United States Court of Appeals For the First Circuit
No. 19-2292
UNITED STATES,
Appellee,
v.
BRIAN BILODEAU,
Defendant, Appellant.
No. 20-1034
MR, LLC,
No. 20-1054
TYLER POLAND; TY CONSTRUCTION, LLC; TY PROPERTIES, LLC,
Defendants, Appellants. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Kayatta, Barron, Circuit Judges, and O'Toole,* District Judge.
Jamesa J. Drake, with whom Drake Law LLC, Timothy E. Zerillo, and Zerillo Law Firm, LLC were on brief, for appellant Brian Bilodeau. Alfred C. Frawley, IV, with whom Thimi R. Mina and McCloskey, Mina, Cunniff & Frawley, LLC were on brief, for appellant MR, LLC. Thomas F. Hallett, with whom Benjamin N. Donahue and Hallett Whipple Weyrens were on brief, for appellants Tyler Poland, Ty Construction, LLC, and Ty Properties, LLC. Professor Scott Bloomberg, amicus curiae. Benjamin M. Block, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.
January 26, 2022
* Of the District of Massachusetts, sitting by designation. KAYATTA, Circuit Judge. This interlocutory appeal
requires us to consider whether and under what circumstances a
congressional appropriations rider prohibits the Department of
Justice (DOJ) from spending federal funds to prosecute criminal
defendants for marijuana-related offenses. After being indicted
on charges of committing such offenses, Brian Bilodeau, Tyler
Poland, and three companies associated with them claimed that their
prosecutions ran afoul of the rider's prohibition. After the
district court denied those claims, the defendants filed this
appeal, arguing that the prosecutions should be halted.1 For the
following reasons, we disagree.
I.
We begin by surveying the statutory and regulatory
landscape governing the medical use of marijuana under Maine and
federal law at the time of the relevant events. In 2009, Maine
enacted the Maine Medical Use of Marijuana Act (the "Act"), Me.
Rev. Stat. Ann. tit. 22, § 2421 et seq., which authorizes and
circumscribes the use, distribution, possession, and cultivation
of medical marijuana. Pursuant to the Act, Maine's Department of
1 Independent of the other defendants, Bilodeau also argues on appeal that certain evidence seized in a search of his home and warehouse should have been excluded because the search violated his Fourth Amendment rights. For reasons detailed below, we decline to consider the merits of Bilodeau's separate contentions on appeal because we lack appellate jurisdiction to review now the ruling on the suppression motion.
- 3 - Health and Human Services issued seventy-two pages of detailed
regulations setting out numerous technical requirements for
establishing compliance with the law. See 10-144-122 Me. Code R.
§§ 1–11 (2013). Together, the Act and the corresponding
regulations govern the medical use of marijuana in Maine.
During the time period covered by the operative
indictment, the Act permitted only the "medical use"2 of marijuana
and then only subject to certain stringent conditions. Me. Rev.
Stat. Ann. tit. 22, § 2422(5) (2016).3 Under these conditions, a
"[q]ualifying patient," id. § 2422(9), was permitted to
"[d]esignate one primary caregiver . . . to cultivate marijuana
for the medical use of the patient," Me. Rev. Stat. Ann. tit. 22,
§ 2423-A(1)(F) (2014). A primary caregiver was only authorized to
assist a maximum of five qualifying patients. Id. § 2423-A(2)(C).
Primary caregivers could possess marijuana solely "for
the purpose of assisting a qualifying patient" and then only in
2 At the time, Maine's definition of "medical use" encompassed "the acquisition, possession, cultivation, manufacture, use, delivery, transfer or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate a qualifying patient's debilitating medical condition or symptoms associated with the patient's debilitating medical condition." Me. Rev. Stat. Ann. tit. 22, § 2422(5) (2016). 3 The following discussion of the Act and the operative regulations refers to those in effect from "about 2015" to February 27, 2018, when the events relevant to the indictment allegedly occurred.
- 4 - certain quantities and forms. Id. § 2423-A(2). For instance,
Maine law allowed a primary caregiver to possess up to six mature,
flowering marijuana plants for each patient served. See id.
§ 2423-A(2)(B); 10-144-122 Me. Code R. § 5.8.1.1.2 (2013). For
each patient, the primary caregiver could also have "up to 12
female nonflowering marijuana plants," 10-144-122 Me. Code R.
