United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
INJUNCTIVE RELIEF , AND FINDING MOOT DEFENDANT'S
MOTION TO COMPEL , AMENDED MOTION TO COMPEL , AND
MOTION FOR DISCLOSURE 
STEPHEN J. MURPHY, III, United States District Judge
Government charged Defendant Joshua Ragland in a four-count
indictment with Count One: manufacture of a destructive
device, 26 U.S.C. § 5861(f); Count Two: possession of an
unregistered destructive device, 26 U.S.C. § 5861(d);
Count Three: possession of a destructive device by a
prohibited person, 18 U.S.C. § 922(g)(3); and Count
Four: possession of explosive materials by a prohibited
person that created a substantial risk of injury to another
person, including a public safety officer performing duties,
18 U.S.C. §§ 842(i)(3), 844(f)(2). Ragland asks the
Court to enjoin the prosecution of Counts Three and Four. For
the reasons stated below, the Court will deny the motion.
Government alleges the following facts. An explosion near
Ragland's property injured a 29-year-old man. While
investigating the explosion, the police searched
Ragland's home and premises. They recovered five
manufactured destructive devices, and explosive material
similar to black powder. Also, the officers discovered
marijuana plants growing in Ragland's enclosed backyard,
and marijuana plants that were "curing" in his
Government alleges that Ragland manufactured the destructive
devices by filling small, metal CO2 cartridges
with the explosive material and connecting them to a
Christmas bulb, speaker wire, 9-volt battery, and metal
connectors. According to the Government, Ragland attached the
devices to trip wires and planted them in his yard, a nearby
alley, and near his fence. Additionally, the Government
contends that Ragland placed broken glass, boards with
protruding nails, and additional trip wires in the same
areas. The Government submits that Ragland told officers that
he possessed a medical marijuana card, he used marijuana on a
regular basis, and he planted the explosive devices to deter
others from stealing his marijuana. ECF 60, PgID 197.
2014, Congress passed an appropriations rider that related to
federal marijuana prosecutions. Pub. L. No. 113-235, 128
Stat. 2130, § 538. It provided that "[n]one of the
funds made available in this Act to the Department of Justice
may be used, with respect to [medical marijuana states
including Michigan] to prevent such States from implementing
their own laws that authorize the use, distribution,
possession, or cultivation of medical marijuana."
Id. Congress passed essentially the same rider in
2015; it became commonly known as "§ 542."
Pub. L. No. 114-113 § 542, 129 Stat. 2242, 2332-33
(2015). Section 542 remains in effect today.
argues that § 542 prohibits the DOJ from spending funds
to prosecute him on Counts Three and Four, which require the
use of marijuana as an element of proof. According to
Ragland, his use of marijuana is legal under Michigan's
Medical Marijuana Act, Mich. Comp. Laws § 333.26422.
Since § 542 bars DOJ from spending funds to prevent
implementation of Michigan's laws that authorize the
"use . . . of medical marijuana, " Ragland reasons
that § 542 therefore bars DOJ from spending funds to
prosecute him for Counts Three and Four.
outset, the Court notes that Ragland seeks an extraordinary
form of relief. "In almost all federal criminal
prosecutions, injunctive relief will not be
appropriate." United States v. McIntosh, 833
F.3d 1163, 1172 (9th Cir. 2016). Generally, federal courts
refuse to enjoin federal criminal prosecutions absent
"exceptional circumstances." Ackerman v.
Int'l Longshoremen's & Warehousemen's
Union, 187 F.2d 860, 863 (9th Cir. 1951) (reversing
district court's injunction of criminal prosecution);
see also Stolt-Nielsen, S.A. v. United States, 442
F.3d 177, 187 (3d Cir. 2006), as amended (May 16,
2006) (reversing district court's criminal prosecution
injunction because "non-prosecution agreements may not
form the basis for enjoining indictments before they
issue"); Deaver v. Seymour, 822 F.2d 66, 68
(D.C. Cir. 1987) (holding that "extraordinary
circumstances where the danger of irreparable loss" of a
constitutional right is "both great and immediate"
may justify an injunction of a criminal prosecution) (quoting
Fenner v. Boykin, 271 U.S. 240, 243 (1926)).
Government argues, however, that § 542 "contains no
express grant of authority to enforce the provision."
