                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 17-30185
          Plaintiff-Appellee,
                                        D.C. Nos.
             v.                   2:12-cr-00016-WFN-6
                                  2:12-cr-00016-WFN-5
JAYDE DILLON EVANS, AKA
Jayde D. Evans; BRICE
CHRISTIAN DAVIS, AKA Brice               OPINION
C. Davis,
      Defendants-Appellants.

    Appeal from the United States District Court
       for the Eastern District of Washington
   Wm. Fremming Nielsen, District Judge, Presiding

        Argued and Submitted March 27, 2019
             San Francisco, California

                   Filed July 9, 2019

   Before: Diarmuid F. O’Scannlain, Carlos T. Bea,
      and Michelle T. Friedland, Circuit Judges.

            Opinion by Judge O’Scannlain
2                  UNITED STATES V. EVANS

                          SUMMARY *


                          Criminal Law

    The panel affirmed the district court’s judgment on
remand denying a motion by two medical marijuana growers
to enjoin their federal prosecutions for violations of the
Controlled Substances Act.

    In the prior appeal, the panel held that a congressional
appropriations rider prohibited the Department of Justice
from spending appropriated funds to prosecute individuals
who engaged in conduct permitted by state medical
marijuana laws; and remanded to the district court with
instructions to hold an evidentiary hearing to determine
whether the defendants’ conduct was completely authorized
by state law. On remand, the district court found that the
defendants were not in strict compliance with Washington’s
Medical Use of Cannabis Act (MUCA).

    In this appeal, the panel held that because the
appropriations rider authorizes the defendants to seek to
enjoin prosecution, the defendants – not the Government –
bear the burden of proof regarding whether the state’s
medical-marijuana laws completely authorized the
defendants’ conduct.

    Explaining that this court looks to the state law’s
substantive authorizations but not to the state’s procedural
rules that give practical effect to its medical-marijuana
regime, the panel rejected the defendants’ contention that the

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. EVANS                      3

Government must procure a jury verdict of noncompliance
in Washington State Court before it can prosecute them for
their federal crimes.

    The panel held that the district court correctly refused to
allow the defendants to assert “common law affirmative
defenses,” and correctly focused on the defendants’
compliance with MUCA itself.

    Affirming the district court’s factual finding that the
defendants did not strictly comply with MUCA, the panel
held that the district court did not clearly err in finding that
the defendants, neither of whom claimed to be a “designated
provider,” were likewise not “qualified patients.”


                         COUNSEL

Nicolas V. Vieth (argued), Vieth Law Offices, Chtd., Coeur
d’Alene, Idaho; David M. Miller (argued), Miller &
Prothero, Spokane, Washington; for Defendants-Appellants.

Timothy J. Ohms (argued), Assistant United States
Attorney; Joseph H. Harrington, United States Attorney;
United States Attorney’s Office, Spokane, Washington; for
Plaintiff-Appellee.
4                UNITED STATES V. EVANS

                         OPINION

O’SCANNLAIN, Circuit Judge:

   We must decide, once again, whether marijuana growers
may enjoin federal prosecution in a state which has legalized
medical use.

                              I

                              A

    In 2011, a group of friends decided to grow and to sell
medical marijuana. Tyler McKinley, Samuel Doyle, and
Jared Kynaston identified a suitable residential property in
Spokane County, Washington. McKinley signed the lease
and the power bill, and Doyle and Kynaston moved into the
residence to manage the grow. Doyle “definitely . . . was the
one in charge,” as a former employee later testified, while
Kynaston was “the smart one on growing pot plants [who]
knew all the chemistry stuff and everything like that.”

    Soon enough, Doyle and Kynaston needed help bringing
the crop to market, so they hired Jayde Evans and Brice
Davis—the defendants-appellants in this case—to work as
“trimmers.” Evans and Davis would wait for Kynaston to
harvest a marijuana plant, then “[s]it there on the couch and
trim the leaves off.” While the trimmers worked, Kynaston
would set consumable marijuana on the table, and if “[they]
wanted to smoke, [they] would smoke.”