§ 5.8.1.2.1 (2013), which are plants above twelve inches in height
or width that are not flowering. There was no limit on the amount
of "marijuana seedlings" a primary caregiver was permitted to
possess, id., but a plant was only considered a seedling if it
"ha[d] no flowers" and "[wa]s less than 12 inches in height and
diameter," id. § 1.17.5. A primary caregiver could also only
possess "up to 2 1/2 ounces of prepared marijuana for each
qualifying patient served." Id. § 5.8.1.1.1.; Me. Rev. Stat. Ann.
tit. 22, § 2423-A(2)(A) (2014).
Primary caregivers who possessed excess prepared
marijuana could transfer it to another caregiver or registered
dispensary but only if nothing of value was provided to the primary
caregiver in return. See Me. Rev. Stat. Ann. tit. 22, § 2423-
A(2)(H) (2014); 10-144-122 Me. Code R. § 2.8.2 (2013). Otherwise,
a person who possessed marijuana or marijuana plants "in excess of
the limits provided" had to "forfeit the excess amounts to a law
enforcement officer." Me. Rev. Stat. Ann. tit. 22, § 2423-A(7)
(2014); 10-144-122 Me. Code R. § 2.9 (2013).
- 5 - Primary caregivers were permitted to "[r]eceive
reasonable monetary compensation for costs associated with
assisting a qualifying patient." Me. Rev. Stat. Ann. tit. 22,
§ 2423-A(2)(D) (2014). And they could "[e]mploy one person to
assist in performing the duties of the primary caregiver." Id.
§ 2423-A(2)(I). However, Maine law prohibited the formation of a
"collective," id. § 2423-A(9), meaning "an association,
cooperative, affiliation or group of primary caregivers who
physically assist each other in the act of cultivation, processing
or distribution of marijuana for medical use for the benefit of
the members of the collective," id. § 2422(1-A).
While Maine state law permitted certain conduct relating
to the medical use of marijuana, federal law, specifically the
Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., did not.
The CSA made it "unlawful for any person knowingly or intentionally
to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense," id. § 841(a)(1), or simply
to possess, id. § 844(a), a controlled substance such as marijuana,
see id. § 802(6) (defining the term "controlled substance" by
referring to drug schedules); id. § 812, sched. I(c)(10) (listing
"marihuana" as a controlled substance). The CSA included no
exception for medical marijuana and "designate[d] marijuana as
- 6 - contraband for any purpose." Gonzales v. Raich, 545 U.S. 1, 27
(2005).4
Nevertheless, for each fiscal year since 2015, including
over the time period of the defendants' prosecutions, Congress has
attached a rider to its annual appropriations bill that states:
None of the funds made available under this Act to the Department of Justice may be used, with respect to [Maine and other states], to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 537,
133 Stat. 13, 138 (2019). Sometimes referred to as the
"Rohrabacher-Farr Amendment" or the "Rohrabacher-Blumenauer
Amendment," this appropriations rider places a practical limit on
federal prosecutors' ability to enforce the CSA with respect to
certain conduct involving medical marijuana.
II.
We next consider the particular circumstances prompting
this appeal. We accept the factual findings of the district court
unless they are clearly erroneous. See Jean v. Mass. State Police,
492 F.3d 24, 26 (1st Cir. 2007); see also United States v.
4 Federal law did permit a limited carve-out for the use of marijuana "as a part of a strictly controlled research project." Raich, 545 U.S. at 24. Of course, that is plainly not what is at issue here.
- 7 - Parigian, 824 F.3d 5, 9 (1st Cir. 2016). And we review the record
in light of those findings.
As relevant to this appeal, the defendants owned or
operated three sites used to grow marijuana in Auburn, Maine:
(1) a property at 230 Merrow Road; (2) a property at 249 Merrow
Road; and (3) a property at 586 Lewiston Junction Road (referred
to as "Cascades"). The facility at 230 Merrow Road was a large
warehouse containing multiple grow rooms that was largely operated
by Bilodeau. Bilodeau paid two caregivers, Danny Bellmore and
Brandon Knutson, to tend to the marijuana growing at the site.
Bilodeau bought growing supplies for Bellmore and Knutson and
picked up their prepared marijuana from the site. Bellmore and
Knutson displayed facially compliant paperwork and patient
designation cards outside their grow rooms. The warehouse at
230 Merrow Road was owned by defendant MR, LLC, an entity closely
associated with Bilodeau. Neither Bilodeau nor any other caregiver
operating there had a lease agreement with MR.
