                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 10-50219
               Plaintiff-Appellee,
                                            D.C. No.
                v.                    2:07-cr-00689-GW-1

CHARLES C. LYNCH,
            Defendant-Appellant.



UNITED STATES OF AMERICA,                 No. 10-50264
              Plaintiff-Appellant,
                                            D.C. No.
                v.                    2:07-cr-00689-GW-1

CHARLES C. LYNCH,
            Defendant-Appellee.             OPINION



      Appeal from the United States District Court
         for the Central District of California
       George H. Wu, District Judge, Presiding

         Argued and Submitted April 13, 2018
                Pasadena, California

               Filed September 13, 2018
2                   UNITED STATES V. LYNCH

           Before: John M. Rogers, * Jay S. Bybee,
            and Paul J. Watford, Circuit Judges.

                    Opinion by Judge Rogers;
                    Dissent by Judge Watford


                          SUMMARY **


                          Criminal Law

    The panel (1) affirmed Charles Lynch’s conviction for
conspiracy to manufacture, possess, and distribute
marijuana, as well as other charges related to his ownership
of a marijuana dispensary in Morro Bay, California; (2) on
the government’s cross-appeal, remanded for resentencing;
and (3) instructed the district court on remand to make a
factual determination as to whether Lynch’s activities were
in compliance with state law.

    The panel held that the district court’s exclusion of
testimony from a lawyer about Lynch’s phone call to the
DEA, as well as a recording of this lawyer discussing that
call on a radio program, was correct because both pieces of
evidence were hearsay to which no exception applied.




    *
      The Honorable John M. Rogers, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
    **
       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. LYNCH                       3

    The panel held that the district court did not abuse its
discretion in excluding repetitive and irrelevant evidence
about Lynch’s compliance with local laws.

    The panel held that evidence of a dispensary employee’s
marijuana sale to a government agent was not more
prejudicial than probative, and was generally harmless given
Lynch’s concession of factual guilt. The panel held that the
district court correctly excluded as hearsay a statement the
employee made to an investigator that Lynch “didn’t know
anything about this deal.”

   The panel held that there was no error in the district
court’s handling of a number of pieces of evidence that
Lynch contends were impermissibly inflammatory, and that
any would be harmless.

    The panel rejected Lynch’s claim that evidence he
subsequently discovered about the United States’
prosecution priorities should have been disclosed to him
pursuant to Brady v. Maryland. The panel held that the
evidence was not exculpatory of Lynch or otherwise relevant
to his case.

    The panel held that because Lynch did not show facts
providing a basis on which a reasonable jury could find that
he was entitled to the defense of entrapment by estoppel, he
was not entitled to present that defense in the first place, and
the district court did not err in any decisions it made with
respect to it.

    The panel held that the district court did not commit any
error by warning during voir dire against jury nullification.
The panel held that the admonition was an appropriate
exercise of a district court’s duty to ensure that a jury follows
4                UNITED STATES V. LYNCH

the law, and was additionally justifiable given that the need
for the warning was a risk that Lynch’s counsel had invited.

    The panel held that the district court did not abuse its
discretion in not allowing him to inform the jury of the
mandatory minimum sentence that he faced if convicted.

    The panel rejected the Lynch’s challenges to the district
court’s handling of jury communications because the district
court did not actually permit any ex parte communications
and the other limitations were reasonable exercises of a
district court’s power to manage its trial proceedings.

    On the government’s cross-appeal, the panel held that
the district court erred in not applying the five-year
mandatory-minimum         sentence     under     21    U.S.C.
§ 841(b)(1)(B)(viii) on the ground that Lynch was eligible
for the safety valve set forth in 18 U.S.C. § 3553(f). The
panel held that Lynch was not eligible for the safety valve,
given his role leading the dispensary, an organization
involving more than five participants; and that Lynch was
therefore required to be sentenced to the five-year mandatory
minimum. The panel rejected the government’s request that
the case be reassigned to another district judge on remand.

     The panel did not need to reach the question of whether
a congressional appropriations rider (enacted following the
filing of this appeal), which this court has interpreted to
prohibit the federal prosecution of persons for activities
compliant with state medical marijuana laws, operates to
annul a properly obtained conviction. The panel explained
that a genuine dispute exists as to whether Lynch’s activities
were actually legal under California state law, and therefore
remanded to the district court for a factual determination as
to state-law compliance.
                  UNITED STATES V. LYNCH                      5

    Dissenting, Judge Watford would reverse and remand for
a new trial because, in his view, in trying to dissuade the jury
from engaging in nullification, the district court violated
Lynch’s constitutional right to trial by jury, and the
government can’t show that this error was harmless beyond
a reasonable doubt.


                         COUNSEL

Alexandra Wallace Yates (argued), Deputy Federal Public
Defender; Hilary Potashner, Federal Public Defender; Office
of the Federal Public Defender, Los Angeles, California; for
Defendant-Appellant.

David P. Kowal (argued), Assistant United States Attorney;
Robert E. Dugdale, Chief, Criminal Division; André Birotte
Jr., United States Attorney; United States Attorney’s Office,
Los Angeles, California; for Plaintiff-Appellee.

Joseph D. Elford, Americans for Safe Access, Oakland,
California, for Amicus Curiae Americans for Safe Access.

Jenny E. Carroll, Professor of Law, Seton Hall University,
Newark, New Jersey, for Amici Curiae Criminal Procedure
Professors.

Paula M. Mitchell, Reed Smith LLP, Los Angeles,
California, for Amici Curiae Members of Congress.

Michael V. Schafler, Benjamin B. Au, Arwen R. Johnson,
and Isabel Bussarakum, Caldwell Leslie & Proctor PC, Los
Angeles, California, for Amici Curiae Senators Mark Leno
and Mike McGuire, and Former Senator Darrell Steinberg.
6                UNITED STATES V. LYNCH

                         OPINION

ROGERS, Circuit Judge:

                      I. Introduction

    Charles Lynch ran a marijuana dispensary in Morro Bay,
California, in violation of federal law. He was convicted of
conspiracy to manufacture, possess, and distribute
marijuana, as well as other charges related to his ownership
of the dispensary. In this appeal, Lynch contends that the
district court made various errors regarding Lynch’s defense
of entrapment by estoppel, improperly warned jurors against
nullification, and allowed the prosecutors to introduce
various evidence tying Lynch to the dispensary’s activities,
while excluding allegedly exculpatory evidence offered by
Lynch. However, Lynch suffered no wrongful impairment
of his entrapment by estoppel defense, the anti-nullification
warning was not coercive, and the district court’s evidentiary
rulings were correct in light of the purposes for which the
evidence was tendered. A remand for resentencing is
required, though, on the government’s cross-appeal of the
district court’s refusal to apply a five-year mandatory
minimum sentence, which unavoidably applies to Lynch.

    Following the filing of this appeal and after the
submission of the government’s brief, the United States
Congress enacted an appropriations provision, which this
court has interpreted to prohibit the federal prosecution of
persons for activities compliant with state medical marijuana
laws. Lynch contends that this provision therefore prohibits
the United States from continuing to defend Lynch’s
conviction. We need not reach the question of whether the
provision operates to annul a properly obtained conviction,
however, because a genuine dispute exists as to whether
Lynch’s activities were actually legal under California state
                 UNITED STATES V. LYNCH                     7

law. Remand will permit the district court to make findings
regarding whether Lynch complied with state law.

                      II. Background

    The facts of this case are largely unchallenged on appeal.
In 2005 and into early 2006, Charles Lynch operated a
marijuana store in Atascadero, California, before neighbor
complaints caused the town to shut down Lynch’s
operations. In 2006 Lynch moved his activities to Morro
Bay, opening what he called Central Coast Compassionate
Caregivers (CCCC) in April of that year. Lynch’s
dispensary proved to be a popular one, employing around
10 subordinates and selling $2.1 million in marijuana and
marijuana-related products during the period in which the
dispensary operated.

    Lynch’s dispensary soon also attracted the attention of
federal authorities. In March 2007, the DEA obtained a
search warrant and raided Lynch’s home, along with the
dispensary. Lynch continued to operate CCCC, but his
efforts there were short-lived. On July 13, 2007, the United
States indicted Lynch on five counts: conspiracy to
manufacture, possess, and distribute marijuana, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, 856, and 859
(Count 1); aiding the distribution of marijuana to persons
below 21 years, in violation of 18 U.S.C. § 2 and 21 U.S.C.
§§ 841(a)(1), 859(a) (Counts 2 and 3); marijuana possession
with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B) (Count 4); and maintenance of a
drug-involved premise, in violation of 21 U.S.C. § 856(a)(1)
(Count 5). Lynch went to trial, took the stand, and admitted
what he now concedes were “sufficient facts to find him
guilty of the five counts charged.” The jury convicted Lynch
on all counts.
8                UNITED STATES V. LYNCH

     Lynch’s arguments on appeal largely depend on legal
developments beginning over a decade before CCCC opened
its doors. In 1996, California voters decriminalized the use
of marijuana for medical purposes. See Cal. Prop. 215,
codified at Cal. Health & Safety Code § 11362.5. The U.S.
Supreme Court subsequently held that Congress’s
determination that marijuana was a Schedule I substance
under the Controlled Substances Act meant that marijuana
had no medical value, United States v. Oakland Cannabis
Buyers’ Co-op., 532 U.S. 483, 491 (2001), and that federal
prohibition of and prosecution for marijuana-related
activities remained permissible. Gonzales v. Raich, 545 U.S.
1, 22 (2005). Lynch maintained a somewhat different view
of the Controlled Substances Act from that of the Supreme
Court, however. Lynch testified at trial that he had thought,
based on the Tenth Amendment, that the 1996 referendum
had overridden federal law, and thus made medical
marijuana legal in California.

    In accordance with this belief, Lynch claims that before
opening CCCC, he had called the DEA, and reached a man,
whose name or position Lynch did not know. Lynch stated
that he had inquired of this person “what you guys are going
to do about all of these medical marijuana dispensaries
around the State of California.” Lynch testified that the
person responded that “it was up to the cities and counties to
decide how they wanted to handle the matter.” Lynch then
allegedly also told the man that he intended to open a
dispensary, to which the man is alleged to have repeated
what he had told Lynch before, that it was “up to the cities
and counties to decide.”

