United States v. Noah Kleinman , 880 F.3d 1020 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50585
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00893-
ODW-2
NOAH KLEINMAN, AKA Chuckles,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted April 4, 2017
Pasadena, California
Filed June 16, 2017
Before: DAVID M. EBEL, * MILAN D. SMITH, JR., and
N. RANDY SMITH, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 UNITED STATES V. KLEINMAN
SUMMARY **
Criminal Law
The panel affirmed a conviction and sentence for
conspiracy to distribute and possess marijuana, distribution
of marijuana, maintaining a drug-involved premises, and
conspiracy to commit money laundering, arising out of the
operation of purported medical-marijuana collective
storefronts in California.
The defendant argued that a congressional
appropriations rider enjoining use of United States
Department of Justice funds in certain medical marijuana
cases prohibits continued prosecution of his case, and that he
is entitled to an evidentiary hearing under United States v.
McIntosh, 833 F.3d 1163 (9th Cir. 2016), to determine
whether he strictly complied with all relevant conditions
imposed by state law.
The panel held that the rider only prohibits the
expenditure of DOJ funds in connection with a specific
charge involving conduct that is fully compliant with state
laws regarding medical marijuana; that the rider does not
require a court to vacate convictions that were obtained
before the rider took effect; and that the rider, if it applies to
this case at all, might operate to bar the DOJ from continuing
to defend the prosecution on appeal insofar as it relates to
those counts that may be determined to involve only conduct
that wholly complies with California medical marijuana law.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. KLEINMAN 3
The panel concluded that the defendant is not entitled to
a McIntosh remand in this case because (1) his conviction
and sentence were entered before the rider took effect; (2)
the rider does not bar the DOJ from spending funds in
connection with Counts 1 and 6, which definitively involved
conduct that violated state law; (3) even if the rider applied
to Counts 2 and 5, an open question, the panel’s rulings on
Counts 1 and 6 are dispositive of all counts since the
defendant’s substantive appellate claims concern all counts
equally; and (4) the defendant does not win relief on any of
his other arguments, so a McIntosh remand on Counts 2
through 5 is unnecessary.
The panel held that the district court erred by instructing
the jury that “[t]here is no such thing as valid jury
nullification,” and that it “would violate [its] oath and the
law if [it] willfully brought a verdict contrary to the law
given to [it] in this case.” The panel held that because there
is no right to jury nullification, the error was harmless.
The panel held that the district court did not err by
denying the defendant’s motion to suppress, because the
dispensary’s practice, as described in the warrant affidavit,
of requiring members to designate the dispensary as their
primary caregiver and then allowing members to purchase
marijuana immediately after, provided probable cause to
believe that the dispensary was operating illegally. The
panel held that the district court did not err by denying the
defendant a Franks hearing, or by declining to instruct the
jury on the defendant’s joint-ownership defense.
4 UNITED STATES V. KLEINMAN
The panel held that the district court did not abuse its
discretion by considering the government’s late-filed
objections to the presentence report, and that the sentence is
substantively and procedurally reasonable.
COUNSEL
Becky S. James (argued) and Jessica W. Rosen, James &
Associates, Los Angeles, California, for Defendant-
Appellant.
Julie Shemitz (argued) and David P. Kowal (argued),
Assistant United States Attorneys; Lawrence S. Middleton,
Chief, Criminal Division; United States Attorney’s Office,
Los Angeles, California; for Plaintiff-Appellee.
Paula M. Mitchell, Ninth Circuit Appellate Clinic, Alarcón
Advocacy Center, Loyola Law School, Los Angeles,
California, for Amici Curiae Members of Congress.
Roger I. Roots, Livingston, Montana, for Amicus Curiae
Fully Informed Jury Association.
UNITED STATES V. KLEINMAN 5
OPINION
M. SMITH, Circuit Judge:
Noah Kleinman appeals his jury conviction and 211
month sentence for conspiracy to distribute and possess
marijuana, distribution of marijuana, maintaining a drug-
involved premises, and conspiracy to commit money
laundering. His offenses arose out of purported medical
marijuana collective storefronts that he operated with his co-
defendants in California, which he alleges complied with
state law. On appeal, Kleinman argues that (1) a
congressional appropriations rider enjoining use of United
States Department of Justice (DOJ) funds in certain medical
marijuana cases prohibits continued prosecution of his case;
(2) the district court gave an anti-nullification jury
instruction that effectively coerced a guilty verdict; (3) the
district court erroneously denied Kleinman’s motion to
suppress evidence seized pursuant to a faulty search warrant;
(4) the district court erred by not granting an evidentiary
hearing on the validity of the affidavit supporting the search
warrant; (5) the district court erred by refusing to instruct the
jury on Kleinman’s defense theory; and (6) the 211 month
sentence was substantively and procedurally unreasonable.
For the reasons described herein, we AFFIRM Kleinman’s
conviction and sentence.
FACTS AND PRIOR PROCEEDINGS
Kleinman, along with defendant Paul Montoya and
others, began operating purported medical marijuana
collectives in California around 2006. In 2007 or 2008 they
opened their fourth store, NoHo Caregivers (NoHo), which
the government alleged was the hub of a large conspiracy to
distribute marijuana. At trial, witnesses testified that
Kleinman and his associates sold 90% of their marijuana
6 UNITED STATES V. KLEINMAN
outside of their storefronts, used encrypted phones and
burner phones to communicate, drove rented cars to escape
detection, hid drugs and money in “stash apartments” rented
for that purpose, and shipped marijuana hidden in hollowed-
out computer towers to customers in New York and
Philadelphia.
In 2010, pursuant to a Los Angeles Police Department
(LAPD) investigation of medical marijuana collectives, two
undercover officers entered Kleinman’s dispensary Medco
Organics (Medco) and purchased marijuana. The LAPD
then obtained a search warrant and seized evidence, and
California initiated criminal proceedings against Kleinman.