    In November 2011, the burgeoning enterprise ended
abruptly when federal and state law enforcement officers
raided the grow. Officers found 562 marijuana plants
growing in a greenhouse, the garage, and the residence itself.
Federal prosecutors soon indicted Evans, Davis, Kynaston,
                     UNITED STATES V. EVANS                             5

Doyle, McKinley, and two other trimmers in the Eastern
District of Washington for various violations of the
Controlled Substances Act (“CSA”). See 21 U.S.C. § 821 et
seq.

                                   B

   In 2014, McKinley filed a motion (which Evans and
Davis, among other defendants, joined) seeking an “order
dismissing the indictment and/or enjoining the Government
from taking any further action of any kind in the prosecution
of this case.” They claimed that Congress enacted an
appropriations rider that forbade the Department of Justice
(“DOJ”) from spending money to prosecute them. Section
538 of the statute reads as follows:

         None of the funds made available in this Act
         to the Department of Justice may be used,
         with respect to [several states, including
         Washington], to prevent such States from
         implementing their own State 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. 1
The movants argued that, because the State of Washington
legalized the medical use of marijuana, § 538 prohibited
DOJ from using appropriated funds to prosecute them. The
district court denied the motion, and the movants appealed

    1
       Congress has reenacted the same provision each year since. See,
e.g., Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 537,
133 Stat. 13, 138. Because the language in each is materially the same,
we simply refer to the provision as “§ 538” or “the appropriations rider.”
6                  UNITED STATES V. EVANS

the interlocutory order. We then consolidated such appeal
with several similar ones arising contemporaneously out of
the Northern and Eastern Districts of California. See United
States v. McIntosh, 833 F.3d 1163, 1168–69 & n.1 (9th Cir.
2016).

    In McIntosh, which disposed of all the consolidated
appeals, we vacated the district court’s injunction denial
order in this case. Id. at 1180. If Congress “expressly
prohibits DOJ from spending funds on certain actions,” we
reasoned, then “federal criminal defendants may seek to
enjoin the expenditure of those funds.” Id. at 1173.
Interpreting § 538’s text, 2 we concluded that DOJ could not
spend appropriated funds to prosecute “individuals who
engaged in conduct permitted by the State Medical
Marijuana Laws.” Id. at 1177. Nevertheless, because
prosecution of non-compliant defendants “does not prevent
the implementation” of such laws, id. at 1178, we stressed
that defendants would not be able to enjoin their
prosecutions unless they “strictly complied with all relevant
conditions imposed by state law on the use, distribution,
possession, and cultivation of medical marijuana,” id. at
1179 (emphasis added). Accordingly, we remanded to the
district court with instructions to hold an “evidentiary
hearing[] to determine whether [the movants’] conduct was
completely authorized by state law.” Id.




    2
       In McIntosh, we referred to the rider as § 542, but because the
rider’s text has remained materially the same since that time, our
holdings remain unchanged.
                    UNITED STATES V. EVANS                            7

                                  C

    On remand, the district court held a two-day hearing to
determine whether Evans and Davis complied with
Washington’s Medical Use of Cannabis Act (“MUCA”). 3
See Wash. Rev. Code § 69.51A (2013). Although MUCA
“does not decriminalize the medical use of cannabis,” it does
offer an “affirmative defense” to “qualifying patients and
designated providers.” State v. Reis, 351 P.3d 127, 134
(Wash. 2015); see also Wash. Rev. Code § 69.51A.043
(2013) (establishing the defense). Relevant here, a defendant
asserting such defense must show (1) that he was either a
“designated provider” or a “qualifying patient,” see id.
§ 69.51A.010 (2013), and (2) that he possessed no more
marijuana than authorized, see id. § 69.51A.040 (2013).

