In a major victory for those distributing and cultivating medical marijuana, the Ninth Circuit Court of Appeals, in United States v McIntosh, et. al. (August 16, 2016) has held that, at least for the time being, those who comply with the medical marijuana laws of their state cannot be prosecuted by the Department of Justice for federal crimes.
 
In the McIntosh case, five co-defendants allegedly ran four marijuana stores in Los Angeles known as the Hollywood Compassionate Care and Happy Days.  They also ran nine marijuana grow sites in San Francisco and Los Angeles.  The defendants were indicted for conspiracy to manufacture, to possess with intent to distribute, and to distribute more than 1,000 marijuana plants in violation of 21 USC §846 and §841.  The government sought forfeiture derived from the violations under 21 USC §853.
 
In December of 2014, Congress enacted a rider to the Omnibus Appropriations bill funding the government through September 30, 2015.  That rider provided that none of the funds made available under the appropriations bills to the Department of Justice may be used with respect to . . . California . . . “to prevent such states from implementing their own state laws that authorized the use, distribution, possession or cultivation of medical marijuana.”  That section was extended to run through September 30, 2016.
 
The McIntosh defendants complained that the Department of Justice was spending funds that had not been appropriated by Congress in violation of the appropriations clause of the Constitution.  The court agreed.  It indicated that §542 of the Omnibus Appropriations bill provided that, “None of the funds made available in this act to the Department of Justice may be used with respect to (medical marijuana) states to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
 
The court, citing various definitions from the dictionary, indicated that “implement” under the act meant to put into practical effect: “carry out.”  As the court indicated, “In sum, §542 prohibits the Department of Justice from spending money on actions that prevent the medical marijuana states giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
 
The decision did have specific caveats.  According to the court, this only prevented the Department of Justice from prosecuting medical marijuana cases where the defendants had strictly complied with all relative conditions imposed by state law on “the use, distribution, and cultivation of medical marijuana.”  The court further indicated that, while the Department of Justice is currently prohibited from spending funds for prosecutions, Congress could reverse that decision tomorrow and begin funding such prosecutions.  Thus, while the Department of Justice can’t currently prosecute such cases, if funding were restored, it could start doing so the next day. 
 
Thus, while the decision is certainly not a “get out of jail free” card, it should, at least at the present time, prevent the Department of Justice from prosecuting cases in which the grower or distributor has complied with the relevant conditions of California law.   Read the decision here