United States District Court, E.D. Washington
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
JOHN T. RODGERS, Magistrate Judge.
THIS MATTER comes before the Court on Defendant's Motion to Dismiss. ECF No. 13. Defendant responds thus to a citation alleging a violation of 41 C.F.R. § 102-74.400(a), proscribing possession of marijuana on federal property. ECF No. 1.
Defendant is represented by Meredith B. Esser, Assistant Federal Defender. The United States is represented by Sam White, Legal Intern, and Tyler Tornabene, a supervising United States Attorney.
Defendant moves to dismiss this case, because (1) he falls within a described medical exception to the regulation; (2) the regulation is void for vagueness; (3) the "rule of lenity" requires that Defendant not be prosecuted for possessing medical marijuana; and (4) the August 29, 2013, "Cole Memorandum" issued by the U.S. Department of Justice and a federal funding bill signed into law on December 16, 2014, prevent law enforcement action inconsistent with duly-enacted state laws regarding marijuana.
I. MEDICAL EXEMPTION
Defendant contends the regulation at issue in this matter exempts him from prosecution because he has complied with all Washington State requirements to possess marijuana for medical reasons, including obtaining the requisite authorization. In an appendix to his Motion, Defendant has supplied a DOCUMENTATION OF MEDICAL AUTHORIZATION TO POSSESS CANNABIS FOR MEDICAL PURPOSES IN WASHINGTON STATE. ECF No. 13, Ex. B. The United States does not dispute that Defendant's conduct was in complete accord with Washington State law.
The federal regulation Defendant is accused of violating, and from which he claims exemption, is 41 C.F.R. § 102-74.400. The regulation provides, in relevant part, as follows:
Except in cases where the drug is being used as prescribed for a patient by a licensed physician, all persons entering in or on Federal property are prohibited from-
(a) Being under the influence, using or possessing any narcotic drugs, hallucinogens, marijuana, barbiturates, or amphetamines;
41 C.F.R. § 102-74.400 (emphasis added). It is a cardinal principle of statutory construction that a court must give effect, if possible, to every clause and word of a statute. Negonsott v. Samuels, 507 U.S. 99, 106 (1993).
Defendant's proffered "medical authorization" is signed by Ron Whitten-Bailey, ARNP. "ARNP" refers to an "Advanced Registered Nurse Practitioner." The document indicates that it is a "recommendation" and, for verification, refers the reader to "4evergreengroup.com." An ARNP is not a "licensed physician, " and a recommendation is not a "prescription." See United States v. Harvey, 659 F.3d 1272 (9th Cir. 2011) (a doctor's "recommendation" to use marijuana for medical reasons is not a "prescription").
Based on the foregoing facts and a plain reading of the regulation, Defendant has not complied with the stipulation in the regulation, so is not excepted from prosecution under that regulation.
Defendant next asserts that the matter should be dismissed because 41 C.F.R. § 102-74.400 is void for vagueness. ECF No. 13 at 6-10. Defendant contends that an ordinary person understands, and laws have long recognized, that activity which is normally nonsensical or even illegal will be permitted by law and society when done for a legitimate medical purpose; e.g., accommodations in the workplace, such as an individual's need to wear sunglasses indoors or to inject oneself with insulin. Defendant argues that, being authorized by a trained and licensed health care professional to use a specific drug, in strict accord with a state law denominated " ...