in the united states court of appeals united s ......nos. 15-30311, 15-30312, 15-30313 _____ in the...

Nos. 15-30311, 15-30312, 15-30313 __________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RHONDA FIRESTACK-HARVEY, ROLLAND GREGG, MICHELLE GREGG, Defendants-Appellants.

On Appeal from the United States District Court

for the Eastern District of Washington No. 2:13-cr-00024-TOR

Hon. Thomas O. Rice

APPELLANTS’ CONSOLIDATED OPENING BRIEF

Phil Telfeyan Equal Justice Under Law (202) 505-2058 [email protected] Bevan J. Maxey Maxey Law Offices, P.S. [email protected] Jeffrey S. Niesen Law Office of Jeffrey S. Niesen [email protected] Attorneys for Appellants Rhonda Firestack-Harvey, Rolland Gregg, and Michelle Gregg

Case: 15-30313, 05/17/2017, ID: 10439033, DktEntry: 11, of 67

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iv

INTRODUCTION ..................................................................................................... 1

JURISDICTIONAL STATEMENT .......................................................................... 2

STATUTORY AUTHORITIES ................................................................................ 3

ISSUES PRESENTED ............................................................................................... 3

STATEMENT OF THE CASE .................................................................................. 4

SUMMARY OF THE ARGUMENT ...................................................................... 10

ARGUMENT ........................................................................................................... 14

I. Dismissal Is Required Because Federal Prosecutors Violated the Duplicity Rule by Combining Two Separate and Distinct Offenses into a Single Count ..................................................................................... 14

A. Federal Prosecutors Improperly Combined Separate and Distinct Allegations of Manufacturing Marijuana into One Count ........ 15

i. Because Count 2 Combines Two “Units of Prosecution,” It Is Duplicitous .............................................................. 15

ii. Because the Alleged 2012 Conduct Was Based on a Separate “Impulse” than the Alleged 2011 Conduct, Count 2 Is Duplicitous ............................................................... 18

iii. None of the Prosecution’s Arguments Justifies Combining Two Acts into One Count ............................................... 21

iv. The Prosecution’s Intent to Indict a Count with a Mandatory Minimum Does Not Justify the Duplicitous Count ............................................................................... 24

B. The Duplicitous Indictment Prejudiced the Family by Violating Its Constitutional Rights ........................................................... 26

i. The Duplicitous Count Violated the Family’s Sixth


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Amendment Right to a Unanimous Verdict ................... 27

ii. The Duplicitous Indictment Undermines the Family’s Double Jeopardy Rights .................................................. 31

C. The Appropriate Remedy Is to Vacate the Convictions and Dismiss Without Prejudice as to 2012 Conduct ....................... 34

II. The Convictions Must Be Vacated Because the Department of Justice Lacked Authorization from Congress to Spend Money to Prosecute the Family .................................................................................................. 36

A. The Department of Justice Did Not Have Congressional Authorization to Prosecute this Family after December 2014 . 37

B. The Family Is Entitled to a Hearing to Determine Whether Its Members Complied with Washington’s Medical Marijuana Laws After the State Courts Have Ruled on What “Strict Compliance” Means .................................................................. 43

III. The District Court Abused Its Discretion by Not Allowing Appellants/Defendants to Present Evidence of Their Medical Conditions and Doctor-Recommended Use of Marijuana for Medicinal Purposes ............................................................................................... 48

IV. The Excessive Sentences, Based Largely on Acquitted Conduct, Should Be Reduced .......................................................................................... 51

A. The District Court Improperly Based Its Sentence on Acquitted Conduct, Overriding the Jury’s Factual Findings ..................... 52

B. The Family’s Sentences Are Objectively Unreasonable .......... 55

CONCLUSION ........................................................................................................ 58 STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM


iv

TABLE OF AUTHORITIES

Cases Blakely v. Washington, 542 U.S. 296 (2004) ........................................................... 54 Blockburger v. United States, 284 U.S. 299 (1932) ................................... 18, 19, 20 Gall v. United States, 552 U.S. 38 (2007) ........................................................ 52, 55 Jones v. United States, 135 S. Ct. 8 (2014) ............................................................. 54 Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990) ....................................... 37 Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007) ............................................. 48, 50 State v. Markwart, 329 P.3d 108 (Wash. App. Div. 3 2014) ................................... 44 State v. Shupe, 289 P.3d 741 (Wash. App. Div. 3 2012) ......................................... 44 State v. Simonson, 960 P.2d 955 (Wash. App. Div. 2 1998) ................................... 31 United States v. Aguilar, 756 F.2d 1418 (9th Cir. 1985) .................................. 26, 27 United States v. Aguilar, 883 F.2d 662 (9th Cir.1989) ............................................ 49 United States v. August, 86 F.3d 151 (9th Cir.1996) ............................................... 52 United States v. Buchmeier, 255 F.3d 415 (7th Cir. 2001) ...................................... 32 United States v. Dorrell, 758 F.2d 427 (9th Cir. 1985) ........................................... 49 United States v. Jordan, 256 F.3d 922 (9th Cir. 2001) ............................................ 53 United States v. King, 200 F.3d 1207 (9th Cir. 1999) ............................................. 33 United States v. Long, 524 F.2d 660 (9th Cir. 1975) ............................................... 19 United States v. Mal, 942 F.2d 682 (9th Cir. 1991) .......................................... 20, 22 United States v. Mancuso, 718 F.3d 780 (9th Cir. 2013) ................................ passim United States v. Marin Alliance for Medical Marijuana, 139 F. Supp. 3d 1039

(2015) ................................................................................................................... 51 United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) .............................. passim United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483 (2001) ...... 50, 51 United States v. Olander, 572 F.3d 764 (9th Cir. 2009) .......................................... 37 United States v. Payseno, 782 F.2d 832 (9th Cir. 1986) ......................................... 31 United States v. Rettelle, 165 F.3d 489 (6th Cir. 1999) .................................... 17, 25 United States v. Riley, 335 F.3d 919 (9th Cir. 2003) ............................................... 53 United States v. Savage, 67 F.3d 1435 (9th Cir. 1995) ........................................... 30 United States v. Silkeutsabay, No. 15-30392, 2017 WL 766985 (9th Cir. Feb. 28,

2017) ....................................................................................................... 42, 43, 45 United States v. Smith, 175 F.3d 1147 (9th Cir.1999) ............................................. 52 United States v. Taskov, 564 F. App'x 292 (9th Cir. 2014) ..................................... 53 United States v. UCO Oil Co., 546 F.2d 833 (9th Cir. 1976) .................................. 27 United States v. Universal C.I.T. Credit Corp., 344 U.S. 218 (1952) ..................... 15 United States v. W.R. Grace, 429 F. Supp. 2d 1207 (D. Mont. 2006) ..................... 27 United States v. Watts, 519 U.S. 148 (1997) .................................................... 54, 55 United States v. Williams, 685 F.2d 319 (9th Cir. 1982) ............................ 19, 20, 22


v

United States v. Winston, 37 F.3d 235 (6th Cir. 1994) ............................................ 25

Statutes 21 U.S.C. § 802(15) (2016) ..................................................................................... 17 21 U.S.C. § 841(a) (2010) ....................................................................... 2, 15, 16, 17 21 U.S.C. § 841(a)(1) (2010) ........................................................................ 2, 15, 16 21 U.S.C. § 841(b) (2010) .......................................................................... 16, 20, 24 21 U.S.C. § 841(b)(1)(B)(vii) (2010)....................................................................... 16 Wash. Rev. Code Ann. § 69.50.401(c) (2015) .......................................................... 46 Wash. Rev. Code Ann. § 69.51A.040 (2011) ........................................................... 39 Wash. Rev. Code Ann. § 69.51A.045 (2011) ........................................................... 44 Wash. Rev. Code Ann. § 69.51A.405 (2011) ........................................................... 42 Wash. Rev. Code Ann. § 9A.20.021(c) (2015) ......................................................... 46

Constitutional Provisions U.S. Const. art. I, § 9, cl. 7 ....................................................................................... 37


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INTRODUCTION

This case is about a family, still fighting for its freedom, that has been

subjected to an overzealous federal prosecution for state-sanctioned medical

marijuana. The Appellants/Defendants in this case are a mother, her late husband,

her son, and her daughter-in-law (“the Family” or “Family Members”). Rhonda

Firestack-Harvey suffers from degenerative disc disease, rheumatoid arthritis, bone

spurs, osteoarthritis, and severe pain. Rhonda’s son, Rolland Gregg, has ulcers, acid

reflux, and chronic pain due to a broken back. Her daughter-in-law, Michelle Gregg,

battles eating disorders and anxiety. Rhonda’s late husband, Larry Harvey, was also

charged in this case, but he died of pancreatic cancer during the federal government’s

prosecution.

All four Family Members possessed valid, unexpired, state-sanctioned

medical authorizations to grow and use at least 15 marijuana plants each. All four

received their authorizations from medical professionals licensed by the State of

Washington and in accordance with the State’s laws. All four were advised that

medical marijuana could alleviate their health conditions. None of the four had ever

broken the law before, and all four believed they were in compliance with

Washington state law. Along with a family friend, Jason Zucker (who also had a

valid, unexpired, state-sanctioned medical authorization to grow 15 marijuana

plants, and whose appeal is related to this one), all four were indicted and prosecuted


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by the federal government for growing approximately 75 marijuana plants (15 each

for the five Defendants) in 2011 and approximately 75 plants in 2012.

The three surviving Family Members respectfully ask this Court to reverse the

judgment below. In its overzealous prosecution of this Family, the federal

government committed four legal errors: it combined two separate acts of growing

75 marijuana plants into one duplicitous count (in order to attain a mandatory

minimum sentence); it continued its prosecution even after Congress prohibited

federal prosecutors from spending money in medical marijuana cases; it prevented

the Family from presenting medical evidence to the jury that could have shown their

medical needs and compliance under state law; and it acquired sentences

disproportionate to the offense of conviction.

The federal government has considerable leeway in its prosecution of drug

offenses. In this case, it went too far.

JURISDICTIONAL STATEMENT

The jurisdiction of the United States District Court for the Eastern District of

Washington was founded upon 18 U.S.C. § 3231. A grand jury sitting in the

aforementioned district charged Rhonda Firestack-Harvey, Michelle Gregg, and

Rolland Gregg by indictment with manufacture of marijuana in violation of 21

U.S.C. § 841(a)(1), (b)(1)(c) and 18 U.S.C. § 2. The jurisdiction of the United States

Court of Appeals for the Ninth Circuit is founded upon 28 U.S.C. § 1291 and 18


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U.S.C. § 3742, and it is based upon the final judgment and conviction entered on

October 4, 2015, and the Amended Notice of Appeal entered on October 15, 2015.

ER at 001.

The three Appellants/Defendants are released on bail pending this appeal.

