OPINION
Nоah Kleinman appeals his jury conviction and 211 month sentence for conspiracy to distribute and possess marijuana, distribution of marijuana, maintaining a drug-involved premises, and conspiracy to commit money laundering. His offenses arose out of purported medical marijuana collective storefronts that he operated with his co-defendants in California, which he alleges complied with state law. On appeal, Kleinman argues that (1) a congressional appropriations rider enjoining use of United States Department of Justice (DOJ) funds in certain medical marijuana cases prohibits continued prosecution of his case; (2) the district court gave an anti-nullification jury instruction that effectively coerced a guilty verdict; (3) the district court erroneously denied Kleinman’s motion to suppress evidence seized pursuant to a faulty search warrant; (4) the district сourt erred by not granting an evidentiary hearing on the validity of the affidavit supporting the search warrant; (5) the district court erred by refusing to instruct the jury on Kleinman’s defense theory; and (6) the 211 month sentence was substantively and procedurally unreasonable. For the reasons described herein, we AFFIRM Kleinman’s conviction and sentence.
FACTS AND PRIOR PROCEEDINGS
Kleinman, along with defendant Paul Montoya and others, began operating purported medical marijuana collectives in California around 2006. In 2007 or 2008 they opened their fourth store, NoHo Caregivers (NoHo), which the government alleged was the hub of a large conspiracy to distribute marijuana. At trial, witnesses testified that Kleinman and his associates sold 90% of their marijuana outside of their storefronts, used encrypted phones and burner phones to communicate, drove rented cars to escape detection, hid drugs and money in “stash apartmеnts” rented for that purpose, and shipped marijuana hidden in hollowed-out computer towers to customers in New York and Philadelphia.
In 2010, pursuant to a Los Angeles Police Department (LAPD) investigation of medical marijuana collectives, two undercover officers entered Kleinman’s dispensary Medco Organics (Medco) and purchased marijuana. The LAPD then obtained a search warrant and seized evidence, and California initiated criminal proceedings against Kleinman. He moved to dismiss the case, arguing that he had complete immunity from prosecution pursuant to California medical marijuana laws. The state did not file an objection. During a preliminary hearing on the dismissal motion, the deputy district attorney stated that he did not see a basis on which to deny Kleinman’s motion, and the state court dismissed the charges. After the case was dismissed, the United States Drug Enforcеment Administration (DEA) seized the evidence in the LAPD’s custody.
In 2011, a federal grand jury indicted Kleinman, Montoya, and five others for conspiracy to distribute and possess marijuana, distribution of marijuana, maintaining a drug-involved premises, and conspiracy to commit money laundering. Kleinman moved to suppress the evidence seized by the DEA on the ground that it
At a pretrial hearing, the district court concluded that any references to medical marijuana would be irrelevant at trial because state law compliance is not a defense to federal charges. During jury selection, the district court emphasized that jurors should not question any purported conflict between federal and state law, and should consider the case under federal law only.
The jury convicted Kleinman on all counts and found that the amount of marijuana involved in the offenses exceeded 1,000 kilograms. The district court held a sentencing hearing on December 8, 2014, determined that the applicable United States Sentencing Guidelines (Guidelines) range was 188 to 235 months, and sentenced Kleinman to 211 months. Shortly after Kleinman’s convictions and sentence, on December 16, 2014, Congress enacted an appropriations rider that prohibits the DOJ from expending funds to prevent states from implementing their laws authorizing the use, distribution, possession, and cultivation of medical marijuana. Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538,128 Stat. 2130, 2217 (2014).
ANALYSIS
I. Kleinman is not entitled to remand for an evidentiary hearing on his state law compliance.
In 1996, California voters approved the Compassionate Use Act (CUA), which decriminalized possession and cultivation of marijuana for medical use. Cal. Health & Safety Code § 11362.5. In 2003, the California legislature enacted the Medical Marijuana Program (MMP), permitting qualified patients to form collectives for the cultivation and distribution of medical marijuana. Id. §§ 11362.7-11362.9. Federal law, however, still prohibits the use or sale of marijuana, even if distributed and possessed pursuant to state-approved medical marijuana programs. See United States v. McIntosh,
Since December 16, 2014, congressional appropriations riders have prohibited the use of any DOJ funds that prevent states with medical marijuana programs (including California) from implementing their state medical marijuana laws. Consolidated and Further Continuing Appropriations Act, 2015,
In McIntosh we determined that, pursuant to § 542, federal criminal defendants who were indicted in marijuana cases had standing to file interlocutory appeals seeking to enjoin DOJ expenditure of funds used to prosecute their cases.