   This alleged advice did not turn out to be accurate,
however. Lynch was indicted and scheduled for trial in the
Central District of California. Several of the district court’s
                  UNITED STATES V. LYNCH                       9

actions before and during trial remain the subject of dispute
in this appeal. At voir dire, the district court responded to a
potential juror’s invocation of jury nullification with a
caution to the voir dire panel that “[n]ullification is by
definition a violation of the juror’s oath” and that, if selected
as a juror, “you cannot substitute your sense of justice,
whatever it may be, for your duty to follow the law, whether
you agree with the law or not.” Then, in its rulings in
motions in limine and at trial, the district court permitted
various evidence that Lynch contends should have been
excluded as impermissibly inflammatory, and also excluded
evidence that Lynch contends should have been allowed to
support Lynch’s defenses. Finally, Lynch alleges that the
district court engaged in improper ex parte communications
with the jury, and also did not disclose the contents of these
communications to Lynch.

    At trial, Lynch took the stand in his own defense, and,
although forcefully defending his position that the DEA call
had led him to believe that his activities were permitted, he
also conceded facts sufficient to ensure his conviction if that
defense failed. Lynch therefore requested that that the court
give an instruction on entrapment by estoppel. The district
court allowed an instruction on this defense with regard to
counts 1, 4, and 5—general distribution, possession with
intent to distribute, and maintaining a drug-involved
premises—but refused to allow this defense as against
counts 2 and 3, the distribution to minors charges, because
the district court determined that Lynch’s facts, even if
believed, did not suffice to allow the defense as against those
charges.

    After a day of deliberation, the jury convicted Lynch on
all counts. Lynch filed several post-conviction motions for
a new trial, including, as relevant here, a fourth new-trial
10               UNITED STATES V. LYNCH

motion claiming a Brady violation. This motion stated that
a prosecutor post-trial had said that the office focused its
resources on targeting those marijuana dispensaries “that
more clearly violated state law,” and Lynch contended that
this statement was exculpatory of him. The district court
denied this and the other new-trial motions, however.

    Following Lynch’s conviction and after the failure of his
new-trial motions, Lynch faced two possible mandatory-
minimum sentences: a one-year mandatory minimum for
distribution to persons under the age of 21, see 21 U.S.C.
§ 859(a), and a five-year mandatory minimum for the total
amount of marijuana in his conspiracy, see 21 U.S.C.
§ 841(b)(1)(B)(vii).      Following a lengthy sentencing
process, the district court held that Lynch was not subject to
the five-year minimum because, the court held, it had
discretion under the so-called “safety valve,” 18 U.S.C.
§ 3553(f), not to apply this sentence to Lynch. The court
determined that the safety valve could not apply to Lynch’s
§ 859(a) sentence, however, and so it sentenced Lynch to
one year and one day in prison, suspended pending this
appeal.

    Lynch subsequently filed this timely appeal, challenging
his conviction and objecting to the application of the one-
year mandatory minimum. The government also cross-
appeals, arguing for imposition of the five-year mandatory
minimum.

    Subsequent to Lynch’s conviction, and while this appeal
was pending, Congress passed an appropriations measure,
which, as relevant here, states that “None of the funds made
available in this Act to the Department of Justice may be
used, with respect to,” among others, California, “to prevent
such States from implementing their own State laws that
authorize the use, distribution, possession, or cultivation of
                 UNITED STATES V. LYNCH                     11

medical marijuana.” Consolidated and Further Continuing
Appropriations Act of 2015 § 538, Pub. L. No. 113-235, 128
Stat 2130. Lynch filed a motion, claiming that the spending
provision bars the government from continuing with this
appeal. After a ruling by a Motions Panel of this court, and
a refusal of the district court to rule on the issue while the
appeal was pending, we allowed Lynch to submit these
arguments as part of his third cross-appeal brief. Lynch also
requested that the district court grant a hearing on whether
Lynch was covered by the rider, but the district declined to
do so, because Lynch’s case was on appeal.

                             III.

                  A. Evidentiary Rulings

    Lynch argues that there was error in three lines of
evidentiary rulings made by the district court, but none of the
alleged rulings was reversible error.

   1. Exclusion of Lawyer Testimony and Recording

    Lynch objects to exclusion of testimony from a lawyer
about Lynch’s phone call to the DEA, as well as a recording
of this lawyer discussing that call on a radio program. Lynch
had sought to substantiate his entrapment by estoppel
defense by having this lawyer testify that, in January 2006,
Lynch had told the lawyer about the substance of Lynch’s
alleged phone call to the DEA. Lynch also proposed to
introduce a subsequent recording of a radio interview of the
lawyer recounting Lynch’s description of the call. The
district court did not permit the lawyer to testify about
Lynch’s statements to him, however, because the district
court reasoned that the lawyer’s statement would be hearsay,
and the testimony was also not admissible as a prior
consistent statement of Lynch’s, because any statement
12               UNITED STATES V. LYNCH

Lynch made to the lawyer would have postdated Lynch’s
motivation to fabricate the contents of that call. The court
also excluded the radio recording on those same hearsay
grounds.

    The district court’s rejection of these pieces of evidence
was correct because both pieces of evidence were hearsay to
which no exception applied. In both cases Lynch sought to
introduce the evidence for the same purpose: Lynch
allegedly told the lawyer that the DEA had told Lynch that
CCCC would be legal if operated in accordance with state
law, and Lynch sought to have the lawyer testify or play the
recording to support the notion that the DEA had told Lynch
this. The evidence was thus clearly hearsay—and obviously
excludable—because it was an out-of-court statement
offered for the truth of the matter asserted, i.e., that the
government agent had told Lynch this. See Fed. R. Evid.
801(c).

    Lynch nevertheless sought to permit the evidence’s
introduction as a prior consistent statement of Lynch’s trial
testimony regarding what the DEA had told him, see Fed. R.
Evid. 801(d)(1)(B), but neither the lawyer’s testimony nor
the recording was admissible as a prior consistent statement.
To be a prior consistent statement, a statement must occur
before a motivation to fabricate arises. Tome v. United
States, 513 U.S. 150, 156 (1995); see also United States v.
Bao, 189 F.3d 860, 864 (9th Cir. 1999) (same). Here,
however, the district court correctly determined that Lynch’s
motivations to fabricate predated any contact he had with the
lawyer. At the time he made his alleged statements to the
lawyer, Lynch was running a marijuana store in Atascadero,
and was also deep in plans to open CCCC. In both cases,
Lynch would have been strongly incentivized to make up or
misrepresent the call—directly in exculpating his work in
                 UNITED STATES V. LYNCH                    13

Atascadero, and prospectively for when he began operations
at CCCC. Anything Lynch told the lawyer therefore did not
rebut the government’s attack on Lynch’s trial testimony,
that Lynch fabricated or selectively remembered the
contents of the DEA call, because Lynch’s prior statement
was subject to the same incentives for untruthfulness.

     Lynch contends that his statements to the lawyer
predated any motivation to fabricate, because Lynch had not
yet begun operations at CCCC at the time he spoke to the
lawyer. This argument takes too narrow a view of what
constitutes a motivation to fabricate, however. This court
has explained that a motivation to fabricate exists when such
statements are inherently “self-serving;” for example, where
a person was under investigation, even though not yet
formally charged. United States v. Miller, 874 F.2d 1255,
1274 (9th Cir. 1989). That Lynch had not yet opened CCCC
at the time he spoke to the lawyer did not keep his statements
from being self-serving, most obviously because they
planted the seeds for a defense against the obvious threat of
prosecution for Lynch’s intended future activities. An alibi
surely does not become a prior consistent statement, just
because it is proffered before a crime occurs. For instance,
the Eleventh Circuit has held that a statement of innocent
purpose was not admissible as a prior consistent statement
because the defendant was in plans to commit the crime at
the time of the statement. See United States v. Vance,
494 F.3d 985, 994 (11th Cir. 2007), superseded by
regulation on other grounds as recognized in United States
v. Jerchower, 631 F.3d 1181, 1186 (11th Cir. 2011).

    Lynch also argues that the lawyer’s testimony and the
recorded radio interview should have been allowed to
enhance Lynch’s credibility as a witness, but this was not a
permissible basis for admitting that evidence. “Prior
14               UNITED STATES V. LYNCH

consistent statements by a witness ‘may not be admitted to
counter all forms of impeachment or to bolster the witness
merely because she has been discredited.’” United States v.
Collicott, 92 F.3d 973, 979 (9th Cir. 1996) (quoting Tome,
513 U.S. at 157). Rather, as we have explained, such
statements are allowable only to rebut claims of recent
fabrication or improper motive. Id. Because Lynch’s
motivation remained the same from when he made the
statements to the lawyer to his testimony at trial—being able
to claim authorization for CCCC’s activities—the fact that
Lynch has consistently told the same story was not
ultimately probative of his veracity. The district court
therefore did not err in excluding this testimony.

      2. Exclusion of Compliance with Local Laws

    Lynch also argues that the district court erred in
excluding evidence Lynch sought to offer about his
adherence to Morro Bay local rules, as well as statements
made by local authorities to Lynch about the permissibility
of this operation. This exclusion fell well within a district
court’s substantial discretion to exclude improper defense
evidence, see Holmes v. South Carolina, 547 U.S. 319, 326–
27 (2006), because the evidence was both repetitive and
irrelevant.

    Lynch contends that the district court erred in allegedly
preventing him from showing that he complied with local
regulations, but the district court did not so limit Lynch’s
defense. In fact, the district court allowed Lynch substantial
opportunity to present evidence about how he followed what
Morro Bay required of him, including testimony to this
effect from the mayor and city attorney. Lynch contends that
the district court erred in not allowing him to present further
evidence about CCCC’s attempts to follow local and state
law, but Lynch did not have an unlimited right to such a
                 UNITED STATES V. LYNCH                     15

presentation. Even acknowledging a defendant’s right to
choose his defense, exclusion for repetitiveness falls within
a district court’s discretion. See United States v. Scholl,
166 F.3d 964, 973–74 (9th Cir. 1999). Here, the district
court declined to allow further testimony from the mayor and
city attorney on the grounds that there was no dispute about
Lynch’s compliance with state and local law and that the
additional proposed evidence suffered from additional
deficiencies, such as being hearsay. The district court
therefore did not abuse its discretion in excluding this
evidence, because it clearly had the power to decline to allow
otherwise-problematic evidence on an already-established
and uncontested matter.