STATUTORY AUTHORITIES

All relevant statutory authorities appear in the Addendum to this brief.

ISSUES PRESENTED I. Did the federal government’s indictment violate the rule against duplicity by

combining two separate, distinct, and non-continuous allegations of growing

approximately 75 marijuana plants over four months in 2011 and — separated

by more than eight months — growing 75 different marijuana plants in 2012?

II. Did federal prosecutors violate Congress’s prohibition on spending money to

prosecute medical marijuana patients accused of growing approximately 15

marijuana plants each while possessing valid, unexpired, state-sanctioned

medical authorizations to do so?

III. Did the district court abuse its discretion by preventing the Family from

raising an affirmative defense or introducing any evidence about their state

authorizations and medical need to use marijuana?

IV. Did the district court abuse its discretion by sentencing the Family for conduct

for which they had been acquitted?


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STATEMENT OF THE CASE

The Appellants/Defendants in this case are a family: Rhonda Firestack-

Harvey, her son Rolland Gregg, and her daughter-in-law Michelle Gregg (“the

Family” or “Family Members”). Along with former co-defendants Larry Harvey

(Rhonda’s husband) and Jason Zucker (a family friend), all three Family Members

had no prior criminal history and were productive members of society before this

prosecution began. ER at 087, 097, 104, 110. Despite the fact that every Family

Member possessed valid, unexpired, state-sanctioned medical authorizations to

grow marijuana, they have been federally prosecuted and sentenced to prison for

growing what they and their home state of Washington consider medicine.

I. The Harvey-Gregg Family Rhonda Firestack-Harvey, 58, is a Native American woman who grew up in

rural Alaska with ten siblings from her parents’ six different relationships. PSR

Excerpts at 8–10. When her parents divorced, Rhonda was placed into foster care at

the age of eight. Rhonda is the survivor of an abusive marriage. Id. at 10.

Nevertheless, she has worked, managed to live on an extremely limited income, and

was the sole caretaker of her terminally ill husband, Larry Harvey, who passed away

shortly after trial. ER at 113; PSR Excerpts at 10. Rhonda currently suffers from

serious physical ailments, including degenerative disc disease, rheumatoid arthritis,

bone spurs, osteoarthritis, and severe pain. PSR Excerpts at 10. She was prescribed


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medical marijuana for her health conditions. ER at 080.

Michelle Gregg, 38, grew up in Washington and has a bachelor’s degree in

business and marketing. PSR Excerpts at 5. She has a strong employment history

and currently works as a full-time site manager at Microsoft through a major

consulting firm. Id. at 5–6. She is active in volunteering, providing free services to

HeartMath, a program that helps people with anxiety, and teaching English to non-

native speakers. PSR Excerpts at 6. Michelle has suffered serious medical

conditions, including severe eating disorders and anxiety. PSR Excerpts at 4. She

was prescribed medical marijuana for her health conditions. ER at 084.

Rolland Gregg, 33, was born in Juneau, Alaska, and is a native member of the

Yakutat Tlingit tribe. PSR Excerpts at 15. After completing high school and some

college, Rolland became an entrepreneur and businessperson. Id. at 17. He co-

founded Native Clean Energy, a company dedicated to developing sustainable

energy sources for native communities, where he was also Chief Technology

Officer. Id. at 17–18. He is also the co-founder of Global Emergent Technologies

and Quantum Power, companies focused on research and development of renewable

energy sources. Id. at 17. Rolland unfortunately suffers from serious medical

conditions, including ulcers, acid reflex, and a broken neck and back from a

snowboarding accident. Id. at 16. He has been prescribed medical marijuana for

these ailments. ER at 083.


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Rhonda, Michelle, Larry, and Jason each possessed authorizations from

licensed medical professionals to grow up to 15 marijuana plants; Rolland was

authorized to grow as much marijuana as necessary for his health needs. ER at 080–

84. This flexibility is in keeping with the individual needs of each patient and the

method of consumption. ER at 115–17 (testimony that only 10–20% of the plant is

usable for extracting marijuana oil).

II. The Family’s Alleged Marijuana Production at the Harvey Farm in 2011 and then Again in 2012 Before Larry’s passing, Rhonda and Larry lived together on a large plot of

land in rural northeastern Washington near the town of Kettle Falls. Due to its cold

weather, northeastern Washington has a limited growing season from June through

October; marijuana cannot be grown outdoors at any other time of the year. ER at

124, 149, 151–52. According to the testimony of the government’s chief witness

and former co-defendant Jason Zucker, the group grew approximately 75 marijuana

plants (approximately 15 plants each for all five patients) on the Harvey property

from June 2011 through October 2011. According to Zucker, he spent the summer

months either traveling to the Harveys’ farm to supervise the health of the crop or

sending e-mail instructions on how to tend to the plants. ER at 160–61, 164. He

also orchestrated the harvest and hired additional workers to assist in trimming the

crop. ER at 165, 166. His last trip was near the end of October 2011, when he

picked up the second part of his share of the harvest. ER at 168, 169. He testified


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that he and the Family had no agreement or intent to repeat the project in 2012. ER

at 169, 174; see also ER at 150 (federal agent testimony that no record of an

agreement to continue production existed).

After keeping in sporadic contact with Rolland and Rhonda over the winter of

2011–2012, Zucker testified that he “reluctantly” entered into a new agreement and

formed a new intent to cultivate a second crop at the Harvey farm in 2012. ER at

169–70. After more than eight months without any marijuana being grown,

processed, or otherwise manufactured on the Harvey property, approximately 75

new marijuana plants were planted in June 2012 to be grown throughout the summer

of 2012. ER at 170. Zucker made some changes to the strains of marijuana that

were planted and the procedures for fertilizing them as the stalks grew. Id.

III. The Search under a Washington State Warrant that Did Not Result in State Charges On August 9, 2012, nine federal and state agents executed a state search

warrant on the Harvey home. ER at 136; 144–45. Rhonda answered the door and

received the search warrant from Washington state officer Sergeant Erdman while

the rest of the group secured the premises. ER at 140–42. Rhonda presented the

agents with five state-sanctioned medical marijuana authorizations upon their entry,

as is required under Washington State Law. PSR Excerpts at 13–14. These included

prescriptions for herself, her now-late husband (Larry Harvey), her son (Rolland

Gregg), her daughter-in-law (Michelle Gregg), and Jason Zucker (a family friend).


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Id. Each of the five state-sanctioned medical marijuana authorizations states that the

patient has a qualifying medical condition and is entitled under state law to grow as

many as fifteen marijuana plants for her or his own needs, except that Rolland’s

authorization places no limit on the number of plants he may grow. ER at 083.

The agents discovered approximately 75 marijuana plants growing on the

property and also found dried, usable marijuana inside the home. PSR Excerpts at

14. As a result of their search, law enforcement seized possessions and a total of

$770 in cash from various rooms throughout the home. ER at 143, 146. The officers

left behind approximately 4.5 pounds of processed marijuana for the Harveys to keep

for their own medical needs, and also left approximately 44 marijuana plants

growing in the garden. ER at 145. No state charges were ever filed.

IV. The Search under a Federal Warrant that Led to the Family’s Federal Prosecution One week after the state agents left the Harvey home without filing charges,

on August 16, 2012, federal and state agents executed a federal search warrant and

seized several items previously left behind, including the 4.5 pounds of processed

marijuana, the remaining 44 marijuana plants, and a desktop computer. ER at 147–

48. On the computer, agents found files and photographs of unsubstantiated

authorship, date, content, and authenticity. See, e.g., ER at 126–131. Many of the

files were in a “downloads” folder where files downloaded from the internet would

commonly be auto-saved. Id. The computer was not password-protected, so any


9

person or guest in the home could access, use, and save files to it. Id. These facts

left the files, which appeared to include photos of approximately 75 marijuana

plants, uncertain as to authorship, date, content, and authenticity.

V. Trial, Acquittals, and Sentencing Six months later, on February 6, 2013, a grand jury indicted the five patients

for federal drug trafficking charges. ER at 069. In December 2014, Congress

enacted a law prohibiting the federal government from prosecuting medical

marijuana patients for conduct consistent with state law. See United States v.

McIntosh, 833 F.3d 1163, 1169 (9th Cir. 2016). Despite the Family’s objections,

they were brought to trial in February and March of 2015. ER at 263. Also over the

Family’s objections, the district court ruled that the Family could not present

evidence of their medical necessity to grow marijuana. ER at 042. One day before

trial, former co-defendant Jason Zucker accepted a plea deal and was eventually

sentenced to 16 months after serving as the prosecution’s chief witness at trial. Of

the five allegations presented at trial, the jury exonerated Defendants on four

(conspiracy, distribution, gun use, and maintaining a drug-house) with “not guilty”

verdicts. ER at 003–14. The jury delivered a partial acquittal on the fifth charge

(manufacturing more than 100 marijuana plants in 2011 and 2012), by finding the

Family guilty of a lesser included charge of manufacture of less than 100 plants. Id.

Despite the jury’s acquittal on four out of five charges and each Family


10

member’s lack of prior criminal history, the district judge sentenced the Family to

12 months (for Rhonda and Michelle) and 33 months (for Rolland) in federal prison.

ER at 094, 100, 114. A significant basis for the district judge’s sentence was conduct

for which the jury had acquitted the Family, including the distribution charges and

2011 conduct. ER at 092, 093, 111. This appeal follows.

SUMMARY OF THE ARGUMENT

Rhonda Firestack-Harvey, her son Rolland Gregg, and her daughter-in-law

Michelle Gregg are a family, and they are the three Defendants in this joint appeal

(“the Family” or “Family Members”). Along with Rhonda’s late husband Larry

Harvey (who died from pancreatic cancer during this prosecution) and family friend

Jason Zucker, the Family possessed valid, unexpired, state-sanctioned authorizations

to grow medical marijuana. They have been accused of growing approximately 75

plants in the summer of 2011 and another approximately 75 plants in the summer of

2012. The convictions and judgments below should be vacated.

The federal prosecution’s overreach began with the indictment. After a jury

acquitted the Family of four out of five felony charges, the sole remaining count

(Count 2) impermissibly combines two separate criminal acts into one count. In

direct violation of the duplicity doctrine, the prosecution combined two distinct

“units of prosecution” — the alleged manufacture in the summer of 2011 and the

alleged manufacture in the summer of 2012 — into one count. Even though these


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acts were based on separate “impulses,” the prosecution sought to combine them so

as to bring a five-year mandatory minimum sentence into play. But the Controlled

Substances Act makes clear that the mandatory minimum is reserved for individuals

who grow 100+ on a single occasion, and courts that have examined the issue have

barred combining separate acts of manufacturing marijuana into one count. The

prosecution’s motive of charging a single count of 100+ plants in order to reach a

mandatory minimum simply does not justify the clear violation of the duplicity

doctrine, which forbids combining separate criminal acts into one count.

