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August 14, 2017

Notable application of DOJ spending restriction to halt federal sentencing of convicted marijuana offenders

This new Los Angeles Times article, provocatively headlined "The feds seized guns, gold and 320 pot plants. So why did a judge rule they can't pursue marijuana charges?," reports on a notable federal District Judge ruling from last week.  Here are the basics:

When agents from the Drug Enforcement Administration raided a remote farm in Humboldt County five years ago, they found plenty to incriminate the owners, Anthony Pisarski and Sonny Moore. More than 300 marijuana plants were growing in a pair of greenhouses. Agents found guns in a house on the sprawling property and about $225,000 in cash, much of it bundled in vacuum-sealed pouches, hidden in a garage and some pickup trucks. Later searches uncovered another large stash of cash, along with bars of gold and silver.

Pisarski and Moore ultimately pleaded guilty to a federal charge of conspiring to manufacture and sell marijuana.

But in a ruling believed to be the first of its kind, a judge last week put a stop to the case before the men were sentenced to prison. The judge found he had no choice but to call off prosecutors in light of an unusual budget rule in Congress that forbids federal law enforcement from interfering with states where medical marijuana is legal.

The decision by U.S. District Judge Richard Seeborg in San Francisco illustrates for the first time what could be a serious legal hurdle if U.S. Atty. Gen. Jeff Sessions, a fierce marijuana opponent, decides to crack down on medical marijuana, which remains illegal under federal law. While it remains to be seen how many other marijuana cases will be closed down like the one in San Francisco, supporters of states’ authority to legalize pot hailed the decision and said they hoped it served as a check on Sessions.

“This is a signal that hopefully will go totally across the country — that federal prosecutors should stop wasting their time and start focusing on real criminals,” U.S. Rep. Dana Rohrabacher (R-Costa Mesa), who has led a legislative campaign to rein in the Justice Department on medical marijuana cases, said of the judge’s order.  “My conservative friends like Jeff [Sessions] need to look themselves in the mirror and say, ‘We don’t like these people smoking marijuana, but they do have a right to do it because it’s their lives, not the government’s.’ ”

The ruling hinged on a short amendment written by Rohrabacher and then-U.S. Rep. Sam Farr (D-Carmel), who recently retired, to an appropriations bill in late 2014 that authorized government spending for the upcoming year.  Though brief, the amendment was meant to have a significant effect: It forbade the Department of Justice from using funds in a way that obstructed a state “from implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.” Congress has renewed the prohibition each year since.

Until now, U.S. district judges had rejected attempts by defendants to argue that the amendment applied to their cases.  In a case in Fresno involving a man convicted of illegally operating a marijuana cooperative, for example, a judge found the man had violated California’s medical marijuana law by selling marijuana for profit and therefore was fair game for federal prosecution....

For Pisarski and Moore, the budget amendment offered a last-minute lifeline.  The amendment was added when the pair were only days away from being sentenced. Prosecutors were asking the judge to send the men to prison for nearly three years.  The pair owned 242 remote acres of property that included a house, a warehouse and two greenhouses where agents discovered 320 growing marijuana plants, according to court records filed by the U.S. attorney’s office . Federal agents found a loaded firearm in both of their bedrooms.  Among the evidence seized was $189,000 in cash that had been welded inside the lining of a trailer.

Pisarski’s attorney, Ronald Richards, made an emergency request to postpone the sentencing in order to see if the amendment would be signed into law.  The judge agreed, and when the spending rule, which passed with broad bipartisan support, became law, Richards said he sent emails to public defenders and other defense attorneys across the country to alert them to the new legal avenue the amendment opened in marijuana cases....

Justice Department officials, however, balked at such an expansive interpretation of the amendment. They acknowledged the spending ban prohibited them from meddling in the affairs of state officials but did not accept that it prevented them from going after producers and sellers like Pisarski and Moore. Richards and Moore’s attorney sought to push back the sentencing over and over as the legal landscape on marijuana cases continued to shift.