    Lynch also contends that that the district court erred in
excluding video evidence of a local sheriff stating that Lynch
was welcome to reopen CCCC following the March 2007
raid, because, according to Lynch, this video was useful for
Lynch’s entrapment by estoppel defense. But the district
court correctly rejected this evidence as irrelevant to Lynch’s
defense. Compliance with local law is not a substantive
defense to a violation of federal drug law. See Raich,
545 U.S. at 29. In addition, as the district court determined,
although approval from state and local authorities was
neither necessary nor sufficient to demonstrate entrapment
by estoppel, Lynch had already offered extensive evidence
to that point. The district court therefore did not abuse its
discretion in excluding the video, because it was repetitive
of evidence already received, and not otherwise relevant to
Lynch’s defense.

                       3. Baxter Deal

   Lynch also argues that it was error to permit the
government’s introduction of evidence that a CCCC
employee, Abraham Baxter, sold $3,200 worth of marijuana
16               UNITED STATES V. LYNCH

to a government agent, a transaction that Lynch alleges he
did not know about and was not involved in. Lynch claims
the evidence was unfairly prejudicial, in violation of Fed. R.
Evid. 403. The evidence was not more prejudicial than
probative, however, and the evidence was also more
generally harmless, given Lynch’s own concession of factual
guilt.

     The evidence was not improperly prejudicial, because its
tendency was to prove the nature of the conspiracy of which
Lynch was charged with being a part. On the government’s
theory of the case, Lynch joined with Baxter and the other
CCCC employees to distribute marijuana, and Baxter’s sale
of the marijuana to the agent was part of this conspiracy.
(Indeed, the indictment identified this sale as an overt act of
the conspiracy involving Lynch.) A significant amount of
evidence did exist on which a jury could find that Lynch was
linked to this transaction or that the sale was foreseeable to
him. That Lynch might not have known about Baxter’s
transaction does not necessarily render the evidence
inadmissible, since, under Pinkerton v. United States,
328 U.S. 640, 647–48 (1946), coconspirators are “criminally
liable for reasonably foreseeable overt acts committed by
others in furtherance of the conspiracy they have joined,
whether they were aware of them or not.” United States v.
Gadson, 763 F.3d 1189, 1214 (9th Cir. 2014) (quoting
United States v. Hernandez-Orellana, 539 F.3d 994, 1007
(9th Cir. 2008)). Although the district court later stated in
its sentencing memorandum that it did not believe that the
government had proven Lynch’s actual knowledge of this
transaction, that does not bear on the question of exclusion,
because determining the nature or scope of a conspiracy “is
a question of fact, not of law, to be determined by the jury.”
                     UNITED STATES V. LYNCH                              17

United States v. DiCesare, 765 F.2d 890, 900 (9th Cir.
1985), amended, 777 F.2d 543 (9th Cir. 1985). 1

    In any event, any complaints Lynch might have about the
district court’s treatment of the Baxter deal amount at most
to harmless error. Lynch acknowledges that, when on the
stand, he conceded sufficient facts to allow the jury to find
him guilty of all charges. This fact severely limits Lynch’s
ability to complain of purported errors with regard to
evidence introduced at his trial. “[I]t is the duty of a
reviewing court to consider the trial record as a whole and to
ignore errors that are harmless, including most constitutional
violations.” United States v. Hasting, 461 U.S. 499, 509
(1983). Alleged errors are not reversible if, setting that
evidence aside, it is still “clear beyond a reasonable doubt
that the jury would have returned a verdict of guilty.” Id. at
511. Here, a jury would have convicted Lynch regardless of
any treatment of the Baxter evidence, given that Lynch
himself gave the jury all the necessary material to allow for
his conviction. Lynch’s complaints about the district court’s
handling of the Baxter-related evidence show therefore, at
most, harmless error.


    1
       Lynch also argues that the district court had expressed concern
about the foundation of this evidence, and contends that the district court
had stated it would offer a limiting instruction or declare a mistrial if the
government did not prove that Lynch knew about Baxter’s activities, but
this argument is not supported by the record. What the district court
stated would justify a limiting instruction or mistrial was the use of
hearsay statements by Baxter as a coconspirator admission without the
government’s having laid the foundation for those statements. The
district court never stated that evidence about the Baxter transaction
would be subject to a blanket limiting instruction if the government
failed to prove Lynch’s actual knowledge of that transaction, and
appropriately so, because such knowledge was not necessary for the
government to have offered evidence that the transaction had occurred.
18               UNITED STATES V. LYNCH

    Lynch also objects to the exclusion of a statement Baxter
had made to an investigator, that “Charlie didn’t know
anything about this deal,” but the district court correctly
excluded this evidence as hearsay. Lynch contends that this
statement was nevertheless admissible as a statement against
interest, see Fed. R. Evid. 804(b)(3), but the district court
correctly held that statement was not allowable under that
exception. To be a statement against interest requires,
among other things, that “the statement so far tended to
subject the declarant to criminal liability that a reasonable
person in the declarant’s position would not have made the
statement unless he believed it to be true.” United States v.
Paguio, 114 F.3d 928, 932 (9th Cir. 1997). Stating the
negative, that another person does not know about a crime,
hardly inculpates the declarer, and certainly neither “so far”
nor so clearly that a reasonable person would not say so if
the statement were false. Id. Lynch takes the position that,
because Baxter was under investigation when he made that
statement, it might have been prejudicial to him in
unforeseen ways, but this is exactly the sort of “mere[]
speculation” that cannot serve as the basis for categorization
as a statement against interest. United States v. Monaco,
735 F.2d 1173, 1176 (9th Cir. 1984). The district court
therefore did not err in disallowing the introduction of this
statement.

        4. Other Alleged Inflammatory Evidence

    Lynch also objects to the admission of a number of
pieces of evidence that he contends should have been
excluded as impermissibly inflammatory, but there was no
error in the district court’s handling of this evidence, and,
even were we to find error, we would consider such error
harmless. Lynch claims that it was wrong to allow testimony
by law enforcement about Baxter-like distributions by other
                 UNITED STATES V. LYNCH                   19

CCCC employees outside the clinic, that evidence was
introduced that a CCCC employee apparently mailed a
package of marijuana, that the government showed
surveillance videos that included “teenagers who looked
healthy,” that the government discussed the violent-
sounding “AK47” strains of marijuana, and that the
government showed a chart with the “type[s] of highs”
caused by different marijuana strains. None of this evidence
comes remotely close to what this court has identified as
inappropriately inflammatory, like a defendant’s reading of
material advocating terrorism, United States v. Waters,
627 F.3d 345, 355 (9th Cir. 2010), or the imputation of guilt
based on ethnicity, United States v. Cabrera, 222 F.3d 590,
596 (9th Cir. 2000). This evidence was also inconsequential
in light of Lynch’s own concession of guilt.

    Lynch further argues that the district court should not
have permitted admission of a CCCC business check written
by Lynch to himself. The introduction of the check is also
at most harmless error, because the evidence was not
responsible for Lynch’s ultimate conviction. In any event,
the check was correctly admitted to show that Lynch
controlled CCCC’s accounts, and the district took
appropriate steps, including redaction of the amount of the
check, to avoid any unnecessary prejudice against Lynch.

     B. Nondisclosure of Reuther-Related Evidence

    Lynch asserts that evidence he has subsequently
discovered about the United States’ prosecution priorities
should have been disclosed to him pursuant to Brady v.
Maryland, 373 U.S. 83 (1963). This claim is without merit,
because the evidence was not exculpatory of Lynch or
otherwise relevant to his case. As relevant here, Lynch’s
fourth new trial motion included a claim based on a
statement made on March 27, 2009, by one of Lynch’s
20               UNITED STATES V. LYNCH

prosecutors. In the context of explaining a new Department
of Justice policy discouraging medical marijuana
prosecutions for facilities in compliance with state law, that
prosecutor stated: “in this district we had already made the
determination that in allocating our resources we would
focus on those [medical marijuana facilities] that more
clearly violated state law. So the attorney general’s
statement really for us has always been somewhat of a red
herring . . . those were always factors in the investigation at
the beginning.” Lynch contended that this testimony
demonstrated that the government possessed undisclosed
exculpatory information, in that the prosecutor’s statement
allegedly contradicted trial testimony from a DEA agent that
DEA “would be investigating the federal laws and the
marijuana—illegal sales of marijuana federally. It doesn’t
matter what the state or local officials say or do.” Lynch
therefore argued that he was entitled to a new trial because
the government had failed to comply with its Brady
obligations. The court denied Lynch’s new trial motion,
however, because this evidence was not exculpatory of
Lynch.

     The district court was correct in rejecting Lynch’s
argument that this statement proved the existence of a Brady
violation. To justify reversal for nondisclosure, evidence
must be of the sort that, if it had “been disclosed to the
defense, the result of the proceeding would have been
different.” Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir.
2008) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)). The obvious point that the government prioritizes
its resources on prosecuting those most flagrant offenders
should not have been a surprising fact, and certainly would
not have resulted in Lynch’s acquittal. Courts have long
recognized that prosecutorial decisions inevitably involve
difficult choices about resource allocation, and the
                 UNITED STATES V. LYNCH                     21

government possesses broad discretion to say where those
resources should be deployed. See Wayte v. United States,
470 U.S. 598, 607 (1985). The prosecutor’s statement
merely expressed what those priorities were here. It never
indicated that Lynch’s compliance or noncompliance with
state law would have had any effect on Lynch’s substantive
guilt. Lynch also would not have been entitled to acquittal
even if he had shown that he was in compliance with state
law, because such compliance was not relevant to the federal
crimes he was charged with. See Raich, 545 U.S. at 29.