The prosecution’s duplicitous charge caused great prejudice to the Family,

included the abridgement of its constitutional rights. Because of the duplicitous

charge (and lack of a specificity instruction, which is required under Ninth Circuit

law), neither the Family nor this Court can know whether their conviction for

growing less than 100 marijuana plants captures the 75 plants allegedly grown in

2011 or the 75 plants allegedly grown in 2012. The only evidence presented by the

prosecution was of approximately 75 plants in each year, leaving it impossible to

know if all jurors agreed on the conduct for conviction. Some may have voted to

convict for 75 plants in 2011 and others may have voted to convict for 75 plants in

2012, which is a violation of the Family’s Sixth Amendment right to a unanimous

verdict. Additionally, the duplicitous charge impairs the Family’s Fifth Amendment

Double Jeopardy protection — the Family remains vulnerable to a future indictment


12

for 2011 conduct, even though they were likely acquitted of that conduct. The only

effective remedy for these harms is for this Court to vacate the convictions and

dismiss the indictment with prejudice as to 2011 conduct and without prejudice as

to 2012 conduct. The Family could then be charged for 2012 conduct and seek its

right to a unanimous jury on that specific, non-duplicitous charge.

In addition to the duplicity issue, the prosecution overstepped its legal

authority by continuing to prosecute the Family after Congress prohibited DOJ from

spending money to prosecute medical marijuana patients in states where it is legal.

The money spent prosecuting Count 2 (the manufacture charge) was unauthorized;

although the prosecution may have been permitted to prosecute other charges not

consistent with state law (such as conspiracy, distribution, gun use, and drug house

charges — all of which the Family was acquitted), the manufacture charge covers

conduct consistent with state law. Every Family member had a state-sanctioned

authorization to grow medical marijuana in amounts consistent with the allegations

(approximately 15 plants per person per year). This conduct is exactly the kind

Congress did not believe should be prosecuted; the authors of the DOJ funding

restriction wrote a letter to the DOJ specifically identifying this Family (known as

“the Kettle Falls Five”) as an example not to be prosecuted.

Given the prosecution’s violation of the funding restriction, at the very least,

the Family is entitled to a remand consistent with this Court’s recent precedent in


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McIntosh, 833 F.3d 1163, 1179. But any such remand should be made with clear

instructions to questions left unanswered by the McIntosh decision, including the

importance of honoring state procedures, state court precedents, and ambiguity in

state laws. Under any reasonable interpretation of Washington’s state laws, this

Family was in compliance, and that is exactly why state officials never prosecuted

the Family. The trial court should honor these state judgments on remand.

Another error below was the district court’s exclusion of all evidence of the

Family’s medical conditions. Ninth Circuit precedent establishes the right to a

medical necessity defense in criminal prosecutions, and the Family was barred from

mentioning anything to the jury about medical ailments, the need for medical

marijuana, the state-sanctioned medical authorizations every Family Member

possessed, or any of the other relevant facts underlying the charges.

Finally, the sentences issued by the district court are an abuse of discretion.

None of the Family Members have ever previously been convicted of any crime,

state or federal, and each was acting in compliance with state law and their state-

sanctioned medical authorizations. Sentencing this Family to 12, 12, and 33 months

in prison is objectively unreasonable; the egregious sentences are even more

problematic because they are largely based on acquitted conduct. Even though the

jury rejected claims that the Family grew marijuana in 2011 or distributed it at any

time, the district court made both allegations central in its sentencing decision.


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For all of these reasons, Appellants/Defendants respectfully request that the

judgment of the district court be vacated and remanded.

ARGUMENT I. Dismissal Is Required Because Federal Prosecutors Violated the

Duplicity Rule by Combining Two Separate and Distinct Offenses into a Single Count

Logic dictates that manufacturing two marijuana crops in two separate

summers — separated by eight months of non-activity — are two distinct offenses.

The prosecution improperly combined separate offenses in 2011 and 2012 in a single

count. Throughout this case, the prosecution presented evidence of two separate

marijuana gardens: one garden of approximately 75 plants allegedly grown from

June 2011 through October 2011 and another garden — separated by a more than

eight-month hiatus — of approximately 75 plants allegedly grown from June 2012

through the government’s raid in August 2012. Even the government’s star witness

testified that there was no continuous manufacturing process, but that production

stopped in October 2011 and a new manufacture began in June 2012. ER at 169.

The Family raised the duplicity concern on numerous occasions throughout

this prosecution, and the trial court incorrectly overruled the Family’s arguments.

See, e.g., ER at 039. This Court reviews the district court’s decision de novo. United

States v. Mancuso, 718 F.3d 780, 790 (9th Cir. 2013). The Family’s convictions

should be vacated and the indictment dismissed because (A) the indictment


15

improperly combines separate acts into a single charge, (B) the Family has been

prejudiced by an infringement of its constitutional rights to a unanimous verdict and

protection against double jeopardy, and (C) given the harms suffered, the only

adequate remedy is a reversal of the convictions with dismissal of the indictment.

A. Federal Prosecutors Improperly Combined Separate and Distinct Allegations of Manufacturing Marijuana into One Count

Count 2 is duplicitous because it combines two alleged marijuana grows —

one in 2011 and one in 2012 — into one count. Mancuso, 718 F.3d at 792 (“An

indictment is duplicitous when it joins two or more distinct and separate offenses

into a single count.”). The duplicity of Count 2 is illustrated in four ways: (i) two

separate “units of prosecution” occurred — one in 2011 and another in 2012, (ii) the

2012 conduct required a new “impulse,” (iii) none of the prosecution’s counter-

arguments is tenable, and (iv) the prosecution’s motive to bring a five-year

mandatory minimum into play is no justification for the duplicitous count.

i. Because Count 2 Combines Two “Units of Prosecution,” It Is Duplicitous

The prosecution’s own evidence in this case makes clear that two “units of

prosecution” occurred, which is the touchstone of the duplicity analysis. United

States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 224–25 (1952) (determining

the “unit of prosecution” for duplicity purposes). In this case, the clear unit of

prosecution is a completed manufacture of marijuana. See 21 U.S.C. §§ 841(a)(1),


16

841(b)(1)(B)(vii) (defining “a violation” of “manufactur[ing]” marijuana). The

Family allegedly planted approximately 75 marijuana plants in June 2011, ER at

158, grew them throughout the summer of 2011, harvested them in September 2011,

and processed them into usable medical marijuana by October 2011. ER at 169. By

October 2011, the “manufacture” of 75 marijuana plants was complete, constituting

a “unit of prosecution.” ER at 169 (Zucker testimony regarding distribution of the

alleged 2011 grow); ER at 175 (Zucker admission of a “second agreement”).

A separate “unit of prosecution” that allegedly occurred in 2012 cannot be

combined with the 2011 “unit of prosecution.” There is no evidence that the Family

continued to grow marijuana after the completed harvest in October 2011. See ER

at 124. For eight months — including all of November 2011 through May 2012 —

there is no allegation of any manufacturing of medical marijuana. ER at 152. Then,

in June 2012, the Family is alleged to have planted approximately 75 new marijuana

plants and grown them through the summer of 2012. ER at 154. This conduct

clearly indicates two “units of prosecution” because two separate and distinct

manufacturing processes occurred. Mancuso, 718 F.3d at 793.

In this case, the unit of prosecution under § 841(a)(1) is the “manufacture” of

marijuana, namely the process of germinating seeds to the harvest of the ripe plants,

which are then processed into usable marijuana. The statute defines “manufacture”

as “the production, preparation, propagation, compounding, or processing of a drug


17

or other substance.” 21 U.S.C. § 802(15) (2016). The statutory definition makes

clear that, according to Congress, “manufacturing” is complete after the marijuana

has been produced and processed. The separateness of the two units of prosecution

is illustrated by the fact that, had the federal government decided to prosecute the

family in November 2011 for manufacturing approximately 75 marijuana plants, it

would have prosecuted a complete offense with no ongoing manufacturing.

In an analogous situation, this Court determined that separate, repeated acts

of distribution cannot be combined into a single count. Mancuso, 718 F.3d at 793

(“[S]eparate acts of distribution of controlled substances are distinct offenses under

21 U.S.C. § 841(a), as opposed to a continuing crime, and therefore must be charged

in separate counts.”). Because there was no “preparation, propagation,

compounding, or processing of a drug” between November 2011 and May 2012,

under the plain language of the statute, the charged activity was not continuous and

thus combining two separate grows into one count of the indictment is duplicitous.

21 U.S.C. § 802(15).

When presented with the same fact pattern as presented here — marijuana

grown over “distinct growing seasons separated by several months in which [the

defendant] did not grow any plants” — the Sixth Circuit held that marijuana plants

grown in two successive years cannot be combined. United States v. Rettelle, 165

F.3d 489, 492 (6th Cir. 1999) (vacating mandatory minimum sentence improperly


18

based on aggregated number of marijuana plants from two growing seasons). Just

as in this case, “each year’s activity was a separate offense” and thus a distinct crime.

Id. The Sixth Circuit’s persuasive reasoning in Rettelle applies with full force here;

there is no evidence that the Family continuously manufactured marijuana. The gap

in manufacturing from November 2011 to May 2012 means that, like in Rettelle, two

separate acts occurred forming two separate “units of prosecution.”

ii. Because the Alleged 2012 Conduct Was Based on a Separate “Impulse” than the Alleged 2011 Conduct, Count 2 Is Duplicitous

In addition to the “unit of prosecution” analysis, the Supreme Court’s

“impulse” analysis also illustrates the prosecution’s duplicitous charge. The record

demonstrates that the Family allegedly made two separate decisions to grow

marijuana, one in 2011 and another in 2012. ER at 169–70 (Zucker testimony that

the 2012 decision was new and entirely separate from any 2011 decision). This

conduct represents two separate “impulses” to manufacture marijuana. The

Supreme Court has explained that “if successive impulses are separately given, even

though all unite in swelling a common stream of action, separate indictments lie.”

Blockburger v. United States, 284 U.S. 299, 302 (1932). Just as in Blockburger, in

which the defendant sold morphine to the same buyer on two successive days and

the Court held that the two sales were separate offenses, this Family’s two separate

and successive impulses must be charged separately. Id. at 301–02. Blockburger’s


19

succinct analysis applies directly to this case: “the first transaction, resulting in a

[completed criminal act] had come to an end. The next [criminal act] was not the

result of the original impulse, but of a fresh one — that is to say, of a new bargain.”

Id. at 303. The Family completed the first act in 2011 before contemplating a

second, new act in 2012.

The Supreme Court’s “impulse” explanation in Blockburger provides a

useful, workable definition for separate offenses. The Family could not argue, for

example, that the approximately 75 plants alleged in 2011 must be charged as 75

separate counts of growing only one plant, because the government’s allegations

support a single impulse or intent to grow a garden of 75 plants all at once. Indeed,

all the plants were allegedly planted, watered, and harvested through the same act.

