As you might have guessed from the title of this post, we are returning to cover new developments in the United States v. Sirois case. A few months ago, the First Circuit released an opinion that we discussed in an earlier post. As we predicted, the Rohrabacher-Farr issues have reappeared, with the Defendants in Sirois now petitioning the United States Supreme Court to grant them certiorari and review the case.

Rohrabacher-Farr Refresher

Just as a reminder, the Rohrabacher-Farr Amendment is an appropriations rider that was first passed in 2014. It bars the DOJ from using government funds to investigate and prosecute state-compliant medical marijuana operations. However, it does not on its face protect individuals who participate in adult-use marijuana operations, even if those operations are legal at the state level. Nor does it suspend the federal Controlled Substances Act. Remember, marijuana cultivation, sales, and use are still illegal under federal law, even in states with medical marijuana programs.

In practice, Rohrabacher-Farr allows state-compliant medical marijuana businesses to operate with much less fear that they will be prosecuted by the federal government. 

Risky Business – United States v. Sirois

Before we head down to D.C., let’s take the third boxcar, midnight train up to our destination: Bangor, Maine. The Sirois Defendants were charged with a number of crimes, including violating the Controlled Substances Act while running their marijuana cultivation and sorting business based in Farmington, Maine. They were accused of, among other things, operating the business as a “collective” in violation of Maine law and facilitating illegal interstate sales of marijuana. Although the DEA initially claimed an even broader multi-drug conspiracy, it seems that the DOJ quickly gave up on proving that most of these people really still deal cocaine.

The trial court dismissed the Defendants’ attempt to enjoin their prosecution based on the Rohrabacher-Farr Amendment. The First Circuit upheld that decision, reasoning that the Defendants failed to show “substantial compliance” with state law and that they were not immune from prosecution due to their “blatantly illegitimate activity.”

Now, the Sirois Defendants have filed a petition for writ of certiorari to the U.S. Supreme Court. The petition seeks to resolve a split between Ninth and Eleventh Circuit precedent and get the Supreme Court to shift the burden of proof — requiring the DOJ to prove that a criminal defendant is noncompliant, rather than forcing the defendant to prove it was in either substantial or strict compliance with state law. The petition previews the Sirois Defendants’ arguments. It reasons that not only were the Defendants in compliance with state law, but that the current state of the law is uncertain, overburdens defendants, and allows the DOJ to overstep and disregard Congressional limits on its power.

We cannot know whether or how the Supreme Court will decide this case. However, given the Circuit split and the current tenor of discussions around executive overreach, this case is ripe for Court review.

Paranoia, Paranoia

Don’t worry, this is not cause for massive alarm. I know most medical marijuana operators out there don’t need to hear this, but we will say it anyway. Everyone is not, in fact, coming to get you. As we said in our last post on this case, we do not believe that Sirois signals mass-scale federal prosecution of state-legal medical marijuana businesses. It is also important to remember, too, that rescheduling may not actually affect the current state of affairs for state-legal operators (although it may make compliance more onerous, with added FDA, DEA, and state pharmaceutical oversight and licensing requirements).

If the Supreme Court grants certiorari, this case will almost certainly clarify the questions that the Sirois Defendants raise. First, state-licensed and authorized medical marijuana operators and patients will better know when the DOJ can criminally investigate and prosecute them for cultivating, distributing, possessing, or using medical marijuana. Second, those same parties will know whether they have the burden to prove they acted in compliance with state law. And third, they will know what they must show to prove that they were actually sufficiently compliant.

If you are still unconvinced, if nothing seems to satisfy you, and you feel like you’ll lose your mind trying to make sure you are following the law, give us a call. Your friends at Bradley are happy to advise you on any regulatory or compliance issues that your cannabis business faces.