    Lynch suggests that the information about prosecutorial
priorities was favorable to his defense because it suggested
that testimony given by DEA Agent Reuter was perjurious
and thus violative of Lynch’s due process right not to be
convicted by testimony known by the state to be perjurious.
See Napue v. People of State of Ill., 360 U.S. 264, 269
(1959). But this argument also depends on a misreading of
that testimony. Agent Reuter stated that neither she nor
anyone in her office would have told Lynch that dispensaries
were permissible if in compliance with state and local law,
because “federal law has nothing to do with state and local
officials. We would be investigating the federal law . . . . It
doesn’t matter what the state or local officials say or do.” It
is entirely reconcilable—and thus not at all suggestive of
perjury—to say that a dispensary is always subject to
investigation when illegal under federal law, but practically
most likely to be prosecuted when also committing state law
violations too. Moreover, Agent Reuter was testifying about
the investigative practices of her DEA office, while the
prosecutor’s statement explained the charging decisions of
that office. It is also not suggestive of perjury that two
different government agencies operate differently or explain
their roles in different terms.
22               UNITED STATES V. LYNCH

    Lynch finally suggests that this information would have
allowed him to question Agent Reuter on the proposition
that, if Lynch had been in compliance with state law, he
would not have been investigated or prosecuted. Such an
argument would border on the frivolous, however. Lynch
may be correct that his chances of being caught would have
been lower if he had been in compliance with state law, but
this is not the same as saying that Lynch was actually
innocent of any crimes of which he was convicted.

     For those reasons, then, Lynch does not demonstrate any
error in the district court’s handling of the evidence at his
trial.

          C. Entrapment by Estoppel Defense

    Lynch contends that the district court committed various
errors with respect to Lynch’s entrapment by estoppel
defense. The court allegedly misinstructed the jury about
this defense’s elements, refused to allow the defense as
against the distribution-to-minors charges, and did not
permit the jury to consider evidence of Lynch’s compliance
with state law. All of Lynch’s arguments on this point fail,
however, because Lynch did not prove facts sufficient to
establish a basis for entrapment by estoppel. Lynch
therefore has no grounds to object to the district court’s
treatment of this defense, because Lynch’s failure to provide
a sufficient factual basis to establish the defense meant that
Lynch was not entitled to any instruction on, or jury
consideration of, this defense in the first place.

    Lynch’s proposed basis for the entrapment by estoppel
defense was Lynch’s trial testimony that, in September 2005
and before opening CCCC, Lynch had allegedly called the
local DEA office and reached a man at the office, whose
name or position Lynch did not know. Lynch stated that he
                     UNITED STATES V. LYNCH                             23

had inquired of this person “what you guys are going to do
about all of these medical marijuana dispensaries around the
State of California.” Lynch testified that the person
responded that “it was up to the cities and counties to decide
how they wanted to handle the matter.” Lynch then
allegedly specifically told the man that he intended to open
a dispensary, and the man repeated that same thing that he
had told Lynch before, that it was “up to the cities and
counties to decide.” Lynch contends that he relied on this
statement in opening CCCC, and would not have
commenced operations if he had been told that his proposed
activities were illegal. 2 At trial, the district court allowed
Lynch to seek to claim this defense with regard to counts 1,
4, and 5—general distribution, possession with intent to
distribute, and maintaining a drug-involved premises—but
refused to allow this defense as against counts 2 and 3—the
distribution to minors charges—because it held that Lynch
had not established any foundation for that defense to apply
to these charges.

    Lynch contends that the information allegedly given to
him in his phone call to the DEA sufficed to allow him a
defense of entrapment by estoppel and that the district court
committed various errors with respect to that defense, but
this phone call was insufficient to provide a basis for the
defense. Although it is true that a defendant is generally

     2
       The government contends that Lynch’s testimony on this point is
highly doubtful because, although Lynch’s phone records reflected that
he had in fact called the DEA, the agent whose number Lynch dialed was
female rather than the man identified by Lynch, and that agent also
testified at trial that neither she nor any agent in her division would have
given Lynch the information Lynch claimed to have received. We do
not reach the issue of the credibility of Lynch’s testimony, however,
because even taking his account as true, Lynch did not provide a
sufficient factual basis for any instruction on entrapment by estoppel.
24               UNITED STATES V. LYNCH

“entitled to have the jury instructed on his or her theory of
defense,” this entitlement does not apply “where the
evidence, even if believed, does not establish all of the
elements of a defense.” United States v. Perdomo-Espana,
522 F.3d 983, 986–87 (9th Cir. 2008) (quoting United States
v. Arellano-Rivera, 244 F.3d 1119, 1125 (9th Cir. 2001)
(internal quotation marks omitted)). Even crediting Lynch’s
testimony that the phone call occurred and that he was told
that “it was up to the cities and counties to decide how they
wanted to handle the matter” of marijuana dispensaries,
Lynch still lacked crucial elements to shield himself under
the defense of entrapment by estoppel.

    To establish the defense of entrapment by estoppel, a
defendant has the burden to show: “(1) an authorized
government official, empowered to render the claimed
erroneous advice, (2) who has been made aware of all the
relevant historical facts, (3) affirmatively told [the
defendant] the proscribed conduct was permissible, (4) that
[the defendant] relied on the false information, and (5) that
[the] reliance was reasonable.” United States v. Schafer,
625 F.3d 629, 637 (9th Cir. 2010) (quoting United States v.
Batterjee, 361 F.3d 1210, 1216 (9th Cir. 2004)). Assuming
that Lynch’s testimony could be believed to show that Lynch
spoke to an authorized official and that Lynch relied on the
information given to him, the other elements of the defense
were missing here.

    The statement that “it was up to the cities and counties to
decide how they wanted to handle the matter” was not the
affirmative authorization that Lynch needed to identify to
have been entitled to any instruction or evidence introduced
on entrapment by estoppel. At most, Lynch’s evidence
suggests that federal authorities were confused about how to
handle a complex and evolving area, but this is not the same
                 UNITED STATES V. LYNCH                     25

as saying that Lynch was actively told he could violate
federal law. “[T]o invoke estoppel against the Government,
the party claiming estoppel must show ‘affirmative
misconduct’ as opposed to mere failure to inform or assist.”
Lavin v. Marsh, 644 F.2d 1378, 1382 (9th Cir. 1981). Even
on Lynch’s version of the facts, the person he talked to may
have been unhelpful in failing to remind Lynch that
marijuana remained illegal under federal law, but he never
told Lynch that Lynch’s proposed activities were legal. We
generally refuse to recognize a defense of entrapment by
estoppel where a defendant shows that a government agent
only failed to tell a defendant that proposed conduct was
illegal, as opposed to affirmatively stating that it was legal.
See United States v. Brebner, 951 F.2d 1017, 1026 (9th Cir.
1991). Even crediting Lynch’s testimony for all that it is
worth, Lynch never received the sort of clear sanction that
entrapment by estoppel requires.

    In particular, the ambiguity of the statement that it was
“up to the cities and counties to decide” means that the
statement lacked sufficient concreteness to have served as an
affirmative authorization for Lynch’s activities. To establish
affirmative authorization, a “defendant must do more than
show that the government made ‘vague or even
contradictory statements.’” United States v. Ramirez-
Valencia, 202 F.3d 1106, 1109 (9th Cir. 2000) (quoting
Raley v. Ohio, 360 U.S. 423, 438 (1959)). Instead, the
defendant “must show that the government affirmatively
told him the proscribed conduct was permissible.” Id. Even
if Lynch took the statement as implicit authorization for his
actions, this is not the same as saying that the statement was
an affirmative and unambiguous grant of permission. The
statement could have meant other (and more plausible)
things: that the federal government would prioritize
prosecuting those dispensaries most violative of state and
26               UNITED STATES V. LYNCH

local law; that, although such dispensaries were not legal, the
government would generally not investigate without a state
or local government requesting investigation; that, in the
absence of federal prohibition, regulation would be up to the
cities and states. The vagueness and ambiguity of the
statement therefore did not allow it to serve as a basis for a
claim of entrapment by estoppel.

    In addition, even to the extent that Lynch might have
(improperly) understood the statement to be an affirmative
authorization, any reliance on the statement was clearly
unreasonable. The determination of reasonable reliance is a
relatively common-sense inquiry: reasonable reliance occurs
if “a person sincerely desirous of obeying the law would
have accepted the information as true, and would not have
been put on notice to make further inquiries.” United States
v. Batterjee, 361 F.3d 1210, 1216–17 (9th Cir. 2004)
(quoting Ramirez-Valencia, 202 F.3d at 1109). Thus, for
example, in Batterjee, we held that a defendant dealing with
the complicated intersection of immigration and criminal
law, who had been told by a federal licensee that he was
“legally purchasing and possessing a firearm,” could
reasonably rely on those assurances, because there was no
reason for him to have believed he need inquire any further.
Id. at 1217.

    Here, by contrast, Lynch clearly should still have been
on notice that any purported categorical authorization to
violate the federal drug laws was incorrect, or at least
demanded further inquiry into the validity of that
authorization. Before he made the call, Lynch had been
actively following developments of marijuana law in
California and throughout the United States. Indeed, about
six months before the alleged call, Raich had established that
the federal government had the power to prosecute crimes
                 UNITED STATES V. LYNCH                    27

even if legal under state law, and Lynch had testified that he
was aware this case was ongoing. Even if it might be too
much to say that Lynch should be charged with precisely
understanding Supreme Court doctrine, a reasonable person
with the knowledge Lynch had would, at minimum, have
understood the relationship between state and federal
regulation of marijuana to be a subject of significant legal
complexity. It was not reasonable to think that two questions
posed to an anonymous and apparently confused source
could have definitively resolved all legal questions relating
to Lynch’s operations.