In other words, the manufacture of 75 plants was a single action of manufacturing

in 2011. But it took a new, separate intent and impulse to manufacture 75 different

plants more than eight months later in June 2012. United States v. Williams, 685

F.2d 319, 321 (9th Cir. 1982) (“Successive acts, no matter how close in time,

constitute separate offenses.”).

This Court has consistently held that multiple commissions of the same

prohibited activity must be charged as separate counts in an indictment. See, e.g.,

United States v. Long, 524 F.2d 660, 662 (9th Cir. 1975) (giving false information

on two separate forms to purchase two guns warranted two charges because making


20

a false statement “was a proper unit of prosecution”); see also Williams, 685 F.2d at

321 (citing Blockburger to determine that making false statements related to seven

gun purchases justified indictment on seven counts); United States v. Mal, 942 F.2d

682, 684 (9th Cir. 1991) (indictment for five counts of tax evasion for nonpayment

of taxes from 1982–1986).

The testimony of Jason Zucker — the prosecution’s star witness — leaves no

doubt that the two years’ of allegations cannot be considered “a violation” under §

841(b) but rather “successive impulses” requiring separate counts. Blockburger, 284

U.S. at 302. Zucker testified that he and the family initially agreed to cooperate in

growing marijuana only for the 2011 season, not for 2012 or any future year. Zucker

also explained his subsequent, new impulse in 2012: when he was approached about

manufacturing in 2012, he “reluctantly” entered a new agreement. ER at 170; 588

(Zucker admission that he “reluctantly formed a second agreement to manufacture

marijuana” in 2012). The 2012 allegations differed in significant ways from the

2011 allegations. According to Zucker, the Defendants grew different strains of

marijuana, ER at 170, purchased additional supplies, used different fertilizers, and

substantially changed roles. ER at 161–62, 171. All these statements regarding the

different acts in 2011 and 2012 — from the government’s star witness — point to

“successive impulses.” The changes in roles, types of marijuana, supplies, and year

mean that the conduct could not constitute “a violation” and thus could not be


21

charged as one offense.

iii. None of the Prosecution’s Arguments Justifies Combining Two Acts into One Count

The prosecution’s several attempts to justify a combined charge — including

its allegation of an ongoing conspiracy — fail. Importantly, the facts (as established

by the jury) do not support an argument that there was any ongoing conspiracy that

carried over two years. Indeed, the Family was acquitted of Count 1 — the alleged

two-year conspiracy. Additionally, the government’s star witness testified that there

was no multi-year agreement, and in fact he was not sure after 2011 whether he

would manufacture marijuana on any other future occasion. ER at 174–75. Lacking

evidence for and a conviction of a two-year conspiracy, it is improper to combine

separate criminal acts into one charge.

Perhaps more importantly, the philosophy of the duplicity doctrine is

inconsistent with combining multiple acts into one count, even if a conspiracy is

charged over multiple years. It may indeed have been proper to charge Count 1 (the

multi-year conspiracy charge for which the Family was acquitted) as a single count,

because an agreement that spans multiple years is single “unit of prosecution”; it is

a single agreement. Whereas a single agreement can be charged spanning multiple

years, separate acts of manufacturing occurring at distinct times should be charged

separately because they are separate “units of prosecution.”

The district court incorrectly reasoned that, simply because the two alleged


22

acts were substantially similar, they constituted one offense. But the mere fact that

an individual allegedly commits the same act on two different occasions does not

create a continuing offense; such reasoning would effectively eviscerate the

duplicity standard. See Mancuso, 718 F.3d at 793–94 (holding that multiple acts of

distribution must be charged as separate acts). This Court has recognized that, even

when two offenses share similarity in parties, location, type of drugs, and kind of

transaction, separate offenses cannot be merged into an artificially constructed

continuing offense. Id. When a distinct, stand-alone offense is completed, the mere

fact that the same defendant commits a substantially similar kind of offense again

does not mean the two separate crimes can be charged together. See also Mal, 942

F.2d at 684 (holding that an indictment for tax evasion required a separate charge

for each tax year). By focusing on the similarity between distinct offenses, the

district court ignored the core question of whether two offenses occurred or just one

act. Under the district court’s rationale, every time an offense is repeated, multiple

instances could be charged together. But that is neither the law of this Circuit nor

the logic of the duplicity doctrine.

Similarly, the mere fact that two separate acts are committed in successive

years does not convert them into one act chargeable as a single offense. “Successive

acts, no matter how close in time, constitute separate offenses.” Williams, 685 F.2d

at 321. Such is exactly the case here; while the allegations describe similar acts of


23

manufacture of 75 marijuana plants over two separate years, the fact that a single act

is repeated eight months later results in two separate acts, not one. These separate

acts must be charged in separate counts.

The government’s approach lacks any coherence that could be consistent with

the rule against duplicitous indictments. The manufacture of marijuana is inherently

a similar process from year to year. Under the government’s approach, it could

always combine multiple separate acts of manufacturing marijuana into one count

in order to reach a mandatory minimum. In addition to contravening the statutory

definition of “a violation” of “manufacturing” marijuana, this approach is not limited

by anything other than the government’s self-serving assertion. The only coherent

method for limiting the prosecution’s charging methods is the established method of

determining a “unit of prosecution” based on “impulses,” not simply comparing the

similarity of repeated conduct.

Effectively, the prosecution wants to implant its own belief as to whether it

can charge multiple acts as one, but this Court should resist the prosecution’s self-

appointed role as the arbiter of duplicity. The prosecution’s promise rings especially

hollow in this case because the jury rejected any contention that there was a multi-

year agreement. ER at 003, 007, 011. This Court does not have to take the

prosecution’s word about whether the Family had a single intent to grow over two

years; the jury has found that no such intent was established.


24

The prosecution may argue that the Family’s approach creates a slippery slope

that would prevent any manufacturing of marijuana from being continuous activity,

but such an argument is not valid. The Family merely argues what is consistent with

the duplicity doctrine and longstanding Supreme Court precedent: where there is a

single impulse to commit a single act, that act is properly charged in one count. But

multiple impulses — especially where, as here, they occur in different years and are

separated by months of non-criminal activity — must be charged separately. Thus,

truly continuous manufacturing — wherein an individual decides to start growing

marijuana on January 1 and continues to replant new plants throughout the year,

continuously replacing harvested plants with new ones — counts as continuous

activity that can be charged in one count. But the Family’s conduct was not

continuous and was the result of separate impulses that resulted in two distinct units

of prosecution. It was therefore improper for the prosecution to charge multiple

criminal acts in one count.

iv. The Prosecution’s Intent to Indict a Count with a Mandatory Minimum Does Not Justify the Duplicitous Count

The prosecution appears to have charged a single offense with the motive of

bringing into play a mandatory minimum sentence, but this motive does not justify

the duplicitous count. Under the CSA, anyone who manufactures more than 100

marijuana plants in a single offense is subject to a five-year mandatory minimum.

21 U.S.C. § 841(b)(1)(B) (2010). The intent of Congress to criminalize separate acts


25

of manufacture distinctly is supported by its reservation of mandatory minimums for

those who grow 100+ plants on a single occasion. United States v. Winston, 37 F.3d

235, 241 (6th Cir. 1994) (“If we were to construe [the CSA] as applying to aggregate

amounts of drugs held on various separate occasions, it could be used against small-

time dealers or users who never possess more than a few grams at a time. The phrase,

“a violation,” makes it clear that this was not Congress’s intent.”) (internal citations

and some quotation marks omitted.). The Sixth Circuit persuasively reasoned that

combining multiple, distinct manufacturing processes into one charge would

undercut Congress’s intent to specifically punish only those major traffickers who

grow more than 100 plants on one occasion. Rettelle, 165 F.3d at 491–92 (“Congress

has said only that a person who cultivates more than one hundred plants in the course

of committing ‘a violation’ of § 841(b) must receive the mandatory minimum.”).

The Sixth Circuit’s persuasive reasoning in Rettelle is supported by the logic

of duplicity. While the prosecution would like to combine two separate acts of

growing 75 marijuana plants into one charge in order to seek a mandatory minimum,

no legal justification can support this practice. Under the prosecution’s theory,

someone who grows 15 marijuana plants seven years in a row would be guilty of

manufacturing 100+ plants and be subject to the same mandatory-minimum crime

as major drug traffickers. This approach is inconsistent both with the duplicity

doctrine — which prohibits combining multiple acts — and Congress’s intent —


26

which is to punish more severely those who manufacture more than 100 plants on

one occasion.

Admittedly, this case is unusual because rarely is it in a prosecutor’s interest

to combine separate acts into one count, but that fact does not justify ignoring the

duplicity doctrine. If someone robbed a bank in 2011 and then robbed the same bank

in 2012, she would be charged with two offenses. If someone committed a murder

in 2011 and then committed a nearly identical murder in 2012, she would be charged

with two offenses. In such instances, the prosecution would honor the duplicity

doctrine and charge separate offenses separately because there would be no charging

advantage to combining offenses. But because the CSA imposes a mandatory

minimum for manufacturing more than 100 plants, the prosecution would like to

stretch the definition of “manufacture” beyond its logical limit in order to charge a

mandatory minimum offense. Such charging may increase the ability of prosecutor

to induce guilty pleas, but it runs afoul of the longstanding principle that separate

offenses must be charged separately.

B. The Duplicitous Indictment Prejudiced the Family by Violating Its Constitutional Rights

The prosecution’s duplicitous indictment prejudiced the Family and violated

two constitutional rights: (i) the Family’s right to a unanimous jury verdict and (ii)

the Family’s protection from double jeopardy. United States v. Aguilar, 756 F.2d

1418, 1422 (9th Cir. 1985) (highlighting the prejudice that can arise from a


27

duplicitous charge in leading to a non-unanimous verdict and undercutting double

jeopardy protection).

i. The Duplicitous Count Violated the Family’s Sixth Amendment Right to a Unanimous Verdict

When the district court allowed the prosecution to treat two distinct acts as

one combined offense, the Family was deprived of the right to a unanimous verdict.

See Aguilar, 756 F.2d at 1422 (noting that the first “vice of duplicity” is that it allows

a jury to convict without reaching a unanimous verdict); United States v. UCO Oil

Co., 546 F.2d 833, 835 (9th Cir. 1976) (stating a duplicitous charge “may conflict

with a defendant’s Sixth Amendment rights,” including the right to a unanimous

verdict). Because two acts were combined into one charge, neither the Family nor

this Court can know whether the jury’s verdict was unanimous; indeed, it is not clear

that the verdict was unanimous at all or even what the conviction covers. United

States v. W.R. Grace, 429 F. Supp. 2d 1207, 1217 (D. Mont. 2006) (noting a

duplicitous count risks conviction based on a non-unanimous verdict).