The grow site at 249 Merrow Road was owned by defendant
Ty Properties, LLC and operated by Tyler Poland. 249 Merrow Road
consisted of multiple warehouses with offices and individual grow
rooms. Several caregivers were registered to operate the grow
rooms and had lease agreements with Poland. Like 230 Merrow Road,
the 249 Merrow Road site had facially valid documents showing grows
run by registered caregivers designated by qualified patients.
- 8 - The Cascades facility was a warehouse with multiple
individual grow rooms located at 586 Lewiston Junction Road.
Cascades was owned by Kevin Dean, but Bilodeau was involved in its
operation. Bilodeau was also registered as one of the caregivers
at Cascades. Knutson, who worked for Bilodeau at the 230 Merrow
Road site, was deployed by Bilodeau to Cascades on at least a few
occasions.
For all three of the grow sites, the defendants and their
associates procured and maintained paperwork from people claiming
to be qualifying patients who designated Bilodeau, Poland, or one
of their associates as their caregivers, which made the sites
appear facially compliant with the Act's requirements. Indeed,
after a scheduled visit on January 10, 2018, state inspectors found
that the Cascades site was largely in compliance with Maine law.
Between 2016 and 2018, federal law enforcement officers
began investigating Bilodeau and his association with a "drug
organization" that "grows and distributes hundreds of pounds of
marijuana per month under the cover of Maine's Medical Marijuana
program." In the course of their investigation, federal agents
surveilled Bilodeau and his associates, tapped their phones, and
spoke with confidential sources.
On February 27, 2018, federal agents executed search
warrants for Bilodeau's grow site at 230 Merrow Road, Poland's
grow site at 249 Merrow Road, and Bilodeau's residence. Federal
- 9 - agents seized significant quantities of marijuana at both grow
sites. At 230 Merrow Road, agents recorded approximately
181 pounds of marijuana in plastic bags, along with 321 marijuana
plants. At 249 Merrow Road, agents seized approximately
145 pounds of marijuana and 574 marijuana plants.5 Agents also
recovered from 249 Merrow Road several handwritten documents
recording payments to marijuana "trimmers" and a notebook that
documented marijuana sales from December 2016 to early February
2018. The notebook listed quantities of different types of
marijuana, noted cash payments of more than $50,000, and used what
appeared to be abbreviations for states such as "MD," "NY," and
"GA" as headers.
Agents also found marijuana and marijuana concentrate at
Bilodeau's home. A search of a safe room in the house revealed
marijuana, a money-counting machine, a loaded handgun, and several
documents. Some of the documents appeared to itemize sales
(including a notation listing "$347,700" in "total sales"), costs
associated with marijuana grows (including payments to trimmers to
harvest marijuana), and amounts owed to different people
(including sums for "Brian," "Kevin," and "Kev").
In due course, the government indicted the defendants
and several others for, among other things, knowing and intentional
5 Agents also seized alprazolam and MDMA from 249 Merrow Road.
- 10 - manufacture and possession of marijuana with intent to distribute
in violation of the CSA and conspiracy to do the same. See 21
U.S.C. § 841(a)(1). In response, the defendants moved to enjoin
their prosecutions pursuant to the appropriations rider, arguing
that the prosecutions were a prohibited use of federal funds to
prevent Maine from implementing its medical marijuana laws.
Bilodeau also moved to suppress the results of the search and
requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978).
After holding an evidentiary hearing, the district court
concluded that prosecution of all counts of the indictment against
each of the defendants could proceed. The district court reasoned
that the defendants were not entitled to an injunction based on
the appropriations rider because they were patently out of
compliance with the Act, such that it was clear to the district
court that Maine's marijuana laws did not authorize the sort of
conduct evidenced at the hearing. In particular, the district
court found that Bilodeau, Poland, and their associated LLCs did
not engage in marijuana-related conduct for the purposes of
assisting qualifying patients but instead were part of a "large-
scale . . . black-market marijuana operation." The district court
acknowledged that it was a "closer question" as to whether MR was
entitled to relief under the appropriations rider. However, noting
the "ample evidence" establishing that Dean (MR's sole member) and
Bilodeau were "close associates" in their marijuana-related
- 11 - activities, the district court held that MR had not shown "by a
preponderance of evidence that it acted in strict compliance with
Maine's medical marijuana laws." The district court also denied
Bilodeau's motion to suppress and his request for a Franks hearing.