    In particular, Lynch’s alleged reliance on the call could
not have been reasonable because it required Lynch to ignore
vast swaths of information he had about marijuana’s
illegality under federal law. For example, in the controversy
leading to the closure of the store in Atascadero, the city
attorney had told Lynch that marijuana distribution was
illegal for all purposes under federal law. Lynch also
testified that before making the call to the DEA, he had gone
on the DEA website and discovered the fact that marijuana
was illegal under federal law, specifically that it is a
Schedule One drug. In addition, Lynch collected books,
legal memoranda, and other materials on the legal status of
marijuana, and many of these indicated that marijuana was
illegal under federal law, regardless of state legality. Nor
had Lynch somehow missed the point contained in all these
materials. Even after making the call, Lynch distributed
forms stating that CCCC recognized “that Federal Law
prohibits Cannabis,” although the forms also included an
incorrect statement that California legalization had created
an exception to the federal prohibition through the Tenth
Amendment.
28                UNITED STATES V. LYNCH

    It was therefore flatly unreasonable for Lynch to have
relied on this purported statement from the DEA, because
Lynch had ample cause to recognize that anything he took to
be an authorization for his activities might have been
incorrect or incomplete. A defendant’s reliance on an
alleged authorization is unreasonable where such reliance
ignores other relevant information the defendant has about
the subject. For example, we have recently held that
marijuana distributors who allegedly received bad
information from a state sheriff’s department could not claim
entrapment by estoppel, because they knew that marijuana
remained illegal under federal law. United States v. Schafer,
625 F.3d 629, 638 (9th Cir. 2010).

    The same principle applies here. Even crediting Lynch’s
version of the call, a reasonable person possessing all the
information Lynch had would not have considered the call
decisive of what the law required. Rather, a reasonable
person would at least have sought to resolve the two
apparently contradictory conclusions Lynch had about what
the law was. In contrast, in Batterjee, we emphasized the
reasonableness of a defendant’s reliance on incorrect but
apparently plausible advice on the basis that he had made
further inquiries even after receiving that advice. See
Batterjee, 361 F.3d at 1216–17. Because Lynch instead
simply cut off his inquiries when he allegedly heard what he
wanted to hear, ignoring all information he had to the
contrary, any reliance he made on the call was unreasonable,
and the call was therefore insufficient to sustain a defense of
entrapment by estoppel.

    In short, because Lynch did not show facts providing a
basis on which a reasonable jury could find that he was
entitled to this defense of entrapment by estoppel, he was not
entitled to present this defense in the first place. The district
                  UNITED STATES V. LYNCH                      29

court therefore did not err in any decisions it made with
respect to entrapment by estoppel, because that defense
simply did not apply to Lynch.

             D. Caution Against Nullification

    Lynch assigns error to a warning against nullification
given by the district court at voir dire. This warning was
permissible, however, because it was an appropriate exercise
of a district court’s duty to ensure that a jury follows the law,
and it was additionally justifiable given that the need for the
warning was a risk that Lynch’s counsel had himself invited.

    In the run-up to Lynch’s trial, Lynch’s lawyer, perhaps
recognizing that Lynch’s guilt was clear, appears to have
sought to encourage prospective jurors that they did not need
to convict Lynch even if he was factually and legally guilty
of his crimes. For example, on the first day of voir dire,
Lynch’s lawyer told prospective jurors that, among other
things, “the judge is only going to tell you what the law is,
and that ultimate decision about what to do in this case is for
you and only you to decide,” and “there is nobody above you
and . . . you [are] the person that’s got to decide what to do.”
On the second day of voir dire, the government objected that
these statements seemed to be calling for jury nullification,
and the district court cautioned Lynch’s counsel at a sidebar
not to ask questions seeking jury nullification. Within
minutes of receiving this warning, however, Lynch’s
counsel returned to the line of statements he had been
making before, asking jurors whether they agreed that
“whether to find a person guilty or not guilty is your
decision.”

   Finally, one juror got the drift and responded to Lynch’s
counsel, “I understand that completely. I believe there is
something called jury nullification, that if you believe the
30                UNITED STATES V. LYNCH

law is wrong, you don’t have to convict a person.” The
district court halted voir dire, and, after consultation with the
attorneys, gave the following caution to the prospective
jurors:

        Nullification is by definition a violation of
        the juror’s oath which, if you are a juror in
        this case, you will take to apply the law as
        instructed by the court. As a . . . juror, you
        cannot substitute your sense of justice,
        whatever it may be, for your duty to follow
        the law, whether you agree with the law or
        not. It is not your determination whether the
        law is just or when a law is unjust. That
        cannot be and is not your task.

The district court then asked each individual prospective
juror if he or she could abide by that instruction. Each juror
agreed to so abide.

    The district court’s caution against nullification was
permissible. It is clear that “no juror has a right to engage in
nullification,” that such nullification is “a violation of a
juror’s sworn duty to follow the law as instructed by the
court,” and, to that end, “trial courts have the duty to forestall
or prevent such conduct,” including “by firm instruction or
admonition.” Merced v. McGrath, 426 F.3d 1076, 1079–80
(9th Cir. 2005) (quoting United States v. Thomas, 116 F.3d
606, 617 (2d Cir. 1997)). The district court’s caution to the
jurors that they should not substitute their own sense of
justice for their duty to find facts pursuant to the law was
entirely appropriate as a discharge of the court’s own duty to
forestall lawless conduct.

   Moreover, the particular language chosen by the district
court accurately stated the law. The first part of the
                  UNITED STATES V. LYNCH                     31

statement, that “nullification is, by definition, a violation of
the juror’s oath to apply the law as instructed by the court”
is a quote from United States v. Thomas, 116 F.3d 606, 614
(2d Cir. 1997), a case recognized by this court as an accurate
guide to a judge’s duty to prevent nullification. See Merced,
426 F.3d at 1079. The other part of the statement, that a juror
“cannot substitute your sense of justice . . . for your duty to
follow the law” and that it was “not your determination
whether a law is just . . .” comes from United States v.
Rosenthal, 266 F. Supp. 2d 1068, 1085 (N.D. Cal. 2003),
affirmed in part, reversed in part, 454 F.3d 943 (9th Cir.
2006). This court has explicitly recognized that these
sentences from Rosenthal are generally permissible as
instructions to a jury to follow the law. United States v.
Kleinman, reissued as 880 F.3d 1020, 1032 (9th Cir. 2018).
The district court’s caution was therefore allowable, both in
the choice to have given it, as well as the language chosen to
convey that message.

    Lynch argues that the caution was impermissible
because this court in its recent Kleinman opinion has
determined that an anti-nullification instruction will be
improper if it “state[s] or impl[ies] that (1) jurors could be
punished for jury nullification, or that (2) an acquittal
resulting from jury nullification is invalid.” Kleinman,
880 F.3d at 1032. We held that one portion of the instruction
given in Kleinman crossed this line because it “could be
construed to imply that nullification could be punished,
particularly since the instruction came in the midst of a
criminal trial,” and that another portion was also incorrect
because it “could be understood as telling jurors that they do
not have the power to nullify, and so it would be a useless
exercise.” Id. at 1032–33. In this case, in contrast, there was
no indication that nullification would place jurors at risk of
legal sanction or otherwise be invalid. The district court
32               UNITED STATES V. LYNCH

correctly stated that the jurors did not have any right to
nullify, but it did not tell them that they lacked the actual
ability to do so. It also neither said nor implied that jurors
would be subject to punishment if they acquitted Lynch.
Lynch identifies a post-conviction letter written by one juror
stating he was concerned “we would be breaking our
promise if we did not vote to convict.” This appears to be
nothing more than a reflection of the fact that the evidence
against Lynch was so overwhelming that a juror could not
acquit Lynch without violating the juror’s duty to find facts
according to the law, however, given that Lynch had
admitted all facts necessary and sufficient to find him guilty.

    The district court’s warning involved no language like
that determined to be impermissible in Kleinman. Indeed,
the strongest portion of the district court’s caution in this
case was specifically approved in Kleinman. See Kleinman,
880 F.3d at 1032. This case is also factually distinguishable
from Kleinman because of the circumstances in which the
anti-nullification instruction came about. In Kleinman, the
district court issued its warning against nullification during
jury instructions, sua sponte, and without any indication that
nullification was on any juror’s mind. See Kleinman,
880 F.3d at 1031. Here, by contrast, the warning directly
followed from a potential juror at voir dire indicating an
unwillingness to follow the law.

    The court’s caution was, moreover, particularly justified
because it occurred on the second day of Lynch’s counsel’s
asking questions suggestive of nullification, and after the
court’s explicit admonishment to Lynch’s lawyer not to ask
such impermissible questions. As we have stated, albeit in a
somewhat different context, “an error that is caused by the
actions of the complaining party will cause reversal only in
the most ‘exceptional situation.’” United States v. Schaff,
                  UNITED STATES V. LYNCH                      33

948 F.2d 501, 506 (9th Cir. 1991) (quoting Guam v. Alvarez,
763 F.2d 1036, 1038 (9th Cir. 1985) (internal quotation
marks omitted)). A legally accurate warning given in
response to a potential juror proposing to disregard the law
clearly is not such an exceptional situation.

    Lynch more generally suggests that the district court’s
instruction inhibited the jurors from being willing to nullify
the charges against him, but this was also not a violation of
any legal right. “[W]hile jurors have the power to nullify a
verdict, they have no right to do so.” Merced, 426 F.3d at
1079. The district court’s admonition that nullification was
a violation of a jury’s duty to follow the law did not deprive
the jurors of their ability to nullify, since nullification is by
its nature the rejection of such duty. The district court
therefore did not commit any error in issuing its caution
against nullification.

    E. Jury Ignorance about Mandatory Minimums

    Lynch argues that the district erred in not allowing him
to inform the jury of the mandatory minimum sentence that
he faced if convicted. This argument is without merit,
however, because “[i]t is well established that when a jury
has no sentencing function, it should be admonished to
‘reach its verdict without regard to what sentence might be
imposed.’” Shannon v. United States, 512 U.S. 573, 579
(1994) (quoting Rogers v. United States, 422 U.S. 35, 40
(1975)); see also United States v. Frank, 956 F.2d 872, 879
(9th Cir. 1991) (same). The district court therefore did not
abuse its discretion in not allowing the jury to consider
information that was beyond the jury’s purview.

   Lynch contends that Shannon and the principles it
embodies have been undermined by Crawford v.
Washington, 541 U.S. 36, 51 (2004), and Apprendi v. New
34               UNITED STATES V. LYNCH

Jersey, 530 U.S. 466, 490 (2000), which Lynch argues
support the very general proposition that the Sixth
Amendment protects any jury power that existed at the time
of the amendment. The Second Circuit has squarely rejected
this argument for reasons that are also decisive here. See
United States v. Polouizzi, 564 F.3d 142, 160 (2d Cir. 2009).
Apprendi and Crawford do not deal with jury knowledge of
sentencing prospects. See id. To the extent that the very
general principles in Apprendi and Crawford could also lead
the Supreme Court to overrule Shannon in the future, “that
is a decision we must leave to the Supreme Court.” Id.
Shannon remains binding law until an inconsistent decision
issues from the Supreme Court, and the district court’s
actions were appropriate in light of Shannon.

