the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court court is in session today's cases will be called as previously announced and the times will be as a lot of the council the st case today is united states versus bryant bilodeau appeal number nineteen to two hundred and ninety two united states versus m r l l c appeal permission i would ask for one minute of rebuttal time yes you may thank you your honor i would like to begin if the court wishes with a discussion of the search and seizure issues that are raised in our brave and among those to begin with the argument that there was an insufficient nexus established in the search warrant affidavit to search seventy two danville corner road which is my client's home the government concedes in its brief that it had no direct evidence of bilodeau conducting drug transactions from the home the government likewise had no direct or indirect evidence they believe those home contained to marijuana when the agents searched the home they were surprised to find that and they had to apply for a nd search warrant to seize it now the district court said that there was probable cause to search villagers home because informants discussed their being a safe in the home and also because bilodeau had quote recently engaged in communications related to marijuana search of the home did any of it play a significant role in the court's determination denying the request for an injunction yes your honor the  significant role both in the district court determination that ability and the other defendants were non compliant it also these alleged ledgers also play an outsized role in the government's do you agree that the burden was on you to show strict compliance assuming that's the test i agree that that is the burden that was assigned by the district court if we accepting that as a premise for the moment why would the ledgers have been relevant to the question about whether the injunction should be issued unless you had a permit of evidence strict compliance so mean i want to answer your honor's question and make sure that i understand it so i will attempt it this way assuming the burden was correctly placed on my clients which of course we contest it was then it incumbent on mr bilodeau to come forward and explain what those documents meant we of course refute the characterization that they were ledgers there are there is that deeply problematic  it requires him to waive his th amendment right to silence and the but secondly it requires him to preview a trial defense because i'm not making the question great right i would have thought what we  is we look at the indictment and we see is the indictment alleging a prosecution or initiating a prosecution for somebody who is not in strict compliance and then if the burden is on you to shows your compliance to stop the prosecution going for you have to put a limit of evidence that the prosecution is targeting somebody who's in strict compliance so forget the ledgers for a nd what's the affirmative able to do that and his and p compliance expert acknowledged that because the points at the warehouse were destroyed but just one last question did he have any  to explain evidence that would have been admissible at trial what he did what he was forced to do by virtue of sort of the conundrum that the burden allocation placed on him was to receive the testimony that came in from the government's witnesses and reply to respond to it as best he could for all of the reasons we set forth in our brief however he should not have been in that position and the burden should have squarely fallen to the government thank state law based on one pipeline to others that was conduct m r under state law was forbidden from observing and had no ability to investigate confidentiality fs other words this in court heard was essentially a possible us it provides to the building non compliant because it's paid with the proceeds of sales if it doesn't go awfully turned out to be not fine in the part of the matter is there's nothing that m r actually did that failed to strictly comply with the relating to medical marijuana that your client is in strict compliance with that this prosecution impedes implementation of so if you're invoking that statute to stop the that space just because he was from marijuana so yes and they are as i understand it they're alleging that that's not what he's being prosecuted for they are alleging that he knew that there was no compliance conduct going on but there was no evidence of any non compliant conduct in a six but that seems like a different argument than an argument that the statute should stand as a bar to prosecution that's an argument that even though the statue is not impeding the implementation of any main law that medical marijuana the thing that they're saying is out of compliance you're saying there's no evidence of that just seems like a different kind of my client knew that this stuff was not compliant my fly by definition could not have figured it out if it was in strict compliance with the law marijuana use mayme that nickel use of marijuana act on its face contending that the regulations are not in fact regulations but merely advisory guidelines and therefore they can rules is the enforcement section and there simply is no one force mint provided under that section of any of the rules set forth in the rules one through nine and rule eleven of what i'll refer to as  p without it and foresman mechanism they cannot be a regulatory scheme now with that said there are several rules which in fact are enforced under the enforcement section those rules do not apply in this situation basically the statute as written or the rules as written leave the growing of marijuana in the possession of marijuana manufacturing and sale o marijuana wide open it simply doesn't address any of those factors if you are a licensed caregiver under the m m m p which all of the individuals in this case work and it was clear that they were growing under the  prosecution now this includes and i understand this is a this is a difficult concept in a way it includes trafficking of marijuana that is grown as medical marijuana and then sold to non patien why is that because the only activity this precluded by the main medical marijuana program is if you've been convicted you know just selling marijuana that you seem to be reading the prosecutions of anybody in that state dealing in marijuana even if it had nothing to do with patients that oh well the rocker amendment as i read it has to do with possession just review sion manufacturing et c those are the four areas that express medical marijuana yes so what i'm saying is you're suggesting to us that a state can define medical marijuana to mean anything i believe the state can define