on the briefs: [*]
from the United States District Court for the District of
Colorado (D.C. No. 1:16-CR-00329-MSK-GPG-1)
D. Standridge, Jarmie & Associates, Las Cruces, New
Mexico, and Mark D. Jarmie, Jarmie & Associates,
Albuquerque, New Mexico, for Defendant-Appellant, in No.
Bob Griffith, Pro Se Appellant, in No. 18-1054.
R. Dunn, United States Attorney, and James C. Murphy,
Assistant United States Attorney, Denver, Colorado, for
McHUGH, BALDOCK, and KELLY, Circuit Judges.
McHUGH, Circuit Judge.
appeal No. 17-1365, defendant-appellant Stormy Bob Griffith
timely filed a counseled notice of appeal challenging his
conviction and sentence. He was subsequently appointed
different counsel, who has since moved to withdraw from the
case under Anders v. California, 386 U.S. 738
(1967), asserting there are no non-frivolous grounds for
appeal. Exercising jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a), and finding no grounds for
appeal that are not "wholly frivolous,"
Anders, 386 U.S. at 744, we grant counsel's
motion to withdraw and dismiss the appeal.
obtain leave to withdraw under Anders in a direct
criminal appeal "where counsel conscientiously examines
a case and determines that any appeal would be wholly
frivolous," counsel for the defendant must "submit
a brief to the client and the appellate court indicating any
potential appealable issues based on the record."
United States v. Calderon, 428 F.3d 928, 930 (10th
Cir. 2005); see also 10th Cir. R. 46.4(B)(1).
"The client may then choose to submit arguments to the
court. The Court must then conduct a full examination of the
record to determine whether defendant's claims are wholly
frivolous." Calderon, 428 F.3d at 930 (citation
counsel served the Anders brief on Mr. Griffith. At
this court's direction, the government filed an answer
brief. Mr. Griffith filed numerous pro se responses and
supplemental responses. If, after examining the briefs, the
responses, and the record, the court concludes "that the
appeal is frivolous, it may grant counsel's motion to
withdraw and may dismiss the appeal." Calderon,
428 F.3d at 930. Accordingly, we must review defense
counsel's brief, the government's brief, Mr.
Griffith's responses, and the record to determine whether
Mr. Griffith has raised any nonfrivolous grounds for appeal
and whether to grant defense counsel's request to
Griffith and his then-wife lived on acreage near Cedaredge,
Colorado, where they grew marijuana plants. Ms. Griffith
testified that Mr. Griffith created the marijuana field with
help from seven other individuals and that the plants were
taken care of by Mr. Griffith, Ms. Griffith, and others. Mr.
Griffith paid for some of the labor with marijuana. Ms.
Griffith stated that both she and Mr. Griffith held
prescriptions for medical marijuana, which allowed each of
them to have 99 marijuana plants, although Ms. Griffith
stated that Mr. Griffith used her 99 plants. She further
stated that another person had a prescription for 48 plants.
September 27, 2016, and again on October 2, 2016,
law-enforcement officials were called to Mr. Griffith's
property about shots being fired. Both times officers
observed Mr. Griffith carrying a weapon. Mr. Griffith told
the responding officers that he was shooting in self-defense
or for target practice. On October 4, 2016, authorities
executed a search warrant on Mr. Griffith's property,
where they found 478 marijuana plants and 92 kilograms of
processed marijuana, as well as 28 firearms and ammunition.
jury returned an indictment charging Mr. Griffith with (1)
knowingly and intentionally conspiring to distribute, and
possessing with the intent to distribute, 50 kilograms or
more of a mixture and substance containing a detectable
amount of marijuana and 50 or more marijuana plants, a
schedule I controlled substance, under 21 U.S.C. §§
841(a)(1), (b)(1)(C), and 846; (2) knowingly and
intentionally possessing with the intent to distribute 50
kilograms or more of a mixture and substance containing a
detectable amount of marijuana and 50 or more marijuana
plants, a schedule I controlled substance, under 21 U.S.C.
§841(a)(1), (b)(1)(C); and (3) having been previously
convicted of a crime punishable by imprisonment for a term
exceeding one year, knowingly possessing a firearm and
ammunition in and affecting interstate commerce, under 18
U.S.C. § 922(g)(1). On May 17, 2017, a jury convicted
him on all counts, and on October 10, 2017, the district
court sentenced him to 97 months in prison, followed by three
years of supervised release.
Griffith challenges his convictions and sentence. He also
challenges the use of federal funds to incarcerate him, but
we do not address this claim because it does not relate to
his conviction and sentence.
Griffith contends that the United States lacked jurisdiction
to prosecute him. Much of his argument is unintelligible.
From what we can discern, he contends (1) the federal
Commerce Clause does not confer jurisdiction to prosecute
criminal violations; (2) the Tenth Amendment prohibits the
federal government from enacting and enforcing criminal laws;
(3) he is a "living Flesh and Blood man," Def.