    Lynch also argues that he was entitled to inform the jury
about the mandatory minimum sentence he faced on the
basis of an exception articulated in Shannon, that “an
instruction of some form may be necessary under certain
limited circumstances,” such as “to counter . . . a
misstatement.” Shannon, 512 U.S. at 587. Lynch contends
that the jury instructions that “[t]he punishment provided by
law for this crime is for the court to decide” was such a
misstatement, in that it allegedly suggested that the district
court would exercise discretion at sentencing. This
argument misreads Shannon. Shannon cautioned that such
correctives are “not to be given as a matter of general
practice” and should only be applied to correct obvious
misrepresentations, such as a statement “that a particular
defendant would ‘go free’ if found [not guilty by reason of
insanity].” Shannon, 512 U.S. at 587. Stating that a judge
sentences according to the law is not such a
misrepresentation. It was therefore not an abuse of
discretion for the district court not to have informed the jury
about the potential punishments Lynch faced if convicted.
                  UNITED STATES V. LYNCH                       35

     F. District Court Communications to the Jury

    Lynch raises three challenges to the court’s handling of
jury communications—that the district court allegedly
permitted ex parte communications, declined to answer juror
questions, and barred jurors from asking substantive
questions of witnesses—but all these challenges fail because
the court did not actually permit any ex parte
communications, and the other limitations were reasonable
exercises of a district court’s power to manage its trial
proceedings.

    At the start of trial, the district judge informed the jurors
that they could communicate with him via the clerk by
means of signed note. Jurors had asked the court clerk about
the possibility of asking questions, apparently of witnesses,
and the district court had informed the jury that it did not
allow questions from jurors in criminal cases, owing to the
potential for evidentiary misconduct. Five days into trial, the
court informed the attorneys that a juror had inquired about
the status of the sheriff’s department and the DEA, and that
question had been resolved by subsequent questioning.
Later that day, a juror asked the clerk about the definitions
of the terms “minor” and “hash,” and, with approval from
the attorneys, the district court read a definition of “minor”
from the proposed jury instructions. The next day, the
district court stated that several members of the jury had
inquired of the clerk what Rule 403 was, and the district
court answered that it would not explain the rule, because
those considerations were not appropriate for the jury.
Finally, a day later, the district court informed the parties that
the jurors had continued to ask the clerk questions. Defense
counsel asked what questions those were, but the district
court declined to answer.
36                UNITED STATES V. LYNCH

    The district court instead summoned the jury and stated
to them, pursuant to the court’s first instruction, that “jurors
were not going to be allowed to ask substantive questions”
during trial, although the court would answer questions of
procedure. After presentation of evidence concluded, the
district court did permit the jury to ask questions about the
instructions, and also stated that it would answer any
clarifying questions if there was disagreement as to the
instructions during deliberations. No jurors asked any
questions then, however.

    Lynch places a great deal of emphasis on what he views
as improper ex parte contact between jurors and the court,
but there was no error in any of these circumstances, because
those things about which Lynch now complains were neither
ex parte, nor even communications to the jury. All of the
messages went entirely in one direction: from jurors to court.
Lynch’s only allegations are that the court clerk received
information from the jurors and conveyed that to the judge,
but this is not the same as saying that either the clerk or the
judge responded with communications to the jurors.

    In other words, none of this contact rose to the level of
communications, and so none could have been an improper
ex parte communication. This court has suggested that an
impermissible ex parte communication occurs only if
“anything about the facts or the law” of a case has been
imparted to the jury. Sea Hawk Seafoods, Inc. v. Alyeska
Pipeline Serv. Co., 206 F.3d 900, 906 (9th Cir. 2000).
Receiving a note and passing it along simply does not rise to
this level of conveying anything about facts or law, however.
Lynch appears to contend that a bright-line rule prohibits a
district court from receiving any note from a juror, but such
a view is clearly incorrect. The Supreme Court has held that
a juror’s conveying something to a judge does not justify
                 UNITED STATES V. LYNCH                     37

reversal on those grounds alone, because such contact is
simply part of the “day-to-day realities of courtroom life.”
Rushen v. Spain, 464 U.S. 114, 118–19 (1983). Lynch
therefore fails to surmount the threshold hurdle to argue for
the presence of improper ex parte communications between
the court and the jurors.

    Lynch also argues that the district court had an obligation
to disclose the contents of the questions asked to it by the
jury, but the court’s nondisclosure was within the district
court’s authority to manage the conduct of a trial. In this
case, this district court had stated at the beginning of trial
that it would not allow jurors to ask questions of witnesses,
and that their responsibility was to receive evidence, rather
than inquire of it for themselves. This prohibition was
clearly within the court’s power to impose, since a court has
the authority to permit limited jury questioning of a witness,
United States v. Huebner, 48 F.3d 376, 382 (9th Cir. 1994),
or to prohibit it altogether. Lynch suggests that the district
court exceeded its authorization when it subsequently told
the jury that they “were not going to be allowed to ask
substantive questions” during trial, although the district
court would answer questions of procedure. Lynch’s
argument ignores the court’s “broad discretion in
supervising trial[],” subject to reversal only for abuse of
discretion. Price v. Kramer, 200 F.3d 1237, 1252 (9th Cir.
2000). Lynch offers no reason to think that the district court
abused its discretion here, especially given that the court did
subsequently offer the jury chances to ask questions that the
court could properly answer once presentation of evidence
had concluded.

    Lynch most creatively contends that the district court’s
refusal to disclose to Lynch the contents of the notes it
received from the jury violated Lynch’s right under Fed. R.
38                UNITED STATES V. LYNCH

Crim. P. 43(a) to be present at all critical stages of his trial.
But Lynch was present during all critical stages. The fact
that neither Lynch nor his counsel were told the contents of
a jury note does not go to presence. Such an argument would
preclude any ex parte communication during trial, no matter
how warranted. Lynch provides no authority for such a rule,
and this argument clearly also fails.

                    G. Lynch’s Sentence

    Because Lynch was convicted of narcotics conspiracy,
he was subject to a five-year mandatory-minimum sentence
under 21 U.S.C. § 841(b)(1)(B)(vii), and the district court
erred in not applying that sentence to Lynch. In particular,
the district court declined to sentence Lynch to this
mandatory-minimum because it determined that Lynch was
eligible for a safety-valve provision, 18 U.S.C. § 3553(f),
allowing a court to sentence a defendant below what a
mandatory minimum would otherwise require. Lynch was
not eligible for application of the safety valve to him,
however, given his role leading CCCC, and he was therefore
required to be sentenced to the five-year mandatory-
minimum.

    After his conviction, Lynch was potentially subject to
two mandatory minimum sentences: a one-year mandatory
minimum for distribution to persons under the age of 21, see
21 U.S.C. § 859(a), and a five-year mandatory minimum for
the total amount of marijuana in his conspiracy, see
21 U.S.C. § 841(b)(1)(B)(vii). The district court was
reluctant to sentence Lynch to these mandatory minimums,
given what it reasoned was the unusual fact of Lynch’s lack
of clandestine activity and general intent to comply with
state law.
                  UNITED STATES V. LYNCH                     39

    The district court therefore took advantage of the so-
called “safety-valve” provision, 18 U.S.C. § 3553(f), under
which a court need not apply an otherwise-required
mandatory minimum. The court recognized, however, that
Lynch potentially had not satisfied a precondition for the
safety valve to apply—that “the defendant was not an
organizer, leader, manager, or supervisor of others in the
offense, as determined under the sentencing guidelines.” See
18 U.S.C. § 3553(f)(4). As the Guidelines so define the
terms, the “organizer or leader” and “manager or supervisor”
enhancements apply to any person who plays such a role in
any criminal activity involving five or more participants,
U.S.S.G. § 3B1.1, and Lynch’s activities clearly did involve
more than five participants. The district court held, however,
that “being such an organizer/leader over another participant
simply qualifies a defendant for an adjustment; it does not
require it.” The district court cited to the Commentary to the
Guidelines and stated that a larger principle applied: “when
the evidence clearly shows that the defendant in question did
and does not present a greater danger to the public . . . is not
likely to recidivate, that individual should not be considered
as falling within USSG § 3B1.1 for purposes of an upward
adjustment.”

    The district court did, however, also determine that it
could not apply the safety valve to Lynch’s § 859(a)
violations, because the safety valve applies only to a small
number of sections of the criminal code, of which § 859 is
not one. The district court therefore sentenced Lynch to one
year and one day in prison.

    The district court erred in applying the safety valve to
Lynch. By its own terms, the safety valve does not apply to
“an organizer, leader, manager, or supervisor of others in the
offense as determined under the sentencing guidelines.”
40                UNITED STATES V. LYNCH

18 U.S.C. § 3553(f)(4). The sentencing guidelines in turn
state that a four-level enhancement applies to a defendant
who is “an organizer or leader of a criminal activity that
involved five or more participants.” U.S.S.G. § 3B1.1(a).
The relevant note further defines leadership and organizer
status as involving a totality-of-the-circumstances inquiry,
including:

        the exercise of decision making authority, the
        nature of participation in the commission of
        the offense, the recruitment of accomplices,
        the claimed right to a larger share of the fruits
        of the crime, the degree of participation in
        planning or organizing the offense, the nature
        and scope of the illegal activity, and the
        degree of control and authority exercised
        over others.

Id. n.24.

    Lynch’s activities at CCCC clearly made him a leader
and organizer of that enterprise, according to the Guidelines’
definition. Lynch planned the venture, hired employees, ran
the finances, and generally served as the primary person in
the enterprise. There is also no factual dispute that Lynch’s
activities involved more than five participants: CCCC had
about ten employees. The presence of those factors means
that Lynch qualified as a leader, as defined under the
sentencing guidelines, and so the safety valve was not
available to reduce Lynch’s sentence here.

