Substances Act, they argued, exceeded Congress’ authority under the Commerce Clause as
applied to their purely intrastate, non-commercial use of the drug, which they relied upon to treat
their serious medical conditions. The Supreme Court upheld the Controlled Substances Act as a
valid exercise of Congress’ Commerce Clause authority.?” Relevant here, the Court emphasized
Congress “designate{d] marijuana as contraband for any purpose; in fact, by characterizing
marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable
medical uses.””*

The Supreme Court’s interpretation of the Controlled Substances Act compels we
conclude Mr. Bey may not use medical marijuana under federal law. A Pennsylvania statute or
policy to the contrary cannot override a conflicting federal statute, as “[t]he Supremacy Clause
unambiguously provides that if there is any conflict between federal and state law, federal law

shall prevail.”

We therefore join what Judge G. Michael Harvey has described as “the chorus” of federal
courts around the country concluding a federal supervisee’s state-authorized possession and use
of medical marijuana violates the terms of federal supervised release.*° For example, in United
States v. Schostag, the United States Court of Appeals for the Eighth Circuit held this past July a
“district court ha[s] no discretion to allow [a supervisee] to use medical marijuana while on
supervised release.”*! The United States Court of Appeals for the Ninth Circuit reached the
same conclusion.” The Honorable Royce C. Lamberth of the United States District Court for
the District of Columbia in two recent decisions adopted Judge Harvey’s analysis and concluded
“Defendants under federal supervision are prohibited from using medical marijuana even if that

use is in compliance with D.C. law or the law of any other state.”*


marijuana law, the distribution of marijuana remains illegal under federal law.””) (quoting United
States v. Dinh, 194 F. Supp. 3d 353, 356-57 (W.D. Pa. 2016)); Dinh, 194 F. Supp. 3d at 356-58
(rejecting argument Pennsylvania’s legalization of medicinal marijuana required grant of habeas
relief from federal drug conviction).

38 219 F. Supp. 3d 183 (D.D.C. 2016).
3° 228 F. Supp. 3d 57 (D.D.C. 2017).

° Parker, 219 F. Supp. 3d at 189. We are mindful our Court of Appeals has acknowledged “by
its terms, [18 U.S.C.] § 3583(e)(3) does not include a scienter requirement.” United States v.
Jones, 133 F. App’x 824, 826 (3d Cir. 2005). Our Court of Appeals’ discussion of scienter in
Jones arose on appeal from the district court’s revocation of supervised release. Our Court of
Appeals noted under the circumstances of the case it “need not dwell on the willfulness of the
violation, however, because the District Court was entitled to disbelieve [the supervisee’s]
contention that he did not know he had to report to the probation office.” Jd. We, by contrast, do
not find Mr. Bey’s account incredible.

"' Bagdy, 764 F.3d at 290.

® United States v. Murray, 692 F.3d 273, 280 (3d Cir. 2012) (citation and internal quotation
marks omitted).

* Schostag, 895 F.3d at 1027.
4 Parker, 219 F. Supp. 3d at 189.

“ ECF Doc. No. 1185.

46 Mr. Bey does not argue, and nothing in our opinion today concerning a deferred modification
of Mr. Bey’s supervised release, addresses the affect of existing legislation restricting the United
States Department of Justice from using certain funds to pursue individual prosecutions of
possessing and using medical marijuana under the Controlled Substances Act. See Consolidated
Appropriations Act, 2017, Pub. L. No. 115-31, § 537, 131 Stat. 135, 228 (2017); see also United
States v. Nixon, 839 F.3d 885, 886-87 (9th Cir. 2016) (per curiam) (citing Consolidated
Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015)).

10


Administrative Office of the United States Courts, which is not authority from this Court
sufficient to put Mr. Bey or other federal supervisees on notice to allow them to “freely choose
between compliance and violation.”*!