He moved to dismiss the case, arguing that he had complete
immunity from prosecution pursuant to California medical
marijuana laws. The state did not file an objection. During
a preliminary hearing on the dismissal motion, the deputy
district attorney stated that he did not see a basis on which to
deny Kleinman’s motion, and the state court dismissed the
charges. After the case was dismissed, the United States
Drug Enforcement Administration (DEA) seized the
evidence in the LAPD’s custody.
In 2011, a federal grand jury indicted Kleinman,
Montoya, and five others for conspiracy to distribute and
possess marijuana, distribution of marijuana, maintaining a
drug-involved premises, and conspiracy to commit money
laundering. Kleinman moved to suppress the evidence
seized by the DEA on the ground that it was obtained
pursuant to a search warrant that lacked probable cause. In
the alternative, Kleinman moved for an evidentiary hearing
on the validity of the affidavit supporting the warrant due to
alleged material omissions in the affidavit. The district court
denied the motions.
UNITED STATES V. KLEINMAN 7
At a pretrial hearing, the district court concluded that any
references to medical marijuana would be irrelevant at trial
because state law compliance is not a defense to federal
charges. During jury selection, the district court emphasized
that jurors should not question any purported conflict
between federal and state law, and should consider the case
under federal law only.
The jury convicted Kleinman on all counts and found
that the amount of marijuana involved in the offenses
exceeded 1,000 kilograms. The district court held a
sentencing hearing on December 8, 2014, determined that
the applicable United States Sentencing Guidelines
(Guidelines) range was 188 to 235 months, and sentenced
Kleinman to 211 months. Shortly after Kleinman’s
convictions and sentence, on December 16, 2014, Congress
enacted an appropriations rider that prohibits the DOJ from
expending funds to prevent states from implementing their
laws authorizing the use, distribution, possession, and
cultivation of medical marijuana. Consolidated and Further
Continuing Appropriations Act, 2015, Pub. L. No. 113–235,
§ 538, 128 Stat. 2130, 2217 (2014).
ANALYSIS
Kleinman is not entitled to remand for an evidentiary
hearing on his state law compliance.
In 1996, California voters approved the Compassionate
Use Act (CUA), which decriminalized possession and
cultivation of marijuana for medical use. Cal. Health &
Safety Code § 11362.5. In 2003, the California legislature
enacted the Medical Marijuana Program (MMP), permitting
qualified patients to form collectives for the cultivation and
distribution of medical marijuana. Id. §§ 11362.7–11362.9.
Federal law, however, still prohibits the use or sale of
8 UNITED STATES V. KLEINMAN
marijuana, even if distributed and possessed pursuant to
state-approved medical marijuana programs. See United
States v. McIntosh, 833 F.3d 1163, 1179 n.5 (9th Cir. 2016)
(“Anyone in any state who possesses, distributes, or
manufactures marijuana for medical or recreational purposes
(or attempts or conspires to do so) is committing a federal
crime.”).
Since December 16, 2014, congressional appropriations
riders have prohibited the use of any DOJ funds that prevent
states with medical marijuana programs (including
California) from implementing their state medical marijuana
laws. Consolidated and Further Continuing Appropriations
Act, 2015, 128 Stat. at 2217; Consolidated Appropriations
Act, 2016, Pub. L. No. 114–113, § 542, 129 Stat. 2242,
2332–33 (2015); Consolidated Appropriations Act, 2017,
Pub. L. No. 115-31, § 537, 131 Stat. 135, 228 (2017). All of
these riders are “essentially the same,” see United States v.
Nixon, 839 F.3d 885, 887 (9th Cir. 2016) (per curiam), and
the current rider will remain in effect until at least September
30, 2017. See Consolidated Appropriations Act, 2017,
131 Stat. at 135. In this opinion we refer to the riders
collectively as § 542.
In McIntosh we determined that, pursuant to § 542,
federal criminal defendants who were indicted in marijuana
cases had standing to file interlocutory appeals seeking to
enjoin DOJ expenditure of funds used to prosecute their
cases. 833 F.3d at 1172–74. We held that “§ 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,
§ 542 does not prohibit prosecuting individuals for conduct
that is not fully compliant with state medical marijuana laws.
UNITED STATES V. KLEINMAN 9
Id. at 1178. We remanded, holding that the DOJ could only
continue the prosecutions if the defendants were given
“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 . . . medical marijuana.” Id. at 1179.
Kleinman asks us to remand for an evidentiary hearing as we
did in McIntosh. We decline to do so.
Preliminarily, we clarify that the government’s approach
to this case is mistaken. Kleinman was convicted and
sentenced shortly before § 542 was enacted. The
government therefore claims that § 542 is inapplicable to
Kleinman’s prosecution for two reasons, neither of which is
availing. First, it asserts that application of § 542 after
judgment is entered would be a retroactive application of
that law, when the statute was not intended to apply
retroactively. However, Kleinman does not seek retroactive
application of § 542. Rather, he argues that § 542 prohibits
continued DOJ expenditures on his case since its enactment,
which in this case refers to the DOJ’s ongoing litigation on
appeal. We determined in McIntosh that § 542 can prohibit
continued DOJ expenditures even though a prosecution was
properly initiated prior to § 542’s enactment, see id. (“The
government had authority to initiate criminal proceedings,
and it merely lost funds to continue them.”), and the same
reasoning applies to continued expenditures on a direct
appeal after conviction.
Second, the government argues that under the federal
savings statute, 1 U.S.C. § 109, the repeal of a statute
generally does not repeal liability incurred when that statute
was in effect. However, § 542 does not concern the repeal
of any statute, and McIntosh made clear that § 542 did not
change the legality of marijuana under federal law. 833 F.3d
10 UNITED STATES V. KLEINMAN
at 1179 n.5. Section 542 merely enjoins certain DOJ
expenditures while it is in effect.
We make two holdings that support our conclusion that
a McIntosh hearing is not necessary in this case. First, § 542
only prohibits the expenditure of DOJ funds in connection
with a specific charge involving conduct that is fully
compliant with state laws regarding medical marijuana.
