DOJ Can Convict—But Can It Imprison?

A U.S. court of appeals has held that a person convicted of distributing marijuana may now assert that an annual rider for Congressional appropriations may bar his or her imprisonment. In Sandusky v. Goetz, the U.S. Court of Appeals for the Tenth Circuit allowed a man who had been sentenced to ten years in prison for operating a medical marijuana company to seek his immediate freedom on this basis. The Tenth Circuit is the first appeals court to address the issue.

Medical Marijuana Operator Is Convicted

In 2012, Aaron Sandusky, who was the president of a medical marijuana cooperative known as G3 Holistic Inc., was convicted in the U.S. District Court for the Central District of California of two counts of marijuana trafficking in California, where medical marijuana is legal. Sandusky was sentenced to 120 months. The U.S. Court of Appeals for the Ninth Circuit affirmed.

Sandusky then filed a motion pursuant to 28 U.S.C. § 2255 to set aside or correct his sentence in the district court. A section 2255 motion must raise a challenge based on alleged violations of federal law. Sandusky argued that the Rohrabacher-Farr Amendment bars his incarceration because the rider prohibits the U.S. Department of Justice (DOJ) from using funds to prevent states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The amendment was first enacted in 2014, two years after his conviction. Because it is temporary, it must be approved each year to remain in effect.

Sandusky argued that because he had complied with California medical marijuana laws, the Federal Bureau of Prisons, an agency of the DOJ, violated the amendment by incarcerating him. The district court dismissed his motion with prejudice. The court found that his incarceration was not an expenditure of funds that prevented California from implementing its medical marijuana laws.

Sandusky was imprisoned in Colorado, and it was there that he launched a second challenge to his sentence. He filed a petition for writ of habeas corpus in the U.S. District Court for the District of Colorado pursuant to 28 U.S.C. § 2241, making the same arguments that had been rejected before. “A Section 2241 petition is filed in the place of incarceration and directly attacks execution of a federal sentence,” explains David Schoen, Montgomery, AL, chair of the ABA Section of Litigation’s Criminal Justice Subcommittee of the Civil Rights Litigation Committee.

The district court found Sandusky’s Bureau of Prisons challenge could not be untethered from the substance of the federal conviction and sentence. The court dismissed his petition for lack of statutory jurisdiction. Sandusky appealed.

Challenge to Execution—Not Substance

The Tenth Circuit found that the petition challenged only the execution of Sandusky’s sentence and not the substance of his convictions or sentencing. The court reasoned that because Congress could always exclude the rider in the future, the Bureau of Prisons could presumably re-incarcerate him and require him to complete the remainder of his sentence. Therefore, section 2241 was the proper avenue for relief to enforce the amendment. The court reversed the lower court’s dismissal and remanded the case back to the district court.

The dissent regarded the holding as an elevation of form over substance. “I can easily see why the dissenting judge argued that this is essentially a collateral attack,” says Warrington Parker, San Francisco, CA, cochair of the Section of Litigation’s Criminal Litigation Committee. “The fact that invoking the amendment can, even if temporarily, end one’s imprisonment certainly blurs the line between challenging execution versus conviction,” notes Parker.

The majority noted that in United States v. McIntosh, the Ninth Circuit held that the 2015 version of the amendment prohibits the DOJ from spending money on actions that prevent the medical marijuana states’ giving practical effect to their state laws. “The Ninth Circuit is a very sensible decision based on the text of the language—as long as you are running a compliant and legitimate marijuana business, you should not be prosecuted,” opines Schoen.

Tenuous Holding?

Parker is not surprised by the Sandusky decision given the history of special treatment regarding marijuana. “I think our approach to marijuana has always been a softer or different touch than other drugs,” comments Parker.

As a rider to the federal budget, the amendment stands on shaky ground. “A series of bad press can put Congress in an entirely different mood about this. As much as you can, seek a more permanent solution,” advises Parker. Without an approved budget, its ability to have a long-term impact is limited. Parker suggests that medical marijuana practitioners “follow every aspect of California law to the highest extent possible. Until there are permanent measures in place to address the practical problems associated with state legalization and federal prohibition, strict compliance with state medical marijuana laws is key,” he counsels.

Schoen recommends a comprehensive approach. “There should be an effort on all fronts. Marijuana companies complying with state law should be lobbying both Congress and the DOJ for non-prosecution. Congress needs to put more teeth in the rider to make it clear that no money should be spent on prosecution or incarceration. Criminal defense lawyers must raise all possible challenges—even the ones that were rejected—by way of pretrial motion,” concludes Schoen.