Last year, the 9th Circuit Court of Appeals ruled that defendants in California and other states in the court’s jurisdiction with medical marijuana laws were entitled to a hearing to determine whether they had been in compliance with those state laws. If defendants could demonstrate that they had abided by state rules, prosecutors were to be blocked from pursuing federal drug charges, the court said.

Last month, Seeborg held a hearing for Pisarski and Moore. Their attorneys argued the marijuana plants the men grew were earmarked for two nonprofit collectives that distributed it to its members in line with California regulations. In a court filing, Pisarski told the judge he needed guns at the house to protect himself against “mountain lions, pigs with big teeth and bears” when he was outside at night. The government countered that the men had not proved that all the members of the collective were legitimate and that the guns, cash and gold indicated the men planned to sell the pot for profit.

On Tuesday, Seeborg sided with Pisarski and Moore, saying the men were under no burden to verify that members of the collectives were qualified to belong. He acknowledged that the money and weapons could be signs of a criminal operation, but said they were “equally consistent with the operation of a rural, cash-intensive enterprise.” In his ruling, Seeborg echoed the 9th Circuit when he emphasized his decision was valid only as long as Congress continues to renew the spending restrictions on the Justice Department.

Having admitted their guilt but not been sentenced, Pisarski and Moore find themselves in an odd legal limbo. Prosecutors in their case did not respond to requests for comment, leaving it unknown whether the U.S. attorney in the Northern District of California will ask for the case to be dismissed or try to wait to see if Congress does an about-face.

I cannot yet seem to find a copy of Judge Seeborg's notable ruling anywhere on-line as of this writing. I will be sure to post it if I can get a copy/link sent my way.

UPDATE:  A helpful reader sent me a copy of Judge Seeborg's 10-page ruling in US v. Pisarski, and it can be downloaded via this link:

  Download Seeborg spending rider ruling

August 14, 2017 at 01:01 PM | Permalink


"Prosecutors were asking the judge to send the men to prison for nearly three years."

I am unsympathetic. People, mostly men, are getting sentenced from 10 100 years for looking at naughty pictures and there guys were running a major marijuana grow operation. Even if the judge is ultimately right (which is dubious) it is more fiddling while Rome burns.

Posted by: Daniel | Aug 14, 2017 2:11:56 PM

"He acknowledged that the money and weapons could be signs of a criminal operation, but said they were “equally consistent with the operation of a rural, cash-intensive enterprise.”

And the guy who ran down those people in Virgina, his actions were "equally consistent" with the little old lady who accidentally hit the gas peddle instead of the brake as she entered the Farmers Market.

It is this kind of bullshit that brings the judiciary into disrepute.

Posted by: Daniel | Aug 14, 2017 2:15:44 PM

When Congress comes back in September, they will have to vote on appropriation bills for FY 2018 (which starts October 1) and on raising the debt limit. While it is more likely than not that Congress will not actually pass all of these bills on time (as they have not managed to do so a single time n the past 20 years), they will have to pass something even if it just a continuing resolution covering several months to give them time to wrap up the process.

Since the bar is tied to the past appropriations bills, I can easily see AG Sessions pushing the Administration to insist that this bar not be part of this year's appropriations bill. So this ruling might have a very short lifespan.

Posted by: tmm | Aug 14, 2017 2:54:24 PM

@Daniel - prosecutors need to prove that it is a criminal enterprise, rather than point and say so. They can prove that the pair is not operating according to California law, that the guns are not properly registered, or that other aspects of the operation violated laws.

Seems like they could not do it. Maybe guys were following California pot regs, not violating lax gun laws, and had cash etc because federal laws make it hard for pot growers to get bank accounts.

Posted by: Paul | Aug 14, 2017 3:48:17 PM


It is difficult to prove anything when you have a biased judge who has a policy preference for a subset of defendants because they are the American intelligentsia's therapy pets.

