                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        AUG 31 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.   15-30232

                Plaintiff-Appellee,              D.C. No. 2:13-cr-00024-TOR-5

 v.
                                                 ORDER AMENDING
JASON LEE ZUCKER,                                MEMORANDUM DISPOSITION
                                                 AND DENYING PETITION FOR
                Defendant-Appellant.             PANEL REHEARING



Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA,* District
Judge.

      The memorandum disposition filed August 7, 2018, is amended as follows:

      On page 4, lines 13–19, add:

      “Zucker also argues that the government’s decision to withdraw its

concession that it lacked authority to prosecute him violates principles of judicial

estoppel, the right to a speedy appeal, and fundamental fairness. However, a

motions panel considered this argument and denied it. We decline to revisit the

decision of the motions panel, as we do not find that it was “clearly erroneous” or




      *
            The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
“would work a manifest injustice.” United States v. Houser, 804 F.2d 565, 568 (9th

Cir. 1986).”

      With the foregoing amendment to the memorandum disposition, Zucker’s

petition for panel rehearing (Docket No. 61) is DENIED. His motion for an

extension of time (Docket No. 60) is DENIED as moot. No further petitions for

rehearing will be accepted in this case.
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 31 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-30232

                Plaintiff-Appellee,             D.C. No.
                                                2:13-cr-00024-TOR-5
 v.

JASON LEE ZUCKER,                               AMENDED MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Thomas O. Rice, Chief Judge, Presiding

                       Argued and Submitted July 13, 2018
                              Seattle, Washington

Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA,** District
Judge.

      Jason Lee Zucker appeals the district court’s denial of his motion to dismiss

several federal criminal charges brought against him related to cultivation of

marijuana. Zucker, who subsequently pled guilty to conspiracy to manufacture and



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B)(vii), argues that his prosecution violated both an appropriations rider and

his substantive due process and equal protection rights. We review the district

court’s denial of a motion to dismiss, including on the basis of its interpretation of

a federal statute, de novo. United States v. Olander, 572 F.3d 764, 766 (9th Cir.

2009). We also review his constitutional challenge de novo. United States v.

Hancock, 231 F.3d 557, 561 (9th Cir. 2000).

      Zucker was indicted for conspiracy to manufacture and distribute marijuana

plants. In the midst of Zucker’s prosecution, Congress passed an appropriations bill

that included a rider preventing the Department of Justice from using funds to

prevent certain states, including Washington, “from implementing their own laws

that authorize the use, distribution, possession, or cultivation of medical

marijuana.” Consolidated and Further Continuing Appropriations Act, 2015, Pub.

L. No. 113–235, § 538, 128 Stat. 2130, 2217 (2014) (“Section 542”). Zucker

moved to dismiss all charges, arguing that Section 542 prevented his continued

prosecution. The district judge denied the motion, finding the government had

proffered evidence of Zucker’s non-compliance with Washington’s medical

marijuana laws:

             Although Defendants attempt to frame this prosecution as
             merely one of medical marijuana patients, the United
             States has proffered evidence to demonstrate that
             Defendants were operating a for-profit marijuana

                                           2
             business. . . . According to the United States, the records
             obtained from the search evidence the sale of marijuana
             to persons other than qualifying patients participating in
             the oversized collected garden. Because such conduct is
             not authorized or sanctioned by Washington’s medical
             marijuana laws, even considering available affirmative
             defenses, the United States is not prevented from using
             funds to prosecute this conduct under the recent
             appropriations rider.

The district court did not mention any additional evidence regarding compliance

in his order, and a transcript of the proceedings is not part of the appellate record.

      In United States v. McIntosh, we considered a nearly-identical challenge to a

federal marijuana prosecution. 833 F.3d 1163, 1179 (9th Cir. 2016). Appellants

argued that they could not face federal prosecution because of their compliance

with California’s Compassionate Use Act, but we found there was not enough

evidence in the appellate record to determine state-law compliance and remanded

the case back to the district court for an evidentiary hearing. Id. at 1171, 1179.

Zucker argues his case is distinguishable from McIntosh because state officials

implemented the state’s scheme seamlessly by putting Zucker in compliance with

state plant-limit amounts and using prosecutorial discretion in deciding not to

pursue criminal charges against him. However, like McIntosh, this record is

factually incomplete as to compliance. The district court’s passing reference to

“records” found at the residence during the search warrant’s execution, without

further explanation as to what those records revealed and to whom they belonged,



                                           3
does not definitively prove a per se state violation. Similarly, the order’s reference

to evidence demonstrating that Zucker ran a “for-profit marijuana business”—

without discussing precisely what that evidence is—hinders our review of the

factual record.

      Thus, on the issue of whether Zucker’s prosecution violates Section 542, we

REVERSE AND REMAND for the limited purpose of holding an evidentiary

hearing to develop the record to identify compliance, or noncompliance, with

Washington State’s statutory scheme. At this time, we decline to address Zucker’s

argument that he did not “knowingly” violate the law under the collective gardens

statute, RCWA 69.51A.085(3), or whether he was entitled to any alleged leniency

built into the scheme. If the district court finds that Zucker complied with state

law, his motion to dismiss should be granted.

      Zucker also argues that the government’s decision to withdraw its

concession that it lacked authority to prosecute him violates principles of judicial

estoppel, the right to a speedy appeal, and fundamental fairness. However, a

motions panel considered this argument and denied it. We decline to revisit the

decision of the motions panel, as we do not find that it was “clearly erroneous” or

“would work a manifest injustice.” United States v. Houser, 804 F.2d 565, 568 (9th

Cir. 1986).

      As to Zucker’s claims that his prosecution violates his substantive due



                                          4
process and equal protection rights we AFFIRM the district court’s order denying

his motions to dismiss on those grounds as these arguments are foreclosed by

Ninth Circuit precedent. See Raich v. Gonzalez, 500 F.3d 850, 854–55, 864–66

(9th Cir. 2007) (denying a substantive due process challenge to marijuana’s

inclusion in the Controlled Substances Act and finding that access to medical

marijuana is not a fundamental right); see also United States v. Christie, 825 F.3d

1048, 1065–66 (9th Cir. 2016) (denying a due process challenge to marijuana’s

classification as a Schedule I controlled substance). As a result, Zucker’s request

for judicial notice is DENIED as moot since we did not examine the merits of his

due process claim.

      AFFIRMED IN PART AND REVERSED AND REMANDED IN

PART.




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