medical marijuana to that i imagine would not be permissible i think isn't it isn't that because we haven't looked at the federal an anathema to determine what medical marijuana is we wouldn't let every state define it every which way they wanted to so i think it leads to the state a good deal of leeway with respect to what how they classify marijuana as medical and in this case they classified it as people getting medical marijuana cards  card holders who then drew medical marijuana distributed to patients or otherwise foresman mechanism only deals with or only violation subject to sanction for cardholders patients and and card holders it does not include that language there is no such thing as a violation of the rules so the only things that are potentially governed with respect to sale of marijuana is if you've been convicted of sale of marijuana you still fall within the rubric of the medical marijuana they refer to it as the quote largely unregulated and free wheeling industry these are very different visions of the m m t and i think it points to the problematic nature of any standard discuss strict compliance is i understand the record there were roughly five thousand pounds a year of marijuana being produced and never isn't any evidence that any of it went to a qualifying patient you do not and the government's position is that under any standard the conduct demonstrated in the compliance hearing was so far out of bounds that the robot amendment does not apply could you just address the revocation point under maine law that's the one that could because i think there's two things going on that are that are confusing me as i understand it all these people had been licensed correct or at least some of them yes t which none of them had had read occasioned orders correct that is correct and under main law at least with respect to certain things the revocation is dependent on there being a conviction correct ok so at least in that sense one might say if you are continuing to operate pursuant to the license you are in compliance with maine law until it's revoked nonetheless if there is no indication that they're dealing with medical marijuana is hard to see how the who or barker amendment stops the prosecution so i wonder whether the issue here is not what the strict compliance test is but what does medical marijuana mean in the wor statute and the regulations well only apply to conduct that is quote expressly authorized by statute and it isn't any is the conduct what about the conduct your if it's done by a license holder does not expressly authorize there's lots that's not expressly authorized and whether or not that unauthorized conduct such as distribution out of state distribution to non patients use of not registered employees none of that is express the authorized by the statute and the rules and therefore not protected by the program the fact that the state has different procedural mechanisms regardless of whether they remain a licensee lentil just ahead of them to do the things they can do under the license correct so your position apparently is that it's not necessary to this case to decide whether the standard is stripped compliance substantial compliance plain compliance but that can be ignored for now because why because by any of those standards the conduct here  not necessary to affirm the district court mr brock just on that point is is the reason for that i'm just trying to figure out what evidence is lacking here on the part of the defendant is it that they have no evidence of the being any legitimate patient retrieved from its marijuana facility indicate large quantities that out of the about that suggest that lots of the conduct is not expressed you're saying none of it and is that because they have no evidence of any patient being legitimate suppose they had evidence of ten legitimate patients and then all the marijuana is destroyed and there's evidence that ninety of the patients were illegitimate that raise a different question and if they have no patients who are legitimate correct there's there's no evidence of legitimate petion cyr there is no evidence that the marijuana that was being grown was distributed for medicinal purposes so there would be a finding by the district court on that specific quote but it's so but so that there is no evidence that the marijuana at issue here was for purposes of was for medical purposes or is distributed for medical that's not quite the argument you made to the district court of because you were focused on a strict compliance point which does seem like a different point then whether regardless of how it tracked the man law under the federal definition of medical marijuana  put it this way take two different cases one you're going after somebody who's selling heroin we wouldn't look at a strict compliant we would just say that's not medical marijuana you  there clearly be owing in medical marijuana but they're not in strict compliance with the state rules about how you sell it in that case the question then becomes does the worm or program a better those are two very different cases this case is arguably like the st case but as i understand the arguments you've made there exclusively treating it as if it's like the nd case yes so let me make sure i understand you so for example if the defendants here were  of growing and distributing to sue license patients no marijuana made medical marijuana statute would allow them to sell purses they're not distributing to medical marijuana patients in the st place this isn't one correct yes i don't i don't think that i don't think we didn't make that argument to the court i think we just made it in the context of is what is the definition of medical marijuana governments are operating on under the rubric remember since it doesn't define it i think we are i think we are t this is not say all medical marijuana they're put on have to get into all the issues about strict compliance in construing the main definition the main rule that would require is to have some definition of the federal statute and what is made up and there are one and so i'm just asking what's the government's view what that definite yes i think i think you simply look to the plain language of the word bachar amendment and and general understanding some definitions of medical marijuana which just as they get was lisa as they were required to wonder maine law and why are they being prosecuted yes thank you look let me address the m r point st which and what i would say about that is m r is a single shareholder company and that single shareholder is kevin dean and therefore kevin dean's conduct on behalf of m r isn't beautiful to the company and in their reply brief m r concedes that the evidence supported an inference that