While we take seriously our obligation to ensure supervisees comply with the terms of
supervised release, we must be equally mindful “the primary purpose of supervised release is to
facilitate the integration of offenders back into the community rather than to punish them.” In
United States v. Schostag, the United States Court of Appeals for the Eighth Circuit recently
affirmed the district court’s modification of supervised release based on the illegal use of
medical marijuana but deferred the modification for two weeks to allow the citizen time to find
“alternative means to address his chronic pain.” “ Because we find Mr. Bey “did not appreciate
that his use of [P.A.]-sanctioned medical marijuana was a violation of his release conditions,”*
we find, as in Schostag, immediately modifying Mr. Bey’s terms of supervised release would
serve no productive purpose nor would it protect the public. We defer the effective date of home
detention for thirty days of Mr. Bey’s supervised release without prejudice to the United States
seeking revocation if Mr. Bey, now instructed on his obligations, continues to use medical
marijuana or otherwise violate the terms of his supervised release.

IM. Conclusion

In an accompanying Order, we granted the United States’ motion to modify the terms of
Mr. Bey’s supervised release for a period of thirty days of home confinement.** Using,
possessing and distributing marijuana—even medical marijuana permitted by Pennsylvania

6 But given his demonstrated confusion and absence of clear

law—violates federal law.“
direction from a Pennsylvania federal court in the criminal context after the Commonwealth

permitted doctors to prescribe medical marijuana, we will defer the home detention for a period


B. We decline to immediately modify Mr. Bey’s supervised release.

We nonetheless decline to immediately modify Mr. Bey’s supervised release. We will
allow Mr. Bey thirty days to show he has not used marijuana through testing and fourteen days to
obtain a doctor-prescribed prescription protocol to address Mr. Bey’s pain management.

Our Court of Appeals has “repeatedly expressed concern that conditions of supervised
release be sufficiently clear to enable individuals on supervised release to freely choose between
compliance and violation.”** Judge McLaughlin’s terms of supervised release, as defined in
2006, could not contemplate the advent of state-approved use of marijuana.

Mr. Bey could have reasonably and in good faith read the terms of his supervised
release—which prohibits him from using any controlled substance “except as prescribed by a
physician”*>—as allowing his prescribed marijuana use in these limited circumstances. Mr. Bey
also acted on the advice of his doctor and attorney, who reportedly conveyed to him “under the
PA Marijuana Program it was ok for [him] to use marijuana for pain management.”*° Mr. Bey’s
and his attorney’s interpretation, although incorrect, would not have been unreasonable, as it
appears our court has yet to resolve this question until today.>”

Under similar circumstances Judge Lamberth in United States v. Parker®® and United
States v. Johnson,? adopted Judge Harvey’s thorough reports and recommendations and
declined to revoke the supervisees’ terms of supervised release. The supervisees in Parker and
Johnson used marijuana prescribed by their doctors in compliance with District of Columbia law.
Judge Lamberth found the supervisees’ use of medical marijuana was “not a willful violation” of
the terms of supervised release, adopting Judge Harvey’s analysis which found it relevant “no
judge from this District has previously addressed the issue in a published decision." We find

ourselves similarly situated. We give substantially less weight to a 2009 opinion of the


"9 Id. at 486-87.

°° Id. at 487.

2g

2 Id at 488.

23 Tq at 488 (citation and internal quotation marks omitted).

4 Td, at 491.

25 Td. (quoting 21 U.S.C. § 812).

6 545 U.S. 1 (2005).

°7 Id, at 27-33.

°8 Id. at 27.

9 Td. at 29.

3° United States v. Johnson, 228 F. Supp. 3d 57, 62 (D.D.C. 2017).

3! United States v. Schostag, 895 F.3d 1025, 1028 (8th Cir. 2018).

32 See United States v. Harvey, 659 F.3d 1272 (9th Cir. 2011) (adopting the district court’s
reasoning), aff’g, United States v. Harvey, 794 F. Supp. 2d 1103 (S.D. Cal. 2011) (concluding
supervisee who used medical marijuana violated condition of supervised release requiring he

“[r]efrain from unlawful use of a controlled substance”).

33 United States v. Johnson, 228 F. Supp. 3d 57, 58-59 (D.D.C. 2017); United States v. Parker,
219 F. Supp. 3d 183, 184 (D.D.C. 2016).