Thus, the applicability of § 542 focuses on the conduct
forming the basis of a particular charge, which requires a
count-by-count analysis to determine which charges, if any,
are restricted by § 542. The prosecution cannot use a
prosecutable charge (for conduct that violates state medical
marijuana law) to bootstrap other charges that rely solely
upon conduct that would fully comply with state law.
Otherwise, the DOJ could sweep into its prosecution other
discrete acts involving medical marijuana that fully
complied with state law. That would contradict the plain
meaning of § 542, which prevents the DOJ from spending
funds in a manner that would prevent the listed states “from
implementing their own laws that authorize . . . medical
marijuana.” Consolidated Appropriations Act, 2016,
129 Stat. at 2332–33.
Second, § 542 does not require a court to vacate
convictions that were obtained before the rider took effect.
In other words, when a defendant’s conviction was entered
before § 542 became law, a determination that the charged
conduct was wholly compliant with state law would not
vacate that conviction. It would only mean that the DOJ’s
continued expenditure of funds pertaining to that particular
state-law-compliant conviction after § 542 took effect was
unlawful. That is because, as we explained in McIntosh,
§ 542 did not change any substantive law; it merely placed a
temporary hold on the expenditure of money for a certain
UNITED STATES V. KLEINMAN 11
purpose. 833 F.3d at 1179. When § 542 took effect, the DOJ
was obligated to stop spending funds in connection with any
charges involving conduct that fully complied with state law,
but that temporary spending freeze does not spoil the fruits
of prosecutorial expenditures made before § 542 took effect.
Instead, as it pertains to this case, because § 542 became law
after Kleinman’s conviction and sentence, but before this
appeal, § 542 (if it applies at all) might operate to bar the
DOJ from continuing to defend this prosecution on appeal
insofar as it relates to those counts that may be determined
to involve only conduct that wholly complies with California
medical marijuana law.
With these two principles in mind, we conclude that a
McIntosh hearing is not necessary in this case. We made
clear in McIntosh that “[i]ndividuals who do not strictly
comply with all state-law conditions regarding the use,
distribution, possession, and cultivation of medical
marijuana have engaged in conduct that is unauthorized, and
prosecuting such individuals does not violate § 542.”
833 F.3d at 1178. In this case, § 542 does not apply to at
least two of the charges against Kleinman because the
conduct alleged therein does not fully comply with state law:
conspiracy to distribute marijuana (Count 1), and conspiracy
to commit money laundering (Count 6). Both counts
involved marijuana sales to out-of-state customers in
violation of California law.
The CUA and the MMP make clear that Kleinman has
no state-law defense for his sales of approximately
85 kilograms of marijuana to out-of-state customers. The
stated purpose of the CUA is “[t]o ensure that seriously ill
Californians have the right to obtain and use marijuana for
medical purposes.” Cal. Health & Safety Code
§ 11362.5(b)(1)(A) (emphasis added). The MMP provides
12 UNITED STATES V. KLEINMAN
immunity from prosecution for possession and distribution
of marijuana to qualified patients and their primary
caregivers “who associate within the State of California in
order collectively or cooperatively to cultivate cannabis for
medical purposes.” Id. § 11362.775(a) (emphasis added).
The MMP further provides that a person seeking a medical
marijuana identification card must show “proof of his or her
residency within the county.” Id. § 11362.715(a)(1)
(emphasis added). The California Attorney General’s
guidelines for implementing the CUA and MMP (AG
Guidelines) provide that medical marijuana collectives must
only sell to those within the collective, and specifically lists
as “indicia of unlawful operation” sales to non-members and
out-of-state distribution. Cal. Att’y Gen. Edmund G. Brown,
Jr., Guidelines for the Security and Non-Diversion of
Marijuana Grown for Medical Use, Cal. Dep’t of Justice, at
8–11 (August 2008), available at http://www.ag.ca.gov/
cms_attachments/press/pdfs/n1601_medicalmarijuanaguide
lines.pdf; accord People v. London, 175 Cal. Rptr. 3d 392,
402–03 (Cal. Ct. App. 2014).
Counts 1 and 6 allege overt acts that violate the CUA and
MMP; i.e., sales to out-of-state customers. Additionally,
Kleinman conceded that the government presented evidence
that his Philadelphia and New York customers never joined
his collective, and he never argued that these customers and
out-of-state sales were part of his purported medical
marijuana collectives. First, he affirmed at trial that he was
not going to argue that sales to out-of-state customers were
“legitimate in any way in any state.” Then, in his sentencing
memorandum, he argued that he should only be sentenced
based on the quantity of marijuana shipped to Philadelphia
and New York because his in-state transactions were
compliant with state law. Finally, at sentencing, when asked
if he was “trying to defend those shipments to New York and
UNITED STATES V. KLEINMAN 13
Philadelphia” as state-law compliant medical marijuana
transactions, he replied that he was “not trying to say there’s
any legal defense that would apply to those out-of-state
shipments.” Kleinman now seeks to introduce evidence that
his in-state transactions complied with California law, but
makes no attempt to refute that the out-of-state transactions
did not. Rather, his position is that those “questionable”
sales should not taint his entire marijuana operation. Thus,
the record clearly demonstrates that he violated the CUA and
the MMP, is not entitled to a McIntosh hearing in connection
with Counts 1 and 6, and is not entitled to the benefits of
§ 542 as to those counts.
