                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30142

                Plaintiff-Appellee,             D.C. No.
                                                3:13-cr-05659-RBL-1
 v.

LANCE EDWARD GLOOR,                             MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                      Argued and Submitted February 5, 2018
                               Seattle, Washington

Before: GOULD and PAEZ, Circuit Judges, and MCSHANE,** District Judge.

      Lance Gloor appeals the district court’s denial of his motion to dismiss the

indictment without an evidentiary hearing. We affirm.

      Gloor was charged with, inter alia, conspiracy to distribute marijuana and



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

      **
              The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
manufacture of marijuana. He filed a pretrial motion to dismiss the indictment,

arguing that the government’s expenditure of funds to prosecute him violated a

congressional appropriations rider (“section 538”) that barred the Department of

Justice from using funds to prevent Washington’s implementation of its medical

marijuana laws.1 The district court denied the motion without holding an

evidentiary hearing to determine whether Gloor had acted in strict compliance with

Washington’s medical marijuana laws. Following a five-day jury trial, Gloor was

convicted of conspiracy to distribute marijuana and manufacture of marijuana, and

sentenced to 120 months imprisonment. Gloor timely appealed.

      While this appeal was pending, we decided United States v. McIntosh, 833



1
  See Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No.
113-235, Div. B., Title V, § 538, 128 Stat. 2130, 2217 (2014). Section 538
provides: “None of the funds made available in this Act to the Department of
Justice may be used, with respect to the State[] of . . . Washington,” among other
states, “to prevent such States from implementing their own State laws that
authorize the use, distribution, possession, or cultivation of medical marijuana.”
Congress extended the appropriations rider until September 30, 2016, in the
Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. B., § 542, 129
Stat. 2242, 2232–33 (2015) (“section 542”). Section 538 was the rider in effect at
the time of Gloor’s pretrial proceedings, while section 542 was the rider in effect at
the time of Gloor’s trial and sentencing. The relevant funding prohibition remains
in effect as of the filing of this memorandum disposition. See Consolidated
Appropriations Act, 2017, Pub. L. No. 115-31, Div. B, Title II, § 537, 131 Stat.
135, 228 (2017); Continuing Appropriations Act, 2018, Pub. L. No. 115-56, Div.
D., § 101, 131 Stat. 1129, 1139 (2017); Bipartisan Budget Act of 2018, Pub. L. No.
115-123, Div. B., Subdiv. 3, § 20101, 132 Stat. 64, 120 (2018). As the above
appropriations riders are materially the same, for simplicity we refer to the
applicable rider at each juncture of Gloor’s case as “section 538.”

                                          2
F.3d 1163 (9th Cir. 2016) and United States v. Kleinman, 859 F.3d 825 (9th Cir.

2017), as amended, No. 14-50585, 2017 WL 6997333 (9th Cir. Jan. 22, 2018). In

McIntosh, we held that a defendant may obtain an injunction under section 538

against a federal prosecution charging him with conduct that was “completely

authorized by state law.” 833 F.3d at 1172–73, 1179. We also concluded that the

defendants in McIntosh were entitled to pretrial evidentiary hearings “to determine

whether their conduct was completely authorized by state law, by which we

mean[t] that they strictly complied with all relevant conditions imposed by state

law on the use, distribution, possession, and cultivation of medical marijuana.” Id.

at 1179. Faced with a similar issue in Kleinman, however, we declined to remand

for an evidentiary hearing after trial and sentencing because “the record clearly

demonstrate[d] that [Kleinman] violated” California’s medical marijuana laws.

2017 WL 6997333, at *5.

      Here, the record clearly demonstrates that Gloor did not strictly comply with

Washington’s medical marijuana laws, which provided only affirmative defenses

to state marijuana charges at the time of his relevant conduct. As for the

conspiracy to distribute marijuana count, the evidence at trial demonstrates that

Gloor operated for-profit marijuana dispensaries rather than the “collective

gardens” permitted under the relevant statutory affirmative defense. See Wash.

Rev. Code § 69.51A.085(1) (2012); see also Cannabis Action Coal. v. City of Kent,


                                          3
351 P.3d 151, 155–56 (2015). Gloor has not argued on appeal or before the district

court that his operations were not for-profit, or that he could otherwise prove the

elements of the “collective gardens” affirmative defense. Thus, in light of the

evidence presented at trial, Gloor has not made factual allegations sufficient to

warrant an evidentiary hearing.

      With regard to the manufacture of marijuana count, the record similarly

demonstrates that Gloor could not prove an affirmative defense. The jury returned

a special verdict finding that Gloor manufactured between 50 and 99 marijuana

plants. To prove the relevant affirmative defense under state law, Gloor would

have to demonstrate that (1) he was a “designated provider”; (2) he possessed a

written authorization to act as a designated provider; (3) he possessed no more than

fifteen plants per qualifying patient; and (4) he presented the required paperwork to

law enforcement upon request. Wash. Rev. Code § 69.51A.040(2)–(4) (2008); see

also State v. Markwart, 329 P.3d 108, 119–120 (Wash. Ct. App. 2014) (explaining

that a “designated provider” can grow up to 15 plants per patient); State v. Shupe,

289 P.3d 741, 747–49 (Wash. Ct. App. 2012) (same). At trial, Detective Menge

testified that Gloor did not present the required paperwork upon request as required

to satisfy the affirmative defense. Gloor did not challenge that testimony at trial,

nor has he done so on appeal. Thus, Gloor has not made any factual allegations




                                          4
sufficient to warrant an evidentiary hearing.2

      Gloor argues that the evidence presented at trial is not dispositive because

the district court granted the government’s pretrial motion in limine to exclude

evidence “to the extent it . . . direct[s] the jury that compliance (or intended

compliance) with state law is a defense for alleged violations of federal law.” On

appeal, however, Gloor has not made any factual allegations, which, if proven at an

evidentiary hearing, would demonstrate that he strictly complied with the

conditions necessary to prove his affirmatives defenses. Gloor is not entitled to an

evidentiary hearing under McIntosh in the absence of a genuine factual dispute as

to his strict compliance with state law.3

      AFFIRMED.




2
 We need not decide whether the district court erred in failing to hold a pretrial
evidentiary hearing because any such error was harmless for the reasons stated
herein.
3
  Because we conclude that Gloor did not act in strict compliance with state law,
we reject his claim that the government violated section 538 by expending funds to
litigate this appeal.

                                            5
