United States District Court, D. Montana, Butte Division
L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT
Adam Walter Campbell ("Campbell") filed a Motion to
Dismiss or Enjoin Prosecution and Request for Evidentiary
Hearing (Doc. 16) on September 21, 2018. At Campbell's
request, and pursuant to United States v. McIntosh,
833 F.3d 1163 (9th Cir. 2016), this Court held an evidentiary
hearing on October 16, 2018, and ordered that both Parties
file supplemental briefing to clarify their positions based
upon the submitted evidence. The Parties have complied with
this Order and the issue is now ripe for determination. For
the following reasons, Defendant's Motion will be denied.
following is a summary of the relevant facts elicited during
the McIntosh hearing.
early 2016, the Missouri River Drug Task Force
("MRDTF") developed a confidential source
("CS") who was employed with Montana Buds, a
medical marijuana production and distribution business in
Bozeman, Montana. Montana Buds operated in a complex of
buildings located at 152, 154, 156, and 160 Zoot Way in
Bozeman, Montana. Montana Buds' grow operation was housed
in 152, 154, and 156 Zoot Way, while 160 Zoot Way housed a
laboratory and the storefront dispensary for Montana
behest of the Drug Enforcement Agency ("DEA") the
MRDTF coordinated a series of controlled purchases from
Montana Buds using the CS. These occurred on March 30, 2016,
April 11, 2016, and May 9, 2016, and produced one-quarter
pound of marijuana, one-half pound of marijuana, and another
one-quarter pound of marijuana, respectively.
18, 2016, the DEA and the MRDTF executed search warrants on
the Montana Buds' properties at Zoot Way. Authorities
seized significant amounts of marijuana plants from 152 and
154 Zoot Way and discovered gallons of hashish oil (or
"hash oil") and a sophisticated butane hash oil
laboratory at 160 Zoot Way.
in part on the fruits of this search, a grand jury indicted
Campbell of Conspiracy to Manufacture and Distribute
Controlled Substances in violation of 21 U.S.C. § 846
("Count I"), Possession with Intent to Distribute
Marijuana in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2 ("Count II"), and Maintaining
Drug-Involved Premises in violation of 21 U.S.C. § 856
and 18 U.S.C. § 2 ("Count III"). (Doc. 2 at
1-2.) Count I stems from the allegation in the Indictment
that between approximately 2010 and May 18, 2016, Campbell
conspired with "known and unknown persons" to
manufacture and distribute "more than 1, 000 marijuana
plants, and marijuana in the form of butane hash oil,"
in Bozeman, Montana, as well as California and Ohio. Count II
alleges that during the same approximate time period, and in
Bozeman, Montana, California, and Ohio, Campbell possessed
"more than 1, 000 marijuana plants, and marijuana in the
form of butane hash oil" with the intent to distribute.
Count III alleges that during the same approximate time
period, Campbell "knowingly and unlawfully used and
maintained places located at 152 Zoot Way, 154 Zoot Way, and
160 Zoot Way, in Bozeman for the purpose of manufacturing and
distributing marijuana." Lastly, the Indictment contains
a forfeiture allegation, pursuant to 21 U.S.C. §853, of
152 and 154 Zoot Way, Bozeman, Montana. (Doc. 2 at 2-4.)
contends that his prosecution must be enjoined because he was
in compliance with Montana law as it pertains to medical
marijuana at all times alleged in the Indictment. As
discussed, Campbell has been charged with various marijuana
related violations of federal law, specifically the
Controlled Substances Act ("CSA"), which prohibits
the possession of marijuana regardless of whether it is being
used for medicinal purposes. See Gonzales v. Raich,
545 U.S. 1 (2005) (CSA, which criminalizes the manufacture,
distribution, or possession of marijuana to intrastate
growers and users of marijuana for medical purposes, did not
exceed Congress' authority under the Commerce Clause).
United States v. McIntosh
a defendant's compliance with state law is immaterial for
purposes of evaluating his culpability under federal criminal
law due to article VI, clause 2 of the United States
Constitution, also known as the Supremacy Clause. U.S. Const,
art. VI, cl. 2 ("This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof...
shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding.");
see also Hillsborough County, Fla. v. Automated Med.
Laboratories, Inc., 471 U.S. 707, 712 (1985) ("It
is a familiar and well-established principle that the
Supremacy Clause ... invalidates state laws that
'interfere with, or are contrary to' federal
law."). However, the Ninth Circuit's decision in
McIntosh brought a defendant's compliance with
state medical marijuana laws to the forefront of federal
criminal prosecutions for marijuana offenses.
McIntosh, the Ninth Circuit consolidated several
interlocutory appeals by defendants who were charged with
federal marijuana offenses under the CSA. 833 F.3d at
1168-1169. These defendants were indicted in United States
district courts located in California and Washington, two
states which implemented statutory schemes providing for the
lawful distribution of marijuana for medical purposes.
Id. at 1169-1170. The defendants moved to dismiss
their indictments due to a 2014 congressional rider attached
to an omnibus appropriations bill. This rider mandated that:
None of the funds made available in this Act to the
Department of Justice may be used, with respect to the States
of Alabama, Alaska, Arizona, California, Colorado,
Connecticut, Delaware, District of Columbia, Florida, Hawaii,
Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada,
New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island,
South Carolina, Tennessee, Utah, Vermont, Washington, and
Wisconsin, to prevent such States from implementing their own
State laws that authorize the use, distribution, possession,
or cultivation of medical marijuana.
Id. at 1169. Interpreting this language, the
McIntosh Court determined that, in addition to
preventing states from implementing their medical marijuana
laws, this rider also prevented the Department of Justice
from spending funds on "the prosecution of individuals
who engaged in conduct permitted by the State Medical
Marijuana Laws and who fully complied with such laws."
Id. at 1177.
Ninth Circuit cautioned, however, that these individuals must
"strictly comply with all state-law conditions
regarding the use, distribution, possession, and cultivation
of medical marijuana." Id. (emphasis added).
Consequently, prosecution by the Department of Justice of
individuals who are not in strict compliance with all state
medical marijuana laws is permitted under the rider. The
McIntosh Court also stressed that individuals who
distribute marijuana are still violating federal law and this
rider "does not provide immunity from prosecution for
federal marijuana offenses." Id. at 1179 n.5.
Rather, the rider simply prevents the federal government from
temporarily expending funds on the prosecution of certain
defendants. Id; see also Id. at 1173-1174
("When Congress has enacted a legislative restriction
like [the rider] that expressly prohibits DOJ from spending
funds on ...