The lack of unanimity arises from the duplicitous charge. The prosecution

combined approximately 75 plants manufactured in 2011 and approximately 75

plants manufactured in 2012, but the jury only convicted for one of those years. ER

at 004, 008, 012. By convicting the Family of growing fewer than 100 plants

between 2011–2012, the jury indicated that it did not unanimously agree that 75

plants were grown in both 2011 and 2012. In other words, if all twelve jurors were


28

convinced that 75 plants were manufactured in 2011 and another 75 plants were

manufactured in 2012, the jury would have unanimously convicted for

manufacturing over 100 plants in 2011–2012. But the conviction for growing less

than 100 plants during the two-year timespan leaves open the possibility of a non-

unanimous verdict. It is possible that some jurors were convinced that the Family

grew 75 plants in 2011 and other jurors were convinced that the Family grew 75

plants in 2012. Such non-unanimity could have led the jury to convict for less than

100 plants in 2011–2012. All twelve jurors would have agreed that fewer than 100

plants were grown over two years, but the jurors might have disagreed over which

acts occurred or in which year the acts occurred. Thus, the conviction might capture

some juror’s belief in conduct (i.e., manufacture in 2011) that other jurors

completely rejected.

Given the prosecution’s presentation of evidence, it is not possible that the

jury unanimously agreed to a lesser amount of marijuana over two years; it clearly

agreed that only one year occurred. The government never suggested that 49 plants

were grown in 2011 and 49 more in 2012. The only presentation was of

unsubstantiated photographs of approximately 75 marijuana plants arguably in 2011

and approximately 75 different plants seized in 2012. ER at 130. The photographs

were of unknown date, authorship, and location, but the government argued they

were of plants in 2011. Id. at 274–75. So the jury was left with 75 actual, seized


29

plants in 2012 and unsubstantiated photographs allegedly from 2011. Based on this

presentation, the only possible interpretation of the jury’s verdict was that only one

year of manufacturing 75 plants occurred. And although the evidence for the 2012

conduct seems stronger, the duplicitous indictment prevents the Family and this

Court from knowing whether all jurors agreed on the same conduct in the same year.

Moreover, the indictment and verdict leave unclear whether the jurors were

unanimous for each Family Member in each specific year. For example, Juror 1

might have believed that Michelle Gregg manufactured marijuana only in 2011,

while Juror 2 might have believed that she did so only in 2012. The same can be

said for Rolland Gregg and Rhonda Firestack-Harvey; different jurors might have

held them responsible for conduct in different years. Indeed, the government’s

evidence left ambiguous which Family Members were alleged to have manufactured

marijuana in which years. ER at 086, 100. Thus, even if the government argues that

its evidence was absolutely certain for both years (a claim with which the Family

vehemently disagrees), it is possible that jurors disagreed over which Family

Members participated in which years. With three Family Members and two years,

the indictment simply does provide the basis to know whether the jury’s verdict was

unanimous for each Family Member, or what specific year each specific Family

Member was convicted for.

The duplicitous charge gave the prosecution an unfair and prejudicial


30

advantage over the Family by allowing three pathways to conviction -– manufacture

in 2011, manufacture in 2012, or manufacture in both. By creating three separate

routes to the same verdict, the government escaped its burden to get every member

of the jury to agree on a single factual basis for a guilty verdict. Each juror could

make his or her way to voting for conviction by whatever route was most plausible

to that juror. United States v. Savage, 67 F.3d 1435, 1439 (9th Cir. 1995)

(highlighting that a duplicitous count can infringe on the right to a unanimous

verdict).

The prosecution cannot reasonably claim that the jury unanimously found

conduct for either 2011 or 2012, because the duplicitous charge leaves the verdict

ambiguous. While the prosecution charged 100+ plants, combining approximately

75 in 2011 and 75 in 2012, the jury held that fewer than 100 plants were grown by

each Family Member. Whether Michelle Gregg was believed to only have

manufactured in 2011 and Rolland Gregg only in 2012 is impossible for the

prosecution to say. Whether Juror 1 was convinced only of conduct in 2011 and

Juror 2 was convinced only of conduct in 2012 is impossible for the prosecution to

say. Because neither the Family nor this Court is able to determine the precise

conduct on which the jury unanimously agreed — or, more fundamentally, whether

the jury was unanimous at all — the duplicitous charge prejudiced the Family’s right

to a unanimous verdict.


31

Because the duplicitous charge created a risk of a non-unanimous verdict, the

trial court was required to give a specific unanimity instruction, “whether requested

or not,” because the “jury could find from the evidence that the defendant[s]

committed a single charged offense on two or more distinct occasions.” State v.

Simonson, 960 P.2d 955, 960 (Wash. App. Div. 2 1998); see also United States v.

Payseno, 782 F.2d 832, 837 (9th Cir. 1986) (finding plain error when the trial judge

failed to give a special instruction after a bill of particulars revealed that the

prosecution combined three allegations of extortion into one count of the

indictment). The duplicitous charge and lack of a specific unanimity instruction

prejudiced the Family’s right to a unanimous verdict, leaving the Family uncertain

as to whether it was convicted for 2011 conduct or 2012 conduct. See Payseno, 782

F.2d at 837 (stating “there exists the genuine possibility that some jurors may have

believed Payseno used extortionate means on one occasion while others may have

believed that he was guilty of engaging in extortion at a different time and place.”).

ii. The Duplicitous Indictment Undermines the Family’s Double Jeopardy Rights

In addition to violating the Family’s right to a unanimous verdict, the

prosecution’s duplicitous indictment undermines the Family’s Fifth Amendment

protection against double jeopardy. UCO Oil Co., 546 F.2d at 835 (stating that non-

unanimous guilty verdicts may “prejudice a subsequent double jeopardy defense.”).

The duplicitous charge creates barriers to a subsequent claim of double jeopardy


32

since it is unclear what conduct the jury considered. Aguilar, 756 F.2d at 1420, n.2

(noting that a duplicitous indictment could “eviscerate the defendant’s Fifth

Amendment protection against double jeopardy, because of a lack of clarity

concerning the offense for which he is charged or convicted”). Without a unanimous

verdict on distinct conduct, the jury’s conviction for manufacturing fewer than 100

plants leaves ambiguous whether the Family has been acquitted for manufacture in

2011 or 2012, which in turns leaves their Double Jeopardy rights impaired in the

event of a future prosecution. Even though the jury appears to have acquitted the

Family of 2011 conduct, if the federal government decides in the future to charge

the Family with manufacturing approximately 75 marijuana plants in 2011, the

duplicitous indictment puts the Family in a difficult position to enforce its Double

Jeopardy rights.

Because the government’s evidence was that the Family manufactured

approximately 75 plants in 2011 and a different 75 plants in 2012, it is impossible to

know whether the jury’s verdict — manufacturing fewer than 100 plants — applies

to 2011 or 2012. “The overall vice of duplicity is that the jury cannot in a general

verdict render its finding on each offense, making it difficult to determine whether a

conviction rests on only one of the offenses or both.” United States v. Buchmeier,

255 F.3d 415, 425 (7th Cir. 2001) (citations and quotation marks omitted). This

problem is particularly central to the Double Jeopardy concern, because without


33

knowing the conduct for which the Family was acquitted, the Family’s Double

Jeopardy rights are impaired.

While Double Jeopardy is often a hypothetical concern, the prejudice to the

Family is very real in this case because the matter is likely to be remanded, at

minimum, for an evidentiary hearing at the trial court. Under this Court’s precedent

in United States v. McIntosh, the trial court must conduct an evidentiary hearing to

determine compliance with state law. 833 F.3d 1163, 1179 (9th Cir. 2016). But the

duplicitous indictment leaves unclear which conduct the Family will be defending

at the evidentiary hearing. Given that the Family was acquitted of 2011 conduct, a

Double Jeopardy argument is at least tenable if the prosecution argues that 2011

conduct was not compliant with state law and thus can be prosecuted. Even the 2012

conduct raises questions about whether the Family was already acquitted; some

jurors may not have been convinced that the Family did any manufacturing in 2012,

so it would again raise Double Jeopardy concerns if they were forced to defend

against already acquitted conduct. United States v. King, 200 F.3d 1207, 1212 (9th

Cir. 1999) (explaining that a duplicitous indictment compromises a defendant’s Fifth

Amendment protection against double jeopardy).

Whether in a possible future indictment or in an evidentiary hearing on

remand, the Family’s Double Jeopardy protection is impaired. The duplicitous

indictment has thus injured the Family in a constitutionally significant way.


34

C. The Appropriate Remedy Is to Vacate the Convictions and Dismiss Without Prejudice as to 2012 Conduct

Given the injuries and prejudice to the Family, the only appropriate remedy is

to vacate the convictions and dismiss the indictment without prejudice as to 2012

conduct. The ambiguity in the verdict and the concomitant non-unanimity risk can

only be remedied by vacating the verdict. Indeed, this Court lacks sufficient

assurances that the verdict was unanimous, and the lack of certainty about unanimity

stems directly from the duplicitous indictment. Had the prosecution separately

indicted two counts — one for alleged 2011 conduct and another count for alleged

2012 — it would have been unambiguous which Family Member was convicted for

which year. Instead of a general verdict convicting for fewer than 100 plants across

2011 and 2012, each Family Member would have been convicted for 75 plants in

whatever year the jurors unanimously agreed.

Vacating the convictions and dismissing the indictment allows the Family to

be indicted as they should originally have been: for distinct conduct in distinct

counts. Such an indictment would then allow a jury to deliberate and reach

unanimity for each Family Member and deliver unambiguous verdicts for the

appropriate year of alleged conduct.

The same remedy is necessary to cure the double jeopardy concern. Without

vacating the conviction, the Family is left vulnerable to future charges and confusion

over which year’s conduct is the subject of the McIntosh evidentiary hearing. This


35

Court could theoretically hold that the verdict was for 2012 conduct and that the

evidentiary hearing should only cover such conduct, but that holding does not honor

the fact that the jury (or some jurors) may not have convicted based on that conduct.

Based on the weak evidence of unsubstantiated photographs, it is likely that the

Family was acquitted of 2011 conduct. It is also possible that the Family was

acquitted of (or at least that some jurors voted to acquit for) 2012 conduct. This

confusion and resulting risk of double jeopardy is a direct result from the duplicitous

indictment.

Vacating the convictions and dismissing the indictment will allow the

prosecution to cure the harms caused to the Family by making clear which year the

Family has been exonerated for. Because the most plausible reading of the verdict

is an acquittal for 2011 conduct, the prosecution should be barred from any future

indictment covering 2011 conduct. And given that the Family has already fought

for an acquittal for at least one of the two years, it would be unfair for them to face

indictment for both years again. But any dismissal can be without prejudice for 2012

conduct (and with prejudice regarding 2011 conduct), leaving the prosecution free

to indict specifically for conduct in 2012. Such instructions protect conduct that was

already acquitted and honor the duplicity doctrine by ensuring a single charge for

2012 conduct. A future jury could then render a unanimous verdict for the alleged

2012 conduct.


