UNITED STATES v. BRIAN BILODEAU; UNITED STATES v. MR, LLC; UNITED STATES v. TYLER POLAND; TY CONSTRUCTION, LLC; TY PROPERTIES, LLC
Nos. 19-2292, 20-1034, 20-1054
United States Court of Appeals For the First Circuit
January 26, 2022
KAYATTA, Circuit Judge
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.
*
Of the District of Massachusetts, sitting by designation.
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“),
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.
Primary caregivers could possess marijuana solely “for the purpose of assisting a qualifying patient” and then only in certain quantities and forms.
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
Primary caregivers were permitted to “[r]eceive reasonable monetary compensation for costs associated with assisting a qualifying patient.”
While Maine state law permitted certain conduct relating to the medical use of marijuana, federal law, specifically the Controlled Substances Act (CSA),
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.
II.
We next consider the particular circumstances prompting this appeal. We accept the factual findings of the district
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.
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 pаtients 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, federаl 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 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
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 manufacture and possession of mаrijuana with intent to distribute in violation of the CSA and conspiracy to do the same. See
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 marijuаna-related 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
As to Bilodeаu‘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.”
We can safely conclude that by “marijuana” the rider means the same substance described as “marihuana” in the CSA. See
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.
We turn next to deciding under what circumstances a 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
flatly that the court in McIntosh “stressеd 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,”
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
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 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, 833 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 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.,
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.
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].”
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 schemе. 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 road 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
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 sometimеs 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 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 intertwinеment 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 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 supprеssion motion and request for a Franks hearing.
V.
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 -
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
True, Maine makes a “convict[ion]” for the conduct described above the ground for revoking a license to participate in the medical marijuana market.
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 conduсt that could not lead under that state‘s law to the revocation of that license.
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.