Rosenthal

Edward Rosenthal appeals a three-count conviction for violations of the Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801 et seq., asserting an as-applied Commerce Clause challenge, a claim of immunity pursuant to 21 U.S.C. § 885 (d), erroneous evidentiary rulings and instructions by the district court, prosecutorial misconduct, juror misconduct, and the improper denial of a hearing under Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). The government cross-appeals, claiming that the district court erroneously found Rosenthal eligible for the “safety valve” and erroneously departed downward to impose a single day of confinement.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (b), and we reverse the conviction solely on the issue of jury misconduct. We affirm the district court on all other grounds and dismiss the government’s claims regarding sentencing as moot.

I

In November 1996, Californians passed, by voter initiative, Proposition 215, the Compassionate Use Act, which allows patients to obtain marijuana for “personal medical purposes ... upon the written or oral recommendation or approval of a physician.” Cal. Health &…