ECF 60, PgID 203-04. The argument is unavailing because a
"court sitting in equity cannot 'ignore the judgment
of Congress, deliberately expressed in
legislation.'" United States v. Oakland Cannabis
Buyers' Co-op., 532 U.S. 483, 497 (2001) (quoting
Virginian Ry. Co. v. Sys. Fed'n No. 40, 300 U.S.
515, 551 (1937)). "It is 'emphatically . . . the
exclusive province of the Congress not only to formulate
legislative policies and mandate programs and projects, but
also to establish their relative priority for the Nation.
Once Congress, exercising its delegated powers, has decided
the order of priorities in a given area, it is for . . . the
courts to enforce them when enforcement is sought.'"
Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194
to the Government's assertion, therefore, an injunction
may certainly be warranted when a federal criminal
prosecution runs afoul of a Congressional appropriation of
funds. McIntosh, 833 F.3d at 1175. The
Appropriations Clause provides that "[n]o Money shall be
drawn from the Treasury, but in Consequence of Appropriations
made by Law[.]" U.S. Const. art. I, § 9, cl. 7.
"The Appropriations Clause plays a critical role in the
Constitution's separation of powers, "
McIntosh, 833 F.3d at 1175, because it ensures
"that public funds will be spent according to the letter
of the difficult judgments reached by Congress as to the
common good and not according to the individual favor of
Government agents." Office of Pers. Mgmt. v.
Richmond, 496 U.S. 414, 425 (1990). "[I]f DOJ were
spending money in violation of § 542, it would be
drawing funds from the Treasury without authorization by
statute and thus violating the Appropriations Clause."
McIntosh, 833 F.3d at 1175. Therefore "federal
criminal defendants may seek to enjoin the expenditure of
those funds[.]" Id. at 1173-74.
McIntosh, the Ninth Circuit consolidated appeals
from numerous federal criminal defendants indicted for
various infractions of the Controlled Substances Act (CSA):
conspiracy to manufacture, to possess with intent to
distribute, and to distribute more than 1, 000 marijuana
plants in violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(A); and maintaining a drug-involved premise,
possessing a firearm in furtherance of a Title 21 offense,
and being a felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1), 924(c)(1)(A)(i), and 21
U.S.C. §§ 841, 856(a)(1). 833 F.3d at 1169. The
district courts denied the defendants' motions to enjoin
the prosecutions. But the McIntosh court reversed,
and determined that "§ 542 prohibits DOJ from
spending money on actions that prevent the Medical Marijuana
States' giving practical effect to their state laws that
authorize the use, distribution, possession, or cultivation
of medical marijuana." 833 F.3d at 1176.
Sixth Circuit has not directly addressed whether § 542
bars federal marijuana prosecutions. But at least one
respected judge on our court followed the Ninth Circuit's
approach. See United States v. Samp, No.
16-CR-20263, 2017 WL 1164453, at *2 (E.D. Mich. Mar. 29,
2017). In Samp, the Government charged the defendant
with possession of a firearm while being an unlawful user of
a controlled substance, in violation of 18 U.S.C. §
922(g)(3). Id. The Court noted that "[a]lthough
the Government is not attempting to directly prosecute [the
defendant] for his medical marijuana business, which would be
in direct violation of § 542, [the § 922(g)(3)
charge] accomplishes materially the same effect. Accordingly,
if [defendant] fully complied with the Michigan medical
marijuana law, then the Government's prosecution of
[§ 922(g)(3)] is in violation of § 542."
Id. After an evidentiary hearing, the Samp
court determined that the defendant had not strictly complied
with Michigan's medical marijuana laws and denied the
motion for an injunction. Id. at *8.
McIntosh and Samp are thoughtful and
persuasive opinions. But one key factor distinguishes both of
those cases from Ragland's: in both McIntosh and
Samp, the Government had charged the defendants with
conduct that-but for the element of marijuana use-would have
been completely legal. For example, in Samp, the
court noted that "[t]he Government has not alleged that
[defendant's] possession of the firearms was unlawful
apart from his medical marijuana business."
Samp, 2017 WL 1164453, at *2. The same was true in
McIntosh: the Government charged the defendants with
possession of marijuana in violation of the CSA and ...