Proving personal use: the admissibility of evidence negating intent to distribute marijuana.

AuthorMayer, Stephen

Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys' Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of "personal use evidence" under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a defendant's possession of a state-issued medical marijuana license, (2) evidence that a state has legalized possession of marijuana for recreational purposes, and (3) evidence that a defendant suffers from a disease that marijuana arguably treats. Part I examines each of these three categories of personal use evidence and contends that district courts are likely to confront disputes over such evidence with increasing frequency. Part II analyzes objections to the admissibility of personal use evidence on direct examination, focusing primarily on Rules 402 and 403. Part III responds to those objections and argues that the evidence is probative of intent to distribute in federal marijuana-trafficking prosecutions.

TABLE OF CONTENTS INTRODUCTION I. THREE SCENARIOS IN WHICH PROVING PERSONAL USE IS CRITICAL A. Trafficking Prosecutions in States that Have Legalized Medical Marijuana B. Trafficking Prosecutions in States that Have Legalized Recreational Use C. Patients Who Use Illegal Medical Marijuana to Treat Debilitating Disease II. OBJECTIONS TO THE ADMISSIBILITY OF PERSONAL USE EVIDENCE ON DIRECT A. Government Rule 402 Objections to Personal Use Evidence B. Government Rule 403 Objections to Personal Use Evidence III. RESPONSES TO GOVERNMENT PERSONAL USE EVIDENCE OBJECTIONS A. Response to Rule 402 Objections Raised by the Government B. Response to Rule 403 Objections Raised by the Government CONCLUSION INTRODUCTION

In the spring of 2011, DEA Agents searched the home of a Michigan resident named Ricky Brown. (1) They suspected Mr. Brown of selling illegal drugs. (2) The agents found 2.1 ounces of marijuana and a firearm in his house. (3) The United States Attorney's Office charged Mr. Brown with possession of marijuana with intent to distribute and possession of a firearm in furtherance of a drug-trafficking crime. (4) At first glance, this fact pattern seems unremarkable--a standard enforcement action furthering the United States' "War on Drugs." But one factual wrinkle transforms Ricky Brown's case from a mundane drug-trafficking prosecution into the harbinger of a larger conflict about to break out in the federal court system.

Mr. Brown held a medical marijuana card issued under the Michigan Medical Marihuana Act, (5) and the amount of the drug he possessed (2.1 ounces) (6) was well within the amount allowed for personal use under the state medical marijuana law (2.5 ounces). (7) Although a medical marijuana license granted under state law does not serve as a defense to a federal possession charge, (8) the district court in Mr. Brown's case went beyond reiterating that established federal preemption principle. (9) The judge granted a motion in limine (10) barring Mr. Brown from mentioning either his medical card or its tendency to show that he possessed the small amount of marijuana found in his home for personal use. (11) This excluded evidence would have been crucial to Mr. Brown's defense on both the charge of possession with intent to distribute and the charge of possession of a firearm in furtherance of a drug-trafficking crime. (12) The district court excluded this critical "personal use evidence" based on its interpretation of Federal Rules of Evidence 401, 402, and 403. (13)

Before analyzing the admissibility of personal use evidence (14) in federal marijuana-trafficking prosecutions, it is important to distinguish three conversations with which this Note does not engage. This Note does not examine (1) whether a defendant can offer a state medical marijuana license as a defense to federal drug possession charges or related questions of federal preemption, (15) (2) the "medical necessity" of marijuana, (16) or (3) normative questions about whether marijuana should be legal. A brief examination of these related topics, however, provides a useful foundation for this Note's central analysis of the admissibility of personal use evidence in federal marijuana-trafficking prosecutions.