    The district court placed the burden of proof on the
defendants to prove strict compliance with MUCA by a
preponderance of the evidence. Because Evans and Davis
exercised no “supervisory powers over the grow,” the
district court focused on “each individual [d]efendant’s
compliance with state law.” The court found that the two
smoked marijuana while trimming, but that each failed to
demonstrate that he was a “qualifying patient.” Accordingly,
because Evans and Davis were “not in strict compliance”
with MUCA, the district court again denied the motion to
enjoin the prosecutions. For a second time, Evans and Davis
appeal to this court.




    3
      The district court also considered McKinley’s compliance with
MUCA, but McKinley did not appeal the district court’s order. All of the
original defendants in this case, except for Evans and Davis, have
pleaded guilty.
8                UNITED STATES V. EVANS

                             II

                             A

    Evans and Davis initially argue that the district court
erred because the Government—not the defendants—should
bear the burden of proof in such hearings. In their view,
because “having the funds to prosecute an offense is a
condition precedent to a continued prosecution,” the
Government “bears the burden to show that the Defendants’
actions did not” comply with MUCA.

    Nothing in § 538’s text expressly compels a particular
burden of proof in such cases or explains who bears that
burden, but McIntosh itself defeats Evans and Davis’s
theory. There, we stated that § 538 authorizes defendants to
“seek to enjoin” the DOJ’s use of funds to prosecute those
who comply with state medical-marijuana laws. McIntosh,
833 F.3d at 1173. Generally, the party seeking an injunction
bears the burden of showing that he is entitled to such a
remedy. See eBay Inc. v. MercExchange, LLC, 547 U.S. 388,
391 (2006). In this case, then, the burden falls on Evans and
Davis because they seek to enjoin the Government’s
prosecution.

    We see no good reason to depart from such baseline rule.
First, the appropriations rider does not amend the CSA to
impose a new element for federal marijuana crimes. See
McIntosh, 833 F.3d at 1179 n.5; see also United States v.
Nixon, 839 F.3d 885, 887–88 (9th Cir. 2016) (rejecting the
argument that the “appropriations rider suspended the
Controlled Substances Act”). Thus, the Government need
not prove Evans’s and Davis’s non-compliance with state
law beyond a reasonable doubt in order to convict them. See
Gilmore v. Taylor, 508 U.S. 333, 359 (1993). Second,
although the Supreme Court has said that different standards
                  UNITED STATES V. EVANS                      9

of proof sometimes apply where “particularly important
individual interests or rights are at stake,” Herman &
MacLean v. Huddleston, 459 U.S. 375, 389 (1983), the
appropriations rider does not itself exist to protect such
interests. Instead, § 538 prohibits prosecution of individuals
only incidentally—because such prosecutions “prevent[] the
state from giving practical effect to its law providing for non-
prosecution of individuals who engage in the permitted
conduct.” McIntosh, 833 F.3d at 1177. Thus, the defendants’
liberty interests do not counsel in favor of placing the burden
on the Government.

    In sum, because § 538 authorizes Evans and Davis to
seek to enjoin prosecution, they bear the burden of showing
that they are entitled to such an injunction by persuading the
court that it is more likely than not that the state’s medical-
marijuana laws “completely authorized” their conduct. The
district court did not err in placing the burden on them.

                               B

    Evans and Davis next argue that the Government must
procure a “jury verdict of noncompliance” in Washington
State Court before it can prosecute them for their federal
crimes. Because MUCA entitles them to “a jury
determination as to whether they complied with the State’s
medical-marijuana laws,” they argue, federal prosecutors
must obtain the same.

