Congressional Appropriations Riders and Malum Prohibitum: A Medical Marijuana Conundrum

In 2008, Michigan became part of a nationwide trend when it legalized medical marijuana. The Michigan Medical Marijuana Act ("MMMA") allows "caregivers" to possess up to 2.5 ounces of usable marijuana and cultivate up to twelve marijuana plants per patient. Similarly, patients without caregivers may possess and cultivate the same amounts.

Although marijuana remains illegal under the federal Controlled Substances Act, in 2014, Congress attached a rider to one of its appropriations bills called the Rohrabacher-Faff Amendment, or "Section 538," which prohibited the DOJ from using any of the funds appropriated under the bill to prevent certain states from implementing their medical marijuana programs.

Enter Daniel Trevino. Trevino was the founder and sole owner of Hydro World, LLC ("Hydroworld") in Michigan. Although it originally sold fertilizer and indoor growing equipment, the company began selling medicinal marijuana after Michigan voters enacted the MMMA. The problem for Trevino, the Government alleged, was that while he was registered "patient" under the MMMA, he was not a registered "caregiver," nor could he be since he had a previous felony drug conviction. A federal grand jury subsequently charged Trevino with nine substantive marijuana offenses and one count of conspiracy to manufacture, distribute, and possess marijuana with intent to distribute. Prior to trial, Trevino moved to quash the indictment, alleging the Section 538 rider prohibited the Government from proceeding against him. After the district court denied his motion, a jury convicted him of all ten counts, and the district court sentenced him to 188 months in prison.

 In a published opinion, the Sixth Circuit affirmed Trevino's conviction and sentence. Turning to Trevino's claim that the Section 538 rider barred his prosecution, the Court held it did not need to decide whether the rider prohibited Trevino's prosecution because it found that he had not complied with the MMMA in the first place. He conceded he could have never registered as a caregiver under the Act because he had a previous felony drug conviction. The Act also did not protect him as a patient because it only pertained to marijuana-related activity aimed at "treat[ing] or alleviat[ing] the patient's serious or debilitating medical condition or symptoms of [that] condition" -- a condition Trevino never demonstrated he had.

The Court next addressed Trevino's claim the Government presented insufficient evidence to convict him of the conspiracy charge, citing the Sixth Circuit's 1924 decision in Landen v. United States. In Landen, the Sixth Circuit reversed the convictions of wholesale druggists who were convicted of selling intoxicating liquor in violation of the National Prohibition Act. In this case, the Sixth Circuit recognized a narrow exception to the general rule every law student learns: "ignorance of the law is no excuse." As to the Landen defendants, the Court held ignorance of the law provided a defense: (a) where the act at issue is "not inherently wrongful" or malum prohibitum; (b) where the charging statute is ambiguous; (c) where "there is good reason" for the conspirators to think that the planned act is not illegal; and (d) where the accused acts in the actual belief, "supported by good-faith advice of counsel," that the act is lawful.

For Trevino, however, ignorance of the law did not provide a defense. The Court concluded that, unlike the statute at issue in Landen, the CSA was not ambiguous: marijuana is clearly listed as a controlled substance. It also held Section 538 rider also did not alter the CSA's language to make it ambiguous. Finally, the Court noted that, even if Trevino could rely on the Section 538 rider, his conspiracy began in in 2010 -- four years before Congress passed the rider. The limited exception noted in Landen thus did not apply.

The Court also held the the district court did not abuse its discretion in denying the motion to withdraw filed by Trevino's counsel only thirteen days prior to his trial. The Court held the district court correctly analyzed the four-factor test for granting a motion to withdraw as set out in United States v. Steele.

At trial, Trevino objected to the Government's use of summary charts to prove the quantity of marijuana involved, arguing it was inadmissible hearsay. The Court disagreed, holding the underlying records supporting the summaries were admissible as business records under FRE 803(6).

Finally, the Court rejected Trevino's procedural and substantive challenges to his sentence. It held the district court did not err in refusing to grant him credit for acceptance of responsibility because he made the Government satisfy its burden of proof at trial and expressed "defiance" toward federal marijuana prohibitions. The Court also rejected his claim that his sentence was substantively unreasonable, holding he failed to rebut the presumption that his within-Guidelines sentence was unreasonable. 

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