THE OKLAHOMA BAR JOURNAL 28 | MAY 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. were charged with conspiracy to manufacture, possession with intent to distribute and actually distribute more than a thousand marijuana plants in violation of 21 U.S.C. §846, 841(a)(1) and 841(b)(1) (A). The government also sought forfeiture of assets. The 9th Circuit held that the defendants had Article III standing to challenge the government’s authority to bring the charges because they could demonstrate concrete, particularized harm from the exercise of federal authority and because private parties are permitted to invoke federalism and separation-of-powers constraints, where “government acts in excess of its lawful powers.”5 Since the defendants contended that the DOJ lacked the authority to expend funds to prosecute violations of the CSA pursuant to the appropriations rider and that their actions were in compliance with the state medical marijuana laws, the 9th Circuit remanded the matter back to the district court with instructions to conduct an evidentiary hearing on the defendants’ compliance with state medical marijuana laws.6 In so doing, the 9th Circuit determined the defendants would need to demonstrate that they “strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana.”7 The 1st Circuit is the only other federal appeals court to have considered the issue as of this publication. In United States v. Bilodeau, the court held that as long as the Rohrabacher-Farr amendment extended through appropriations bills, “the DOJ may not spend funds to bring prosecutions if doing so prevents a state from giving practical effect to its medical marijuana laws.”8 Since the harm alleged by the DOJ’s prosecution was in the expenditure of federal funds in itself and was not limited to the harm of a potential guilty verdict, the appellate court found the matter was ripe for appeal.9 The court declined to adopt the government’s argument for a “strict compliance” reading of the appropriations rider because while it would provide clarity for exactly when an ultra vires government expenditure would be said to have occurred, it would also have an untenable market-chilling effect. This would thwart the purpose of Maine’s medical marijuana laws, reasoning that “the potential for technical noncompliance is real enough that no person through any reasonable effort could always assure strict compliance.” The court gave the example of “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.”10 In other words, a strict compliance interpretation would render the Rohrbacher-Farr amendment practically meaningless. However, the Bilodeau court also declined to adopt the defendant’s interpretation that would bar any federal prosecutions where the defendant simply possesses a state license to partake in medical marijuana activity, determining that “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.”11 Instead, the court adopted an “in-between” approach and looked directly at the conduct at issue, finding that sufficient evidence was presented proving the defendants did, in fact, violate Maine medical marijuana law because, even though they were licensed, they sold marijuana to persons whom they knew were not qualifying patients.12 Ultimately, it was clear the government would need to show more than a mere technical violation of Maine medical marijuana law, but the exact parameters of the requirement remained to be determined on a case-by-case basis. The 1st Circuit considered the issue again two years later in United States v. Sirois and applied a substantial compliance test to the conduct at issue. However, the application of this test was by agreement of the parties, as the government was confident that evidence would satisfy even that more forgiving standard. The defendants were licensed caregivers who were allegedly acting as a collective in violation of Maine law, 22 M.R.S.A. §24300-D.13 The defendants did not dispute the evidence supporting the charges that they physically assisted each other in the act of cultivation, distribution and possession of medical cannabis but argued that any violation of the Maine statutes was “technical.”14 The court rejected that argument and found there was competent evidence that the cannabis products the defendants cultivated and sold ended up on the black market, as opposed to licensed patients. One of the defendants, Alisa Sirois, also did not dispute the evidence but argued that since she was a licensed caregiver and her license was reinstated after a temporary
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