    Although recognizing that “Lynch did put together
CCCC’s operations which had about ten employees,” the
district court decided that Lynch was eligible for safety-
valve relief, because it determined that the atypicality of the
way in which Lynch was a leader of CCCC justified a lower-
                 UNITED STATES V. LYNCH                     41

than-minimum sentence. This conclusion was an error. “It
is axiomatic that a statutory minimum sentence is
mandatory.” United States v. Sykes, 658 F.3d 1140, 1146
(9th Cir. 2011). Although Lynch’s circumstances may have
been unusual, in the sense that his was not the sort of furtive
scheme typical of many drug-distribution cases, Lynch’s
role was clearly that of a leader, and he was thus ineligible
for safety-valve relief. We have explained that the safety
valve is “a narrow exception to the statutory regime
established by the Mandatory Minimum Sentencing Reform
Act,” United States v. Yepez, 704 F.3d 1087, 1091 (9th Cir.
2012), and no relief exists outside of the five specific
conditions for its application. Because the requirement that
a defendant not be a “organizer, leader, manager, or
supervisor of others” was one such precondition for
operation of the safety valve, Lynch’s unquestioned status as
such a head of CCCC closed the door on any effort to
classify him as eligible for the safety valve.

    Lynch attempts to defend the district court’s sentence on
the grounds that a defendant’s qualification for § 3B1.1
enhancement allows but does not necessarily require the
rejection of safety-valve relief, but this argument fails.
Courts have consistently applied the leadership guideline to
defeat the safety valve without any consideration that this
application is discretionary. See United States v. Irlmeier,
750 F.3d 759, 764 (8th Cir. 2014); United States v. Ortiz,
463 F. App’x 798, 800 (10th Cir. 2012); United States v.
Pena-Gonell, 432 F. App’x 134, 137 (3d Cir. 2011); United
States v. Arroyo-Duarte, 367 F. App’x 420, 422–23 (4th Cir.
2010); United States v. Sainz-Preciado, 566 F.3d 708, 715
(7th Cir. 2009); United States v. Lopez, 217 F. App’x 406,
408 (5th Cir. 2007); United States v. Kerley, 230 F. App’x
919, 923 (11th Cir. 2007); United States v. Anglon, 88 F.
42               UNITED STATES V. LYNCH

App’x 428, 432 (1st Cir. 2004); United States v. Bazel,
80 F.3d 1140, 1143 (6th Cir. 1996).

    A remand is required because the district court erred in
holding that it had discretion to apply the safety valve to
Lynch, given Lynch’s unquestionable status as the leader of
CCCC, an organization involving more than five
participants.

              H. Reassignment on Remand

    The United States requests that this case be reassigned to
another district judge for resentencing, but we reject this
request. Reassignment on remand is highly discouraged, and
such a motion will be granted “only in unusual
circumstances or when required to preserve the interests of
justice.” United States v. Wolf Child, 699 F.3d 1082, 1102
(9th Cir. 2012). Such circumstances and interests are not
present here. We have articulated three factors relevant to
the consideration of whether the particular circumstances of
a case meet the high standard required to justify
reassignment:

       (1) whether the original judge would
       reasonably be expected upon remand to have
       substantial difficulty in putting out of his or
       her mind previously expressed views or
       findings determined to be erroneous or based
       on evidence that must be rejected,
       (2) whether reassignment is advisable to
       preserve the appearance of justice, and
       (3) whether reassignment would entail waste
       and duplication out of proportion to any gain
       in preserving appearance of fairness.
                 UNITED STATES V. LYNCH                    43

Manley v. Rowley, 847 F.3d 705, 712 (9th Cir. 2017)
(quoting Wolf Child, 699 F.3d at 1102).

    The facts of this case do not warrant reassignment under
that standard. There is no cause to expect that the district
court would reject instructions from this court, or that
reassignment would otherwise be necessary to preserve the
appearance of justice or ensure the efficiency of the federal
courts. The district court repeatedly emphasized that its
sentencing was not an act of unbounded discretion, but rather
was determined by precedents from this court, as well as
obligations from statute. That the district court adopted an
incorrect reading of the statute does not mean that it cannot
be expected to apply the correct law on remand.

    The government argues that this case should be
reassigned because the district court expressed views about
the undesirability of the five-year mandatory minimum as
applied to Lynch, but this argument is a failing one. The
district court acknowledged it had a view about the sentence
it would prefer to impose if granted unbounded discretion,
but also made clear that it would only exercise its discretion
if permitted to by law.

                  I. Spending Provision

    Following his conviction, Lynch has raised the
additional issue of whether the § 538 appropriations rider
applies to him and therefore requires dismissal of his
conviction. The rider raises several difficult questions with
respect to Lynch’s case, including, among others, whether
the provision operates to annul a conviction otherwise
properly obtained before its passage. We need not now
address the substance of how the rider operates with respect
to Lynch, however, because it is not clear that the rider
applies to him at all. The rider covers only persons in total
44               UNITED STATES V. LYNCH

compliance with state law, and it is contestable whether this
so describes Lynch and his activities. Remand is therefore
warranted to determine whether Lynch was in compliance
with state law.

    As relevant here, the appropriations rider provides that:
“[n]one of the funds made available in this Act to the
Department of Justice may be used, with respect to . . .
California . . . to prevent [it] from implementing [its] own
laws that authorize the use, distribution, possession, or
cultivation of medical marijuana.”               Consolidated
Appropriations Act of 2017 § 537, Pub. L. 115-31, 131 Stat
135. Congress first passed the rider in 2014, and it has been
adopted by every subsequent appropriations act, including
the currently operative one.              See Consolidated
Appropriations Act of 2017 § 537, Pub. L. 115-31, 131 Stat
135, extended by Continuing Appropriations Act of 2018,
Division D, Pub. L. 115-56, 131 Stat 1129. Although not
necessarily clear from the face of the text, we have held that
this measure “prohibits DOJ from spending funds from
relevant appropriations acts for the prosecution of
individuals who engaged in conduct permitted by the State
Medical Marijuana Laws and who fully complied with such
laws.” United States v. McIntosh, 833 F.3d 1163, 1177 (9th
Cir. 2016).

    To say that the rider exists is therefore not enough to end
Lynch’s prosecution because, as the McIntosh court
emphasized, the provision has a limited effect. The rider
“does not provide immunity from prosecution for federal
marijuana offenses,” and, because the provision did not
purport to repeal the Controlled Substances Act, even state-
legal marijuana activity, “remains prohibited by federal
law.” Id. at 1179 & n.5. To that end, McIntosh also
confirmed that the government continues to possess the
                 UNITED STATES V. LYNCH                     45

power to prosecute “[i]ndividuals who do not strictly comply
with all state-law conditions,” and that “prosecuting such
individuals does not violate [the spending provision].” Id. at
11798; see also United States v. Gloor, 725 F. App’x 493,
495–96 (9th Cir. 2018) (holding that a person who does not
strictly comply with state law is not covered by the rider). In
short, the rider may mean that Lynch has some argument that
the government cannot now spend money to prosecute him,
but if and only if Lynch had been strictly compliant with
California law.

    It is unclear from this record whether Lynch’s activities
were so strictly compliant with state law. California offered
two pathways for a person like Lynch to be permitted to
engage in marijuana-related activities. First, California’s
medical marijuana statute covers certain marijuana-related
activities by a patient, and by a patient’s “primary
caregiver.” Cal. Health & Safety Code § 11362.5(d). This
“primary caregiver” pathway almost certainly did not apply
to Lynch and his activities. The California Supreme Court
has held that a person in the position of Lynch, who acts only
as a supplier of marijuana, is not a primary caregiver and is
thus not in compliance with this medical marijuana statute.
People v. Mentch, 45 Cal. 4th 274, 284–85 (2008). In
consequence, the district court determined in its sentencing
memorandum that “the CCCC was not operated in
conformity with California state law . . . as held by the
California Supreme Court in Mentch.”

    On appeal, Lynch contends that his actions were in
compliance with California law because there was another
California statute also allowing medical marijuana
collectives and cooperatives, and Lynch argues that CCCC
was one of these. See Cal. Health & Safety Code
§ 11362.775(a). Although potentially closer, in the sense of
46                UNITED STATES V. LYNCH

not having been expressly ruled out by California Supreme
Court precedent, it is questionable whether CCCC was a
cooperative as that statute so defines the term. Among other
things, CCCC was structured as a sole proprietorship rather
than a collectively owned non-profit, see Cal. Health &
Safety Code § 11362.765, and it is unclear whether CCCC’s
clientele consisted solely of patients or persons with an
identity card, see Cal. Health & Safety Code § 11362.71.
The district court also expressed its view that there was “no
indication” that CCCC was a collective, and Lynch had also
conceded in his response to the government’s sentencing
memorandum that he “does not dispute the government’s
assertion that he made no attempt to operate as a classic
collective.”

    It is appropriate to remand this case for a factual
determination from the district court as to whether Lynch’s
activities were in compliance with state law, and particularly
whether CCCC operated under the required collective form.
A decision whether Lynch strictly complied with California
marijuana laws may depend on specific findings of fact, as
well as legal determinations, and it is proper to allow the
district court to find those facts in the first instance. If Lynch
was not compliant with state law, he is not covered by the
rider and is subject to the penalties of his conviction. Should
the district court resolve the state-law-compliance issue in
Lynch’s favor, the court may then rule in the first instance
on the legal issues that such a determination would raise.

                       IV. Conclusion

    We AFFIRM Lynch’s conviction and REMAND the
case to the district court for proceedings consistent with this
opinion.
                  UNITED STATES V. LYNCH                     47

WATFORD, Circuit Judge, dissenting:

    I would reverse and remand for a new trial. In my view,
the district court went too far in trying to dissuade the jury
from engaging in nullification. The court’s actions violated
Charles Lynch’s constitutional right to trial by jury, and the
government can’t show that this error was harmless beyond
a reasonable doubt.