Preliminarily, we clarify that the government’s approach to this case is mistaken. Kleinman was convicted and sentenced shortly before § 542 was enacted. The government therefore claims that § 542 is inapplicable to Kleinman’s prosecution for two reasons, neither of which is availing. First, it asserts that application of § 542 after judgment is entered would be a retroactive application of that law, when the statute was not intended to apply retroactively. However, Kleinman does not seek retroactive application of § 542. Rather, he argues that § 542 prohibits continued DOJ expenditures on his case since its enactment, which in this case refers to the DOJ’s ongoing litigation on appeal. We determined in McIntosh that § 542 can prohibit continued DOJ expenditures even though a prosecution was properly initiated prior to § 542’s enactment, see id. (“The government had authority to initiate criminal proceedings, and it merely lost funds to continue them.”), and the same reasoning applies to continued expenditures on a direct appeal after conviction.
Second, the government argues that under the federal savings statute, 1 U.S.C. § 109, the repeal of a statute generally does not repeal liability incurred when that statute was in effect. However, § 542 does not concern the repeal of any statute, and McIntosh made clear that § 542 did not change the legality of marijuana under federal law.
We make two holdings that support our conclusion that a McIntosh hearing is not necessary in this case. First, § 542 only prohibits the expenditure of DOJ funds in connection with a specific charge involving conduct that is fully compliant with state laws regarding medical marijuana. Thus, the applicability of § 542 focuses on the conduct forming the basis of a particular charge, which requires a count-by-count analysis to determine which charges, if any, are restricted by § 542. The prosecution cannot use a prosecutable charge (for conduct that violates state medical marijuana law) to bootstrap other charges that rely solely upon conduct that would fully comply with state law. Otherwise, the DOJ could sweep into its prosecution other discrete acts involving medical marijuana that fully complied with state law. That would contradict the plain meaning of § 542, which prevents the DOJ from spending funds in a manner that would prevent the listed states “from implementing their own laws that authorize ... medical marijuana.” Consolidated Appropriations Act, 2016,
Second, § 542 does not require a court to vacate convictions that were obtained before the rider took effect. In other words, when a defendant’s conviction was entered before § 542 became law, a determination that the charged conduct was wholly compliant with state law would not vacate that conviction. It would only mean that the DOJ’s continued expenditure of funds pertaining to that particular state-law-compliant conviction after § 542 took effect was unlawful. That is because, as we
With these two principles in mind, we conclude that a McIntosh hearing is not necessary in this case. We made clear in McIntosh that “[ijndividuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and prosecuting such individuals does not violate § 542.”
The CUA and the MMP make clear that Kleinman has no state-law defense for his sales of approximately 85 kilograms of marijuana to out-of-state customers. The stated purpose of the CUA is “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes.” Cal. Health <& Safety Code § 11362.5(b)(1)(A) (emphasis added). The MMP provides immunity from prosecution for possession and distribution of marijuana to qualified patients and their primary caregivers “who associate within the State of California in order collectively or cooperatively to cultivate cannabis for medical purposes.” Id. § 11362.775(a) (emphasis added). The MMP further provides that a person seeking a medical marijuana identification card must show “proof of his or her residency within the county.” Id. § 11362.715(a)(1) (emphasis added). The California Attorney General’s guidelines for implementing the CUA and MMP (AG Guidelines) provide that medical marijuana collectives must only sell to those within the collective, and specifically lists as “indi-cia of unlawful operation” sales to nonmembers and out-of-state distribution. Cal. Att’y Gen. Edmund G. Brown, Jr., Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, Cal. Dep’t of Justice, at 8-11 (August 2008), available at http://www.ag.ca.gov/cms_ attachments/press/pdfs/nl601_ medicalmarijuanaguidelines.pdf; accord People v. London,
Counts 1 and 6 allege overt acts that violate the CUA and MMP; i.e., sales to out-of-state customers. Additionally, Klein-man conceded that the government presented evidence that his Philadelphia and New York customers never joined his collective, and he never argued that these customers and out-of-state sales were part of his purported medical marijuana collectives. First, he affirmed at trial that he was not going to argue that sales to out-of-state customers were “legitimate in any way in any state.” Then, in his sentencing memorandum, he argued that he should only be sentenced based on the quantity of marijuana shipped to Philadelphia and
There may be some legitimate question, however, as to whether Counts 2 through 5 involved conduct that strictly complied with California law.