Resp. to Anders Br. at 2 (Aug. 8, 2018); (4) the
federal government does not have common-law jurisdiction to
prosecute crimes; (5) Congress improperly gave power to a
corporation known as the United States of America, whose
"special laws-US code etc., are private to the foreign
corporation (USA), have no authority over the several Union
States of the Republic and/or State Zoned Citizen(s),"
id. at 6-7; and (6) "to establish Article III
original jurisdiction and standing, a contract must be
introduced into the record when the complaint was filed on
October 19, 2016," id. at 9.
review a challenge to subject-matter jurisdiction de novo.
Niemi v. Lasshofer, 770 F.3d 1331, 1344 (10th Cir.
2014). We first reject the challenge based on the Commerce
Clause. The federal statutes under which Mr. Griffith was
convicted have specifically passed constitutional scrutiny
under the Commerce Clause. See United States v.
Dorris, 236 F.3d 582, 584-86 (10th Cir. 2000) (18 U.S.C.
§ 922(g)(1) valid exercise of Commerce Clause power);
United States v. Wacker, 72 F.3d 1453, 1475 (10th
Cir. 1995) (21 U.S.C. §§ 841(a)(1) and 846 valid
exercise of Commerce Clause power).
other relevant statutes are not statutes of conviction;
rather, they are penalty statutes. See 18 U.S.C.
§ 924(a)(2) ("Whoever knowingly violates [18 U.S.C.
§ 922(g)] shall be fined as provided in this title,
imprisoned not more than 10 years, or both."); 21 U.S.C.
§ 841(b)(1)(C) (setting out penalties for violations of
§ 841(a)). Cf. United States v. Phelps, 17 F.3d
1334, 1338 (10th Cir. 1994) ("[A] penalty enhancement
statute . . . does not create a new substantive federal
crime."). Neither of these penalty statutes supports Mr.
Griffith's constitutional challenge to the federal
government's power to prosecute him.
reject Mr. Griffith's remaining challenges to
jurisdiction as frivolous. See 18 U.S.C. § 3231
("The district courts of the United States shall have
original jurisdiction, exclusive of the courts of the States,
of all offenses against the laws of the United
COMPLIANCE WITH COLORADO STATE MARIJUANA LAWS
law permits the use of marijuana for medical and recreational
purposes, and prescribes conditions for such use. Colo.
Const. Art. XVIII, §§ 14, 16. In addition, Colorado
law authorizes the operation of marijuana-related facilities,
see id. § 16(4), but requires marijuana plants
to be grown in an enclosed and locked space, not in an open
field, Colo. Rev. Stat. §§ 18-18-406(3)(a), (b)(1)
Griffith claimed that he was in compliance with Colorado
state marijuana laws and moved to dismiss the indictment
because the federal prosecution was not authorized. The
district court denied the motion because there was a question
of fact whether Mr. Griffith was in compliance with Colorado
law. Mr. Griffith relied on his contention that he was in
compliance to advance several challenges to the indictment
and he continues to rely on it to challenge his convictions
and sentence, as discussed herein.
Pretrial Motion to Dismiss
Griffith filed a pre-trial motion to dismiss the indictment
on the grounds of selective prosecution and enforcement of
marijuana laws. The district court denied the motion. We
review de novo Mr. Griffith's challenge to this ruling.
See United States v. Barrett, 496 F.3d 1079, 1117
(10th Cir. 2007) (reviewing timely pretrial motion to dismiss
Mr. Griffith's motion to dismiss purported to rely only
on legal grounds, it in fact sought "to vindicate an
affirmative defense bearing directly on his guilt or
innocence, [by] arguing that he [could not] be guilty of the
charged offense" under Colorado's marijuana laws.
United States v. Pope, 613 F.3d 1255, 1261 (10th
Cir. 2010). The motion did not attempt to demonstrate that
Mr. Griffith was in compliance with Colorado law, and the
government argued, among other things, that he was not. Thus,
the motion required the district court to address issues of
fact relative to the alleged offenses, which a court may not
consider before trial. See id. (stating a district
court may not consider before trial defendant's argument
for dismissal based on "the facts surrounding the
commission of the alleged offense" (internal quotation
marks omitted)). In addition, the motion to dismiss did
"not rest on a pure question of law, the facts charged
in the indictment itself, or agreed extra-indictment
facts," so a trial was required. Id. Therefore,
the district court did not err in denying the pretrial motion
Selective Enforcement and Prosecution
defense filed a motion to dismiss in the district court based
on selective enforcement and prosecution. Defense counsel
discussed selective prosecution in the Anders brief.
On appeal, Mr. Griffith maintains that the government
selectively enforced the marijuana laws and selectively
prosecuted him. For both claims, he asserts that the others
involved in growing the marijuana on his property were not
arrested or prosecuted.
proceed with a selective-prosecution claim, "[t]he
claimant must demonstrate that the federal prosecutorial
policy had a discriminatory effect and that it was motivated
by a discriminatory purpose." United States v.
Armstrong, 517 U.S. 456, 465 (1996) (internal quotation
marks omitted). A selective-enforcement claim requires
essentially the same showing. United States v.
Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th Cir. 2006).
This standard is a "demanding one."
Armstrong, 517 U.S. at 463. "[T]he decision
whether to prosecute may not be based on an ...