There may be some legitimate question, however, as to
whether Counts 2 through 5 involved conduct that strictly
complied with California law. 1 But there is no need to
remand for a McIntosh hearing on those charges because
even a favorable determination regarding state law
compliance on Counts 2 through 5 would mean only that the
DOJ was disabled from defending those specific charges on
appeal. However, Kleinman did not make any appellate
arguments that were tied to those specific charges; he made
only global attacks on his convictions and sentence. Because
he made no substantive arguments pertaining to Counts 2
1
Counts 2, 3, 4 in the First Superseding Indictment alleged discrete
marijuana transactions on certain dates, but those counts do not allege
that the referenced transactions involved out-of-state customers or were
otherwise conducted in violation of California law. Count 5 alleged the
operation of a drug-involved premises (NoHo), and while it might be
inferred that such conduct violated California law because the same act
was alleged as an overt act in furtherance of the conspiracy in Count 1,
that conclusion is not obvious. In any event, we need not decide whether
there is enough uncertainty on these counts for a McIntosh hearing
because, as we explain, it would not make a difference in the outcome of
this case.
14 UNITED STATES V. KLEINMAN
through 5 that are not resolved by our rulings as to Counts 1
and 6, our rulings on those counts are dispositive of all
charges. Counts 1 and 6 were definitively prosecutable;
thus, § 542 does not preclude the DOJ from defending
against any of Kleinman’s arguments on appeal, and we need
not remand for a McIntosh hearing on Counts 2 through 5.
In summary, we decline to remand for a McIntosh
hearing because of the unique circumstances of this case.
First, Kleinman’s conviction and sentence were entered
before § 542 took effect, so § 542 had no effect on his trial
and sentencing. Thus, the only possible disability imposed
on the DOJ here is the prohibition on defending the
conviction and sentence on appeal after § 542 took effect.
Second, § 542 does not bar the DOJ from spending funds in
connection with Counts 1 and 6 because those charges
definitively involved conduct that violated state law. Third,
whether § 542 bars the DOJ’s expenditure of funds to defend
Counts 2 through 5 is an open question because we cannot
definitively conclude that those counts involved conduct that
violated State law. Fourth, even if § 542 applied to Counts
2 through 5—and thus the DOJ could not defend those
specific counts on appeal—our rulings on Counts 1 and 6 are
dispositive of all counts, including Counts 2 through 5,
because Kleinman’s substantive appellate claims concern all
counts equally. Fifth, as we explain below, Kleinman does
not win relief on any of his other arguments, so it is
unnecessary for us to remand for a McIntosh hearing on
Counts 2 through 5 because we would affirm those
convictions regardless of whether § 542 applies to them. 2
2
Kleinman challenges the substantive reasonableness of his
sentences, which he argues are disproportionate to the seriousness of his
offenses. However, because all sentences run concurrently, and
UNITED STATES V. KLEINMAN 15
The district court erred by giving an overly strong
anti-nullification jury instruction, but the error was
harmless.
Kleinman argues that the anti-nullification jury
instruction the district court gave prior to deliberations
misstated the law and impermissibly divested the jury of its
power to nullify. While we generally “review the language
and formulation of a jury instruction for an abuse of
discretion, . . . [w]hen jury instructions are challenged as
misstatements of law, we review them de novo.” United
States v. Cortes, 757 F.3d 850, 857 (9th Cir. 2014).
sentences for Counts 1 and 6 are 211 months each, any change in
sentences for Counts 2 through 5 would not result in any reduction of
Kleinman’s 211 month sentence.
Kleinman separately argues that § 542 compels the Bureau of
Prisons, as a subdivision of the DOJ, to stop spending money to
incarcerate persons for medical marijuana convictions based on activity
that fully complies with state law. We need not resolve this issue in this
case. As we have explained, at least two of Kleinman’s convictions fall
outside the scope of § 542 because they involved conduct that violates
California law. Those two convictions (Counts 1 and 6) carried the
longest terms of imprisonment (211 months) and all terms for each count
were sentenced to run concurrently. Thus, even if the DOJ could not
separately continue to expend funds to incarcerate Kleinman on the
remaining counts because of § 542, Kleinman’s custodial status would
not be changed because § 542 does not bar his continued incarceration
for his conspiracy convictions. Further, Kleinman makes no argument
that the Bureau of Prisons would calculate his credit for early release any
differently without those concurrent sentences. Thus, we do not decide
in this case the impact of § 542 on the Bureau of Prisons’ expenditure of
funds to incarcerate persons who were convicted only of federal drug
offenses involving conduct that was fully compliant with state medical
marijuana laws.
16 UNITED STATES V. KLEINMAN
Jury nullification occurs when a jury acquits a defendant,
even though the government proved guilt beyond a
reasonable doubt. United States v. Powell, 955 F.2d 1206,
1212–13 (9th Cir. 1992). It is well established that jurors
have the power to nullify, and this power is protected by
“freedom from recrimination or sanction” after an acquittal.
Merced v. McGrath, 426 F.3d 1076, 1079 (9th Cir. 2005).
However, juries do not have a right to nullify, and courts
have no corresponding duty to ensure that juries are able to
exercise this power, such as by giving jury instructions on
the power to nullify. Id. at 1079–80. On the contrary,
“courts have the duty to forestall or prevent [nullification],
whether by firm instruction or admonition or . . . dismissal
of an offending juror,” because “it is the duty of juries in
criminal cases to take the law from the court, and apply that
law to the facts as they find them to be from the evidence.”
Id.
The court instructed the jurors as follows:
You cannot substitute your sense of justice,
whatever that means, for your duty to follow
the law, whether you agree with it or not. It
is not for you to determine whether the law is
just or whether the law is unjust. That cannot
be your task. There is no such thing as valid
jury nullification. You would violate your
oath and the law if you willfully brought a
verdict contrary to the law given to you in this
case. 3
3
The court noted that it planned to give the instruction because,
during trial, protesters in front of the courthouse were urging the jury to
disregard the law. The protestors’ signs said “smart jurors are hung
UNITED STATES V. KLEINMAN 17
Kleinman argues that these instructions implied that jurors
would break the law, and possibly be punished, if they did
not convict, and thus divested the jury of its power to nullify.
The court’s instruction was taken nearly verbatim from
two cases. The first three sentences came from United States
v. Rosenthal, 266 F. Supp. 2d 1068, 1085 (N.D. Cal. 2003),
affirmed in part, reversed in part, 454 F.3d 943 (9th Cir.
