United States v. Smith

*775 MEMORANDUM *

B.E. Smith appeals his conviction and sentence for manufacture and possession of marijuana in violation of 21 U.S.C. '§§ 841(a)(1) and 844. We affirm in part, reverse in part, and remand for resentencing.

A. Smith contends that the district court erred in denying his request to present a defense of medical necessity to the jury. Even assuming that such a defense is permitted in prosecutions under the Controlled Substances Act — a question we do not decide here — Smith’s evidentiary proffer fell short of the requirements for establishing legal necessity. See United States v. Aguilar, 888 F.2d 662, 698 (9th Cir.1989). Under Aguilar , “a defendant must establish the existence of four elements to be entitled to a necessity defense: (1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.” Id. (citing United States v. Dorrell, 758 F.2d 427, 430-31 (9th Cir.1985)). If a defendant’s “offer of proof is deficient with regard to any of the…