    McIntosh again forecloses such argument. The
appellants there argued that § 538 forbade DOJ from
prosecuting anyone in a state that legalized medical
marijuana. Importantly, the defendants claimed that § 538’s
reference to a state’s “implementation” of medical-
marijuana laws “necessarily involve[d] all aspects of putting
the law into practical effect, including . . . procedures and
10               UNITED STATES V. EVANS

processes for determining the outcome of individual cases.”
McIntosh, 833 F.3d at 1177 (emphasis added). Rejecting
such argument, we concluded that § 538 referenced only
“those specific rules of state law that authorize the use,
distribution, possession, or cultivation of medical
marijuana.” Id. at 1178 (emphasis added). Thus, we look to
the state law’s substantive authorizations, not to the
procedural rules that give practical effect to the state’s
medical-marijuana regime. In other words, we ask whether
the defendant has fully complied with the laws that allow the
use, distribution, possession, or cultivation of medical
marijuana, not whether he would be entitled to some
procedure if the state, rather than the federal government,
were prosecuting him in its courts. We are satisfied that
Washington’s procedural rules—including its jury rules—
should not be imported into § 538.

                              C

    Evans and Davis further argue that the district court erred
because it refused to allow them to assert “common law
affirmative defenses” to show that the Government may not
prosecute them for violating the CSA. But McIntosh held
that § 538 prohibits DOJ from prosecuting those who
“strictly comply” with those “specific rules of state law that
authorize” medical marijuana. Id. (emphasis added). Thus,
the question under § 538 is whether the defendant’s conduct
is “completely authorized” by the state’s laws authorizing
the use, distribution, possession, or cultivation of
marijuana—in this case, MUCA. Id. at 1179. The defenses
that Evans and Davis wish to assert (e.g., “entrapment by
estoppel” and “reliance upon advice of counsel”) do not arise
from MUCA itself, nor do they bear on whether Washington
expressly authorized the use of medical marijuana. Evans
and Davis may not resort to such common-law defenses to
                 UNITED STATES V. EVANS                     11

show that MUCA authorizes their conduct, and the district
court correctly focused on their compliance with MUCA
itself.

                              III

    Finally, Evans and Davis challenge the district court’s
factual finding that they did not “strictly comply” with
MUCA. Although we review a district court’s interpretation
of state law de novo, Garmon v. County of Los Angeles,
828 F.3d 837, 842 (9th Cir. 2016), when the district court’s
determination turns upon factual findings, we review for
clear error, United States v. Kent, 649 F.3d 906, 912 (9th Cir.
2011).

    Under MUCA, one who uses or possesses marijuana
must show that he is either a “qualifying patient” or a
“designated provider” to assert the affirmative defense.
Wash. Rev. Code § 69.51A.043 (2013). Both defendants
used marijuana from the grow while trimming, and neither
claims to be a “designated provider.” Accordingly, each
must rely on proving that he is a “qualifying patient.”
Simplifying MUCA’s definition somewhat, a qualifying
patient is one who has been diagnosed with a “terminal or
debilitating medical condition,” informed by a “health care
professional about the risks and benefits of the medical use
of marijuana,” and “advised by that health care professional
that [the person] may benefit from the medical use of
marijuana.” Wash. Rev. Code § 69.51A.010(4) (2013).

    The district court found that Evans and Davis were not
qualifying patients, and we agree. During the hearing,
neither defendant introduced a “green card” (i.e., a card
indicating that a doctor recommended marijuana usage), and
neither called a physician witness to testify to prescribing
marijuana to Evans or Davis. Although Evans claimed that
12                UNITED STATES V. EVANS

he had a “marijuana authorization card” that was “signed by
a doctor,” he did not produce such card until after the district
court had conducted its hearing. In any event, Evans also
admitted that his prescription for medical marijuana was for
“anxiety,” which is not a “[t]erminal or debilitating medical
condition” under MUCA. Id. § 69.51A.010(6) (2013); see
also State v. Fry, 228 P.3d 1, 7 (Wash. 2010) (lead opinion)
(stating that “anxiety” is not a “debilitating medical
condition”). The district court did not clearly err in finding
that Evans and Davis were not “qualifying patients.” See
United States v. McTiernan, 695 F.3d 882, 887 (9th Cir.
2012).

                              IV

     The judgment of the district court is AFFIRMED.
