United States v. Kleinman
859 F.3d 825
9th Cir.2017Background
- Kleinman operated California medical-marijuana storefronts (NoHo, Medco) alleged to be fronts for a large marijuana distribution conspiracy; sales to out-of-state customers and hidden shipments to NY and Philadelphia were proven at trial.
- LAPD undercover purchases (2010) led to a search warrant, state prosecution which was dismissed on state-law immunity grounds; DEA later seized the seized evidence and federal indictments followed (2011 First Superseding Indictment).
- Federal indictment charged conspiracy to distribute marijuana, distribution, maintaining a drug-involved premises, and conspiracy to commit money laundering; jury convicted on all counts and found >1,000 kg.
- Kleinman moved to suppress evidence (challenging probable cause) and requested a Franks hearing; district court denied both; court also excluded state-law-compliance evidence and refused a joint-ownership jury instruction.
- After sentencing to 211 months (within Guidelines), Congress enacted appropriations riders (§542) limiting DOJ funds to prosecute conduct that fully complies with state medical-marijuana laws; Kleinman sought a McIntosh-style remand for a state-law-compliance hearing on appeal.
Issues
| Issue | Kleinman’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Applicability of congressional appropriations rider (§542) / need for McIntosh remand | §542 bars DOJ from defending on appeal where charged conduct fully complied with state law; remand for evidentiary hearing required | §542 inapplicable because conviction/sentencing occurred before the rider; continued appellate defense permitted | No remand. §542 does not bar defense of Counts 1 and 6 (out-of-state sales violated state law); even if §542 covered Counts 2–5, Counts 1 and 6 are dispositive and DOJ may defend on appeal. |
| Anti-nullification jury instruction | Instruction improperly divested jury of nullification power and coerced conviction | The court may instruct jurors to follow the law and prevent nullification; instruction reflected that duty | Court erred in stating "no such thing as valid jury nullification" and suggesting jurors would "violate [their] oath," but error was harmless (not structural). |
| Motion to suppress (probable cause for state warrant) | Affidavit lacked probable cause; evidence should be suppressed | Affidavit established probable cause—particularly because Medco required designation of Medco as primary caregiver, indicating unlawful operation | Denial of suppression affirmed: magistrate had fair probability to believe violation of state law (primary-caregiver designation and practices supported probable cause). |
| Franks hearing (challenge to affidavit omissions) | Affidavit omitted facts (ID checks, doctor verification, membership applications) showing state-law compliance; omissions were material and reckless | Omissions were not material: affidavit already implied these facts and probable cause remained even with them included | Denial of Franks hearing affirmed: Kleinman failed to show omissions were material to probable cause. |
| Jury instruction on joint-ownership defense | Requested instruction (Swiderski theory) that joint purchase/use is not distribution | Government opposed; lack of controlling Ninth Circuit adoption and insufficient evidence to support instruction | Court properly refused instruction: defense not clearly recognized in this circuit and lacked evidentiary foundation. |
| Sentencing challenges (procedural/substantive reasonableness) | Sentence excessive, punished for going to trial, and disproportionate given medical-marijuana context | Within-Guidelines sentence justified by conduct, leadership role, and co-defendants received lower sentences due to plea/cooperation and lesser roles | Sentence affirmed: within Guidelines, no plain or procedural error, no evidence of penalizing trial, and court did not abuse discretion. |
Key Cases Cited
- United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) (§542 requires hearings to determine whether charged conduct fully complied with state medical-marijuana laws)
- United States v. Nixon, 839 F.3d 885 (9th Cir. 2016) (discussing the §542 riders and their effect)
- Rosenthal v. United States, 454 F.3d 943 (9th Cir. 2006) (addressing anti-nullification instructions and juror influence)
- Merced v. McGrath, 426 F.3d 1076 (9th Cir. 2005) (no right to jury nullification; courts may prevent nullification)
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (standard for evidentiary hearing where affidavit contains false statements or material omissions)
- United States v. Powell, 955 F.2d 1206 (9th Cir. 1992) (definition and concept of jury nullification)