city and county of los angeles get permits and tax registrations to distribute marijuana and to distribute that marijuana only to patients who have come it so we know he's doing that and not selling it to kids or you know other recreational users because he's and there's no evidence that well that's we haven't had a trial yet or a hearing well how can i prove a negative well that's my question what do you want to do just take your word for it or does the judge have to have a hearing or well if the if the state if the federal government what you're saying  silverman is that the federal government could go in and say you're not doing up to the letter of the law there's some health regulation you don't have an eighty eight toilet in your facility or something like that oh no what i'm saying is they've charged this guy w violating federal law for cultivating over a thousand points or something like that that's correct you say he's got some right under state law to do this and i'm saying how do we know that that's what he's doing issue shouldn't i mean if you're if you're right shouldn't judge will be hearing and make a determination whether you've got a kind of a prime aphasia showing that your app you're operating under california law and then they can show that no he's not and then you're off and running well i think we did make a prime of faces showing i think a prime a face  showing is the standard or some evidence standard that that the court used in the superintendent versus hillary was they were hearing i relied on the state's own allegations and their sworn declaration in their complaint i take it getting back to my question was there a hearing an evidentiary hearing no i asked the court my point was we didn't need an evidentiary hearing because my point is that once the to medical marijuana without the federal government and the dea o j spending money improperly to interfere with the state's own regulation so i believe the standard should be a smoke marijuana in from mexico does it give him the right anybody with a permit the right to smuggle marijuana in from mexico if that would not they would not have the right to smuggle marijuana in from mexico case i'm saying but but if they had it if they brought in a border seizure case that's a completely different that's wholly out one thing the government said is how do we know he's not acting wholly outside the state marijuana permits but in the macintosh case i'm the only offending here on appeal and we did have permits we had dispensary permits we had tax registrations for those buildings from the city and county we had a police commission parm at all of those dispensaries were per minute and the state has come back and said there's all these regulations that you're not in compliance with but most of those the court will note are based on the los angeles municipal statute that was passed after they seized the essence of your argument is that possessing a permit is a sufficient defense against the decision is sufficient to qualify you within the meaning of that spending clause yes even if you're not in compliance with the permit your honor i don't think the federal government should be enforcing compliance because they've shown they don't know anything about the can state compliance and that's  and the love and he's there thirty thousand but doesn't that allow the federal government to prosecute for violation of the controlled substances act for crimes that are not made by california law if we were clearly operating out selling marijuana outside the parameters of the permit such as importing from mexico or selling a banned amount of marijuana or selling it out of the back of the car  that with the indictments that you properly of side the limits of the california act absolutely not absolutely not the indictment says we're selling the marijuana that we're selling in our dispensary it doesn't say that it says you've cultivated over a thousand plants we don't know how you what you're doing with it then you come forward and you say i have a permit there right and then unless you say the permit is gives you you know total a total by you know just a total pass i don't see how we know whether you're operating within the permit or without the permit was the judge as some kind of hearing to determine with you or your own well i said we're in compliance but i gather was there was no hearing with respect to compliance when i asked i said if you need further evidence will prevent present it but we have the evidence of the permits and they have not come forward and said you're selling too much marijuana or you're selling the wrong people or you're selling your importing because you're denied giving them an opportunity to rebut your sufficient medical marijuana should be sufficient to prevent the government from spending otherwise we're going through this and they're continuing to spend money in order to commandeer the state law and in excess of their authority under the listened to the panel's questions and i want to make clear from the outset that i believe that section five thirty eight deals with medical marijuana and only medical marijuana it does and what medical marijuana does what it necessitates it allows states to implement their own medical marijuana laws it says nothing about compliance it says nothing about whether you should look at a thousand  plants five hundred plants forty seven plants it what judge nielsen did in our case is he adopted judge wright rice's case another district court judge in our district and judge rice set out and order that said yes i agree section five thirty eight does stop the department of justice from prosecuting people who are in compliance with medical marijuana laws of those states like our state washington what the judge did that was pull an