In summary, we decline to remand for a McIntosh hearing because of the unique circumstances of this case. First, Klein-man’s conviction and sentence were entered before § 542 took effect, so § 542 had no effect on his trial and sentencing. Thus, the only possible disability imposed on the DOJ here is the prohibition on defending the conviction and sentence on appeal after § 542 took effect. Second, § 542 does not bar the DOJ from spending funds in connection with Counts 1 and 6 because those charges definitively involved conduct that violated state law. Third, whether § 542 bars the DOJ’s expenditure of funds to defend Counts 2 through 5 is an open question because we cannot definitively conclude that those counts involved conduct that violated State law. Fourth, even if § 542 applied to Counts 2 through 5 — and thus the DOJ could not defеnd those specific counts on appeal — our rulings on Counts 1 and 6 are dispositive of all counts, including Counts 2 through 5, because Kleinman’s substantive appellate claims concern all counts equally. Fifth, as we explain below, Kleinman does not win relief on any of his other arguments, so it is unnecessary for us to remand for a McIntosh hearing on Counts 2 through 5 because we would affirm those convictions
II. The district court erred by giving an overly strong anti-nullification jury instruction, but the error was harmless.
Kleinman argues that the anti-nullification jury instruction the district court gave prior to deliberations misstated the law and impermissibly divested the jury of its power to nullify. While we generally “review the language and formulation of a jury instruction for an abuse of discretion, ... [w]hen jury instructions are challenged as misstatements of law, we review them de novo.” United States v. Cortes,
Jury nullification occurs when a jury acquits a defendant, even though the government proved guilt beyond a reasonable doubt. United States v. Powell,
The court instructed the jurors as follows:
You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a vеrdict contrary to the law given to you in this case.3
The court’s instruction was taken nearly verbatim from two cases. The first three sentences came from United States v. Rosenthal,
The last two sentences of the court’s instructions came from United States v. Krzyske,
The first three sentenсes of the court’s anti-nullification instructions were not erroneous, and it is not generally erroneous for a court to instruct a jury to do its job;
Although a court has “the duty to forestall or prevent [nullification],” including “by firm instruction or admonition,” Merced,
The last two sentences of the district court’s instructions could reasonably imply that the jury could be punished for nullification, or that nullification is a moot exercise because the verdict would be invalid. The court’s statement that the jury “would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case,” may imply punishment for nullification, because “violate your oath and the law,” coming from the court in a criminal trial, could be understood as warning of a possible violation with associated sanctions. Additionally, the statement that “[t]here is no such thing as valid jury nullification” could reasonably be understood as telling jurors that they do not have the power to nullify, and so it would be a useless exercise.. While jurors undoubtedly should be told to follow the law, the statement that there is no valid jury nullification misstates the role of nullification because an acquittal is valid, even if it resulted from nullification.
Thus, the last two sentenсes of the instruction were erroneous. The Krzyske instruction should not become the go-to instruction in trials where jury nullification is a concern, and courts should “generally avoid[] such interference as would divest juries of their power to acquit an accused, even though the evidence of his guilt may be clear.” United States v. Simpson,
Kleinman argues that the jury instructions were structural error, not subject to review for harmlessness, because they deprived him of his right to trial by jury. See Arizona v. Fulminante,
It is not fundamentally unfair for a defendant to be tried by a jury that is not fully informed of the power to nullify, or even that is stripped of the power to nullify, because there is no right to nullification. Although a jury should not be led
III. The district court did not err by denying Kleinman’s motion to suppress evidence seized pursuant to a state search warrant.
