United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION FOR A BILL OF PARTICULARS AND
SCHEDULING AN EVIDENTIARY HEARING
L. LUDINGTON United States District Judge.
April 14, 2016, Defendant Robert L. Samp was indicted on a
count of willfully failing to make an income tax return on
income of approximately $53, 595 for 2009, in violation of 26
U.S.C. § 7203; a count of willfully attempting to evade
income tax on income of approximately $278, 069 in 2010, in
violation of 26 U.S.C. § 7201; and a count of willfully
attempting to evade income tax on income of approximately
$198, 155 in 2011, in violation of 26 U.S.C. § 7201. ECF
No. 1. On August 10, 2016, the Court granted Defendant Robert
L. Samp's motion to substitute retained attorneys for his
appointed counsel. Also on August 10, 2016, the Government
issued a superseding indictment which charged Samp, in Count
Four, with the additional count of possessing a firearm while
being an unlawful user of a controlled substance, in
violation of 18 U.S.C. § 922(g)(3). ECF No. 20.
Samp has filed two motions, both challenging Count Four of
the superseding indictment. First, Samp has filed a motion
for injunctive relief asking the Court to enjoin the
Government from further prosecution of Count Four. ECF No.
30. Second, Samp has filed a motion for a bill of particulars
regarding Count Four. For the reasons stated below, an
evidentiary hearing will be scheduled on Samp's motion
for injunctive relief and Samp's motion for a bill of
particulars will be denied.
motion for injunctive relief requests that the Court enjoin
the Government from further prosecution of Count Four of the
superseding indictment. That count asserts that Samp,
“then being an unlawful user of a controlled substance,
knowingly possessed a firearm, in and affecting commerce, in
violation of 18 U.S.C. § 922(g)(3).” ECF No. 20.
Samp is not directly charged with possession or distribution
of controlled substances. Rather, Count Four appears to arise
out of Samp's possession of firearms while running a
medical marijuana farm.
support of his motion for injunctive relief, Samp relies upon
United States v. McIntosh, 833 F.3d 1163 (9th Cir.
2016). In McIntosh, the Ninth Circuit considered
appeals in ten cases. Id. at 1168. Each appellant
had been indicted for an infraction of the Controlled
Substances Act, including charges of being felons in
possession of firearms in violation of 18 U.S.C. §
922(g)(1). Id. at 1169. The appellants based
their argument on the following rider which Congress included
in an omnibus appropriations bill:
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.
and Further Continuing Appropriations Act, 2015, Pub. L. No.
113-235, § 538, 128 Stat. 2130, 2217 (2014).
essentially identical rider was included in the
appropriations act for the fiscal year ending September 30,
2016. Consolidated Appropriations Act, 2016, Pub. L. No.
114-113, § 542, 129 Stat. 2242, 2332-33 (2015).
Ninth Circuit first determined that the appellants had
standing to “complain that DOJ is spending money that
has not been appropriated by Congress.”
McIntosh, 833 F.3d at 1173. The Ninth Circuit then
analyzed whether the statutory language actually prohibited
the DOJ from prosecuting private individuals for violations
of federal drug law when the individuals were in compliance
with state medical marijuana laws. The McIntosh
Court concluded that, “at a minimum, § 542
prohibits DOJ from spending funds from relevant
appropriations acts for 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. However, the court also found that the
statutory language does not prevent the DOJ from prosecuting
“individuals who engage in conduct unauthorized under
state medical marijuana laws.” Id. at 1178.
McIntosh Court chose to “leave to the district
courts . . . the precise remedy that would be
appropriate” for violations of § 542. Id.
at 1179. However, the court did hold that: “If DOJ
wishes to continue these prosecutions, Appellants are
entitled to evidentiary hearings to determine whether their
conduct was completely authorized by state law, by which we
mean that they strictly complied with all relevant conditions
imposed by state law on the use, distribution, possession,
and cultivation of medical marijuana.” Id.
Government argues that this Court should not follow the Ninth
Circuit's approach in McIntosh, but does not
attempt to undermine the Ninth Circuit's reasoning. True,
no other circuit court of appeals has addressed this specific
issue. But the Government does not proffer any authority
which would contradict or distinguish the Ninth Circuit's
conclusions. While this Court is not required to follow the
Ninth Circuit's lead, the McIntosh opinion is
thorough, well-supported, and well-reasoned. The Government
has provided no rationale for reaching an alternative
conclusion. The language of § 542 clearly prohibits the
DOJ from expending funds to prevent Michigan from
implementing its own state law regarding the use,
distribution, possession, and cultivation of medical
marijuana. Here, Count Four is charging Samp with possession
of firearms in connection with his medical marijuana
business. The Government has not alleged that Samp's
possession of the firearms was unlawful apart from his
medical marijuana business. Although the Government is not
attempting to directly prosecute Samp for his medical
marijuana business, which would be in direct violation of
§ 542, Count Four accomplishes materially the same
effect. Accordingly, if Samp fully complied with the Michigan
medical marijuana law, then the Government's prosecution
of Count Four is in violation of § 542.
answer the question of whether Samp was complying with the
Michigan medical marijuana law, an evidentiary hearing is
necessary. The remaining issue is which party bears the
burden of proof at the hearing. Because this is a novel
issue, there is no directly controlling precedent. However,
the Sixth Circuit has held that it is “appropriate for
a trial court, confronted with a non-frivolous double
jeopardy claim, to shift to the government the burden of
proving by a preponderance of the evidence that it is not
seeking to prosecute the same offense a second time.”
United States v. Jabara, 644 F.2d 574, 576-77 (6th
Cir. 1981). See also United States v. Sinito, 723
F.2d 1250, 1263 (6th Cir. 1983) (putting the burden of proof
at a double-jeopardy evidentiary hearing on the government,
but declining to require a certain number of witnesses or
amount of evidence). That approach is instructive here. It is
axiomatic that criminal defendants are innocent until proven
guilty and that the Government bears the burden of
demonstrating their guilt. See In re Winship, 397
U.S. 358, 362 (1970). As such, the ...