Academic journal article Michigan Law Review

Proving Personal Use: The Admissibility of Evidence Negating Intent to Distribute Marijuana

Academic journal article Michigan Law Review

Proving Personal Use: The Admissibility of Evidence Negating Intent to Distribute Marijuana

Article excerpt


In the spring of 2011, DEA Agents searched the home of a Michigan resident named Ricky Brown.1 They suspected Mr. Brown of selling illegal drugs.2 The agents found 2.1 ounces of marijuana and a firearm in his house.3 The United States Attorney's Office charged Mr. Brown with possession of marijuana with intent to distribute and possession of a firearm in furtherance of a drug-trafficking crime.4 At first glance, this fact pattern seems unremarkable-a standard enforcement action furthering the United States' "War on Drugs." But one factual wrinkle transforms Ricky Brown's case from a mundane drug-trafficking prosecution into the harbinger of a larger conflict about to break out in the federal court system.

Mr. Brown held a medical marijuana card issued under the Michigan Medical Marihuana Act,5 and the amount of the drug he possessed (2.1 ounces)6 was well within the amount allowed for personal use under the state medical marijuana law (2.5 ounces).7 Although a medical marijuana license granted under state law does not serve as a defense to a federal possession charge,8 the district court in Mr. Brown's case went beyond reiterating that established federal preemption principle.9 The judge granted a motion in limine10 barring Mr. Brown from mentioning either his medical card or its tendency to show that he possessed the small amount of marijuana found in his home for personal use.11 This excluded evidence would have been crucial to Mr. Brown's defense on both the charge of possession with intent to distribute and the charge of possession of a firearm in furtherance of a drug-trafficking crime.12 The district court excluded this critical "personal use evidence" based on its interpretation of Federal Rules of Evidence 401, 402, and 403.13

Before analyzing the admissibility of personal use evidence14 in federal marijuana-trafficking prosecutions, it is important to distinguish three conversations with which this Note does not engage. This Note does not examine (1) whether a defendant can offer a state medical marijuana license as a defense to federal drug possession charges or related questions of federal preemption,15 (2) the "medical necessity" of marijuana,16 or (3) normative questions about whether marijuana should be legal. A brief examination of these related topics, however, provides a useful foundation for this Note's central analysis of the admissibility of personal use evidence in federal marijuana-trafficking prosecutions.

First, federal courts have consistently held that state marijuana legalization efforts have no impact on federal laws that criminalize the possession of marijuana.17 The Controlled Substances Act ("CSA") classifies marijuana as a prohibited Schedule I drug.18 Therefore, even if a state law legalizes marijuana for medical or recreational use, the CSA still authorizes federal prosecution by operation of preemption doctrine19 and the Supremacy Clause.20 Commentators agree that the "seminal case of Gonzales v. Raich affirmed the constitutionality of the CSA even as applied to extremely localized marijuana-related activities."21 Consequently, this Note does not argue that personal use evidence, like the possession of a medical marijuana card in Mr. Brown's case, qualifies as even minimally probative evidence in a federal prosecution for marijuana possession.22 Rather, this Note examines the evidence in the separate context of prosecution for trafficking or distribution.23

Second, this Note does not examine whether federal marijuana-trafficking defendants may rely on the affirmative defense of medical necessity. The medical necessity defense-in the context of marijuana prosecutions-is a variation of the common law necessity defense that applies "where physical forces beyond the actor's control rendered illegal conduct the less of two evils."24 In United States v. Oakland Cannabis Buyers' Cooperative, the Supreme Court held that "medical necessity is not a defense to manufacturing and distributing marijuana. …

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