May 30, 2019 Final Pre McIntosh Hearing Briefs
Federal Prosecutors and Federal Public Defenders provide final briefs for McIntosh Hearing
These are the final arguments before Feds put Lynch on State trial in Federal Court to determine whether he was following state law 12 years ago when he ran his Medical Marijuana dispensary in Morro Bay California. This is the so called McIntosh hearing based on the Spending Appropriations Rider 2015-2019. Government is saying that Lynch needs to prove he followed State Law beyond a reasonable doubt. Lynch says has already shown he was following state law and it is the burden of the Government to prove he was not following State Law.
Federal Prosecutor David Kowal
Defendant further shows the weakness of his arguments by relying heavily on the unpublished Ninth Circuit opinion in United States v. Gloor
Unsurprisingly, district courts have had no problems acknowledging these opinions while still firmly holding that defendant bears the burden by a preponderance of the evidence in a McIntosh hearing.
As the government has set forth, the Ninth Circuit in Kleinman properly used the Cal. AG Guidelines to measure a defendant’s state law compliance for conduct that preceded the promulgation of the guidelines
Federal Public Defenders
Misquoting and altering the transcript, the government suggests that at the hearing on the indicative motion, the defense “conceded” that if the burden is on the defendant, then Mr. Lynch has not shown compliance. (Gov’t Opn’g Br., Dkt. No. 490 at 7.) In fact, the defense stated the opposite: “Even if the burden is on us, I think we have met it.” (Dkt. No. 467 at 41:15-18.)
All this court must determine is whether, as a factual matter, California law authorized Mr. Lynch’s conduct. If so, the rider applies. See Lynch, 903 F.3d at 1087.
Finally, the government relies on the unpublished district court decision in United States v. Daleman...Daleman relies on the general rule that the proponent of a motion bears the burden of proof...Importantly, Daleman predates Gloor, where the Ninth Circuit looked to state procedural mechanisms to determine whether the defendant demonstrated state-law compliance under McIntosh.
In straining to find noncompliance, the government argues that laws and guidelines that postdate Mr. Lynch’s conduct—by as much as a decade—are relevant to the court’s decision.