United States v. Bilodeau

24 F.4th 705

UNITED STATES, Appellee,

v.Brian BILODEAU, Defendant, Appellant.

United States, Appellee,

v.MR, LLC, Defendant, Appellant.

United States, Appellee,

v.Tyler Poland; Ty Construction, LLC ; Ty Properties, LLC, Defendants, Appellants.

No. 19-2292

No. 20-1034

No. 20-1054

United States Court of Appeals, First Circuit.

January 26, 2022

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.

Before Kayatta, Barron, Circuit Judges, and O'Toole,^* District Judge.

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 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 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).

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 contraband for any purpose." Gonzales v. Raich, 545 U.S. 1, 27, 125 S.Ct. 2195, 162 L.Ed.2d 1 (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. 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.

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 agents seized significant quantities of...