34 United States v. Bagdy, 764 F.3d 287, 290 (3d Cir. 2014).

35 ECF Doc. No. 808 at 3 (emphasis added).

°° ECF Doc. No. 1180 at 2.

37 Pennsylvania federal courts addressing the interplay between Pennsylvania-sanctioned medical
marijuana use and the Controlled Substances Act have not done so in the context of federal
supervised release. See, e.g., PharmaCann Penn, LLC v. BV Dev. Superstition RR, LLC, 318 F.

Supp. 3d 708, 712 (E.D. Pa. 2018) (noting, in the context of analyzing federal jurisdiction over a
deed dispute, “‘[d]espite the Commonwealth of Pennsylvania’s enactment of its medical


IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION
v. : NO. 04-269-5
DAWUD BEY :
MEMORANDUM
KEARNEY, J. October 25, 2018

Pennsylvania Law now allows medical providers to prescribe marijuana as a pain
treatment. As we learned during a hearing on the United States’ request to modify the terms of a
citizen’s supervised release after he served a long prison term, Pennsylvania’s permission may
confuse some Pennsylvanians as to their ability to use marijuana of any type for any reason
under federal law. At the formerly incarcerated citizen’s request, we held a hearing to address
his confusion. We strongly reminded him the possession, use and distribution of marijuana—
even medical marijuana prescribed by a medical provider under Pennsylvania Law—is illegal
under federal law. After today, neither he, nor any Pennsylvanian, can doubt federal law
preempts Pennsylvania’s limited permission to use and possess doctor-prescribed medical
marijuana. Persons released from prison subject to this Court’s supervised release—as with all
Pennsylvanians—may not use, possess or distribute marijuana under federal law.

But given the citizen’s confusion and the absence of a clear statement from a
Pennsylvania federal court in the criminal context of federal law’s absolute prohibition after the
Commonwealth’s allowance of medical marijuana, we defer modifying the terms of his
supervised release for thirty days so he can prove no further use of a controlled substance and
obtain a prescribed pain treatment protocol not involving controlled substances, including

marijuana. He assured us of no further confusion and he, and others, are now on notice.


of thirty days to allow Mr. Bey to prove he no longer uses a controlled substance and allow a
doctor to prescribe him a pain management protocol which does not involve marijuana or any
other controlled substance. While he may claim confusion before today, Mr. Bey—and others
released from their prison terms but subject to our terms of supervised release—cannot do so

from now on.

' ECF Doc. No. 808, at 1; see also ECF Doc. No. 445.
2 See ECF Doc. No. 808, at 2-3.

3 Id. at 3.

4 Id.

5 Id.

6 ECF Doc. No. 1180, at 1.

"Id.

8 id.

° Id.

10 Id.

"7g at 2.

2 Td.

3 Td; see 35 P.S. § 10231.101 et seq.

'4 Gonzales v. Raich, 545 U.S. 1, 27 (2005).
'S Tq. at 13.

16 1g
'7 Id. at 14 (emphasis added).

'8 532 U.S. 483 (2001).


The Controlled Substances Act contains no exception—express or implied—for
medically-prescribed marijuana, a mandate the Supreme Court made clear in United States v.
Oakland Cannabis Buyers’ Cooperative. 18 In Oakland Cannabis, the United States sued a not-
for-profit Cooperative providing medical marijuana to cooperative-approved patients under
California law.'? The United States argued the Controlled Substances Act prohibits the sale or
use of marijuana—even for medical purposes—despite California’s contrary state law policy.
The United States obtained a preliminary injunction, which the Cooperative then openly violated
“by distributing marijuana to numerous persons.””° The United States, in turn, initiated contempt
proceedings; the cooperative defended their actions on the ground “any distributions were
medically necessary.”' The district court rejected the Cooperative attempt to modify the
injunction to permit medically necessary distributions.”” On appeal, the United States Court of
Appeals for the Ninth Circuit held “the medical necessity defense was a legally cognizable
defense that likely would apply in the circumstances” and remanded.”