2006), where the district court instructed the jury “you
cannot substitute your sense of justice, whatever that means,
for your duty to follow the law, whether you agree with it or
not. It’s not your determination whether a law is just or
whether a law is unjust. That can’t be your task.” The
defendant argued that this instruction erroneously divested
the jury of its power to nullify, and the district court held that
the instruction was proper. Id. at 1085–87. The district court
reasoned that, while it must instruct the jury to follow the
law and it must dismiss jurors who express intent to nullify,
it cannot entirely divest the jury of its power to nullify with
an anti-nullification instruction. Id. at 1086–87. Jury
nullification is, by its very definition, a jury’s choice to
ignore court instructions, which may include an anti-
nullification instruction. Id. at 1087. On appeal, we agreed
with the district court’s analysis of the jury instruction claim
jurors,” “no victim of crime,” and “judges have the law, jury has the
power.” During trial, the court spoke to the jurors one-by-one to
determine what impact the protestors had, if any. Some jurors had not
seen the signs, and for the jurors that had, the court asked if the signs
influenced them, and reiterated that they should not be influenced by
anything outside of the courtroom. All of the jurors were agreeable and
none was dismissed. Kleinman argues that the court’s individual
questioning of the jurors contributed to the coercive effect of the anti-
nullification instructions.
18 UNITED STATES V. KLEINMAN
and adopted its reasoning in full. Rosenthal, 454 F.3d at
947. 4
The last two sentences of the court’s instructions came
from United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir.
1988), a case in which the defendant mentioned jury
nullification in his closing argument, and during
deliberations the jury asked the court about the doctrine.
“The court responded, ‘There is no such thing as valid jury
nullification . . . You would violate your oath and the law if
you willfully brought in a verdict contrary to the law given
you in this case.’” Id. The Sixth Circuit rejected the
defendant’s argument that the instruction was coercive,
noting that “[a] jury’s ‘right’ to reach any verdict it wishes
does not . . . infringe on the duty of the court to instruct the
jury only as to the correct law.” Id. The Sixth Circuit did
not discuss whether the court’s instructions implied that the
jury would be punished for nullification, or that an acquittal
that resulted from jury nullification would be void. 5
The first three sentences of the court’s anti-nullification
instructions were not erroneous, and it is not generally
4
Our discussion of juror misconduct in Rosenthal is also relevant.
A juror in Rosenthal’s trial spoke to an attorney friend who said that the
juror “could get into trouble” if she did not follow the court’s
instructions, and the juror shared this outside perspective during
deliberations. 454 F.3d at 950. We held that reversal was necessary
because “[j]urors cannot fairly determine the outcome of a case if they
believe they will face ‘trouble’ for a conclusion they reach as jurors.” Id.
5
The court’s statement in Krzyske was made in response to a
question from a jury that had been urged to nullify by the defendant, and
may have been an off-the-cuff answer, rather than a fully considered
statement of the law. Here, on the other hand, the anti-nullification
instruction was proposed by the government in advance and adopted by
the court in its entirety.
UNITED STATES V. KLEINMAN 19
erroneous for a court to instruct a jury to do its job; that is,
to follow the court’s instructions and apply the law to the
facts. If Kleinman’s jury had exercised its power to nullify,
it presumably would have disregarded the court’s
instructions on federal drug law and the court’s anti-
nullification instructions. The court had no duty to make the
jury aware of its power to nullify, and properly instructed the
jury that it could not (1) substitute its sense of justice for its
duty to follow the law, or (2) decide whether a law is just or
unjust.
Although a court has “the duty to forestall or prevent
[nullification],” including “by firm instruction or
admonition,” Merced, 426 F.3d at 1080, a court should not
state or imply that (1) jurors could be punished for jury
nullification, or (2) an acquittal that results from jury
nullification is invalid. Neither proposition is correct, and
these are the only legal principles that protect a jury’s power
to nullify.
The last two sentences of the district court’s instructions
could reasonably imply that the jury could be punished for
nullification, or that nullification is a moot exercise because
the verdict would be invalid. The court’s statement that the
jury “would violate [its] oath and the law if [it] willfully
brought a verdict contrary to the law given to [it] in this
case,” may imply punishment for nullification, because
“violate your oath and the law,” coming from the court in a
criminal trial, could be understood as warning of a possible
violation with associated sanctions. Additionally, the
statement that “[t]here is no such thing as valid jury
nullification” could reasonably be understood as telling
jurors that they do not have the power to nullify, and so it
would be a useless exercise. While jurors undoubtedly
should be told to follow the law, the statement that there is
20 UNITED STATES V. KLEINMAN
no valid jury nullification misstates the role of nullification
because an acquittal is valid, even if it resulted from
nullification.
Thus, the last two sentences of the instruction were
erroneous. The Krzyske instruction should not become the
go-to instruction in trials where jury nullification is a
concern, and courts should “generally avoid[] such
interference as would divest juries of their power to acquit
an accused, even though the evidence of his guilt may be
clear.” United States v. Simpson, 460 F.2d 515, 520 (9th Cir.
1972).
Kleinman argues that the jury instructions were
structural error, not subject to review for harmlessness,
because they deprived him of his right to trial by jury. See
Arizona v. Fulminante, 499 U.S. 279, 306–10 (1991).
However, for the error to be structural, it must have deprived
Kleinman of a constitutional right. See id. There is no
constitutional right to jury nullification, so depriving a
defendant of a jury that is able to nullify is plainly not a
constitutional violation. Although an erroneous jury
instruction that does not otherwise violate a defendant’s
constitutional rights may rise to the level of constitutional
error when it “so infected the entire trial that the resulting
conviction violates due process,” the Supreme Court has
defined such errors “very narrowly,” and noted that due
process “has limited operation” “[b]eyond the specific
guarantees enumerated in the Bill of Rights.” Estelle v.
McGuire, 502 U.S. 62, 72–73 (1991); see also Brewer v.