     By its very nature, a case of this sort touches a sensitive
nerve from a federalism standpoint. At the time of Lynch’s
trial in 2008, the citizens of California had legalized the sale
and use of marijuana for medicinal purposes; the federal
government nonetheless sought to prosecute a California
citizen for conduct that arguably was authorized under state
law. Because federal law takes precedence under the
Supremacy Clause, the government could certainly bring
such a prosecution, notwithstanding the resulting intrusion
upon state sovereignty interests. See Gonzales v. Raich,
545 U.S. 1, 29 (2005). But the Framers of the Constitution
included two provisions that act as a check on the national
government’s exercise of power in this realm: one stating
that “[t]he Trial of all Crimes, except in Cases of
Impeachment, shall be by Jury”; the other requiring that
“such Trial shall be held in the State where the said Crimes
shall have been committed.” U.S. Const., Art. III, § 2, cl. 3.
The Sixth Amendment further mandates that in all criminal
prosecutions the accused shall enjoy the right to trial “by an
impartial jury of the State and district wherein the crime shall
have been committed.” Thus, to send Lynch to prison, the
government had to persuade a jury composed of his fellow
Californians to convict.

    One of the fundamental attributes of trial by jury in our
legal system is the power of the jury to engage in
nullification—to return a verdict of not guilty “in the teeth
48                UNITED STATES V. LYNCH

of both law and facts.” Horning v. District of Columbia,
254 U.S. 135, 138 (1920). The jury’s power to nullify has
ancient roots, dating back to pre-colonial England. See
Thomas Andrew Green, Verdict According to Conscience:
Perspectives on the English Criminal Trial Jury, 1200–1800,
at 236–49 (1985) (discussing Bushell’s Case, 124 Eng. Rep.
1006 (C.P. 1670)). It became a well-established fixture of
jury trials in colonial America, perhaps most famously in the
case of John Peter Zenger, a publisher in New York
acquitted of charges of seditious libel. See Albert W.
Alschuler & Andrew G. Deiss, A Brief History of the
Criminal Jury in the United States, 61 U. Chi. L. Rev. 867,
871–74 (1994). From ratification of the Constitution to the
present, the right to trial by jury has been regarded as
“essential for preventing miscarriages of justice,” Duncan v.
Louisiana, 391 U.S. 145, 158 (1968), in part because the
jury’s power to nullify allows it to act as “the conscience of
the community,” Jeffrey Abramson, We, the Jury: The Jury
System and the Ideal of Democracy 87 (1994).

     It’s true that a jury has no right to engage in nullification
and that courts are permitted to discourage a jury’s exercise
of this power. Sparf v. United States, 156 U.S. 51, 106
(1895); Merced v. McGrath, 426 F.3d 1076, 1079 (9th Cir.
2005). Hence a defendant may not insist that the jury be
instructed on its ability to nullify. United States v. Powell,
955 F.2d 1206, 1213 (9th Cir. 1992). But that doesn’t
resolve the question implicated here: May the court instruct
jurors that they are forbidden to engage in nullification, and
if so, how forcefully may the court deliver that message?

    Our circuit has held that a court can seek to prevent
nullification “by firm instruction or admonition.” United
States v. Kleinman, 880 F.3d 1020, 1032 (9th Cir. 2017)
(internal quotation marks omitted). We have upheld an
                  UNITED STATES V. LYNCH                     49

instruction that advised jurors “you cannot substitute your
sense of justice, whatever that means, for your duty to follow
the law, whether you agree with it or not. It’s not your
determination whether a law is just or whether a law is
unjust. That can’t be your task.” United States v. Rosenthal,
266 F. Supp. 2d 1068, 1085 (N.D. Cal. 2003), aff’d in
relevant part, 454 F.3d 943, 947 (9th Cir. 2006); see also
United States v. Navarro-Vargas, 408 F.3d 1184, 1201–04
(9th Cir. 2005) (en banc) (upholding similar instruction
given to grand jurors). I have my doubts about whether we
were right to endorse such an instruction, for it affirmatively
misstates the power that jurors possess. Jurors may not have
the right to substitute their sense of justice for what the law
requires, or to determine whether a law is just or unjust, but
they unquestionably have the ability to exercise that
power—in fact, doing so is the very essence of nullification.

    Be that as it may, we held in Kleinman that a court
crosses the constitutional line when it states or implies that
jurors could be punished if they engage in nullification.
880 F.3d at 1032–35. A court may permissibly seek to
discourage jurors from returning a verdict contrary to law or
fact, but ever since Bushell’s Case, what a court may not do
is coerce jurors into obeying its instructions on the law by
suggesting that those who disobey could face fine or
imprisonment. Threats of punishment subvert the jury’s
longstanding role as a safeguard against government
oppression. See United States v. Gaudin, 515 U.S. 506, 510–
11 (1995); Duncan, 391 U.S. at 155–56. Perhaps for that
reason, even at the time of the Founding, “the ability of
jurors to disobey judicial instructions without fear of official
reprisal was not in doubt.” Alschuler & Deiss, supra, at 912.
To members of the Founding generation with fresh
memories of the colonists’ experience under royal judges,
the jury’s independence from control by the judiciary
50               UNITED STATES V. LYNCH

provided assurance that application of national law would
rest in the hands of local citizens attuned to the concerns of
their community, not in the hands of officials beholden to a
distant central government.

     The court in this case crossed the line we drew in
Kleinman. During voir dire, the court gave prospective
jurors an instruction that largely tracked the one we
approved in Rosenthal. Critically, though, the court went
further by stating: “Nullification is by definition a violation
of the juror’s oath which, if you are a juror in this case, you
will take to apply the law as instructed by the court.”
(Emphasis added.) In Kleinman, we held that a materially
indistinguishable instruction—stating “[y]ou would violate
your oath and the law” by engaging in nullification—was not
only improper but an error of “constitutional dimension,” for
it carried with it the implicit threat of punishment. 880 F.3d
at 1031, 1035. That implicit threat is no less present here,
even though the court referred only to the jurors’ oath
without explicitly mentioning “the law.” Telling jurors that
nullification is a violation of their oath, standing alone,
implies the potential for punishment because violating one’s
oath could be deemed either perjury or contempt, both of
which are punishable by fine and imprisonment. See
18 U.S.C. §§ 401(3), 1621(1), 1623(a); Clark v. United
States, 289 U.S. 1, 10 (1933). So, as in Kleinman, the court’s
instruction in this case violated Lynch’s Sixth Amendment
right to trial by jury.

    An instructional error of this nature would appear to defy
analysis for harmlessness, since “the effects of the error are
simply too hard to measure.” Weaver v. Massachusetts,
137 S. Ct. 1899, 1908 (2017). The harmlessness inquiry in
this context can’t turn on an evaluation of the strength of the
government’s evidence; by definition, nullification involves
                  UNITED STATES V. LYNCH                      51

a juror’s decision to acquit notwithstanding the strength of
the evidence. What we would have to assess, then, is
whether a juror who was otherwise inclined to nullify might
have been dissuaded from doing so by the court’s
instruction. At least in cases like this one, where
nullification was an obvious possibility given the popularity
of medical marijuana in California, I don’t see how the
government could ever prove that a court’s unduly coercive
anti-nullification instruction had no effect on the outcome.

    Nevertheless, we held in Kleinman that this precise
instructional error is subject to harmless error analysis.
Thus, the question remains whether the government can
show that the court’s erroneous anti-nullification instruction
was harmless beyond a reasonable doubt. Kleinman,
880 F.3d at 1035. The government cannot make that
showing, and indeed it has not even tried. In Kleinman, we
found the court’s instruction harmless because it represented
only “a small part of the court’s final instructions to the jury,
and was delivered without particular emphasis.” Id. Here,
in stark contrast, the court delivered the instruction as a
stand-alone admonition at the outset of the case, in a manner
that could not have placed greater emphasis on the coercive
message the court delivered.

    The court gave its anti-nullification instruction during
voir dire because, in response to a question from defense
counsel, one of the prospective jurors stated, “I believe there
is something called jury nullification, that if you believe . . .
the law is wrong . . . you don’t have to convict a person.”
The court tried unsuccessfully to cut the juror off as soon as
she said the words “jury nullification,” and then asked to
speak with counsel at sidebar. After a brief discussion at
sidebar, the court ordered the jurors to leave the courtroom
while it continued to discuss the matter with the lawyers.
52                UNITED STATES V. LYNCH

Nearly 50 minutes later, the court called the prospective
jurors back in and immediately asked if anyone had
discussed the topic of jury nullification while they were
waiting in the hallway. None of the jurors responded
affirmatively, but the court gave the contested instruction
anyway, informing jurors that nullification would be a
violation of the oath they were required to take. The court
then polled the prospective jurors in open court and asked
each of them, one by one, whether they could follow the
court’s instruction not to engage in nullification. All but two
stated that they could, and the two who indicated that they
would have difficulty following the court’s instruction were
dismissed for cause.

    In these circumstances, I do not think we can say beyond
a reasonable doubt that any juror who might have been
inclined to nullify would have done so regardless of the
court’s instruction. The instruction was inherently coercive
because it implied that any juror who engaged in
nullification could be punished for doing so. Only the
hardiest of jurors would remain committed to voting her
conscience when threatened with the risk of fine or
imprisonment. That is particularly true here, where the court
required the jurors to affirm in open court that they could
follow the court’s command not to engage in nullification.
Although this occurred at the very outset of trial, none of the
court’s closing instructions counteracted the coercive effect
of its earlier admonition. In fact, one of those instructions
drove home the message the court conveyed during voir
dire: “You must follow the law as I give it to you whether
you agree with it or not. . . . You will recall that you took an
oath promising to do so at the beginning of the case.”

    Nor can we say that defense counsel “invited” the court’s
error. The question defense counsel posed to the prospective
                 UNITED STATES V. LYNCH                    53

juror who mentioned nullification merely asked whether she
understood that “the ultimate decision as to whether to find
a person guilty or not guilty is your decision.” That question
didn’t call for a response mentioning jury nullification, and
it accurately reflects black-letter law. See Gaudin, 515 U.S.
at 510. But even if defense counsel somehow goaded the
prospective juror into mentioning nullification, that at most
gave the court a basis for issuing the instruction we approved
in Rosenthal. It did not by any stretch authorize the court to
give an instruction that suffers from the same constitutional
defect we identified in Kleinman.

    In short, the court’s erroneous anti-nullification
instruction cannot be declared harmless beyond a reasonable
doubt. I would therefore reverse and remand for a new trial.