exception and looked at section five thirty eight said but you have to be in compliance with washington state law and because you're not in compliance with washington state law and because you have over a thousand plants our kids have five hundred thirty eight points but you judge races order in susa bay said because there's over a thousand pounds no affirmative applied how many are you allowed to have in washington is it forty some odd planes that's the that's the issue around or numbers are not the numbers don't matter what matters is is that medical necessity we have in the state of washington three affirmative defenses and a common law defense medical necessity defense in the state of washington that can be used affirmative defenses affirmative defenses this court knows is law section sixty nine fifty one a zero four zero zero allows for fifteen plants per person forty five plants her in your very start with over a thousand hours but our guys charged with five hundred thirty eight plants and six hundred seventy seven pounds that may or may not have marijuana so if the the federal law conflict with washington the federal law conflicts with washington law certainly how so well wash a federal law does not allow for any medical marijuana there's no compassionate use act it doesn't conflict plans and that the medical necessity because all for all says fifteen and forty five section sixty nine fifty one a four five which i mentioned when briefing says that a qualified patient or designated provider in possession of plants marijuana concentrates etc exceeding the limits set forth in this chapter but otherwise in compliance with other terms and conditions of should this brief yes what court decided stickers it was at the washington supreme court washington case yes you're very well said it's not so you're down to three and a half minutes for your side so it's late immerses brown one eighty on one eighty one wash a defense common law very well and if they were then the prosecution could not proceed however this district court erred by delaying the determination of compliance until after a jury verdict and he fact finding that the jury makes in this case will be without the benefit of california's cooperated defense which allows and we are the case that had thirty thousand plants that allows for multiple people with multiple recommendations to get together and grow marijuana  even allows one person to grow marijuana for multiple other people that have permits so the court erred by relying soley on the indictment with which was returned by a grand jury that didn't have the benefit of california law didn't have the benefit of seeing our client's medical marijuana permits and didn't have the benefit of the compassionate use that and so obviously just the same question they asked of mr is over so that if you come forward with  r pretrial motion with a copy of your permit what is what is the judge supposed to do at that point i believe the judge should hold a hearing and determine whether we've made out a prime facie case that we are in compliance with california law and at that point i think the what are they good to do what is the government get to do that hearing they can present their evidence that they believe were in a conspiracy to manufacture over a thousand plants and we can present our evidence that says no what's happening here is a cooperative which is permitted under california law and california law has a very very comprehensive scheme to regulate marijuana american medical marijuana and part of that is providing for this affirmative defense that would be available if this case was in state court we will be allowed to raise that and that's under the supreme court's decision in oakland fires cooperated were not allowed to resign in federal court the jury would never hear that so that the jury after a jury trial we would have a factual record that is based on federal law not on state law and at that point the district court proposes to hold another hearing in order to determine whether we were in compliance with state law based on a record that has that doesn't involve of fans and that's why we believe we are entitled to a hearing prior to this case going to the jury before any further funds are spent in violation of section five thirty eight thank you please the court good morning your honor i won mark in arguing for the united states the court should not exercise jurisdiction over this interlocking torrie appeal but if it chooses to do so it should interpret section five thirty eight according to its pla language and not apply it here i'd like to speak briefly what about five thirty eight on its expiration on december eleventh what do we do with that i think you know the chances are of our deciding this case mom before december eleventh are not very great i think they could move the issue your honor is that the government's position well yes if the limitation goes away all the tap and under the limitation is that we've litigated this issue which which has not yet been decided two weaknesses with this appeal on an understanding the court may have gone past that point i'd like to address it anyway the first is that it hasn't been conclusively determined to the district judges in the california cases pacifically noted that they were not conclusively determining the issue they were just going on a failure to meet a burden of proof at that point but even with respect to the washington case this is the kind of an issue as as the court has been able to tell from the defense arguments so far where the facts could constantly change and where what the factual record post trial might be different or at least could be different then pretrial so i don't think the court can say that at this stage we're defense is asking for here would be