The defendants then filed these interlocutory appeals.
III.
A.
As an initial matter, we must consider our jurisdiction
to hear these appeals. Both the defendants and the government
assert that we may exercise jurisdiction over the district court's
denial of the defendants' motion to enjoin prosecution pursuant to
28 U.S.C. § 1292(a)(1).6 We agree.
Typically, appellate review must wait "until after
conviction and imposition of [a] sentence." Midland Asphalt Corp.
v. United States, 489 U.S. 794, 798 (1989). Here, though, the
alleged wrong is not the prosecution per se, but rather the use of
federal funds in a manner that prevents the implementation of
Maine's medical marijuana laws. Absent an injunction, the funds
will be spent and cannot be unspent. In such circumstances, the
defendants stand not so much as criminal defendants seeking to
6 Although styled as motions to dismiss or to enjoin prosecution, the defendants' motions are in substance aimed at preventing the DOJ from spending federal funds to continue their prosecution. These motions are best seen as requests for injunctions, so we refer to them henceforth solely as motions to enjoin prosecution.
- 12 - vindicate a personal right but as parties with a particularly
concrete interest in seeing a congressional spending ban
vindicated. We can therefore safely treat the denial of their
motion as outside the ordinary rule, United States v. McIntosh,
833 F.3d 1163, 1172–73 (9th Cir. 2016), or as a collateral order,
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949):
It "conclusively determine[s] the disputed question," "resolve[s]
an important issue completely separate from the merits of the
action," and would "be effectively unreviewable on appeal from a
final judgment." Midland Asphalt Corp., 489 U.S. at 798–99
(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).
As to Bilodeau's separate appeal of the denial of the
motion to suppress and the request for a Franks hearing, we
conclude otherwise for reasons explained in Part IV of this
opinion.
B.
Our analysis of the merits of the spending challenge
begins with the text of the appropriations rider. See Atl. Fish
Spotters Ass'n v. Evans, 321 F.3d 220, 223–24 (1st Cir. 2003).
The rider expressly forbids the DOJ from spending congressionally
appropriated funds in a manner that "prevent[s]" a state such as
Maine "from implementing [its] own laws that authorize the use,
distribution, possession, or cultivation of medical marijuana."
Consolidated Appropriations Act, 2019 § 537.
- 13 - We can safely conclude that by "marijuana" the rider
means the same substance described as "marihuana" in the CSA. See
21 U.S.C. § 802(16). And, although neither the rider nor the CSA
defines it, we assume that the term "medical marijuana" means
marijuana prescribed by a qualified medical care provider to treat
a health condition. See Medical, Merriam-Webster Online
Dictionary, http://www.merriam-webster.com/dictionary/medical
(last visited Oct. 20, 2021) (defining "medical" to mean "of,
relating to, or concerned with physicians or the practice of
medicine" or "requiring or devoted to medical treatment").7
The parties' arguments largely train on what Congress
meant when it prohibited the DOJ from spending money to "prevent"
a state "from implementing [its] own laws that authorize" medical
marijuana activity. Consolidated Appropriations Act, 2019 § 537.
To date, the Ninth Circuit is the only federal court of appeals to
have interpreted the rider. Heeding Congress's choice of the word
"implementing," the Ninth Circuit reasoned that the rider
"prohibits DOJ from spending money on actions that prevent [states
with medical marijuana laws from] giving practical effect to their
7 The applicable Maine statute, at the time, limited the authorization of medical marijuana use to persons with debilitating medical conditions. We do not in this case confront a situation where a so-called "medical marijuana" authorization scheme in practice allows for recreational use, so we have no occasion to speculate about how the rider might or might not apply in those circumstances.
- 14 - state laws that authorize the use, distribution, possession, or
cultivation of medical marijuana." McIntosh, 833 F.3d at 1176.
We agree with this reading of the rider and conclude, as the Ninth
Circuit did, that the DOJ may not spend funds to bring prosecutions
if doing so prevents a state from giving practical effect to its
medical marijuana laws.
We turn next to deciding under what circumstances
federal prosecution would prevent Maine from giving practical
effect to the Act. Certainly, the prosecution of persons whose
conduct fully complied with the Act and its associated regulations
would prevent the law from having much practical effect. Such
actions would render strict compliance with Maine's medical
marijuana laws cause for conviction and imprisonment. This is
precisely what the rider forbids. On this all parties agree.