36

II. The Convictions Must Be Vacated Because the Department of Justice Lacked Authorization from Congress to Spend Money to Prosecute the Family

Because the Department of Justice (“DOJ”) lacked authorization to spend

money prosecuting the Family, the trial never should have taken place and the

Family’s convictions must be vacated. Additionally, given the contours of state law,

specific and appropriate instructions should be given on remand.

In December 2014, and in every budget thereafter, Congress prohibited the

DOJ from spending money to prosecute medical marijuana patients like the Family:

“None of the funds made available in this Act to the Department of Justice may be

used, with respect to the States [including] . . . Washington . . . to prevent such States

from implementing their own State laws that authorize the use, distribution,

possession, or cultivation of medical marijuana.” Consolidated and Further

Appropriations Act, 2015, Pub. L. No. 113–235, §538, 128 Stat. 2130, 2217 (2014);

Consolidated Appropriations Act, 2016, Pub. L. No. 114–113, 129 Stat. 2242, 2332–

33 (2015); Consolidated Appropriations Act, 2017, Pub. L. No. 115–31 (May 9,

2017) (“Rohrabacher-Farr Amendment” or “DOJ Funding Restriction”). Indeed, the

authors of the DOJ Funding Restriction have explicitly stated that their intent was to

stop prosecutions like those against this very Family — the Kettle Falls Five. Letter

from Dana Rohrabacher and Sam Farr to Eric Holder, p. 1 (Apr. 8, 2015) (“Criminal

prosecutions, like the recent Kettle Falls Five case in Washington, . . . were what


37

motivated us and a majority of our colleagues in the United States House of

Representatives to approve this measure.”). Because the DOJ lacked funds to

prosecute this Family, (A) any actions taken by DOJ after December 2014 were

illegal, including the 2015 trial and all efforts to secure the 2015 judgments of

conviction and (B) the convictions should be vacated with appropriate instructions

on remand.

A. The Department of Justice Did Not Have Congressional Authorization to Prosecute this Family after December 2014

Because the Department of Justice had no legal authorization to prosecute the

Family for manufacturing medical marijuana, the conviction is invalid and must be

vacated. This Court reviews de novo a district court’s decision to deny a motion to

dismiss, including on the basis of its interpretation of a federal statute. United States

v. Olander, 572 F.3d 764, 766 (9th Cir. 2009).

Given the DOJ Funding Restriction, money spent prosecuting medical

marijuana patients is a serious constitutional and statutory violation. See U.S. Const.

art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence

of Appropriations made by Law . . . .”). This “straightforward and explicit command

. . . means simply that no money can be paid out of the Treasury unless it has been

appropriated by an act of Congress . . . . In other words, the payment of money from

the Treasury must be authorized by a statute.” Office of Pers. Mgmt. v. Richmond,

496 U.S. 414, 424 (1990) (citation omitted). This Court held that the DOJ cannot


38

ignore Congress’s funding directive, noting that it “plays a critical role in the

Constitution’s separation of powers among the three branches of government and

the checks and balances between them.” United States v. McIntosh, 833 F.3d 1163,

1175 (9th Cir. 2016). This Court’s recent decision in McIntosh made clear that

medical marijuana prosecutions are unlawful under the DOJ Funding Restriction:

“We therefore conclude that, at a minimum, § 542 prohibits DOJ from spending

funds . . . for the prosecution of individuals who engaged in conduct permitted by

the State Medical Marijuana Laws and who fully complied with such laws.” Id. at

1177.

The record in this case makes abundantly clear that the Family was in

compliance with state law. Each Family Member possessed a valid, unexpired, state

sanctioned authorization to grow medical marijuana. ER at 080–85. Each

authorization was issued by a licensed medical professional pursuant to the laws of

Washington. Id. For Rhonda, her husband Larry, her daughter-in-law Michelle, and

family friend Jason Zucker, the authorizations allowed 15 marijuana plants each. Id.

For Rhonda’s son Rolland, his authorization allowed as many marijuana plants as

he deemed necessary for his health. ER at 083. This means that Rolland himself

could have grown approximately 75 marijuana plants; between the five Defendants,

the 75 plants is an average of 15 each.

The Family’s conduct is consistent with state law because state law sensibly


39

allows the number of plants commonly needed to treat serious medical conditions

like degenerative disc disease, rheumatoid arthritis, bone spurs, osteoarthritis, and

severe pain for Rhonda; eating disorders and anxiety for Michelle; and ulcers, acid

reflux, and chronic pain due to a broken back for Rolland. ER at 080, 083–84.

Record and State Law. Although 15 marijuana plants may seem like a lot for a

recreational user, it is an appropriate amount for medical purposes. Id. (authorizing

15 plants to maintain a 60-day medical supply). The reason for this fact is that, while

marijuana is typically smoked for recreational purposes, medicinal users will juice,

blend, or make oils out of marijuana — processes that require many more plants to

make usable amounts of medicine. ER at 115–17. Additionally, depending on the

ailment and the method of medicinal extraction, some patients require many more

than 15 plants for their health needs. ER at 118. For this reason, state law sensibly

allows every patient an affirmative defense: under state law at the time of this case,

if a patient could establish her medical need for more than 15 plants, no violation of

state law would have occurred. Wash. Rev. Code Ann. § 69.51A.040(1)(a), 402(1)

(2011). Because the Family’s usage was consistent with that authorized by medical

professionals and fully in compliance with state law, no federal prosecution should

have occurred.

The DOJ argued that it could continue prosecuting the Family because (i)

under its view, the DOJ Spending Restriction did not apply to criminal cases and (ii)


40

under its view, the Family’s other charges were not in compliance with state law.

The DOJ’s first argument has been squarely rejected by this Court. McIntosh, 833

F.3d at 1176–77. Its second argument is simply inconsistent with law. While the

DOJ may have been able to prosecute conduct outside state law — such as the

distribution charge (Count 3) against the Family — it had no justification for

prosecuting conduct within state law. Because Congress’s restriction is tied to

funding, it is critically important that every charge be separately analyzed. Spending

money on a distribution charge is a different analysis than spending money on a

manufacture charge, especially if one charge is consistent with state law and the

other is not.

This distinction between the charges on which DOJ can spend money is

essential, but it was incorrectly overlooked by the prosecution. It is reasonable to

argue that DOJ could prosecute some of the other counts against the Family (which

included conspiracy, distribution, use of firearms, and operating a drug house). ER

at 069–72. The Family makes no argument about these charges, and if they capture

conduct inconsistent with state law, then DOJ arguably was entitled to spend money

prosecuting them. But Count 2 solely relates to manufacture. It does not allege

conspiracy, distribution, or the use of guns — just the simple cultivation of medical

marijuana. This conduct is exactly the conduct Congress intended to protect. ER at

078. The existence of other charges is thus irrelevant to a determination of whether


41

DOJ could prosecute Count 2, because spending money on prosecuting Count 2 fell

outside the funding restriction, even if spending money on other counts was

acceptable.

The prosecution may argue that no extra money was spent on the manufacture

charge because it was already prosecuting other counts, but this argument

misunderstands the nature of budgetary authorization. Although the Family faced

five counts at trial (conspiracy, manufacture, distribution, gun use, and drug house

charges), federal prosecutors spent time — and therefore resources — on each

individual count. As a simple example, federal prosecutors devoted time during their

opening and closing statements to Count 2 (the manufacture charge) independent

from their discussion of other counts. They examined witnesses specifically on the

manufacture charge. The time and money spent prosecuting the manufacture charge

should never have been spent, even if the prosecution was going to spend different

time and money prosecuting other charges. This distinction may sound academic,

but it goes to the very core of Congress’s authority to restrict funding from a federal

agency based on specific conduct. The DOJ had an obligation to honor Congress’s

command, and it was not permitted to spend any money, resources, or time

prosecuting the Family for manufacturing marijuana.

The prosecution may also argue that conduct charged in Count 2 was

inconsistent with state law, but such an argument is only based on a tortured, self-


42

serving reading of state law. State law makes unambiguous that each patient is

entitled to grow the amount authorized by a licensed medical professional. See

Wash. Rev. Code Ann. § 69.51A.405. Each Family Member would be able to prove

(via the affirmative defense established under state law) the medical need for the

requisite number of plants. This fact — that each Family Member grew only the

amount medically needed — alone suffices for compliance with state law.

The prosecution has also argued that the amount grown exceeds state law

limits, but this argument too is based on a self-serving reading of state law.

According to the prosecution, the Family’s medical marijuana was a “collective

garden” under state law and thus limited to 45 plants. There are two fundamental

flaws with this argument. First, the Family did not participate in a collective garden;

that statutory language is intended for distribution gardens that collect authorizations

from dozens or hundreds of patients. United States v. Silkeutsabay, No. 15-30392,

2017 WL 766985, at *1 (9th Cir. Feb. 28, 2017) (unpublished) (stating that

Washington State court of appeal decisions “have interpreted these statutes to allow

individuals to serve as designated providers for multiple patients at a time”).

Second, even a collective garden is entitled to the affirmative defense to show that

the amount grown is consistent with medical needs, so a collective garden growing

over 1,000 plants is still compliant with state law if supported by medical need. Id.

The federal prosecutors are simply wrong about state law; the Family was in perfect


43

compliance.

The will of Congress was to take the compliance question out of the hands of

federal prosecutors and leave it with the states. ER at 078. DOJ is attempting to

reverse this intent, arguing that it should be the sole arbiter of when it is permitted

to spend money prosecuting medical marijuana patients. But under Washington

state law, the Family was permitted to grow the amount of marijuana — at least 15

plants per person — authorized by a licensed medical professional. With regard to

their sole remaining charge (manufacture, Count 2), their conduct was in perfect

compliance, so the DOJ lacked authority to spend money prosecuting them.

B. The Family Is Entitled to a Hearing to Determine Whether Its Members Complied with Washington’s Medical Marijuana Laws After the State Courts Have Ruled on What “Strict Compliance” Means

At the very least, the conviction below must be vacated pending the

evidentiary hearing required by McIntosh to determine whether the Family strictly

complied with Washington’s medical marijuana laws. 833 F.3d at 1179; see also

Silkeutsabay, 2017 WL 766985 at *1. The district court, by its own admission, is

not qualified to make such a determination:

But what did state law require in 2011 and 2012? And who is to decide whether [each Defendant] was in compliance? Would the Court need to make a preliminary decision? Fed. R. Evid. 104(b). Would there be a trial within a trial?

ER at 055. The district court correctly identified the problem with having a federal


44

judge interpret state law. Under Washington law (which Congress intended to

prioritize through the DOJ Funding Restriction), a Washington state court, aided by

a Washington state jury, should decide what constitutes “strict compliance” with the

state Medical Use of Cannabis Act (“MUCA”), not a federal judge in an evidentiary

hearing. Compliance under state law is shown “by a preponderance of evidence that

[the defendant] has met the requirements of MUCA,” namely that “considering all

the evidence, the proposition asserted must be more probably true than not true.”