allowing an interlocutory appeal on every single marijuana case because this is an issue that is linked with the merits of any american medical merrill counsel in the record appears that they asked for an injunction and so why isn't this an appeal from the denial of an injunction well in in one of the case in the northern california case they mentioned an injunction in passing but  didn't argue for it and the district court certainly didn't consider it she the district court in northern just california case treated the motion is a motion to dismiss in the other cases they haven't shown an irreparable injury this is not a right not to be tried there is not an irreparable injury if they have to raise this is a right not to be harassed and or tried by the u s department of justice is not good enough no your honor because in the posture of these cases these cases were all indicted the indictment indictments were returned before this writer went into effect so this is not a case where they did not if they had some right to be free from being charged once they've been charged they have the obligation to stand charge now if they give up that you don't have the authority the one thing further you  stop in your tracks if that section five thirty eight is effective we are but what i'm saying is that for purposes of the of the denial of an injunction ground for interlocutory appeal that's not an irreparable injury they may claim that we shouldn't have prosecuted them that's an injury that they can raise trial they've been properly indicted they don't have a right to avoid trial the way it's a and incompetent defend it might have that right as you know my point is that they can raise any claim for remedy that they want after post conviction just like any other thing they want is bliss similar to the police when they claim qualified immunity is not to be prosecuted not not to have to go to court at all because you're not allowed to spend your money to put them into court all they can say your honor if they go to trial is that the money that the government spent in in trying in convicting them was improperly spent and perhaps they're they're all doing it for free the position is the position is that if they're improperly tried just as if a motion of any kind of proper motion to dismiss was denied and they should have been tried they can raise that afterwards and argue if they want to that say the conviction should be vacated and they shouldn't be tried unless the government has the money in order to try them there is we get let's assume there's we have no standing problem we have no collateral border problem let's let's you know get down to the business if you charge these guys with cultivating over a thousand plants they come in with a motion to dismiss and attach their marijuana card what's supposed to happen at that point  think that's the big question there is no body of law about what's supposed to happen unless this court interprets the statute according to its plain language in which case it wouldn't even applied to this case this court is put in a position of directing district courts to create this whole body of procedure that that is certainly what is the plain language of the statute and how do you interpret that the plain language prohibits the department of justice from spending money under this particular budget bill to prevent states medical marijuana laws from implementing their own state laws that authorize the use distribution possession medical marijuana yet pretty much it's broad but it's focused on state action and on the department of justice action viz of the states not these of the individuals they could prosecute a state official or state agent who was acting in furtherance of a state law but technically in violation of the controlled substances act so there are things that are prohibited by the statutes of plain language but to make the jump that the intuitive jump of that this prohibits the prosecution of individuals who are in compliance with stay off requires we don't know what it requires which is which is the problem we don't know if it requires an evidentiary hearing followed by immediate interlocutory view on every single marijuana case we don't know that well wouldn't that be a good way to a good way to go because there's no st authorize the use distribution possession or cultivation of medical marijuana why isn't that something a judge could easily determine whether they are or they aren't i think the this court's discussion with defense counsel shows how difficult that is because the district court then has to put it's the state becomes a silent partner to the prosecution and so does the locality because state law is not simply that bodies state law it's also a body of law with reference to local ordination to something a judge could easily determine when they say we were in compliance and then the burden would shift to you they've got a license to say we can do this that or the other thing and then you come forward and say our evidence would show that they're not in compliance there and then the judge would decide if that's the kind of things judges do all the time well for one thing they could say they're in compliance with state law you know they may not be in compliance the local ordinances well then they lose well true but that requires a judge to become an expert in every marijuana case on our state was that changed when local ordinances and judges have to become expert in every new law that congress passes i mean that's not a problem is it well it's a problem if it's if it forces a standardless evidence or hearing it every single case where just by virtue of bringing this motion they are allowed to force an evidentiary hearing and the district court has to create a body of law about what they're