The line the government would have us draw is between
strict compliance and less-than-strict compliance. That is, it
would have us rule that persons involved in growing or distributing
medical marijuana are safe from federal prosecution only if they
comply fully with every stricture imposed by Maine law. The
government contends that the Ninth Circuit adopted this kind of
strict-compliance test to differentiate between prosecutions that
prevent a state's medical marijuana laws from having practical
effect and those that do not. See id. at 1178; see also United
States v. Evans, 929 F.3d 1073, 1076 (9th Cir. 2019) (stating
- 15 - flatly that the court in McIntosh "stressed that defendants would
not be able to enjoin their prosecutions unless they 'strictly
complied with all relevant conditions imposed by state law on the
use, distribution, possession, and cultivation of medical
marijuana.'" (quoting McIntosh, 833 F.3d at 1179)) (emphasis
supplied by the Evans court). For two reasons, we find such a
test inapplicable here.
First, if Congress had intended the rider to serve as a
bar to spending federal funds on a prosecution only when the
defendant was in strict compliance with state law, it would have
been very easy for Congress to so state. By eschewing such an
obvious, bright-line rule in favor of one that bars the use of
federal funds to "prevent [a state] from implementing [its] own
[medical marijuana] laws," Consolidated Appropriations Act, 2019
§ 537, Congress likely had in mind a more nuanced scope of
prohibition -- one that would consider the practical effect of a
federal prosecution on the state's ability to implement its laws.
Second, the potential for technical noncompliance is
real enough that no person through any reasonable effort could
always assure strict compliance. For instance, a caregiver whose
twelve nonflowering marijuana plants comported with the Act's
limit immediately would have fallen out of compliance when just
one of the caregiver's unlimited number of seedlings grew beyond
twelve inches in height or diameter. See 10-144-122 Me. Code R.
- 16 - §§ 1.17.5, 5.8.1.2 (2013). And if the drying and curing process
happened to yield more than 2 1/2 ounces of marijuana per
qualifying patient, a caregiver would have been in violation of
the Act until they disposed of the excess. See id. § 5.8.1.1.1.;
Me. Rev. Stat. Ann. tit. 22, § 2423-A(2)(A) (2014). With federal
prosecution hanging as a sword of Damocles, ready to drop on
account of any noncompliance with Maine law, many potential
participants in Maine's medical marijuana market would fasten
fearful attention on that threat. The predictable result would be
fewer market entrants and higher costs flowing from the expansive
efforts required to avoid even tiny, unintentional violations.
Maine, in turn, would feel pressure to water down its regulatory
requirements to avoid increasing the risk of noncompliance by
legitimate market participants. Likely anticipating these
concerns, the district court below appeared to acknowledge that
"some sort of technical noncompliance" with Maine's regulations
might be tolerated even under the strict compliance standard.
The government attempts to downplay these concerns by
arguing that prosecutorial discretion and resource allocation can
properly ensure that legitimate participants in Maine's medical
marijuana market will not be subject to federal criminal
prosecution. But the point is not that caregivers acting in good
faith will be prosecuted for even tiny infractions of state law
but that they can be prosecuted. The government's vague assurances
- 17 - in this case will likely be cold comfort to anyone facing fears
that imperfect compliance with the Act could lead to indictment
and imprisonment.
It is true that requiring strict compliance with state
law would not necessarily "prevent" the Act from having some
practical effect. No matter the risks, there would likely be some
participants in Maine's medical marijuana market. After all, there
have always been participants in the market for unlawful drugs who
are undeterred by even life sentences. But we do not think this
is the kind of market that Maine sought to create when it enacted
its medical marijuana laws. Because Maine limited the size of a
primary caregiver's operations and restricts compensation to a
"reasonable" amount, there do not appear to be great riches to be
made in the medical marijuana market. A strict compliance approach
would skew a potential participant's incentives against entering
that market.
Strict compliance as construed by the government does
have the benefit of identifying a bright line body of statutes,
rules, and decisions that determine whether conduct violates state
medical marijuana law and thus becomes subject to federal
prosecution. See McIntosh, 883 F.3d at 1178 (looking to "those
specific rules of state law that authorize the use, distribution,
possession, or cultivation of medical marijuana"). But those rules
were not drafted to mark the line between lawful activity and cause
- 18 - for imprisonment. Rather, as with most every regulated market,
Maine declined to mandate severe punishments (such as, for example,
the loss of a license) on participants in the market for each and
every infraction, no matter how small or unwitting. See, e.g.,
10-144-122 Me. Code R. § 10.5.7 (2013) (providing that "[g]rounds
for revocation of a registry identification card include . . .
repeat forfeiture of excess marijuana" (emphasis added)). To turn
each and every infraction into a basis for federal criminal
prosecution would upend that decision in a manner likely to deter
the degree of participation in Maine's market that the state seeks
to achieve.
