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 2020-09

United States v. Adam Campbell ( 2020 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        SEP 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                       No.    19-30115
Plaintiff-Appellee,             D.C. No.
2:18-cr-00005-DLC-1
v.
ADAM WALTER CAMPBELL,                           MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Submitted August 31, 2020**
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and KENDALL,*** District
Judge.
Adam Campbell appeals the denial of his motion to enjoin the government
from spending funds to prosecute marijuana-related offenses under our decision in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.
United States v. McIntosh,
    833 F.3d 1163 
    (9th Cir. 2016). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
To prevail in a McIntosh hearing, Campbell must prove by a preponderance
of the evidence that he strictly complied with state medical marijuana laws. United
States v. Evans,
    929 F.3d 1073
    , 1076–77 (9th Cir. 2019). We review de novo the
district court’s interpretation of state law. Asante v. Cal. Dep’t of Health Care
Servs.,
    886 F.3d 795
    , 799 (9th Cir. 2018) (citing In re McLinn,
    739 F.2d 1395
    ,
1403 (9th Cir. 1984) (en banc)).
The district court did not err in concluding that, because hash oil did not fall
within the safe harbor of the 2015 Montana Marijuana Act (“MMA”), Campbell
did not strictly comply with state law. See State v. Pirello,
    282 P.3d 662
    , 664–65
(Mont. 2012) (when marijuana plant material is “‘mechanically processed or
extracted’ in a manner that reduced it to resins”—as required to produce hash oil—
“the substance cease[s] to fall within the definition of ‘marijuana,’ and therefore
[cannot] be contained within the definition of ‘useable marijuana.’” (citation
omitted)).
Campbell’s remaining challenges are unpersuasive. Although Campbell
argues he is entitled to the rule of lenity given the vagueness of the MMA, the
MMA is far from being grievously ambiguous. See United States v. Wyatt,
    408 F.3d 1257
    , 1262 (9th Cir. 2005) (rule of lenity applies where “there is grievous
2
ambiguity or uncertainty in the statute and when, after seizing everything from
which aid can be derived, [the court] can make no more than a guess as to what
[was] intended” (quoting United States v. Phillips,
    376 F.3d 846
    , 857, n. 39 (9th
Cir. 2004))); see also
    Pirello, 282 P.3d at 665 
    (declining to invoke the rule of
lenity). Because the legislature did not plainly intend the 2017 MMA amendments
to operate retroactively, they do not serve to clarify any alleged ambiguity
surrounding marijuana-infused products in the 2015 MMA. See Valles v. Ivy Hill
Corp.,
    410 F.3d 1071
    , 1079 (9th Cir. 2005); M.C.A. § 1-2-109 (2017).
AFFIRMED.
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