The Supreme Court reversed. The Court held implying “‘a medical necessity exception
for marijuana is at odds with the terms of the Controlled Substances Act,” which “reflects a
determination that marijuana has no medical benefits worthy of an exception (outside the
confines of a Government approved research project).”** The Court acknowledged some drugs
“can be dispensed and prescribed for medical use,” but not marijuana; the drug “has ‘no
currently accepted medical use’ at all.””>

The Supreme Court again emphasized marijuana’s contraband status under the Controlled
Substances Act in Gonzales v. Raich.” In Raich, California residents using medical marijuana in
compliance with California law sued the Attorney General and the head of the Drug Enforcement

Administration, seeking to enjoin enforcement of the Controlled Substances Act. The Controlled


and provided three urine samples testing positive for marijuana. He maintains he acted on the
advice of his doctor and attorney. who counseled him “under the PA Marijuana Program it was
ok for [him] to use marijuana for pain management.”!? He claims the differing enforcement by
Philadelphia authorities, Pennsylvania authorities, and United States authorities confused him.
The United States, while exercising restraint and considerable deference given the possible
revocation, expressed doubts regarding the credibility of Mr. Bey’s confusion given he admits
smoking marijuana for several years and the Probation Officer is aware of Mr. Bey’s use of
recreational marijuana. After hearing from Mr. Bey, we find him credible as to his confusion
particularly after the advice of two professionals who should know better under federal law.
Il. Analysis
A. Mr. Bey admits possessing and using marijuana.

Despite a wave of marijuana legalization at the state level, the Supreme Court has held
federal law’s treatment of marijuana is clear: “marijuana [i]s contraband for any purpose; in fact,
by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no
acceptable medical uses.”'* Mr. Bey’s possession and use of marijuana is contrary to federal law
and the terms of his supervised release.

Marijuana is one of many drugs in the United States classified and governed by the
Controlled Substances Act, “a closed regulatory system making it unlawful to manufacture,
distribute, dispense, or possess any controlled substance except in a manner authorized by the
[Act].”"> Congress “categorize[d] all controlled substances into five schedules.”'® Congress
“classified marijuana as a Schedule I drug,” the most restricted designation reserved for drugs
having a “high potential for abuse, Jack of any accepted medical use, and absence of any

accepted safety for use in medically supervised treatment.”!”


I, Background
Dawud Bey plead guilty in February 2005 to conspiracy to manufacture and distribute
cocaine under 21 U.S.C. § 846.! The Honorable Mary A. McLaughlin sentenced Mr. Bey in
2006 to 120 months imprisonment followed by five years of supervised release.? He has
approximately sixteen more months on supervised release. The terms of Mr. Bey’s supervised

oo

release prohibit him from “commit[ing] another federal, state or local crime.”” The sentence

specifically prohibits Mr. Bey from “unlawfully possess[ing] a controlled substance” or
“purchas[ing], possess[ing], us[ing], distribut[ing], or administer[ing] any controlled substance . .
. except as prescribed by a physician.”*

In April 2018, over three years into his five-year term of supervised release, Mr. Bey
reported to the U.S. Probation Office smelling of marijuana.® The Probation Officer asked Mr.
Bey “if he has abused marijuana,” and Mr. Bey admitted he had.’ When Mr. Bey returned to the
Probation Office on June 5, 2018, he presented the Probation Officer with a medical marijuana
prescription he had obtained shortly before the meeting.® Mr. Bey submitted urine specimens to
the Probation Office on June 5, 2018, September 4, 2018, and September 26, 2018. Each tested
positive for marijuana.”

Mr. Bey swore he uses medical marijuana as pain management to relieve chronic pain
suffered over the past few years. ' He testified trying other analgesics but they exhausted him or
otherwise affected his other prescriptions.

The United States sought to modify—not revoke—Mr. Bey’s terms of supervised release
to require he “submit to home detention for a period of 30 days, and comply with the [I]ocation

soll

[mJonitoring requirements as directed by the U.S. Probation Office. Mr. Bey requested a

hearing to contest the petition for modification.'? Mr. Bey does not dispute he used marijuana