Hall, 378 F.3d 952, 956 (9th Cir. 2004) (noting, in a habeas
case, “no Supreme Court precedent holds that an
antinullification instruction . . . violates due process”).
It is not fundamentally unfair for a defendant to be tried
by a jury that is not fully informed of the power to nullify,
UNITED STATES V. KLEINMAN 21
or even that is stripped of the power to nullify, because there
is no right to nullification. Although a jury should not be led
to believe that jury nullification will result in punishment or
an invalid acquittal, the court’s misstatement by implication
does not rise to the level of denial of Kleinman’s due process
rights. Thus, the error was not structural and was harmless. 6
The district court did not err by denying
Kleinman’s motion to suppress evidence seized
pursuant to a state search warrant.
The LAPD seized evidence pursuant to a search warrant
and supporting affidavit dated March 16, 2010, and the DEA
later seized that evidence. Kleinman moved to suppress the
evidence, arguing that the seizure violated his Fourth
Amendment rights because the affidavit supporting the
search warrant did not support the magistrate’s probable
cause finding. The district court denied the motion. We
review the denial de novo, and any underlying factual
findings for clear error. United States v. Rodgers, 656 F.3d
1023, 1026 (9th Cir. 2011).
“[P]robable cause means a fair probability that
contraband or evidence is located in a particular place.
Whether there is a fair probability depends upon the totality
of the circumstances, including reasonable inferences, and is
a commonsense, practical question. Neither certainty nor a
preponderance of the evidence is required.” United States v.
6
Kleinman asserts that if the error is not structural, “[w]e apply a
‘totality of the circumstances’ analysis when examining whether a
judge’s statements to a jury were impermissibly coercive.” United States
v. Berger, 473 F.3d 1080, 1090 (9th Cir. 2007). However, the framework
that Kleinman identifies is inapplicable here; it applies when we assess
whether an Allen charge was impermissibly coercive. Id. at 1089; see
also Allen v. United States, 164 U.S. 492, 501–02 (1896).
22 UNITED STATES V. KLEINMAN
Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007) (internal
citations and quotation marks omitted). We give a
magistrate’s determination that probable cause exists “great
deference.” Id.
The affidavit supporting the search warrant described the
LAPD officers’ undercover visit to Medco in 2010. Officer
Cecil Mangrum stated that, after he and his partner entered
Medco, a Medco employee said that to participate in the
collective Officer Mangrum “did not have to do anything
except show [his] ID and doctor recommendation every time
[he] came in,” and that not everyone in the collective was
required to grow marijuana. The officers purchased
marijuana at Medco that day using United States currency.
Officer Mangrum alleged the following probable violations
of California law: (1) Medco did not require members to
participate in the collective, in violation of the CUA and
MMP; (2) the Medco employee exchanged marijuana solely
for money, in violation of California Health and Safety Code
§ 11360; and (3) Medco requires collective members to
designate Medco as their primary caregiver, in violation of
People v. Mentch, 195 P.3d 1061 (Cal. 2008).
California Health and Safety Code § 11360 prohibits
selling marijuana, except as authorized by law. Thus, selling
marijuana is illegal under § 11360 unless the MMP
authorized such sales. While the MMP does not “authorize
any individual or group to cultivate or distribute marijuana
for profit,” id. § 11362.765(a), it also does not prohibit
exchanging money for marijuana among members of a
collective. Consistent with the MMP, “a primary caregiver
[may] receive compensation for actual expenses and
reasonable compensation for services rendered to an eligible
qualified patient, i.e., conduct that would constitute sale
under other circumstances.” People v. Urziceanu, 33 Cal.
UNITED STATES V. KLEINMAN 23
Rptr. 3d 859, 883 (Cal. Ct. App. 2005); see also AG
Guidelines at 10. Further, the MMP does not require that
collective members grow marijuana in order to be
considered participants of the collective. See People v.
Anderson, 182 Cal. Rptr. 3d 276, 277 (Cal. Ct. App. 2015).
Thus, the statements in the affidavit that Medco exchanged
marijuana solely for money and did not require members to
grow marijuana do not support the inference that Medco was
operating in violation of state law.
However, the affidavit did establish probable cause to
believe that Medco was violating state law because it stated
that marijuana purchasers were required to designate Medco
as their primary caregiver. Although Officer Mangrum’s
description of the Medco visit did not specifically state that
he designated Medco as his primary caregiver, this
designation can reasonably be inferred because he averred
that Medco required such a designation from its members,
and that he purchased marijuana from Medco that day. 7
Primary caregiver is defined by the CUA and MMP as
an individual “who has consistently assumed responsibility
for the housing, health, or safety of” a medical marijuana
patient who designated said individual as her primary
caregiver. Cal. Health & Safety Code §§ 11362.5(e),
11362.7(d). While the general definition is the same in the
CUA and MMP, the MMP “provides an expanded definition
of what constitutes a primary caregiver” by including
examples of qualifying primary caregivers. Urziceanu,
7
Indeed, even if it could not reasonably be inferred from the
affidavit that the officers designated Medco as their primary caregiver
when they purchased marijuana, a probable violation of California law
would still be apparent, because the officers would have purchased from
a purported collective without even nominally becoming members of
that collective.
24 UNITED STATES V. KLEINMAN
33 Cal. Rptr. 3d at 881–82; see also Cal. Health & Safety
Code § 11362.7(d).
The California Supreme Court held that to be a primary
caregiver under the CUA, a person “must prove at a
minimum that he or she (1) consistently provided caregiving,
(2) independent of any assistance in taking medical
marijuana, (3) at or before the time he or she assumed
responsibility for assisting with medical marijuana.”
Mentch, 195 P.3d at 1067. The court in People v.
Hochanadel, 98 Cal. Rptr. 3d 347, 361–62 (Cal. Ct. App.
