In EDCA defendant Bryan R. Schweder's appeal, the Ninth Circuit issued this order Tuesday remanding his federal marijuana case to the district court "for the sole purpose of conducting an evidentiary hearing to determine whether, at the times that acts giving rise to his conviction for conspiracy to manufacture marijuana occurred, [Schweder] had 'strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana'" under United States v. McIntosh, 833 F.3d 1163, 1179 (9th Cir. 2016) (available here). (Remember this case. It's the one I blogged about extensively where, after a multi-day evidentiary hearing, Judge Mueller ruled that the classification of marijuana as a schedule I controlled substance was not unconstitutional.) McIntosh is the case where the Ninth Circuit held that a congressional appropriations rider prohibits the Department of Justice from spending funds for the prosecution of persons who engaged in conduct permitted by state medical marijuana laws and who fully complied with such law.
The remand order was issued one day after oral argument in San Francisco before Ninth Circuit judges Alex Kozinski and Andrew Hurwitz, and visiting N.D. W.Va. judge Irene M. Keeley. At the Ninth Circuit's website, you can watch or listen to the argument. My favorite part is when the Assistant U.S. Attorney steps up to the podium (18:40) and announces himself "for the United States." Judge Kozinski asks, how can you do that? Did you pay your own way here? Did you take a leave from the government? When he says no, the judge inquires,"why aren't you violating the rider?" Later, Judge Kozinski questions whether the prosecution committed legal "blackmail" (22:40-23:25; see also 25:45-27:47) by requiring Schweder to take its plea bargain without waiting for the then-pending McIntosh appeal to be decided.
In his appeal, Schweder argued, among other things, that because he was complying with California's medical marijuana laws, his guilty plea was not knowingly and voluntarily entered and he should be allowed to withdraw his guilty plea. Most of the argument is over what the appropriate remedy should be if Schweder's conduct was consistent with California law. Ultimately, the Ninth Circuit remanded to the district court to determine whether Schweder complied with California law. The panel retained jurisdiction for further consideration of the appeal after the district court rules on whether Schweder complied with California's medical marijuana laws.