State v. Markwart, 329 P.3d 108, 118 (Wash. App. Div. 3 2014); see also State v.

Shupe, 289 P.3d 741, 748 (Wash. App. Div. 3 2012) (noting that the Washington

legislature wanted to encourage patients to “‘fully’ participate in the medical use of

marijuana” in spite of the conflict with federal law).

Although this Court’s decision in McIntosh set forth a process of remand, it

left many questions unanswered that should be addressed in this case. One important

issue is how the federal evidentiary hearing should resolve state procedures that are

integral to the state’s compliance determination. For example, Washington outlines

an affirmative defense for patients to show that the manufactured amount of

marijuana is consistent with their medical need. Wash. Rev. Code Ann. §

69.51A.045. The trial court on remand should be instructed to apply the same

consideration when determining compliance with state law.

McIntosh also leaves unanswered how the trial court should handle


45

ambiguous questions of state law, but these answers should be resolved in keeping

with Congress’s intent to defer to state law and with the Rule of Lenity. As a panel

of this Court has already recognized, defendants are entitled to an evidentiary

hearing to resolve ambiguities in state law. Silkeutsabay, 2017 WL 766985 at *1.

The panel persuasively recognized the need for a trial court on remand to consider a

“reasonable reading” of state law. Id. The “reasonable reading” standard is

particularly appropriate in light of the Rule of Lenity, and this Court should give

instructions on remand that the Family need only be in compliance with a reasonable

reading of state law. Over-technical considerations clearly were not Congress’s

intent when it prohibited DOJ from prosecuting medical marijuana cases; honoring

Congress’s goal of protecting states’ rights requires a reasonableness and leniency

standard when interpreting ambiguous state law.

The various procedural rights that are not captured by a federal court

evidentiary hearing tend in favor of a Rule of Lenity. In Washington, a violation of

the MUCA requires state law enforcement to make an arrest, state district attorneys

to file charges and prosecute, a state judge to allow the prosecution, a state jury to

consider the evidence (including evidence of medical need), and state appellate

courts to review the conviction. None of these state processes has been given to the

Family. Indeed, state law enforcement officials decided not to prosecute the family

under state law. See, e.g., PSR Excerpts at 15 (noting no pending charges or criminal


46

conduct). Legally, the Family is innocent under state law until proven guilty. If that

legal presumption of innocence is to be overridden by a federal judge who deems

the Family outside compliance, that judge must be guided by the Rule of Lenity and

deference to state practices.

Another matter left unresolved by McIntosh that warrants careful

consideration on remand is the burden of proof. In state court, the Family would be

entitled to proof beyond a reasonable doubt in front of a state court jury of their

peers. To the extent a federal judge is left to determine the Family’s compliance

with state law, that judge should be authorized to empanel a jury to resolve any

factual questions and to hold the prosecution to the same burden required under state

law: proof beyond a reasonable doubt.

State law also outlines considerably more lenient sentences than federal law,

and this fact should guide the trial court on any remand. For example, someone

convicted of non-compliance with state law would be subject to as little as zero days

in jail, not the 12, 12, and 33 months to which the Family has been sentenced. Wash.

Rev. Code Ann. §§ 69.50.401(c), 9A.20.021(c) (defining cultivation of marijuana as

a class C felony with no minimum sentence). It would be inconsistent with

Congress’s intent for the Family to be found in technical, minor non-compliance

(i.e., if their permit application were in blue ink instead of black ink) and then

sentenced to many months in prison for a violation that does not even carry a jail


47

term under state law. Similarly, if the remedy under state law for growing more

plants than medically necessary is to remove the excess plants and not prosecute, a

federal court should be instructed to take such facts into account. Consistent with

Congress’s intent to honor state law, this Court should provide clear instructions on

remand that any adjudged non-compliance with state law should also take into

account state non-enforcement decisions and leniency in sentencing.

As noted earlier, the trial court on remand should be clearly instructed not to

consider acquitted conduct when determining compliance with state law. The

Family is innocent until proven guilty under state law, and the same presumption of

innocence applies under federal law. This case raises the issue even more squarely

because the Family has already been acquitted of all conspiracy, distribution, gun

use, and drug house charges. ER at 003, 005–07, 009–11, 013–14. The Family has

also been acquitted of one year of alleged manufacturing. The trial court on remand

should be instructed to consider only conduct in 2012 in determining compliance

with state law.

Most importantly, given that the Family’s conduct is clearly within the state

medical regime — each Family Member suffers from a qualifying ailment and

possessed valid, unexpired, state-sanctioned medical authorizations provided by a

licensed medical professional — this Court can remand with instructions to vacate

the convictions and bar any further prosecution until the DOJ Funding Restriction is


48

lifted. Short of that, clear instructions should be given that any determination about

compliance with state law be made in light of state procedures, affirmative defenses,

and the Rule of Lenity.

III. The District Court Abused Its Discretion by Not Allowing Appellants/Defendants to Present Evidence of Their Medical Conditions and Doctor-Recommended Use of Marijuana for Medicinal Purposes

The most critical background fact in this case — that every Family Member

suffers from a qualifying condition and possessed valid, unexpired, state-sanctioned

medical authorization to grow marijuana — was excluded from the jury’s

deliberations. ER at 052–53. The district court foreclosed all mention of the

Family’s medical conditions and medicinal use of marijuana, an abuse of discretion

that prevented them from putting on an effective defense. Adopting the common

law necessity defense to this context, the Family wanted to prove to the jury that

they were faced with a choice of evils: “to either obey the Controlled Substances Act

and endure excruciating pain and possibly death, or violate the terms of the

Controlled Substances Act and obtain relief from her physical suffering.” Raich v.

Gonzales, 500 F.3d 850, 858 (9th Cir. 2007). All Family Members were faced with

the evils of debilitating and life-threatening illnesses that would be devastating

without the palliative effect of marijuana; indeed, Rhonda’s husband Larry died from

pancreatic cancer during the prosecution, and he blamed his inability to use medical

marijuana as the prime reason for his death.


49

Based on established Ninth Circuit precedent, the Family could have easily

made a necessity defense to the jury. Id. at 861 (“The necessity defense is an

affirmative defense that removes criminal liability for violation of a criminal

statute.”). They would have met all four common law factors, including that (i) they

were faced with the choice of two evils, (ii) they were forced to commit a crime, (iii)

they avoided imminent harm that could not otherwise be prevented, and (iv) they

reasonably saw a direct causal relationship between the conduct and the harm to be

averted. See United States v. Dorrell, 758 F.2d 427, 430–31 (9th Cir. 1985); United

States v. Aguilar, 883 F.2d 662, 693 (9th Cir.1989). Regarding the first and second

factors, the Family would have easily shown that evil to be averted — debilitating

illness — was worse than the anticipated crime, namely manufacture of medical

marijuana that was legal under Washington state law. The family’s debilitating

illnesses — which included degenerative disc disease, rheumatoid arthritis, bone

spurs, osteoarthritis, eating disorders, anxiety, ulcers, acid reflux, and chronic pain

due to a broken back — are significant enough to illustrate the lesser of two evils the

Family had to choose.

Regarding the third prong in the common law necessity analysis, medical

expert testimony would have established that the Appellants/Defendants acted to

prevent imminent harm to their health and that marijuana was necessary for Rolland

and Michelle to function sufficiently to maintain employment. Furthermore,


50

medical testimony would have demonstrated the causal relation between growing

marijuana and relieving the symptoms of debilitating illness, and it would have

clarified why the Family had no other viable alternative to achieve the same level of

wellness.

Regarding the fourth prong of the common law necessity defense, the Family

reasonably believed that manufacturing marijuana would improve their debilitating

health conditions. Regardless of the current state of science regarding medical

marijuana, the majority of states (including Washington) recognize its therapeutic,

medical, and health benefits. See 2017 Appropriations Bill, Addendum at 6 (listing

44 states, as well as the District of Columbia, Puerto Rico, and Guam, that recognize

marijuana’s medicinal value), so it is not unreasonable for citizens of Washington to

believe marijuana would help ease their suffering.

The government may argue that the Supreme Court has cast doubt on a

medical necessity defense, but the Ninth Circuit has clarified its continuing viability.

Although the Supreme Court has previously questioned the medical necessity

defense, United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 491

(2001), this Court has clearly stated that “[w]e do not believe that the Oakland

Cannabis dicta abolishes more than a century of common law necessity

jurisprudence.” Raich, 500 F.3d at 859 n.4. In fact, this Court has specifically noted

the importance of a criminal defendant’s right to raise a medical necessity defense


51

in a medical marijuana prosecution. Id. at 860 (holding that “[a medical marijuana]

necessity defense is best resolved within the context of a specific prosecution under

the Controlled Substances Act, where the issue would be fully joined”).

Even if there were any doubt about the Oakland Cannabis Court’s skepticism

in 2001, the logical underpinnings of the Oakland Cannabis decision have collapsed

under the weight of medical advances. The evidence that marijuana has valid

medical properties is overwhelming, as acknowledged by the federal government

itself. See, e.g., Nat’l Acad. of Sciences, Eng’g, and Med., The Health Effects of

Cannabis and Cannabinoids: The Current State of Evidence and Recommendations

for Research (2017). More importantly, Congress has updated its own values. The

DOJ Funding Restriction unambiguously reveals Congress’s recognition of the

“medical” value of marijuana. Addendum; April 2017 Rohrabacher Letter, ER at

074–77. Congress has unequivocally indicated that it does not want to expend

taxpayer money on prosecuting medical marijuana use, acknowledging the value of

state laws that make medical marijuana available to patients with chronic illnesses.

As long as the DOJ Funding Restriction is in place, courts must implement

congressional policy. United States v. Marin Alliance for Medical Marijuana, 139

F. Supp. 3d 1039, 1044 (2015). In this case, such policy includes allowing bona fide

patients like this Family to at least present evidence of their medical need.

IV. The Excessive Sentences, Based Largely on Acquitted Conduct, Should Be Reduced


52

In sentencing three Family Members who have no prior criminal history and

who have never harmed anyone to 12 (Rhonda), 12 (Michelle), and 33 months

(Rolland), the district court imposed unreasonable sentences for the offense of

conviction. This Court reviews de novo the district court's interpretation and

application of the sentencing guidelines and statutes, and its fact-findings for clear

error. Gall v. United States, 552 U.S. 38, 51 (2007). The district court's

interpretation of the Sentencing Guidelines is reviewed de novo. United States v.

Smith, 175 F.3d 1147, 1148 (9th Cir.1999). “Whether the method adopted by the

district court to approximate the relevant quantity of drugs is proper under the

guidelines is . . . reviewed de novo.” United States v. August, 86 F.3d 151, 153 (9th

Cir.1996). The sentences should be reduced because (A) they were improperly

based on acquitted conduct and (B) they are objectively unreasonable.

