At this morning's status conference in United States v. Schweder, No. 2:11-CR-0449-KJM, Judge Mueller started out by stating that she has completed a "final draft" of the court's ruling on the defendants' motion to dismiss the marijuana cultivation charges. She then proceeded to explain that she is denying the motion on all grounds and will issue her final written decision by the end of the week. The decision will be available for free on the EDCA Court's website and I'll post it on my blog.



A further status conference was set for May 6, at 9:00 a.m. Given the enormous interest in this case nationwide (over 15,000 blog page views today and counting) and the questions I've been asked about this case, I thought I'd step back and give some background on the case before I discuss further what happened in court today and what we can expect in the future.

Case Background and the Charges:

In this case, the federal government charged 16 persons in Sacramento federal court with a single charge of conspiracy to grow 1,000 or more marijuana plants between Feb 2008 and October 2011 in Trinity and Tehama counties. 1,000 plants is the magic number that makes the minimum sentence (with a couple of small exceptions) upon conviction 10 years in prison; 100 or more marijuana plants nets at least 5 years in prison. (Even with good time, federal defendants must serve a minimum of 85% of their sentence). A conspiracy under federal law is just an agreement between two or more persons to commit a crime. So each of the 16 persons here are charged with agreeing with the others to grow at least 1,000 or marijuana plants. The Indictment with the charges was filed in 2011.

During pretrial proceedings, 7 of the 16 pled guilty and have been sentenced to prison terms. They are effectively out of the case. The remaining 9 defendants are fighting the case. One of the defendants, Brian Pickard, filed a motion to dismiss the marijuana conspiracy charge, primarily on the ground that the federal classification of marijuana as a Schedule I controlled substance is unconstitutional. A Schedule I controlled substance is one that is prohibited for all purposes--and cannot even be prescribed by a physician for medical purposes without violating federal law.

The motion to dismiss includes two other alternative grounds for asking that the marijuana charges be dismissed: (1) that the government's unequal enforcement of marijuana (and medical marijuana) violates the Equal Sovereignty Principle in the Constitution; and (2) that a December 2014 amendment to the federal budget--Amendment 538--bars the federal government from spending money to prosecute medical marijuana cases that would be legal under specified state laws. That's a very quick overview, I may have missed more arguments. All briefs and supporting evidence have been previously posted on my blog here.

Mr. Pickard is represented by attorneys Zenia Gilg and Heather Burke. The other 8 defendants who have not pled guilty, including Bryan Schweder, the lead defendant, joined in the motion to dismiss the charges.

The judge assigned to the case, U.S. District Judge Kimberly J. Mueller, decided to take evidence on the motion before deciding the motion to dismiss. So she held an evidentiary hearing over several days in October, at which expert witnesses for both sides testified. I believe it was the first such evidentiary hearing in federal court. Then both sides filed more legal briefs on the issues and final argument was held in February.

Today's "Ruling":

As noted, Judge Mueller today just summarized her written ruling, which she said will be out by Friday. So my summary below is subject to change by the judge in her final, written ruling.

First, the judge noted that she has been getting lots of voice mails and emails on the case, but that she doesn't read or listen to them, and it won't sway her opinion either way. She explained that she is resolving a legal question only--not a public policy issue. And she will base her opinion on the law and evidence presented, regardless of the public's views and comments. (Note: As a former law clerk to a judge, it never helps to email or call a judge to give your personal opinion on a pending issue. Don't do it.).

The judge explained that 45 years have passed since the federal Controlled Substance Act was passed and that it would be an "understatement" to say the landscape on our country's marijuana laws has changed since then. She emphasized that the court "treads lightly" because the defendants have challenged an action of Congress and that her ruling is based only on the evidence and record in front of the court. And on that record, the district court was "not the court" and it was "not the time" to grant the motion to dismiss. She rejected the government's procedural objections, that is, she found that the court has "jurisdiction," or the power to decide the motion, and that the defendants have "standing," or the right to challenge the federal marijuana charges by their motion.

An important preliminary legal question was what standard of review the court should apply in evaluating the defendants' motion. Judge Mueller said she applied the "rational basis" standard of review, meaning, in lay terms, that the government action would be upheld if there was any rational basis for its decision. This is a very deferential standard, under which government decisions are upheld even if the prevailing evidence may point the other way. Under this rational basis standard, the judge said the federal statute prohibiting marijuana for all purposes passes muster. She also stated that the defendants had not met their burden of showing discrimination in the enforcement of federal marijuana laws and that she had rejected the defense's argument based on the recent budget amendment.

What this Means and What Happens Next:

At the outset, many in social media had mischaracterized this case as involving the potential rescheduling of marijuana under federal law to permit it to be used for medical purposes. But it was never about that. There is a bill in Congress now, The CARERS Act of 2015, that would amend the Controlled Substance Act to permit states to allow it to be lawfully used for medical purposes without violating federal law. Even if the judge had granted the defendants' motion to dismiss the charges, it would not have resulted in the federal rescheduling of marijuana.

Next up is a status conference on May 6, with potential trial dates in December of this year or January of 2016. It's possible the defense will file a motion for reconsideration after reviewing the judge's final decision. We should know that by the May 6 hearing.

One or more of the defendants may also decide to continue to fight the charges and appeal the judge's decision. Under federal law, there is no right to an immediate "interlocutory" appeal of the court's decision. To appeal the decision, the defendants have two choices. One way would be to plead guilty and reserve the right to appeal the judge's decision in their plea agreements with prosecutors. The other way would be to go to trial. If they lose at trial, they could appeal the judge's decision after the final judgment.

Despite the decision, there were many bones for the defense. As noted, the judge denied the government's procedural jurisdiction and standing objections. She also found all the expert witnesses "credible" and stated she was not disregarding any of the evidence. Those findings are almost always upheld on appeal, making a potential appeal possible and turning it into largely a "legal," rather than a "factual" appeal. Those appeals generally have a better chance. The judge also indicated that the ruling might be different on a different record, leaving the door open to future challenges. There is no doubt defense attorneys will make similar challenges in other federal marijuana cases.