Posted by: Daniel | Aug 14, 2017 4:41:07 PM

Now that I have read the opinion in full my worst suspicions were correct. Here is the problem the judge fails to address. The Rider says the DOJ may not use any funds to "to prevent any of them [the States] from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” So here is the key question: how does sentencing two criminals who have pled guilty interfere in states implementing their own laws? I can see the argument that a investigation would do so, but that is water under the bridge; I can see the argument that a prosecution would do so, but that is water under the bridge. But the bad behavior by the DOJ.,,if it is indeed bad behavior...is in the past by the time sentencing rolls around. There is no meaningful sense in which a sentencing hearing alone interferes with the state's implementation of its own laws. If the judge truly believes that the investigation or the prosecution of these two defendants interfered with CA implementation of its own laws then the remedy would not be a suspension of the judicial process but /sanctions/. It would be sanctions because sanctions is the proper remedy for bad behavior in the past. The judge is correct that this case produces a "temporal conundrum" but it is not the one he thinks and therefore he gets on the wrong side of it.

Posted by: Daniel | Aug 14, 2017 7:47:50 PM

An interesting point, Daniel, but I suppose one could say that other MMJ providers following state law would be deterred from state-legal activities upon seeing these defendants sentenced to prison. If we genuinely accept general deterrence as a rationale and realistic effect of a criminal sentence, then there is a basis to assert imposition of a sentence here will impact MMJ implementation in California. That said, your argument is still compelling because a sentencing and its deterrent impact does not really "prevent" implementation behavior, it formally just influences/impacts it.

Posted by: Doug B | Aug 15, 2017 10:48:50 AM


You write, "but I suppose one could say that other MMJ providers following state law would be deterred from state-legal activities upon seeing these defendants sentenced to prison." It is difficult to see how. The deterrence is the conviction, not the sentence. For example, whether a defendant gets a strike for the purpose of CA's three strike law turns on whether or not the person was convicted of a crime, not whether they were ever sentenced for the crime. Since the guilty verdicts stands the damage has already been done. If these two were to go out and get into trouble again while their sentences were suspended they already have one strike, the suspension doesn't change that fact.

"The essence of the Three Strikes law was to require a defendant /convicted/ of any new felony, having suffered one prior /conviction/ of a serious felony to be sentenced to state prison for twice the term otherwise provided for the crime." (emphasis added).


So it is had to see how any rational actor would be chilled/deterred simply by the handing down of a sentence in this context. General deterrence strikes me as far too attenuated to even qualify as interference.

Posted by: Daniel | Aug 15, 2017 1:14:47 PM

Daniel, are you really asserting there is the same general and specific deterrent impact between a conviction with no sentence and a conviction with a sentence of five years imprisonment? Are you saying a rational actor would react to a five year sentence and a suspended sentence the same way? That does not seem logical to me at all, and all "rational" accounts of marginal deterrence theory would dispute your contention.

For future crimes by these defendants, any valid conviction may count as a strike under CA law. But as for these defendants or others being willing to grow MJ for medical use, the impact and import of being sent to federal prison for years would seem to potentially matter a lot.

That all said, I wonder if the feds even tried to make this argument or if they might consider appealing on this ground. Of course, the latest spending rule runs as of Sept 30, so the landscape may be different in a matter of weeks.

Posted by: Doug B. | Aug 15, 2017 3:26:02 PM


"Daniel, are you really asserting there is the same general and specific deterrent impact between a conviction with no sentence and a conviction with a sentence of five years imprisonment?"

No because that is not the fact pattern here. Here the judicial process has only been suspended. I emphasize the judicial process because what happened here doesn't qualify as a "suspended sentence" in the ordinary meaning of that term. What can be the real deterrent effect of "oh, we will get around to sentencing you later"? What you are suggesting is taking marginal deterrence theory to the absurd extreme. Are you really trying to argue that whether some random criminal in the news gets sentenced now or 90 days later really serves as a deterrent to other criminals? Oh please.

Posted by: Daniel | Aug 15, 2017 6:11:41 PM

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