showing has to be and what are showing has to be and what the state actually wants because the state isn't filing amicus briefs here saying well this prosecution is in accordance with our policy medical marijuana this one isn't so the judge has to guess at that and state laws state politics state policies are going to change year by year i must be missing something i foresee this is fairly simple they come forward and say we have a license issued by this particular government entity and because we're in bumblebee county or wherever it is we're allowed to do this that the other thing that's what we're doing and then the judge says  government what you would what are they right or other wrong and then you say bumblebee only allows fifty and they've got a thousand or whatever it is i mean that's seems to me a pretty easy thing to determine well i think it i don't think it's that easy because i think they're showing would have to be i mean for example if the court looks at the week showing in these cases there's a reference to permits those permits are in the record well then they lose that then they have to put on witnesses to say what those permits mean  how many we have to measure their distance to a school we have competing experts the talk about what you know how you measure do that all the time but it would happen it would it would happen as an evidentiary hearing with every single marijuana case it would force the creation of bhatt of a body of law based on this two sentence writer that doesn't even say anything about that the writer doesn't say as as the the unsuccessful attempt by the same representative to amend the controlled substances act did two years earlier where there was an attempt to actually create an affirmative defense for people acting within state medical marijuana laws to the controlled substances act that failed so now we have this law that says something completely different which which refers to the d o j is action viz a vi nothing about how individual prosecutions are to be handled frankly says nothing about how civil suits are to be handled because there can be civil suits that raise this issue as well there could be criminal environmental state marijuana law does that mean we're conflicting with the state policy in that case as well we have an evidentiary hearing and an immediate interlocutory appeal in those cases as well so i want to go back to your comment about  the correctly you conceded standing is that based on the bond decision well i think it's based on the fact in general if someone is is being prosecuted if they're correct that prosecution is an injury if their interpretation i guess what i want to focus more on what is it that gives a defendant standing to invoke a spending clause or a spending  rider in a spending bill typically they would not have that standing right so what is it that allows it in this case that apparently the government agrees it would be their interpretation that it limits prosecutions of individuals and which i don't agree with or we don't agree with that interpretation but if that is the correct interpretation then they would be having an suffered an injury and i'm confused i thought you said earlier that you are conceding standing iraq we are conceding standing correct ok based on bond yes ok so they're based on their interpretation of this this spending writer as affecting the prosecution of individuals we don't share that interest or taishan of the statute but the prosecution would cause them to suffer an injury wasn't buying the case where the miffed wife  duty in the ninth circuit's it was funny to examine standing and i did yes i do understand that your honor our position is just that there are prosecution if they're if their interpretation of this writer's correct would be an injury in fact so if it's if their interpretation is not correct then they shouldn't be raising it at all then they wouldn't have stand i ask you another question are the is the washington guy in a different boat in the california defendants i don't think so you know there are apparently an open ended number of plants you can have under california going to stand california law there i thought there were hard numbers what you could have in washington is do i have a misunderstanding about that council talking about the state versus brown in other cases on per collective per individual a number of plants in the california eastern district case there are thirty thousand plants i think there were marijuana cards proffered that might allow about one and a half percent of that number of plants of less than four hundred plants in the mackintosh case the issues that are different there are numerous violations i mean the allegation is that these this is basically a business run by street gang and that they were violating a lot of the state laws an ordinance having to do the location of the syllabi really are in different boats there in different factional boats but but they're all in the government's position not in compliance with state law so they're there in the same boat as far as we're concerned and they haven't made any kind of show how do we know that they're not in compliance w district california case there is a complaint under penalty of perjury that sets forth set forth personal knowledge of fact that would show they're not in compliance with state state law the case indicted and in the other cases were indicted to based on an amount of number of plants that was vastly in excess of what would be allowed state law so you said if i heard you correctly that the permits are not in the record in this case no they're not there is no end on that and we heard from the other side though that all of these defendants have permits not not correct there is a compl affidavit the complaint affidavit