Although we reject the government's proposed strict
compliance approach, we also decline to adopt the defendants'
interpretations of the rider. Offering several slightly different
formulations, the moving defendants and amicus argue that the rider
must be read to preclude the DOJ, under most circumstances, from
prosecuting persons who possess state licenses to partake in
medical marijuana activity. These proposed formulations stretch
the rider's language beyond its ordinary meaning. Congress surely
did not intend for the rider to provide a safe harbor to all
caregivers with facially valid documents without regard for
blatantly illegitimate activity in which those caregivers may be
engaged and which the state has itself identified as falling
outside its medical marijuana regime.
- 19 - Instead, we adopt an approach that falls between the
parties' positions. In charting this middle course, we need not
fully define its precise boundaries. The conduct that drew the
government's attention was the defendants' cultivation,
possession, and distribution of marijuana aimed at supplying
persons whom no defendant ever thought were qualifying patients
under Maine law. The record is clear that the posted patient cards
and licenses, as well as the outward physical appearances of the
grows, were facades for selling marijuana to unauthorized users.
Maine's medical marijuana regulations themselves
expressly anticipated that a cardholder could be "convicted of
selling, furnishing, or giving marijuana to a person who is not
allowed to possess marijuana for medical purposes in accordance
with [the rules promulgated under the Act]." 10-144-122 Me. Code
R. § 10.5.1 (2013). Accordingly, convicting someone under 21
U.S.C. § 841(a)(1) who knowingly engages in such conduct would
likely have no effect unwelcomed by Maine, much less prevent
Maine's medical marijuana laws from having their intended
practical effect.8
8 In resting on the fact that the defendants have engaged in conduct for which Maine law expressly anticipates the possibility of a conviction, we need not reach the question of whether any other conduct that could serve as grounds for -- but does not in fact result in -- license revocation under Maine law can provide cause for the DOJ to spend funds prosecuting a licensee.
- 20 - The record in this case amply supports the finding that
the defendants were knowingly engaged in "a large-scale . . .
black-market marijuana operation" aimed at supplying marijuana to
persons known not to be qualifying patients. Bilodeau does not
even offer a plausible narrative to the contrary in his briefs on
appeal.
One defendant, MR, claims that it was a mere landlord
that thought it was leasing space to legitimate medical marijuana
caregivers. But as the district court found, MR's sole member,
Kevin Dean, was up to his eyeballs in the actual substance of the
marijuana distribution scheme. He was a close associate of
Bilodeau, on whose ledgers were recorded various payments to
"Kevin" and "Kev." Dean was himself registered to grow and
partnered with Bilodeau to buy a marijuana trimming machine. Dean
came up with no evidence that any of the marijuana that he grew or
trimmed went to any qualifying patient. There is no evidence that
MR charged anyone growing at 230 Merrow Road any rent on its
premises, which was purchased with money loaned to Dean and
Bilodeau.
As for Poland, he ran a grow site that provided no
marijuana to medical marijuana patients and coordinated with
Bilodeau to pay people who helped tend the illicit crop. Moreover,
as the district court found, the record demonstrates that he
oversaw the production and distribution of the grows at 249 Merrow
- 21 - and likely supplied marijuana to out-of-state purchasers in bulk
quantities.
Given these facts, we have no trouble concluding that
the defendants have failed to establish that their pending
prosecution under the CSA is in any way barred by the rider.
C.
The defendants' last redoubt takes the form of a
procedural challenge. They argue that we should not rely on the
facts as found by the district court because the district court
assigned them the burden of proof. Instead, they contend that the
burden to demonstrate that a prosecution may proceed irrespective
of the appropriations rider should lie with the government. We
see no error in the district court's assessment that the defendants
bear this burden. The issue here is not one of guilt or innocence
in a criminal case. Rather, the defendants are requesting that we
enjoin an otherwise plainly authorized government expenditure. We
therefore see no reason to deviate from the normal rule that
parties seeking injunctive relief bear the burden of proving
entitlement to that relief. See, e.g., Munaf v. Geren, 553 U.S.
