United States v. Jason Zucker ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 31 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30232
Plaintiff-Appellee, D.C. No. 2:13-cr-00024-TOR-5
v.
ORDER AMENDING
JASON LEE ZUCKER, MEMORANDUM DISPOSITION
AND DENYING PETITION FOR
Defendant-Appellant. PANEL REHEARING
Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA,* District
Judge.
The memorandum disposition filed August 7, 2018, is amended as follows:
On page 4, lines 13–19, add:
“Zucker also argues that the government’s decision to withdraw its
concession that it lacked authority to prosecute him violates principles of judicial
estoppel, the right to a speedy appeal, and fundamental fairness. However, a
motions panel considered this argument and denied it. We decline to revisit the
decision of the motions panel, as we do not find that it was “clearly erroneous” or
*
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
“would work a manifest injustice.” United States v. Houser, 804 F.2d 565, 568 (9th
Cir. 1986).”
With the foregoing amendment to the memorandum disposition, Zucker’s
petition for panel rehearing (Docket No. 61) is DENIED. His motion for an
extension of time (Docket No. 60) is DENIED as moot. No further petitions for
rehearing will be accepted in this case.
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 31 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30232
Plaintiff-Appellee, D.C. No.
2:13-cr-00024-TOR-5
v.
JASON LEE ZUCKER, AMENDED MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Argued and Submitted July 13, 2018
Seattle, Washington
Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA,** District
Judge.
Jason Lee Zucker appeals the district court’s denial of his motion to dismiss
several federal criminal charges brought against him related to cultivation of
marijuana. Zucker, who subsequently pled guilty to conspiracy to manufacture and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(vii), argues that his prosecution violated both an appropriations rider and
his substantive due process and equal protection rights. We review the district
court’s denial of a motion to dismiss, including on the basis of its interpretation of
a federal statute, de novo. United States v. Olander, 572 F.3d 764, 766 (9th Cir.
2009). We also review his constitutional challenge de novo. United States v.
Hancock, 231 F.3d 557, 561 (9th Cir. 2000).
Zucker was indicted for conspiracy to manufacture and distribute marijuana
plants. In the midst of Zucker’s prosecution, Congress passed an appropriations bill
that included a rider preventing the Department of Justice from using funds to
prevent certain states, including Washington, “from implementing their own laws
that authorize the use, distribution, possession, or cultivation of medical
marijuana.” Consolidated and Further Continuing Appropriations Act, 2015, Pub.
L. No. 113–235, § 538, 128 Stat. 2130, 2217 (2014) (“Section 542”). Zucker
moved to dismiss all charges, arguing that Section 542 prevented his continued
prosecution. The district judge denied the motion, finding the government had
proffered evidence of Zucker’s non-compliance with Washington’s medical
marijuana laws:
Although Defendants attempt to frame this prosecution as
merely one of medical marijuana patients, the United
States has proffered evidence to demonstrate that
Defendants were operating a for-profit marijuana
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business. . . . According to the United States, the records
obtained from the search evidence the sale of marijuana
to persons other than qualifying patients participating in
the oversized collected garden. Because such conduct is
not authorized or sanctioned by Washington’s medical
marijuana laws, even considering available affirmative
defenses, the United States is not prevented from using
funds to prosecute this conduct under the recent
appropriations rider.
The district court did not mention any additional evidence regarding compliance
in his order, and a transcript of the proceedings is not part of the appellate record.
In United States v. McIntosh, we considered a nearly-identical challenge to a
federal marijuana prosecution. 833 F.3d 1163, 1179 (9th Cir. 2016). Appellants
argued that they could not face federal prosecution because of their compliance
with California’s Compassionate Use Act, but we found there was not enough
evidence in the appellate record to determine state-law compliance and remanded
the case back to the district court for an evidentiary hearing. Id. at 1171, 1179.
Zucker argues his case is distinguishable from McIntosh because state officials
implemented the state’s scheme seamlessly by putting Zucker in compliance with
state plant-limit amounts and using prosecutorial discretion in deciding not to
pursue criminal charges against him. However, like McIntosh, this record is
factually incomplete as to compliance. The district court’s passing reference to
“records” found at the residence during the search warrant’s execution, without
further explanation as to what those records revealed and to whom they belonged,
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does not definitively prove a per se state violation. Similarly, the order’s reference
to evidence demonstrating that Zucker ran a “for-profit marijuana business”—
without discussing precisely what that evidence is—hinders our review of the
factual record.
Thus, on the issue of whether Zucker’s prosecution violates Section 542, we
REVERSE AND REMAND for the limited purpose of holding an evidentiary
hearing to develop the record to identify compliance, or noncompliance, with
Washington State’s statutory scheme. At this time, we decline to address Zucker’s
argument that he did not “knowingly” violate the law under the collective gardens
statute, RCWA 69.51A.085(3), or whether he was entitled to any alleged leniency
built into the scheme. If the district court finds that Zucker complied with state
law, his motion to dismiss should be granted.
Zucker also argues that the government’s decision to withdraw its
concession that it lacked authority to prosecute him violates principles of judicial
estoppel, the right to a speedy appeal, and fundamental fairness. However, a
motions panel considered this argument and denied it. We decline to revisit the
decision of the motions panel, as we do not find that it was “clearly erroneous” or
“would work a manifest injustice.” United States v. Houser, 804 F.2d 565, 568 (9th
Cir. 1986).
As to Zucker’s claims that his prosecution violates his substantive due
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process and equal protection rights we AFFIRM the district court’s order denying
his motions to dismiss on those grounds as these arguments are foreclosed by
Ninth Circuit precedent. See Raich v. Gonzalez, 500 F.3d 850, 854–55, 864–66
(9th Cir. 2007) (denying a substantive due process challenge to marijuana’s
inclusion in the Controlled Substances Act and finding that access to medical
marijuana is not a fundamental right); see also United States v. Christie, 825 F.3d
1048, 1065–66 (9th Cir. 2016) (denying a due process challenge to marijuana’s
classification as a Schedule I controlled substance). As a result, Zucker’s request
for judicial notice is DENIED as moot since we did not examine the merits of his
due process claim.
AFFIRMED IN PART AND REVERSED AND REMANDED IN
PART.
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