refers to a search warrant that was executed at some of these facilities where a couple permits and tax certificates were found that's the extent of that statement those actual permits are not in the record what they stand for is not in the record whether those tax certificates mean anything more than that a tax was paid none of that is a record well if they were in the record  defense we've heard that they invoke it wouldn't the trial court have to decide whether the position of a permit is sufficient to qualify within the language of this statute well it might be necessary but in other words if the federal government is ignoring the position of the permit wouldn't that be interfering with the state program on medical marijuana not if  the permit may be evidence that they got a permit but it's not evidence that they didn't employ a minor or that they didn't have armed guards smoking marijuana at the press at the premises after the permit was issued it's evidence of one thing it's not as as i think the defense would argue kind of a something akin to diplomatic immunity where entitles them to it and immunity and i i think when i when i was listening to the counsel from the eastern district of washington i thought at first we were on the same page with respect to the interpretation of the statute as applying to the d o g s actions of these of the states but then i understood the argument to be that this is an exemption for anyone it's an immunity basically for anyone who claims to be growing medical or selling medical marijuana to operate without regard to federal if it can be shown that the department of justice is preventing the state of washington for example from implementing its medical marijuana law but the problem is the reference to the state ultimately is a reference to the state's interest what the state's interest is in this particular case the state may not care about this prosecution will never know the district court will never know because the state's not a party but if you can see that there is standing to invoke this statute it seems to me you lose you know that's why there is standing for them to claim an injury under the statute they're standing to get them in the door your honor but it doesn't mean that their interpretation of the statute is correct i think that any interpretation other than a plain language interpretation would cause what under your reading of the statute plain language what acts of state government enforce laws that permit medical marijuana and this the department justice could not spend money to enjoy knows a lot could not take those those laws into court and say those are in conflict with the controlled substances act they should be enjoined but business federal government have the power to enjoin state laws by the federal government has the power to stop to enforce the controlled substances act which i gather they don't do they didn't do it in colorado they didn't do it  in oregon they didn't do it in washington three states that have retail marijuana stores well which i think raises the question of what the whole purpose of the statute is supposed to be exoneration but this is the purpose to give that to give people who are using medical marijuana exemption from prosecution well but it doesn't say that and that the standard that was supposed to say that was never passed so i think the only way to have this be a workable statute is to apply it according to its plain tory appeal should not concern this court just as in abney and footnote eight this court can dismiss frivolous appeals we're not talking about frivolous appeals we're talking about defendants that have permits to do what the state wants them to do to get medical marijuana to patients who have permits the violations that the federal government are alleging against my client have nothing to do with  with getting medical marijuana to medical marijuana patients they have to do with regulations that are ancillary so what we think the standard should be is once the defense presents a prima facie  case or some competent evidence that they are in compliance with medical marijuana the intent of the statute is to get the federal government out and if they want to refer the case to the state court for regulatory violations they can do that but they should not be in the business of doing this and if  slightly different approach that could be taken to this in terms of deciding how to apply five thirty eight our position is that once there is evidence of the record whether it's from the federal government or from the defendant that indicates that the fed has a colorable claim a non frivolous claim that they are in gauged illegal activity under state law at that point federal prosecution must and the reason being that just the prosecution itself is interfering with the ultimate goal the implementation of state law of getting these this medicine into the hands of people who need it not only is it stopping the defendants themselves from doing what they were doing in our case we believe that we're doing what the state wants them to do but it would it discourages other people from doing that so it's an interference with implantation of the law very well thank you counsel before submitting this case we want to the court would like counsel from both sides to confer any time after midnight friday night as to the status of section five thirty eight and if you could please do that and notify the clerk of court as soon as that becomes clear we would appreciate it very much and then we'll will be advised on whether or not this is the statute still in effect and if there is a further statute which is designed to take effect either on the eleventh or some time afterward please notify us of that as well thank you the case just argued will be submitted