674, 690 (2008); Evans, 929 F.3d at 1077 (allocating the burden of
proof to the defendants seeking to enjoin their prosecution
pursuant to the rider because "the party seeking an injunction
bears the burden of showing that he is entitled to such a remedy").
- 22 - Accordingly, we agree that the appropriations rider does
not bar the pending federal prosecution against the defendants.9
IV.
Bilodeau also raises two more traditional issues of
criminal procedure -- a request for a Franks hearing and a motion
to suppress. Bilodeau argues that the search-warrant affidavit
for both his home and 230 Merrow Road was intentionally or
recklessly misleading because it did not state that Bilodeau was
a licensed marijuana caregiver who managed a grow site that passed
inspection. And he argues that the government lacked probable
cause to search his home in connection with any suspected criminal
activity.
We normally do not review the denial of a criminal
defendant's interlocutory motions prior to the entry of final
judgment. See United States v. Cunningham, 113 F.3d 289, 295 (1st
Cir. 1997). Bilodeau points to an exception sometimes referred to
as "pendent appellate jurisdiction" that is applicable when
(1) "the pendent issue is inextricably intertwined with the issue
conferring the right of appeal" or (2) "review of the pendent issue
9Suffice it to say, nothing in this opinion suggests that fact-finding by the district court in this challenge to government spending will be preclusive or even admissible in any ensuing criminal trial. We affirm only that these prosecutions may proceed unimpeded by the rider; whether the defendants are guilty as charged beyond a reasonable doubt remains to be proven in ordinary course.
- 23 - is essential to ensure meaningful review of the linchpin issue."
Limone v. Condon, 372 F.3d 39, 50–51 (1st Cir. 2004); cf. Swint v.
Chambers Cnty. Comm'n, 514 U.S. 35, 50–51 (1995) (leaving open the
question of "whether or when it may be proper for a court of
appeals, with jurisdiction over one ruling, to review,
conjunctively, related rulings that are not themselves
independently appealable"). He insists that the district court's
suppression and Franks rulings are inextricably intertwined with
the motion to enjoin because those rulings shaped the record
considered by the district court in assessing the bona fides of
his medical marijuana business.
Bilodeau's claim of intertwinement presumes that a
finding in his favor on his motion to suppress evidence gathered
pursuant to the challenged search would also bar use of that
evidence in deciding whether the appropriations rider precludes
his prosecution. Neither party cites any precedent directly
bearing on this presumption. As the government points out,
however, the exclusionary rule is rarely if ever applied outside
the context of a criminal trial. Grand juries, for example, can
consider evidence gathered in an illegal search. See United States
v. Calandra, 414 U.S. 338, 350–52 (1974). The exclusionary rule
embodies no "personal constitutional right," Stone v. Powell, 428
U.S. 465, 486 (1976); rather, it is employed to deter police
overreaching by denying the government the ability to prove guilt
- 24 - in a criminal proceeding, see Hudson v. Michigan, 547 U.S. 586,
591 (2006). The rule serves as a "last resort, not our first
impulse." Id.
Here, the issue giving rise to appellate jurisdiction
concerns the DOJ's compliance with a limitation in an
appropriations bill. We see nothing about the nature of such an
issue that would require a court assessing that issue to close its
eyes to otherwise competent evidence that even a grand jury could
consider. For that reason, resolution of Bilodeau's Fourth
Amendment challenge to the search of his home and warehouse could
have no effect on the resolution of the supposedly intertwined
question raised in this appeal. We therefore decline his request
to entertain now his challenge to the district court's denial of
his suppression motion and request for a Franks hearing.
For the foregoing reasons, we affirm the denial of the
defendants' motions to dismiss or enjoin their prosecutions and
dismiss as premature Bilodeau's appeal of the denial of his motion
to suppress and his request for a Franks hearing.
- Concurring Opinion Follows -
- 25 - BARRON, Circuit Judge, concurring. I join the
majority's opinion because I agree that, on this record, the
federal prosecution of these defendants would not "prevent" Maine
from "implementing" its laws permitting the sale and use of medical
marijuana. See Consolidated Appropriations Act, 2019, Pub. L. No.
