United States Court of Appeals For the First Circuit

No. 19-2292

UNITED STATES,

Appellee,

v.

BRIAN BILODEAU,

Defendant, Appellant.

No. 20-1034

UNITED STATES,

Appellee,

v.

MR, LLC,

Defendant, Appellant.

No. 20-1054

UNITED STATES,

Appellee,

v.

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"),

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.

(5) (2016).3 Under these conditions, a

"[q]ualifying patient,"

§ 2422(9), was permitted to

"[d]esignate one primary caregiver . . . to cultivate marijuana

for the medical use of the patient,"

-A(1)(F) (2014). A primary caregiver was only authorized to

assist a maximum of five qualifying patients.

§ 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."

(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.

§ 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);

.2 (2013). For

each patient, the primary caregiver could also have "up to 12

female nonflowering marijuana plants,"

.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,

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,"

§ 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.;

-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

-

A(2)(H) (2014);

(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."

-A(7)

(2014);

(2013).

- 5 - Primary caregivers were permitted to "[r]eceive

reasonable monetary compensation for costs associated with

assisting a qualifying patient."

-A(2)(D) (2014). And they could "[e]mploy one person to

assist in performing the duties of the primary caregiver."

§ 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),

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,"

§ 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,

(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,

,

, 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,

(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,

. Of course, that is plainly not what is at issue here.

- 7 - Parigian,

(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

(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,

(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

(a)(1).6 We agree.

Typically, appellate review must wait "until after

conviction and imposition of [a] sentence." Midland Asphalt Corp.

v. United States,

(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,

, 1172–73 (9th Cir. 2016), or as a collateral order,

Cohen v. Beneficial Indus. Loan Corp.,

(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,

(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,

, 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

(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,

.

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

; see also United

States v. Evans,

(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,

)) (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.;

-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.,

(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]."

(2013). Accordingly, convicting someone under

(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,

(2008); Evans,

(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,

(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,

, 50–51 (1st Cir. 2004); cf. Swint v.

Chambers Cnty. Comm'n,

, 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,

, 350–52 (1974). The exclusionary rule

embodies no "personal constitutional right," Stone v. Powell,

(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,

(2006). The rule serves as a "last resort, not our first

impulse."

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.

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 -

- 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,

,

, 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.

(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.

(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,

(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,

(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,

(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,

(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,

, 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,

(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

(k)). 11 See, e.g., Evans,

(citing

.51A.043 (2013)); Gloor, 725 F. App'x at 495 (citing

.51A.085 (2012), 69.51A.040(2)-(4) (2008)); Trevino,

-23 (citing

).

- 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 -