                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                  No. 17-10142
                 Plaintiff-Appellee,
                                              D.C. No.
                  v.                       2:13-cr-00300-
                                               GEB-2
RUSSELL EUGENE GILMORE,
             Defendant-Appellant.



UNITED STATES OF AMERICA,                  No. 17-10149
                 Plaintiff-Appellee,
                                              D.C. No.
                  v.                       2:13-cr-00300-
                                               GEB-3
RICHARD DAVID HEMSLEY,
             Defendant-Appellant.            OPINION



      Appeal from the United States District Court
          for the Eastern District of California
 Garland E. Burrell, Jr., Senior District Judge, Presiding

         Argued and Submitted March 16, 2018
              San Francisco, California

                   Filed April 5, 2018
2                 UNITED STATES V. GILMORE

    Before: Richard A. Paez and Sandra S. Ikuta, Circuit
       Judges, and Lynn S. Adelman, * District Judge.

                   Opinion by Judge Adelman


                          SUMMARY **


                          Criminal Law

    The panel affirmed the district court’s denial of a motion
to enjoin the government’s prosecution of two defendants
charged with conspiracy to manufacture marijuana plants
and manufacture of marijuana plants.

    The panel held that a congressional prohibition on the
Department of Justice’s use of appropriated funds to prevent
states from implementing state laws that authorize the use,
distribution, possession, or cultivation of medical marijuana
does not limit the government’s ability to enforce federal
drug laws on federal land.




    *
      The Honorable Lynn S. Adelman, United States District Judge for
the Eastern District of Wisconsin, 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. GILMORE                   3

                       COUNSEL

Sean Riordan (argued) and Ann C. McClintock, Assistant
Federal Defenders; Heather E. Williams, Federal Defender;
Office of the Federal Public Defender, Sacramento,
California, for Defendant-Appellant Russell Eugene
Gilmore.

Sandra Gillies (argued), Woodland, California,           for
Defendant-Appellant Richard David Hemsley.

Gregory T. Broderick (argued) and Samuel Wong, Assistant
United States Attorneys; Camil A. Skipper, Appellate Chief;
United States Attorney’s Office, Sacramento, California; for
Plaintiff-Appellee.


                        OPINION

ADELMAN, District Judge:

    Congress has barred the Department of Justice from
using appropriated funds “to prevent [certain States,
including California] from implementing their own State
laws that authorize the use, distribution, possession, or
cultivation of medical marijuana.” See Consolidated and
Further Continuing Appropriations Act, 2015, Pub. L. No.
113-235, § 538, 128 Stat. 2130, 2217 (2014) (hereafter
“§ 538”); Consolidated Appropriations Act, 2018, § 538
(2018) (extending § 538 through September 30, 2018). In
United States v. McIntosh, 833 F.3d 1163, 1177 (9th Cir.
2016), we held that defendants may seek to enjoin the
expenditure of such funds on federal drug trafficking
prosecutions of individuals who engaged in conduct
4              UNITED STATES V. GILMORE

authorized by state medical marijuana laws and who fully
complied with such laws.

    In this case, the district court refused to issue an
injunction because the subject marijuana grow operation
occurred on federal land under the control of the Bureau of
Land Management (“BLM”). We affirm. The restrictions
imposed by § 538 do not apply to marijuana cultivation on
federal land.

                             I.

    In September 2012, local authorities obtained a search
warrant for a property in El Dorado County, California,
based on a tip from hunters and confirmed by aerial
surveillance, that marijuana was being cultivated there. On
executing the warrant, officers found 118 marijuana plants
on the property and detained three men—Russell Gilmore,
Richard Hemsley, and John Mahan—near the grow site.
Mahan told a detective that he rented the property with the
intent to cultivate medical marijuana, that he hired Hemsley
as a marijuana grower, and that he hired Gilmore as a
security guard to protect the crop.          The authorities
determined from a parcel map that the marijuana garden was
located on federal land, which was later confirmed by a
BLM survey.

    The government obtained a two-count indictment
charging Gilmore, Hemsley, and Mahan with conspiracy to
manufacture marijuana plants and manufacture of marijuana
plants. See 21 U.S.C. §§ 841(a)(1), 846. Mahan pleaded
guilty to the conspiracy count in November 2015, but
Gilmore and Hemsley went to trial in April 2016. The jury
failed to reach a unanimous verdict, so the district court
declared a mistrial.
                UNITED STATES V. GILMORE                      5

    After we decided McIntosh, Gilmore and Hemsley
moved to enjoin the prosecution pursuant to § 538. The
district court denied the motion, precipitating this
interlocutory appeal. See McIntosh, 833 F.3d at 1172. We
have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

                              II.

    Section 538 does not limit the government’s ability to
enforce federal drug laws on federal land. Rather, as we
noted in McIntosh, the provision applies narrowly, to those
specific rules of state law that "authorize the use,
distribution, possession or cultivation of medical
marijuana." McIntosh, 833 F.3d at 1178. Nothing in
California law purports to authorize the cultivation of
marijuana on federal land. Even if state law tolerated
marijuana cultivation on public land, federal law forbids
such use. See 43 U.S.C. § 1733(g). And enforcing that
prohibition does not “prevent” California from otherwise
implementing its medical marijuana regime. See McIntosh,
833 F.3d at 1178 (“Congress could easily have drafted
§ [538] to prohibit interference with laws that address
medical marijuana or those that regulate medical marijuana,
but it did not. Instead, it chose to proscribe preventing states
from implementing laws that authorize the use, distribution,
possession, and cultivation of medical marijuana.”).

    Gilmore and Hemsley argue that they substantially
complied with California law, despite their inadvertent
presence on federal land. Because § 538 does not apply to
offenses committed on federal land, state law defenses are
irrelevant. It is also irrelevant whether they knew the garden
was on federal land; the government is not required to prove
such knowledge to convict under 21 U.S.C. §§ 841 and 846.
See United States v. Vasarajs, 908 F.2d 443, 447 n.7 (9th
Cir. 1990) (“Generally, a criminal defendant’s mistake of
6                  UNITED STATES V. GILMORE

fact can only be a valid defense if it negates the existence of
a requisite mens rea component of the crime charged and if
the crime allows for the interposition of such a defense.”). 1

    AFFIRMED.




    1
      The parties argue over the burden of proof applicable at a McIntosh
hearing, but because § 538 does not apply in this case, we leave that issue
for another day.