116-6, § 537, 133 Stat. 13, 138 (2019). As the majority explains,
the record "amply supports the finding" that the District Court
made for the purpose of determining whether the federal rider
applies that the defendants were engaged in an operation "aimed at
supplying marijuana to persons known not to be qualifying
patients." Maj. Op. 21. And, as the majority points out, Maine's
own medical marijuana regulations expressly provide that when an
individual "is convicted of selling, furnishing, or giving
marijuana to a person who is not" a qualifying patient, that
constitutes "[g]rounds for revocation" of that individual's
license to grow and distribute medical marijuana. 10-144-122 Me.
Code R. § 10.5.1 (2016); see also Me. Rev. Stat. tit. 22,
§ 2422(13) (2016).
True, Maine makes a "convict[ion]" for the conduct
described above the ground for revoking a license to participate
in the medical marijuana market. 10-144-122 Me. Code R. § 10.5.1
(2016). But, I am persuaded that a federal prosecution of conduct
that Maine defines to be (when successfully prosecuted) conduct
that warrants license revocation in no way "prevent[s]" the state
- 26 - from "implementing" its own medical marijuana laws. Consolidated
Appropriations Act, 2019 § 537. Cf. United States v. Evans, 929
F.3d 1073, 1077 (9th Cir. 2019) (looking "to the state
law's substantive authorizations, not to the procedural rules that
give practical effect to the state's medical-marijuana regime" to
determine whether the rider bars federal prosecution).
I also agree with the majority's reasons for not applying
the standard that the government asks us to apply here, which the
government dubs a "strict compliance" standard. The
appropriations rider, given its text and history, is hard to square
with that standard, insofar as it would permit the federal
prosecution of a defendant who holds a state-conferred license to
participate in the medical marijuana market for conduct that could
not lead under that state's law to the revocation of that license.
I do note, though, that although the government purports
to borrow this "strict compliance" standard from the Ninth Circuit,
it is not clear to me that the government is being faithful to the
standard as the Ninth Circuit articulated it. The Ninth Circuit
applied the standard bearing the "strict compliance" name in cases
that involved a very different factual context from this one. None
of the defendants in those cases had shown that they held a state-
provided license to sell or use medical marijuana at the time of
- 27 - their federal prosecutions.10 Moreover, those cases turned on the
strength of the defendants' showing that they would have been able
to avail themselves of an affirmative defense to criminal
prosecution under state law if they had been prosecuted in state
court for the alleged involvement in the sale and use of medical
marijuana that grounded their federal prosecutions.11 Thus, it may
well be that, once that difference in context is accounted for,
the legal standard that we apply here pursuant to the federal
appropriations rider is not materially different from the one that
10 See, e.g., United States v. McIntosh, 833 F.3d 1163, 1169 (9th Cir. 2016) (describing various defendants including some defendants that "ran four marijuana stores" without discussing whether the state had formally licensed or otherwise sanctioned the defendants' conduct and remanding for an evidentiary hearing); United States v. Lynch, 903 F.3d 1061, 1075-78, 1086 (9th Cir. 2018) (explaining that the defendant "'does not dispute the government's assertion that he made no attempt to operate as a classic collective'" as permitted by a "California statute [] allowing medical marijuana collectives"); United States v. Evans, 929 F.3d 1073, 1078 (9th Cir. 2019) ("The district court found that Evans and Davis were not qualifying patients [under Washington law], and we agree. During the hearing, neither defendant introduced a 'green card' . . . and neither called a physician witness to testify to prescribing marijuana to Evans or Davis."); United States v. Gloor, 725 F. App'x 493, 495 (9th Cir. 2018) ("Gloor did not present the required paperwork upon request as required to satisfy the affirmative defense."); see also United States v. Trevino, 7 F.4th 414, 420 (6th Cir. 2021) (applying the Ninth Circuit's "strict compliance" standard in a case in which the defendant "'could never have been licensed' as a caregiver because he had a prior felony conviction" that disqualified him from such a license) (citing Mich. Comp. Laws § 333.26423(k)). 11 See, e.g., Evans, 929 F.3d at 1076 (citing Wash. Rev. Code § 69.51A.043 (2013)); Gloor, 725 F. App'x at 495 (citing Wash. Rev. Code §§ 69.51A.085 (2012), 69.51A.040(2)-(4) (2008)); Trevino, 7 F.4th at 422-23 (citing Mich. Comp. Laws § 333.26428).
- 28 - the Ninth Circuit applied, notwithstanding that the government's
proposed "strict compliance" standard is untenable for all the
reasons that the majority convincingly sets forth.
- 29 -