The LAPD seized evidence pursuant to a searсh warrant and supporting affidavit dated March 16, 2010, and the DEA later seized that evidence. Kleinman moved to suppress the evidence, arguing that the seizure violated his Fourth Amendment rights because the affidavit supporting the search warrant did not support the magistrate’s probable cause finding. The district court denied the motion. We review the denial de novo, and any underlying factual findings for clear error. United States v. Rodgers,
“[P]robable cause means a fair probability that contraband or evidence is located in a particular place. Whether there is a fair probability depends upon the totality of the circumstances, including reasonable inferences, and is a commonsense, practical question. Neither certainty nor a preponderance of the evidence is required.” United States v. Kelley,
The affidavit supporting the search warrant described the LAPD officers’ undercover visit to Medco in 2010. Officer Cecil Mangrum stated that, after he and his partner entered Medco, a Medco employee said that to participate in the collective Officer Mangrum “did not have to do anything except show [his] ID and doctor recommendation every time [he] came in,” and that not everyone in the collective was required to grow marijuana. The officers purchased marijuana at Medco that day using United States currency. Officer Mangrum alleged the following probable violations of California law: (1) Medco did not require members to participate in the collective, in violation of the CUA and MMP; (2) the Medco employee exchanged marijuana solely for money, in violation of California Heаlth and Safety Code § 11360; and (3) Medco requires collective members to designate Medco as their primary caregiver, in violation of People v. Mentch,
California Health and Safety Code § 11360 prohibits selling marijuana, except as authorized by law. Thus, selling marijuana is illegal under § 11360 unless the MMP authorized such sales. While the MMP does not “authorize any individual or group to cultivate or distribute marijuana for profit,” id. § 11362.765(a), it also does not prohibit exchanging money for marijuana among members of a collective. Consistent with the MMP, “a primary caregiver [may] receive compensation for actual expenses and reasonable compensation for services rendered to an eligible qualified patient, i.e., conduct that would constitute sale under other circumstances.” People v.
However, the affidavit did establish probable cause to believe that Medco was violating state law because it stated that marijuana purchasers were required to designate Medco as their primary caregiver. Although Officer Mangrum’s description of the Medco visit did not specifically state that he designated Medco as his primary caregiver, this designation can reasonably be inferred because he averred that Medco required such a designation from its members, and that he purchased marijuana from Medco that day.
Primary caregiver is defined by the CUA and MMP as an individual “who has consistently assumed responsibility for the housing, health, or sаfety of’ a medical marijuana patient who designated said individual as her primary caregiver. Cal. Health & Safety Code §§ 11362.5(e), 11362.7(d). While the general definition is the same in the CUA and MMP, the MMP “provides an expanded definition of what constitutes a primary caregiver” by including examples of qualifying primary caregivers. Urziceanu,
The California Supreme Court held that to be a primary caregiver under the CUA, a person “must prove at a minimum that he or she (1) consistently provided caregiv-ing, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.” Mentch,
As described in the affidavit, Medco’s practice of requiring members to designate Medco as their primary caregiver and then allowing members to purchase marijuana immediately after, with no preexisting or other relationship beyond the distribution of marijuana, provides probable cause to believe that Medco was operating illegally. When the warrant was issued in 2010, the CUA, MMP, California state court deci
IV. The district court did not err by denying Kleinman’s motion for a Franks hearing.
Kleinman requested, and was denied, a hearing pursuant to Franks v. Delaware,
Kleinman argues that Officer Mangrum’s affidavit contained misleading omissions of facts that would have demonstrated that Kleinman complied with state law. The affidavit did not mention that, when the officers entered Medco, security guards checked their ID cards and doctors’ recommendations, verified the doctors’ recommendations, and had the officers complete membership applications. Officer Mangrum revealed these details when he testified at a state court hearing.