First, federal courts have consistently held that state marijuana legalization efforts have no impact on federal laws that criminalize the possession of marijuana. (17) The Controlled Substances Act ("CSA") classifies marijuana as a prohibited Schedule I drug. (18) Therefore, even if a state law legalizes marijuana for medical or recreational use, the CSA still authorizes federal prosecution by operation of preemption doctrine (19) and the Supremacy Clause. (20) Commentators agree that the "seminal case of Gonzales v. Raich affirmed the constitutionality of the CSA even as applied to extremely localized marijuana-related activities." (21) Consequently, this Note does not argue that personal use evidence, like the possession of a medical marijuana card in Mr. Brown's case, qualifies as even minimally probative evidence in a federal prosecution for marijuana possession. (22) Rather, this Note examines the evidence in the separate context of prosecution for trafficking or distribution. (23)

Second, this Note does not examine whether federal marijuana-trafficking defendants may rely on the affirmative defense of medical necessity. The medical necessity defense--in the context of marijuana prosecutions--is a variation of the common law necessity defense that applies "where physical forces beyond the actor's control rendered illegal conduct the less of two evils." (24) In United States v. Oakland Cannabis Buyers' Cooperative, the Supreme Court held that "medical necessity is not a defense to manufacturing and distributing marijuana." (25) The Court reasoned that "in the Controlled Substances Act, the balance already has been struck against a medical necessity exception." (26) In the wake of Oakland Cannabis, federal courts no longer entertain medical necessity arguments in marijuana-trafficking cases, and this Note does not argue that personal use evidence should be admitted as probative on the question of medical necessity. (27) It argues that personal use evidence makes intent to distribute less likely.

Third, this Note does not take a position on whether marijuana should be legal or whether marijuana has positive medical applications. The debate over these issues has come to the forefront of our national consciousness as medical marijuana laws have proliferated (28) and since Colorado and Washington legalized marijuana for recreational purposes during the (2012) elections. (29) Given that these normative and scientific questions lend themselves primarily to the fields of political science, economics, and medicine, this Note confines its scope to analyzing the admissibility of personal use evidence in federal marijuana-distribution cases.

This Note argues that district courts should not exclude personal use evidence under Rules 402 and 403 when that evidence is offered to negate intent to distribute in federal marijuana-trafficking prosecutions. The Note discusses three types of personal use evidence: possession of a state-issued medical marijuana card, evidence that a state has legalized possession of recreational marijuana, and evidence that a defendant suffers from disease symptoms that marijuana arguably alleviates. (30) Part I examines each of these three categories of personal use evidence and contends that district courts will increasingly confront disputes over such evidence. Part II analyzes objections to the admissibility of personal use evidence, focusing primarily on Rules 402 and 403 and using Mr. Brown's case as a helpful illustration. Part III responds to those objections and argues that personal use evidence is probative of intent to distribute.

  1. THREE SCENARIOS IN WHICH PROVING PERSONAL USE IS CRITICAL

    Given that drug-trafficking cases in which defendants can plausibly argue a personal use defense typically involve small amounts of marijuana, (31) it might appear that federal courts will have few opportunities to consider the admissibility of personal use evidence like Mr. Brown's medical marijuana card. Federal prosecutors ostensibly have more important priorities than prosecuting small-time drug offenders. (32) The Justice Department has stated that it will not prioritize enforcement efforts in states that have legalized the possession and cultivation of small amounts of marijuana. (33) This Part therefore examines the significance of personal use evidence.

    Despite the Justice Department's stated enforcement priorities, this Part argues that there are at least three scenarios in which federal courts will confront disputes over the admissibility of personal use evidence with increasing frequency. Section I.A discusses the scenario in which Mr. Brown's case falls: marijuana-trafficking prosecutions in states that have legalized medical marijuana. Section I.B introduces the scenario of federal marijuana-trafficking prosecutions in states where the drug has been legalized for recreational use. Section I.C considers a scenario in which a defendant--prosecuted in a state that has not legalized medical marijuana--can demonstrate that she suffers from an illness that marijuana arguably treats.

    1. Trafficking Prosecutions in States that Have Legalized Medical Marijuana

      Despite the Justice Department's recent attempts to shift enforcement efforts away from low-level drug offenses, (34) federal prosecutors continue to bring...

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