Pot dealers who were legal in state can't be sentenced on federal charges

A 9th U.S. Circuit Court of Appeals panel affirmed on Friday a judge's decision to halt the sentencing of two Humboldt County men who pleaded guilty to federal marijuana charges, ruling that a congressional appropriations bill stopped prosecutors from pursuing the case further.

In a 2-1 decision, the panel ruled U.S. District Judge Richard Seeborg was correct when he concluded defendants Anthony Pisarski and Sonny Moore were in 'strict compliance' with state pot laws at the time, meaning their sentencing was stayed after they pleaded guilty to conspiracy to manufacture with intent to distribute marijuana.

The ruling is great news for Pisarski and Moore, and their attorney, Ronald N. Richards of Ronald Richards and Associates APC in Beverly Hills, who said he would soon file to have the charges dismissed. The men have been in limbo for more than seven years, he said.

"It's one of the greatest wins of my career," Richards said in an interview.

The U.S. attorney in San Francisco filed court papers last month saying the government was enjoined from participating in the prosecution under a temporary stay ordered by Seeborg. The 9th Circuit panel concluded the U.S. Department of Justice was allowed under the appropriations rider to appeal that order.

But 9th Circuit Judge M. Margaret McKeown, writing for the panel majority, said state law protected the defendants' possession of 327 marijuana plants, $416,125 in cash, and two loaded firearms which were seized by authorities. The defendants had not sold the marijuana, though Pisarski said it was intended for two collectives to which he belonged.

"We have no difficulty concluding that the district court did not clearly err in determining that Pisarski and Moore proved by a preponderance of evidence that they were in strict compliance with California medical marijuana law at the time of their arrest," she wrote. U.S. v. Pisarski, 2020 DJDAR 7138 (9th Cir., filed Oct. 6, 2017).

The timing of the 2015 appropriations bill, which blocked the U.S. Department of Justice from spending any money to prevent a state from implementing its medical marijuana laws, followed the guilty pleas of Pisarski and Moore but occurred before they were sentenced. Richards said they faced possible three-year prison terms.

McKeown, joined by 6th U.S. Circuit Court of Appeals Judge Eugene E. Siler, cited a 2016 9th Circuit decision which said the Rohrbacher-Farr amendment to the appropriations bill, which has been renewed every year since, to support her conclusion the Justice Department was prohibited from spending money prosecuting people involved in activity allowed by the state. U.S. v. McIntosh, 833 F.3d 1163 (2016).

The case may not have broader implications because it's a lot more difficult for people who grow pot to satisfy strict scrutiny under California law today, but also because federal prosecutors -- under Attorney General William P. Barr -- are no longer aggressively pursuing marijuana growers unless they sell to children or are involved with drug cartels, a legal expert said.

"The collective model that saved these guys is illegal as of 2019," said Hilary V. Bricken, a partner with Harris Bricken McVay Sliwoski LLP in Los Angeles who was not involved in the Pisarski case. But, she added, "Criminal prosecution for cannabis is increasingly obsolete."

Senior 9th Circuit Judge J. Clifford Wallace dissented from Friday's opinion, writing Seeborg was wrong and voicing concern district judges will stay federal marijuana prosecutions "so long as there is a theoretical possibility of compliance at the time of a future sale."

The U.S. Department of Justice could not be reached for comment.