Regardless of whether Kleinman made a substantial preliminary showing that Officer' Mangrum’s omissions were made recklessly or intentionally, a Franks hearing is not warranted because the omissions were not material to the probable cause determination. In considering the materiality of an alleged omission, we ask “whether probable cause remains once the evidence presented to the magistrate judge is supplemented with the challenged omissions.” Id. at 1119.
If the affidavit stated the omitted information about IDs, doctors’ recommendations, and membership applications, the probable cause finding would still be valid. The affidavit stated that a Medco employee told Officer Mangrum that he would have to show IDs and doctors’ recommendations every time he came in, and that Medco requires collective members to designate Medco as their primary caregiver. Since the officers purchased marijuana from Medco that day, one can reasonably infer that the omitted acts occurred, and the affidavit does not suggest that they did not. In addition, regardless of whether Medco properly verified the officers’ IDs and doctors’ recommendations, the probable cause finding was supported because the affidavit stated that Medco required members to designate Medco as their primary caregiver, in violation of state law. See Part III, supra. Thus, Kleinman cannot make a substantial prеliminary showing that the omitted facts were material, and thus is not entitled to a Franks hearing.
Y. The district court did not err by declining to instruct the jury on Kleinman’s joint ownership defense.
Based on United States v. Swiderski,
The court did not err by refusing to instruct the jury on the joint ownership defense because, although “a defendant is entitled to have the judge instruct the jury on his theory of defense,” the defense must be “supported by law and [have] some foundation in the evidence.” United States v. Kayser,
VI. The district court did not abuse its discretion by considering the government’s late-filed objections to the presentence report.
Kleinman argues that the court failed to comply with Federal Rule of Criminal Procedure 32(f)(1), which provides that “[w]ithin 14 days after receiving the pre-sentence report [PSR], the parties must state in writing any objections.” The Probation Office filed its revised PSR on September 17, 2014, and, although the government requested and was granted an extension of time to file objections by October 27, 2014, it did not file its objections until December 4, 2014. Sentencing was on December 8, 2014.
We have stated that we review a district court’s compliance with Rule 32 de novo, and that Rule 32 “requires strict compliance.” United States v. Thomas,
Rule 32(i)(l)(D) allows a court at sentencing to, “for good cause, allow a party to make a new objection at any time before sentence is imposed,” and the “good cause” standard has been understood as a grant of discretion to district courts. See, e.g., United States v. Angeles-Mendoza,
The court did not abuse its discretion by considering the government’s objections to the PSR. First, the court was within its discretion to determine that the
Second, even if the government did not show sufficient good cause, Kleinman was not prejudiced by the court’s consideration of late-filed objections. Kleinman was put on notice that the government planned to object to the PSR’s leadership role enhancement conclusion months before sentencing. The day after the Probation Office filed its revised PSR, the government filed an ex parte motion for extension of time, specifically stating that it took issue with the leadership role conclusion, and had ordered transcripts to adequately respond to the PSR and Kleinman’s sentencing position. Additionally, the court stated at sentencing that its conclusion that there was “no question” that the leadership role enhancement applied was primarily based on its own memory and notes from trial, rather than the PSR or the parties’ sentencing positions.
VII. Kleinman’s 211 month sentence is substantively and procedurally reasonable.
Kleinman argues that his 211 month sentence is procedurally and substantively unreasonable. We review a sentence for procedural and substantive reasonableness, and sentencing decisions for abuse of discretion. United States v. Carty,
First, Kleinman argues that he was punished at sentencing for going to trial, as evidenced by the shorter sentences of his co-defendants, who did not go to trial. “It is well settled that an accused may not be subjected to more severe punishment simply because he exercised his right to stand trial,” and “courts must not use the sentencing power as a carrot and stick to clear congested calendars, and they must not create an appearance of such а practice.” United States v. Medina-Cervantes,
Five of Kleinman’s six co-defendants were sentenced to probation, and Montoya was sentenced to 37 months. All six co-defendants pleaded guilty and cooperated with the government during trial. Additionally, all but Montoya had a lesser role in the conspiracy than Kleinman. While the sentencing disparities are apparent, Kleinman has offered no evidence to warrant the inference that the longer sentence was imposed to punish Kleinman for going to trial. There are clear reasons for the sentencing disparities, and the court stated during sentencing that it “analyzed the sentences imposed on others who have either pled or been found guilty in this case in order to avoid unwаrranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.”
