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United States v. Griffith

United States Court of Appeals, Tenth Circuit

June 24, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
STORMY BOB GRIFFITH, Defendant-Appellant.

         Submitted on the briefs: [*]

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00329-MSK-GPG-1)

          Mark D. Standridge, Jarmie & Associates, Las Cruces, New Mexico, and Mark D. Jarmie, Jarmie & Associates, Albuquerque, New Mexico, for Defendant-Appellant, in No. 17-1365.

          Stormy Bob Griffith, Pro Se Appellant, in No. 18-1054.

          Jason R. Dunn, United States Attorney, and James C. Murphy, Assistant United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

          Before McHUGH, BALDOCK, and KELLY, Circuit Judges.

          McHUGH, Circuit Judge.

         APPEAL NO. 17-1365

         In 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.


         To 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 omitted).

         Defense 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.[1] 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 withdraw.


         Mr. 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.

         On 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.

         A grand 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.

         Mr. 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.


         Mr. 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.

         We 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).

         The 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.

         We 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 States.").


         Colorado 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) (2016).

         Mr. 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.[2]

         A. Pretrial Motion to Dismiss

         Mr. 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 de novo).

         Although 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 to dismiss.

         B. Selective Enforcement and Prosecution

         The 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.[3]

         To 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 ...

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