2009), further explained that, under the MMP, collective
owners “do not, [merely] by providing medical patients with
medicinal marijuana, consistently assume responsibility for
the health of those patients” sufficient to be considered a
primary caregiver. Rather, “[t]here must be evidence of an
existing, established relationship, providing for housing,
health or safety independent of the administration of medical
marijuana.” Id. at 362 (internal quotation marks omitted).
Moreover, the AG Guidelines state that, although a lawful
medical marijuana collective may use a storefront to
dispense medical marijuana, dispensaries “are likely
unlawful” if they “merely require patients to complete a
form summarily designating the business owner as their
primary caregiver.” AG Guidelines at 11.
As described in the affidavit, Medco’s practice of
requiring members to designate Medco as their primary
caregiver and then allowing members to purchase marijuana
immediately after, with no preexisting or other relationship
beyond the distribution of marijuana, provides probable
cause to believe that Medco was operating illegally. When
the warrant was issued in 2010, the CUA, MMP, California
state court decisions, and the AG Guidelines all supported
the conclusion that Medco’s “primary caregiver”
UNITED STATES V. KLEINMAN 25
designation practice was unlawful. Thus, the district court
did not err by denying Kleinman’s motion to suppress.
The district court did not err by denying
Kleinman’s motion for a Franks hearing.
Kleinman requested, and was denied, a hearing pursuant
to Franks v. Delaware, 438 U.S. 154 (1978) (i.e., a Franks
hearing). We review the court’s denial de novo. United
States v. Flyer, 633 F.3d 911, 915–16 (9th Cir. 2011). A
Franks hearing is “an evidentiary hearing on the validity of
the affidavit underlying a search warrant” that a defendant is
entitled to if he “can make a substantial preliminary showing
that (1) the affidavit contains intentionally or recklessly false
statements or misleading omissions, and (2) the affidavit
cannot support a finding of probable cause without the
allegedly false information”; i.e., the challenged statements
or omissions are material. United States v. Reeves, 210 F.3d
1041, 1044 (9th Cir. 2000). “If both requirements are met,
the search warrant must be voided and the fruits of the search
excluded.” United States v. Perkins, 850 F.3d 1109, 1116
(9th Cir. 2017) (internal quotation marks omitted).
Kleinman argues that Officer Mangrum’s affidavit
contained misleading omissions of facts that would have
demonstrated that Kleinman complied with state law. The
affidavit did not mention that, when the officers entered
Medco, security guards checked their ID cards and doctors’
recommendations, verified the doctors’ recommendations,
and had the officers complete membership applications.
Officer Mangrum revealed these details when he testified at
a state court hearing.
Regardless of whether Kleinman made a substantial
preliminary showing that Officer Mangrum’s omissions
were made recklessly or intentionally, a Franks hearing is
26 UNITED STATES V. KLEINMAN
not warranted because the omissions were not material to the
probable cause determination. In considering the materiality
of an alleged omission, we ask “whether probable cause
remains once the evidence presented to the magistrate judge
is supplemented with the challenged omissions.” Id. at 1119.
If the affidavit stated the omitted information about IDs,
doctors’ recommendations, and membership applications,
the probable cause finding would still be valid. The affidavit
stated that a Medco employee told Officer Mangrum that he
would have to show IDs and doctors’ recommendations
every time he came in, and that Medco requires collective
members to designate Medco as their primary caregiver.
Since the officers purchased marijuana from Medco that day,
one can reasonably infer that the omitted acts occurred, and
the affidavit does not suggest that they did not. In addition,
regardless of whether Medco properly verified the officers’
IDs and doctors’ recommendations, the probable cause
finding was supported because the affidavit stated that
Medco required members to designate Medco as their
primary caregiver, in violation of state law. See Part III,
supra. Thus, Kleinman cannot make a substantial
preliminary showing that the omitted facts were material,
and thus is not entitled to a Franks hearing.
The district court did not err by declining to instruct
the jury on Kleinman’s joint ownership defense.
Based on United States v. Swiderski, 548 F.2d 445 (2d
Cir. 1977), Kleinman sought a jury instruction that “[w]here
a group of individuals jointly purchase and then
simultaneously and jointly acquire possession of a drug for
their own use intending only to share it together, they cannot
be found guilty of the offense of distribution of the drug.”
The district court refused to give the instruction, and
Kleinman argues that this refusal deprived the jury
UNITED STATES V. KLEINMAN 27
instruction on his theory of defense. “We review whether a
trial court’s instructions adequately covered a defendant’s
proffered defense de novo.” United States v. Morsette,
622 F.3d 1200, 1201 (9th Cir. 2010) (per curiam).
The court did not err by refusing to instruct the jury on
the joint ownership defense because, although “a defendant
is entitled to have the judge instruct the jury on his theory of
defense,” the defense must be “supported by law and [have]
some foundation in the evidence.” United States v. Kayser,
488 F.3d 1070, 1073 (9th Cir. 2007). We have expressly
declined to adopt or reject the Swiderski joint ownership
defense in this circuit. See United States v. Wright, 593 F.2d
105, 108 (9th Cir. 1979). Even if we had accepted the
defense, it would only apply “where two individuals
simultaneously and jointly acquire possession of a drug for
their own use, intending only to share it together,” Swiderski,
548 F.2d at 450, and no reasonable jury could conclude that
this defense fits the facts of Kleinman’s case. Thus, the court
did not err by declining to instruct the jury on a defense
theory that is not supported in the law of our circuit, and,
even if it was, has no foundation in the evidence. See
Kayser, 488 F.3d at 1073.
The district court did not abuse its discretion by
considering the government’s late-filed objections
to the presentence report.