A. The District Court Improperly Based Its Sentence on Acquitted Conduct, Overriding the Jury’s Factual Findings

Nullifying the jury’s findings, the sentencing judge, using the preponderance

of evidence standard, found that Appellants/Defendants engaged in the distribution

of marijuana and manufacture of more than 100 plants. ER at 092, 093, 111. The

district court reached this ruling despite the jury’s unanimous findings that the

Family did not distribute marijuana and did not manufacture more than 100 plants.

The district court’s ruling constitutes prejudicial error for two reasons. First, the


53

district court should have judged the acquitted conduct under clear and convincing

standard. See United States v. Taskov, 564 F. App'x 292, 293 (9th Cir. 2014); United

States v. Riley, 335 F.3d 919, 925–26 (9th Cir. 2003) (citing United States v. Jordan,

256 F.3d 922, 927–929 (9th Cir. 2001)). Second, the jury found the Family not

guilty of distribution and the manufacture of more than 100 plants, meaning that

sentencing them for that conduct violated their Sixth Amendment rights.

Because the district court’s finding of acquitted conduct had a

disproportionate impact on the sentence, the court must find by clear and convincing

evidence that the conduct in fact happened. See Riley, 335 F.3d at 925–26. Here,

however, the district court found that the Family had engaged in the distribution of

marijuana and manufacture of 100+ plants by the preponderance of the evidence

standard and raised the Family members’ offense levels from 12 to 20 (for those

convicted of distributing 80–100 kilograms of marijuana). See 2015 U.S. Sentencing

Guidelines Manual. ER at 092–94, 095, 109. The difference in these two offense

levels is the difference between probation and up to 41 months of incarceration, or

almost three-and-a-half years. This is a disproportionate sentence for three medical

marijuana users whom a jury acquitted of conspiracy, distribution, and running a

drug operation.

By ignoring the jury’s acquittals, the sentencing judge violated the Family’s

Sixth Amendment rights. The district court’s authority to pass sentence “derives


54

wholly from the jury’s verdict. Without that restriction, the jury would not exercise

the control that the Framers intended.” Blakely v. Washington, 542 U.S. 296, 306

(2004). A judge may therefore only sentence the convicted party in accordance with

the jury’s findings and the Sentencing Guidelines, in this case an offense level of 12.

When a sentencing judge imposes punishments that are not based solely on “facts

reflected in the jury verdict or admitted by the defendant.” he is undermining the

very institution he is meant to uphold. Blakely, 542 U.S. at 301.

More than 20 years ago — at a time when the Sentencing Guidelines played

a drastically different (and now-recognized unconstitutional) role in our system —

the Supreme Court allowed acquitted conduct to influence a defendant’s eventual

sentence. United States v. Watts, 519 U.S. 148, 154 (1997). Like so many other

aspects of the pre-Booker sentencing regime, however, there is grave doubt that the

Watts holding is constitutional. The Supreme Court has signaled that it is

reevaluating the practice of using acquitted conduct in sentencing: “it unavoidably

follows that any fact necessary to prevent a sentence from being substantively

unreasonable — thereby exposing the defendant to the longer sentence — is an

element that must be either admitted by the defendant or found by the jury. It may

not be found by a judge.” Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J.,

dissenting from denial of certiorari) (joined by Thomas, J. and Ginsburg, J.)

(emphasis in original) (parallel citations omitted).


55

In this case, the district court enhanced the Family’s sentences by finding facts

that the jury had rejected — not, as would be permissible, by finding reason to

enhance the sentence because the “offense was carried out in a manner that warrants

increased punishment.” Watts, 519 U.S. at 154–55 (double jeopardy case). Here,

the judge nearly doubled the guidelines ranges from an offense level of 12 to 20 and

22. Because the judge denied family members a basic constitutional right, the

sentence should be vacated.

B. The Family’s Sentences Are Objectively Unreasonable

The district court abused its discretion in sentencing the Family Members —

none of whom has ever previously been convicted of a crime — to 12, 12, and 33

months in prison. Each was convicted for growing marijuana they believed their

valid, unexpired, state-sanctioned authorizations allowed them to grow. This Court

reviews a sentence for abuse of discretion. Gall, 552 U.S. at 51. Sentencing the

Family to prison, rather than imposing probation as allowed under the Guidelines,

was disproportionate and unreasonably harsh. Even the government’s star witness

admitted that he had no reason to believe that the Family did anything but personally

use their share of the harvest. ER at 172.1–172.2. This Court should remand with

instructions to resentence the Family to probation,

Rhonda Firestack Harvey, a Native American now 58 years old, is a widow,

as her husband (and co-defendant) died of pancreatic cancer shortly after the trial


56

ended. ER at 113. She married Larry Harvey after escaping from a previous

marriage in which she was a victim of spousal abuse. PSR Excerpts at 10. In spite

of a difficult childhood that included four years in foster care and an alcoholic

mother, she has always supported herself, including time spent on a commercial

fishing boat and working as a cosmetologist. PSR Excerpts at 9–10. She volunteers

at a local food bank in Colville and was the sole caretaker of her terminally ill

husband. Id. at 10. Rhonda currently suffers from several crippling physical

ailments, including degenerative disc disease, rheumatoid arthritis, bone spurs,

osteoarthritis, and severe pain. Id. Accordingly, she was prescribed medical

marijuana for her health conditions. ER at 080. She has never before been convicted

of any crime, state or federal, and she should not be sent to prison for growing

medical marijuana in a state where it is legal.

Michelle Gregg is the wife of Rhonda’s son, Rolland Gregg. PSR Excerpts at

3. Now 38 years old, Michelle has worked full-time throughout her adult life. Id.

at 5–6. She has also been a lifelong volunteer, beginning as a teenager when she

took care of injured animals at the Wildlife Care Association until they could be

released into the wild. Id. at 3. She now gives back by providing free services to

HeartMath, a program that helps people with anxiety, and teaching English to non-

native speakers. Id. at 6. Michelle suffers from serious medical conditions,

including severe eating disorders and anxiety. Id. at 4–5. She was prescribed


57

medical marijuana to ameliorate the debilitating effects of these illnesses. ER at 084.

She has never before been convicted of any crime, state or federal, and she should

not be sent to prison for growing medical marijuana in a state where it is legal.

Finally, Rolland Gregg has dedicated his career to improving society. Now

age 35, Rolland was born in Juneau, Alaska and is a native member of the Yakutat

Tlingit tribe. PSR Excerpts at 15. An entrepreneur and businessperson, Rolland co-

founded Native Clean Energy, a company dedicated to developing sustainable

energy sources for native communities. PSR Excerpts at 17–18. He also was the

co-founder of Global Emergent Technologies and Quantum Power, companies

focused on research and development of renewable energy sources. Id. at 17.

Rolland suffers from several medical conditions, including ulcers, acid reflex, and a

broken neck and back and was prescribed medical marijuana for these ailments. PSR

Excerpts at 016; ER at 083. He has never before been convicted of any crime, state

or federal, and he should not be sent to prison for growing medical marijuana in a

state where it is legal.

The district court abused its discretion in sentencing these Family Members

to prison because there is nothing reasonable about imposing a sentence that leaves

the community worse off than it was. The three defendants never grew marijuana

before, have no intention of doing so again, and only did so because they thought it

was permissible. ER at 96, 201, 202. There is no need to deter them from raising


58

cannabis — five years of federal prosecution has ensured they will never do so again.

Id. Furthermore, the courts have no grounds for deterring behavior that Congress

has expressly endorsed since 2014 — exploring the uses of medical marijuana in

compliance with state law. Locking Rhonda Firestack-Harvey up would deprive her

community of a local volunteer and mainstay. Locking Michelle Gregg up would

deprive Washington State of a gainfully-employed taxpayer and Seattle of someone

dedicated to helping those less fortunate than she is. Locking Rolland Gregg up

would deprive Washington of a creative entrepreneur and caretaker of the

environment. The district court abused its discretion in imposing a prison sentence,

and this Court is respectfully asked to rectify that lapse of judgement by remanding

this case to impose — at most — a sentence of probation.

CONCLUSION

For all of the reasons stated above, the Family Members respectfully request

that this Court vacate the judgments below; dismiss the indictment with prejudice as

to 2011 conduct and instructions that 2012 manufacturing conduct can charged

consistent with the duplicity doctrine; provide instructions that any McIntosh

evidentiary hearing be conducted in light of Washington state procedural rights,

affirmative defenses, and the Rule of Lenity; order that the Family can present

evidence of medical need at any future trial; and hold that any sentence cannot be

based on acquitted conduct nor be objectively unreasonable in light of the Family’s


59

lack of prior criminal history and compliance with state medical marijuana laws.

Date: May 17, 2017

/s/ Phil Telfeyan Phil Telfeyan Equal Justice Under Law 400 7th Street NW, Suite 602 Washington, D.C. 20004 (202) 505-2058 [email protected] /s/ Bevan Maxey Bevan J. Maxey Washington State Bar number 13827 Maxey Law Offices, P.S. 1835 West Broadway Avenue Spokane, WA 99201 (509) 326-0338 [email protected] /s/ Jeffrey Niesen Jeffrey S. Niesen Washington State Bar number 33850 Law Office of Jeffrey S. Niesen 1411 West Pinehill Road Spokane, WA 99218 (509) 467-8306 [email protected] Attorneys for Appellants Rhonda Firestack-Harvey, Rolland Gregg, and Michelle Gregg


STATEMENT OF RELATED CASE

This case is related to United States v. Zucker, No. 15-30232 (D.C. No. 2:13-

CR-00024-TOR-5).

Date: May 17, 2017 /s/ Phil Telfeyan Phil Telfeyan

Equal Justice Under Law [email protected] /s/ Bevan Maxey

Bevan J. Maxey Maxey Law Offices, P.S. [email protected]

/s/ Jeffrey Niesen Jeffrey S. Niesen Law Office of Jeffrey S. Niesen [email protected]

Attorneys for Appellants Rhonda Firestack-Harvey, Rolland Gregg, and Michelle Gregg


CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that:

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 14,163 words (including the 1,400-word

extension for consolidated briefs pursuant to Ninth Circuit Rule 32-2(b)), excluding

the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has

been prepared in a proportionately spaced typeface using Microsoft Word 10 Times

New Roman 14-point font.

Date: May 17, 2017 /s/ Phil Telfeyan Phil Telfeyan






CERTIFICATE OF SERVICE I hereby certify that on May 17, 2017, I electronically filed the foregoing with

the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit

by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.

Date: May 17, 2017

/s/ Phil Telfeyan Phil Telfeyan






in the united states court of appeals united s ......nos. 15-30311, 15-30312, 15-30313 _____ in the...

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