Kleinman additionally argues that the court procedurally erred because it did not state with sufficient specificity its reason for imposing a significantly disparate sentence. We review for plain error because Kleinman failed to raise this procedural
Finally, Kleinman argues that his sentence is substantively unreasonable because it “is far greater than necessary to reflect the seriousness of this medical marijuana offense,” when there is now “overwhelming public opinion that medical marijuana is not a danger to the public.” Even if this were properly considered a medical marijuana case,-the court did not err by imposing a within-Guidelines sentence based on violations of federal law. Although a court may have the discretion to depart from Guidelines based on policy disagreements, it is not obligated to do so. See, e.g., United States v. Henderson,
CONCLUSION
We conclude that the district court erred by instructing the jury that “[t]here is no such thing as valid jury nullification,” and that it “would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case.” However, because there is no right to jury nullification, the error was harmless. We find that Kleinmaris remaining challenges on appeal are without merit, and AFFIRM his conviction and sentence.
Notes
. Counts 2, 3, 4 in the First Superseding Indictment alleged discrete marijuana transactions on certain dates, but those counts do not allege that the referenced transactions involved out-of-state customers or were otherwise conducted in violation of California law. Count 5 alleged the operation of a drug-involved premises (NoHo), and while it might be inferred that such conduct violated California law because the same act was alleged as an overt act in furtherance of the conspiracy in Count 1, that conclusion is not obvious. In any event, we need not decide whether there is enough uncertainty on these counts for a McIntosh hearing because, as we explain, it would not make a difference in the outcome of this case.
. Kleinman challenges the substantive reasonableness of his sentences, which he argues are disproportionate to the seriousness of his offenses. However, because all sentences run concurrently, and sentences for Counts 1 and 6 are 211 months each, any change in sentences for Counts 2 through 5 would not result in any reduction of Kleinman’s 211 month sentence.
Kleinman separately argues that § 542 compels the Bureau of Prisons, as a subdivision of the DOJ, to stop spending money to incarcerate persons for medical marijuana convictions based on activity that fully complies with state law. We need not resolve this issue in this case. As we have explained, at least two of Kleinman's convictions fall outside the scope of § 542 because they involved conduct that violates California law. Those two convictions (Counts 1 and 6) carried the longest terms of imprisonment (211 months) and all terms for each count were sentenced to run concurrently. Thus, even if the DOJ could not separately continue to expend funds to incarcerate Kleinman on the remaining counts because of § 542, Kleinman’s custodial status would not be changed because § 542 does not bar his continued incarceration for his conspiracy convictions. Further, Kleinman makes no argument that the Bureau of Prisons would calculate his credit for early release any differently without those concurrent sentences. Thus, we do not decide in this case the impact of § 542 on the Bureau of Prisons’ expenditure of funds to incarcerate persons who were convicted only of federal drug offenses involving conduct that was fully compliant with state medical marijuana laws.
. The court noted that it planned to give the instruction because, during trial, protesters in front of the courthouse were urging the jury to disregard the law. The protestors’ signs
. Our discussion of juror misconduct in Rosenthal is also relevant. A juror in Rosenthal’s trial spoke to an attorney friend who said that the juror "could get into trouble” if she did not follow the court's instructions, and the juror shared this outside perspective during deliberations.
. The court’s statement in Krzyske was made in response to a question from a jury that had beеn urged to nullify by the defendant, and may have been an off-the-cuff answer, rather than a fully considered statement of the law. Here, on the other hand, the anti-nullification instruction was proposed by the government in advance and adopted by the court in its entirety.
. Kleinman asserts that if the error is not structural, "[w]e apply a 'totality of the circumstances' analysis when examining whether a judge's statements to a jury were imper-missibly coercive.” United States v. Berger,
. Indeed, even if it could not reasonably be inferred from the affidavit that the officers designated Medco as their primary caregiver when they purchased marijuana, a probable violation of California law would still be apparent, because the officers would have purchased from a purported collective without even nominally becoming members of that collective.