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United States v. Samp

United States District Court, E.D. Michigan, Northern Division

December 13, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT L. SAMP, Defendant.

          ORDER DENYING MOTION FOR A BILL OF PARTICULARS AND SCHEDULING AN EVIDENTIARY HEARING

          THOMAS L. LUDINGTON United States District Judge.

         On 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.

         Now, 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.

         I.

         Samp's 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.

         In 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).[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.

         Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014).

         An 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).

         The 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.

         The 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.

         The 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.

         To 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).[2] As such, the ...


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