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

Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys' Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of "personal use evidence" under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a defendant's possession of a state-issued medical marijuana license, (2) evidence that a state has legalized possession of marijuana for recreational purposes, and (3) evidence that a defendant suffers from a disease that marijuana arguably treats. Part I examines each of these three categories of personal use evidence and contends that district courts are likely to confront disputes over such evidence with increasing frequency. Part II analyzes objections to the admissibility of personal use evidence on direct examination, focusing primarily on Rules 402 and 403. Part III responds to those objections and argues that the evidence is probative of intent to distribute in federal marijuana-trafficking prosecutions.

INTRODUCTION

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. …

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