Kleinman argues that the court failed to comply with
Federal Rule of Criminal Procedure 32(f)(1), which provides
that “[w]ithin 14 days after receiving the presentence report
[PSR], the parties must state in writing any objections.” The
Probation Office filed its revised PSR on September 17,
2014, and, although the government requested and was
granted an extension of time to file objections by October
28 UNITED STATES V. KLEINMAN
27, 2014, it did not file its objections until December 4,
2014. Sentencing was on December 8, 2014.
We have stated that we review a district court’s
compliance with Rule 32 de novo, and that Rule 32 “requires
strict compliance.” United States v. Thomas, 355 F.3d 1191,
1194, 1200 (9th Cir. 2004). However, this was in the context
of determining if a district court made required Rule 32
findings on objections to the PSR that are unresolved at
sentencing. See, e.g., id. at 1200; United States v. Carter,
219 F.3d 863, 866 (9th Cir. 2000); United States v. Houston,
217 F.3d 1204, 1206–07 (9th Cir. 2000). We have not stated
the standard of review for an alleged Rule 32(f)(1) violation.
Rule 32(i)(1)(D) allows a court at sentencing to, “for
good cause, allow a party to make a new objection at any
time before sentence is imposed,” and the “good cause”
standard has been understood as a grant of discretion to
district courts. See, e.g., United States v. Angeles-Mendoza,
407 F.3d 742, 749 (5th Cir. 2005). Although Rule
32(i)(1)(D) applies at sentencing, the discretion it gives for
a court to consider late-raised sentencing objections
logically extends to allowing a court to consider late-filed
written objections for good cause. Thus, we review for
abuse of discretion the court’s decision to consider the
government’s late-filed objections.
The court did not abuse its discretion by considering the
government’s objections to the PSR. First, the court was
within its discretion to determine that the government
showed good cause. The government took issue with the
PSR’s determination that Kleinman was not eligible for a
leadership role enhancement, and requested additional time
to review hundreds of pages of trial transcripts to fully
respond to the PSR. At sentencing, the court acknowledged
UNITED STATES V. KLEINMAN 29
that the PSR contained numerous errors and that the
government needed time to fully respond.
Second, even if the government did not show sufficient
good cause, Kleinman was not prejudiced by the court’s
consideration of late-filed objections. Kleinman was put on
notice that the government planned to object to the PSR’s
leadership role enhancement conclusion months before
sentencing. The day after the Probation Office filed its
revised PSR, the government filed an ex parte motion for
extension of time, specifically stating that it took issue with
the leadership role conclusion, and had ordered transcripts to
adequately respond to the PSR and Kleinman’s sentencing
position. Additionally, the court stated at sentencing that its
conclusion that there was “no question” that the leadership
role enhancement applied was primarily based on its own
memory and notes from trial, rather than the PSR or the
parties’ sentencing positions.
Kleinman’s 211 month sentence is substantively
and procedurally reasonable.
Kleinman argues that his 211 month sentence is
procedurally and substantively unreasonable. We review a
sentence for procedural and substantive reasonableness, and
sentencing decisions for abuse of discretion. United States
v. Carty, 520 F.3d 984, 993 (9th Cir. 2008). Although we
have “decline[d] to embrace a presumption” of
reasonableness for in-Guideline sentences, when a sentence
is within Guidelines, it is generally “probable that the
sentence is reasonable.” Id. at 994. Kleinman does not
dispute that his sentence was within Guidelines.
First, Kleinman argues that he was punished at
sentencing for going to trial, as evidenced by the shorter
sentences of his co-defendants, who did not go to trial. “It
30 UNITED STATES V. KLEINMAN
is well settled that an accused may not be subjected to more
severe punishment simply because he exercised his right to
stand trial,” and “courts must not use the sentencing power
as a carrot and stick to clear congested calendars, and they
must not create an appearance of such a practice.” United
States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir.
1982). In Medina-Cervantes, for example, we held that the
court’s statements criticizing the defendant for going to trial
and estimating the costs of the trial warranted vacating the
sentence. Id. at 716–17.
Five of Kleinman’s six co-defendants were sentenced to
probation, and Montoya was sentenced to 37 months. All
six co-defendants pleaded guilty and cooperated with the
government during trial. Additionally, all but Montoya had
a lesser role in the conspiracy than Kleinman. While the
sentencing disparities are apparent, Kleinman has offered no
evidence to warrant the inference that the longer sentence
was imposed to punish Kleinman for going to trial. There
are clear reasons for the sentencing disparities, and the court
stated during sentencing that it “analyzed the sentences
imposed on others who have either pled or been found guilty
in this case in order to avoid unwarranted sentencing
disparities among defendants with similar records who have
been found guilty of similar conduct.”
Kleinman additionally argues that the court procedurally
erred because it did not state with sufficient specificity its
reason for imposing a significantly disparate sentence. We
review for plain error because Kleinman failed to raise this
procedural objection before the district court. United States
v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010).
“[A] sentencing judge does not abuse [its] discretion when
[it] listens to the defendant’s arguments and then simply
[finds the] circumstances insufficient to warrant a sentence
UNITED STATES V. KLEINMAN 31
lower than the Guidelines range.” Id. (internal quotation
marks omitted). The court listened to Kleinman’s
arguments, stated that it reviewed the statutory sentencing
criteria, and imposed a within-Guidelines sentence; “failure
to do more does not constitute plain error.” Id.
Finally, Kleinman argues that his sentence is
substantively unreasonable because it “is far greater than
necessary to reflect the seriousness of this medical marijuana
offense,” when there is now “overwhelming public opinion
that medical marijuana is not a danger to the public.” Even
if this were properly considered a medical marijuana case,
the court did not err by imposing a within-Guidelines
sentence based on violations of federal law. Although a
court may have the discretion to depart from Guidelines
based on policy disagreements, it is not obligated to do so.
See, e.g., United States v. Henderson, 649 F.3d 955, 964 (9th
Cir. 2011).
CONCLUSION
We conclude that the district court erred by instructing
the jury that “[t]here is no such thing as valid jury
nullification,” and that it “would violate [its] oath and the
law if [it] willfully brought a verdict contrary to the law
given to [it] in this case.” However, because there is no right
to jury nullification, the error was harmless. We find that
Kleinman’s remaining challenges on appeal are without
merit, and AFFIRM his conviction and sentence.