they were participants in a crawford sharing matter marijuana enterprise they tried to argue that there was no evidence that it was an illegal marijuana profit sharing enterprise but there is no such thing as the will marijuana profit sharing enterprise under the m m m p collectives are prohibited and kevin deans knowledge which was support and inference that those the that and more was aware that this was an illegal profiteering enterprise and for the present in no evidence of themselves as a mere landlord typical means such as rent payments from tenants they they rented space to the caregivers they didn't receive any rent credit limits aren't typically paid in profit sharing a compliance test and i suppose the tenant here was running a legit medical marijuana operation but then the landlord into kill a profit sharing as i understand it that's prohibited under the law so you wouldn't have strict compliance with the law but this would be having to do with medical marijuana marijuana that's for a caregiver such as himself he's plainly aware that he is not allowed to share grows and share profits purposes or purposes of the end of what you want to rule here  is the indictment seeking to prosecute him regardless of whether it was medical marijuana or not yes we would be seeking to prosecute more regardless of whether this is considered medical marijuana because that is if it's not medical marijuana then m r is profiting as a corporate partner in the marijuana trafficking operation that violates the controlled substances i guess what i'm saying is if we were to rule that no injunction lies because this is not medical marijuana would that be problematic ruling from the government's perspective because it would leave open the possibility that the prosecution could be enjoined in so far as it was out of the marijuana or was that is that just come up at a later stage in other words are you seeking to prosecute them but cuz there is no evidence that there is medical marijuana involved in its own background or even if they can show it's medical marijuana you're trying to go forward i don't quite know what to think about the indictment i realize you're saying either got to prosecute because you're either not in strict compliance or it's not medical marijuana but in terms of how the prosecution would on old it might be different depending on whether we reject the injunction one ground where the opposed to with respect to particular counts in particular allegations right so that with respect to the marijuana counts that are charged regardless of whether the injunction  but whether either of those reasons but probably just don't think that suggests to me that the prosecution you're trying to see is a prosecution that could go forward only if you could show that there's not strict compliance in my i don't believe so if it's not medical marijuana then we are entitled to prosecute under this law since this prosecution isn't trying to limit itself only t prosecuted i'm afraid that i don't understand the distinction you're trying to draw but you can i think the concern is you can't do it even unintentionally a bait and switch where you defeat an injunction i think so the controlled substances act continues to get it any and all marijuana distribution and the rocker amendment carves out of a very limited safe harbor for defendants who are engaging in conduct that it's expressly authorized by the states for the distribution of medical marijuana once once we pass this p thing whether the government's theory is that it is a violation of the medical marijuana provisions under me law or whether it is not part of the medical marijuana  standard has been applied not only by th circuit district courts but also rd in six circuit district courts without difficulty and so yes when defendants in gauging conduct that is corporations and sophisticated means money laundering to protect their profits and the and the warrant for belittles residents the st one dollar was for documents was for tax records  eged it it is there was certainly probable cause to believe that he would have financial records relating to his incredibly expensive vehicles that he owned with respect to other businesses that he might be using to launder money his personal tax records and so so on that basis alone there was probable cause to search his residence thank you again you many more questions f the search warrant affidavit presented to the magistrate the government's theory is that this is black market marijuana leaving aside the material information that my client was a licensed caregiver and that one of his groups that it was recently inspected by the maine sheriffs association and found to be in compliance this bleeds into i think i have now a better understanding of judge barnes question based on your exchange with mr fairlie what is the evidence of compliance and what the evidence of compliance is that he was a licensed caregiver to his gross site was found to be in compliance and whether this is a strict compliance standard marijuana this goes to judge caddis point about what about heroin but i now we can all recognize marijuana is a legal term of art it is a plant there are parts of it that the law cares about parts of it  law does not care about now as we explain in a reply brief what does it what does it mean to be a lot what is the state's law well the strict compliance standard again as we explain in our reply brief is limited to and this is the argument the government is pressing simply the text of the m and p as we point out the law has to be much broader this is poland's argument it has to be determined by reference to the noncompliant because of an outdoor grill the main sheriff's association said that the outdoor gro did not render it not in compliance for all of the reasons set forth in our brief including many of which we didn't get a chance to address today determinations to what is medical marijuana and what is not medical if you think about painkillers for example aspirin readily available over the counter oxycontin pretty heavily guarded in these days so they're both medicines there are many other examples of that marijuana can be considered medical for any number of different treatments so i think that it's such a an amorphous term that the states get to define it as they define that a call i'd also like to address briefly the issue of whether there was evidence introduced that there were in fact real patients for the marijuana that was being grown at two hundred and forty nine narrow road  expert witness that testified testified that she located outside of each and every room all of the documentation necessary including patients names plate patients addresses and all of the information disconnect from the hearing at this time