United States v. Noah Kleinman
880 F.3d 1020
| 9th Cir. | 2017Background
- Noah Kleinman operated purported California medical-marijuana storefronts; federal indictment charged conspiracy to distribute and possess marijuana, distribution, maintaining a drug-involved premises, and conspiracy to commit money laundering. Jury convicted on all counts and sentenced to 211 months (within Guidelines).
- LAPD undercover purchases in 2010 led to a state search warrant; state charges were dismissed; DEA later seized the evidence and a federal indictment followed in 2011.
- After Kleinman’s conviction but before this appeal, Congress enacted an appropriations rider (§542) restricting DOJ funds from preventing states from implementing medical-marijuana laws; Ninth Circuit in McIntosh required evidentiary hearings where conduct may be fully compliant with state law.
- Kleinman sought a McIntosh-style remand to determine state-law compliance for evidentiary relief; he also challenged (inter alia) an anti-nullification jury instruction, the denial of suppression and Franks hearings, refusal to give a joint-ownership instruction, and his sentence’s reasonableness.
- The panel concluded some counts (Counts 1 and 6) involved out-of-state sales and thus violated California law (so §542 did not bar DOJ expenditure on those counts); because those counts were dispositive and conviction/sentence predated §542, no McIntosh remand was required.
Issues
| Issue | Plaintiff's Argument (Kleinman) | Defendant's Argument (DOJ) | Held |
|---|---|---|---|
| Applicability of appropriations rider (§542) and need for McIntosh remand | §542 bars DOJ from expending funds on appeal for charges that were fully compliant with California law; Kleinman sought evidentiary hearing remand | §542 inapplicable because convictions/sentences entered before rider; DOJ may continue defending appeal | No McIntosh remand needed: §542 applies count-by-count; Counts 1 & 6 involved out-of-state sales (not state-compliant); §542 does not require vacatur of pre-rider convictions and, here, those counts are dispositive |
| Jury instruction on nullification | Instruction saying “There is no such thing as valid jury nullification” coerced verdict and misstated law | Court must instruct jurors to follow law; anti-nullification instruction proper to prevent nullification | Court erred in part (last two sentences misstated law/potentially implied punishment) but error harmless because there is no constitutional right to nullification |
| Motion to suppress / Franks hearing re: search-warrant affidavit | Affidavit omitted facts (ID checks, membership forms) and lacked probable cause; therefore suppression or Franks hearing required | Affidavit, read holistically, supplied probable cause (esp. practice of designating dispensary as primary caregiver); omissions not material | Denial of suppression and denial of Franks hearing affirmed: probable cause existed and omissions were not material |
| Jury instruction on joint-ownership defense | Requested Swiderski instruction that joint purchase/possession for shared personal use is not distribution | Government: instruction unsupported by Ninth Circuit law and facts do not fit joint-use scenario | Refusal to give instruction affirmed: defense not established in this circuit and no factual foundation in the record |
Key Cases Cited
- United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) (§542 bars DOJ funding to prosecute conduct fully compliant with state medical-marijuana laws; remand for evidentiary hearings)
- United States v. Nixon, 839 F.3d 885 (9th Cir. 2016) (discussion of appropriations riders’ similarity and effect)
- Rosenthal v. United States, 454 F.3d 943 (9th Cir. 2006) (consideration of anti-nullification instruction and related juror-misconduct principles)
- Merced v. McGrath, 426 F.3d 1076 (9th Cir. 2005) (recognizing jury power to nullify but no right to instruction on that power)
- Krzyske v. United States, 836 F.2d 1013 (6th Cir. 1988) (statement that jurors would violate oath if they willfully disregard the law)
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (standard for evidentiary hearing when affidavit contains intentionally or recklessly false statements or omissions)
- United States v. Powell, 955 F.2d 1206 (9th Cir. 1992) (definition of jury nullification)
- United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (standards for reviewing sentences for procedural and substantive reasonableness)
- United States v. Simpson, 460 F.2d 515 (9th Cir. 1972) (courts should avoid instructions that divest juries of power to acquit)