NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JASON LEE ZUCKER, 

Defendant-Appellant.

No. 15-30232 

D.C. No. 2:13-cr-00024-TOR-5

ORDER AMENDING 

MEMORANDUM DISPOSITION 

AND DENYING PETITION FOR 

PANEL REHEARING

Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA,* District 

Judge.

The memorandum disposition filed August 7, 2018, is amended as follows:

On page 4, lines 13–19, add:

“Zucker also argues that the government’s decision to withdraw its 

concession that it lacked authority to prosecute him violates principles of judicial 

estoppel, the right to a speedy appeal, and fundamental fairness. However, a 

motions panel considered this argument and denied it. We decline to revisit the 

decision of the motions panel, as we do not find that it was “clearly erroneous” or 

 

* The Honorable Anthony J. Battaglia, United States District Judge for 

the Southern District of California, sitting by designation.

FILED

AUG 31 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
“would work a manifest injustice.” United States v. Houser, 804 F.2d 565, 568 (9th 

Cir. 1986).”

With the foregoing amendment to the memorandum disposition, Zucker’s 

petition for panel rehearing (Docket No. 61) is DENIED. His motion for an 

extension of time (Docket No. 60) is DENIED as moot. No further petitions for 

rehearing will be accepted in this case.
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JASON LEE ZUCKER, 

Defendant-Appellant.

No. 15-30232 

D.C. No. 

2:13-cr-00024-TOR-5 

AMENDED MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

Thomas O. Rice, Chief Judge, Presiding

Argued and Submitted July 13, 2018

Seattle, Washington

Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA,** District 

Judge.

Jason Lee Zucker appeals the district court’s denial of his motion to dismiss 

several federal criminal charges brought against him related to cultivation of 

marijuana. Zucker, who subsequently pled guilty to conspiracy to manufacture and

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Anthony J. Battaglia, United States District Judge for 

the Southern District of California, sitting by designation.

FILED

AUG 31 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), 

(b)(1)(B)(vii), argues that his prosecution violated both an appropriations rider and 

his substantive due process and equal protection rights. We review the district 

court’s denial of a motion to dismiss, including on the basis of its interpretation of 

a federal statute, de novo. United States v. Olander, 572 F.3d 764, 766 (9th Cir. 

2009). We also review his constitutional challenge de novo. United States v. 

Hancock, 231 F.3d 557, 561 (9th Cir. 2000).

Zucker was indicted for conspiracy to manufacture and distribute marijuana 

plants. In the midst of Zucker’s prosecution, Congress passed an appropriations bill

that included a rider preventing the Department of Justice from using funds to 

prevent certain states, including Washington, “from implementing their own laws 

that authorize the use, distribution, possession, or cultivation of medical 

marijuana.” Consolidated and Further Continuing Appropriations Act, 2015, Pub. 

L. No. 113–235, § 538, 128 Stat. 2130, 2217 (2014) (“Section 542”). Zucker 

moved to dismiss all charges, arguing that Section 542 prevented his continued

prosecution. The district judge denied the motion, finding the government had 

proffered evidence of Zucker’s non-compliance with Washington’s medical 

marijuana laws:

Although Defendants attempt to frame this prosecution as 

merely one of medical marijuana patients, the United 

States has proffered evidence to demonstrate that 

Defendants were operating a for-profit marijuana 
3

business. . . . According to the United States, the records 

obtained from the search evidence the sale of marijuana 

to persons other than qualifying patients participating in 

the oversized collected garden. Because such conduct is 

not authorized or sanctioned by Washington’s medical 

marijuana laws, even considering available affirmative 

defenses, the United States is not prevented from using 

funds to prosecute this conduct under the recent 

appropriations rider.

The district court did not mention any additional evidence regarding compliance 

in his order, and a transcript of the proceedings is not part of the appellate record.

In United States v. McIntosh, we considered a nearly-identical challenge to a 

federal marijuana prosecution. 833 F.3d 1163, 1179 (9th Cir. 2016). Appellants 

argued that they could not face federal prosecution because of their compliance 

with California’s Compassionate Use Act, but we found there was not enough 

evidence in the appellate record to determine state-law compliance and remanded 

the case back to the district court for an evidentiary hearing. Id. at 1171, 1179.

Zucker argues his case is distinguishable from McIntosh because state officials

implemented the state’s scheme seamlessly by putting Zucker in compliance with 

state plant-limit amounts and using prosecutorial discretion in deciding not to

pursue criminal charges against him. However, like McIntosh, this record is 

factually incomplete as to compliance. The district court’s passing reference to 

“records” found at the residence during the search warrant’s execution, without 

further explanation as to what those records revealed and to whom they belonged, 
4

does not definitively prove a per se state violation. Similarly, the order’s reference 

to evidence demonstrating that Zucker ran a “for-profit marijuana business”—

without discussing precisely what that evidence is—hinders our review of the 

factual record.

Thus, on the issue of whether Zucker’s prosecution violates Section 542, we

REVERSE AND REMAND for the limited purpose of holding an evidentiary 

hearing to develop the record to identify compliance, or noncompliance, with 

Washington State’s statutory scheme. At this time, we decline to address Zucker’s 

argument that he did not “knowingly” violate the law under the collective gardens 

statute, RCWA 69.51A.085(3), or whether he was entitled to any alleged leniency 

built into the scheme. If the district court finds that Zucker complied with state 

law, his motion to dismiss should be granted.

Zucker also argues that the government’s decision to withdraw its 

concession that it lacked authority to prosecute him violates principles of judicial 

estoppel, the right to a speedy appeal, and fundamental fairness. However, a 

motions panel considered this argument and denied it. We decline to revisit the 

decision of the motions panel, as we do not find that it was “clearly erroneous” or 

“would work a manifest injustice.” United States v. Houser, 804 F.2d 565, 568 (9th 

Cir. 1986).

As to Zucker’s claims that his prosecution violates his substantive due 
5

process and equal protection rights we AFFIRM the district court’s order denying 

his motions to dismiss on those grounds as these arguments are foreclosed by 

Ninth Circuit precedent. See Raich v. Gonzalez, 500 F.3d 850, 854–55, 864–66

(9th Cir. 2007) (denying a substantive due process challenge to marijuana’s 

inclusion in the Controlled Substances Act and finding that access to medical 

marijuana is not a fundamental right); see also United States v. Christie, 825 F.3d 

1048, 1065–66 (9th Cir. 2016) (denying a due process challenge to marijuana’s 

classification as a Schedule I controlled substance). As a result, Zucker’s request 

for judicial notice is DENIED as moot since we did not examine the merits of his 

due process claim.

AFFIRMED IN PART AND REVERSED AND REMANDED IN 

PART.