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United States v. Daniels

United States District Court, D. Maine

December 20, 2019

UNITED STATES OF AMERICA,
v.
RICHARD DANIELS, et al., Defendants.

          ORDER ON DEFENDANTS' MOTION RE: DISMISSAL OF COUNTS 12 & 13 (ECF NO. 402)

          George Z. Singal, United States District Judge.

         Before the Court is the Motion to Dismiss by Defendants Brian Bilodeau & Brian Bilodeau LLC (together, the “Bilodeau Defendants”) (ECF No. 402). For reasons stated herein, the Court DENIES the Motion.[1]

         I. BACKGROUND[2]

         Via the Motion to Dismiss, the Bilodeau Defendants ask this Court to dismiss two specific counts of the Superseding Indictment: (1) Count 12, in which Bilodeau, along with co-defendant MR, LLC, is charged with the manufacture of more than 100 marijuana plants in violation of 21 U.S.C. § 841(b)(1)(B), and (2) Count 13, in which Bilodeau is charged with possession with intent to distribute more than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(b)(1)(C). These charges stem from the February 27, 2018 execution of two search warrants; the first on Bilodeau's residence, located at 72 Danville Corner Road, Auburn, Maine, and the second on a warehouse containing a state-sanctioned medical marijuana production, which was located at 230 Merrow Road, Auburn, Maine. As the Government has acknowledged, it has kept only “representative samples” of the marijuana seized from these locations on February 27, 2018; the remainder of the seized marijuana was “transported . . . to an incineration facility where it was destroyed.” (Gov't Response (ECF No. 496), PageID # 1491.)

         Defendants argue that this destruction should lead to the dismissal of Counts 12 and 13. Defendants support their Motion with the affidavit of Hillary Lister (ECF No. 402-1), who is “an expert [in the] cultivation and preparation of marijuana for medical use by caregivers and patients in Maine.” (Id., PageID # 1201.) Lister opines that if the destroyed marijuana had been preserved she would be better able to determine whether Bilodeau's possession complied with the various limits on weight and plant maturity associated with Maine's medical marijuana program. (See id., PageID #s 1221-22.)

         II. LEGAL STANDARD

         “[A] defendant has a due process right to request and receive evidence that the government possesses which is material to his guilt or punishment.” United States v. Femia, 9 F.3d 990, 993 (1st Cir. 1993). The First Circuit has recognized “a tripartite test to determine whether a defendant's due process rights have been infringed by law enforcement's failure to preserve evidence.” Id. First, the Court must consider whether the evidence in question was “material exculpatory evidence” or “potentially useful evidence” at the time it was destroyed. Illinois v. Fisher, 540 U.S. 544, 549 (2004) (internal quotations and citations omitted). Second, the Court must determine whether the evidence was destroyed in “bad faith, ” as compared to destroyed by officers “acting in good faith and in accord with their normal practice.” Arizona v. Youngblood, 488 U.S. 51, 56, 58 (1988) (“[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”); California v. Trombetta, 467 U.S. 479, 488 (1984) (“In failing to preserve breath samples for respondents, the officers here were acting in good faith and in accord with their normal practice.”) (internal citations and quotations omitted). Finally, the Court must consider what the First Circuit has termed, “the irreplaceability requirement.” Olszewski v. Spencer, 466 F.3d 47, 58 (1st Cir. 2006) (holding that “proof of irreplaceability is required in both apparent and potential exculpatory evidence cases”). In other words, whether a defendant has shown that “he was unable to obtain comparable evidence by other reasonably available means.” Id. at 59 (internal quotations omitted).

         III. DISCUSSION

         Based on the pretrial record currently before the Court, the Court concludes that Defendants have not established an affirmative answer to any of the three just-described inquiries; thus, they are not entitled to pretrial dismissal of the specific charges in question.

         A. The destroyed marijuana was not materially exculpatory.

         First, the Court readily concludes that the destroyed marijuana evidence was only “potentially useful” evidence at the time of its destruction. As an initial matter, Defendants essentially admit that the destroyed material in fact contained marijuana, which remains a Schedule I controlled substance that may not be legally manufactured or distributed under 21 U.S.C. § 841(a).[3] See 21 U.S.C. § 812(c)(c)(10). However, Defendants argue the unpreserved evidence would establish their status as caregivers growing marijuana in accordance with the laws and rules then governing Maine's medical marijuana program. In Defendants' view, once caregiver status is established they are eligible for protection under the Rohrabacher Amendment and, alternatively, may establish a public authority defense.

         To the extent Defendants argue that the destroyed marijuana evidence would have been relevant and helpful in establishing their request for injunctive relief under the Rohrabacher Amendment, the Court has determined after a full evidentiary hearing that Defendants do not qualify for such injunctive relief. Rather, Defendants failed to establish that they were operating in strict compliance with Maine's medical marijuana program regardless of whether the destroyed marijuana was in certain ways compliant with the rules then governing the program. In any event, the Court agrees with the Government that evidence is not materially exculpatory when, at most, it would establish that a defendant's prosecution must be stayed based on an appropriations rider. See United States v. Gentile, 782 Fed.Appx. 559, 562 (9th Cir. 2019) (“[W]hen a criminal defendant seeks to enforce the Congressional appropriations rider prohibiting the use of Department of Justice funds to prevent states from implementing their state medical marijuana laws, the defendant is seeking injunctive relief.”), cert. denied, No. 19-6378, 2019 WL 6257517 (U.S. Nov. 25, 2019); see also United States v. Evans, 929 F.3d 1073, 1077 (9th Cir. 2019); United States v. Washington, 887 F.Supp.2d 1077, 1104 (D. Mont. 2012). (“[I]t is ultimately irrelevant whether [a defendant] intended to comply with the State of Montana's medical marijuana law; such information is not exculpatory.”)

         Turning to the public authority defense, the Court acknowledges that the Bilodeau Defendants and MR have both filed Notices of Intent to Assert the Public Authority Defense (ECF Nos. 413 & 415). Both Notices identify the January 10, 2018 inspection of 586 Lewiston Junction Road, which was conducted by state compliance specialists, as providing the public authority for their marijuana production. As a matter of law, Defendants contend that evidence material to an affirmative defense can qualify as materially exculpatory evidence. (See Defs. Mot. (ECF No. 402), PageID #s 1191 & 1193.) The Court generally agrees with this legal proposition. See, e.g., United States v. Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993) (concluding that the Government engaged in “severe and deliberate” non-disclosure by failing to provide the defendant information that would have “dramatically corroborated” her duress defense); c.f. United States v. Ruiz, 536 U.S. 622, 629-33 (2002) (concluding defendant can waive right to government's required disclosure of evidence related to any affirmative defense).

         However, in the Court's view, Defendants cannot establish that the destroyed marijuana would assist them in establishing a public authority defense. First, as the Government asserts in its Response to Defendants' Notice of Public Authority Defense (ECF No. 499), it is generally accepted that local and state officials with apparent authority cannot provide a basis for a public authority defense to a violation of federal law. See, e.g., United States v. Alvarado, 808 F.3d 474, 484 (11th Cir. 2015) (“[T]he government official on whom the defendant purportedly relied must have actually had the authority to permit a cooperating individual to commit the criminal act in question.”); United States v. Miles, 748 F.3d 485, 489 (2d Cir. 2014) (collecting cases & explaining that courts “have widely and unanimously adopted the rule that a defendant charged with violating a federal crime must show reliance on the advice or authority of federal officials or agents to invoke this defense”); United States v. Sariles, 645 F.3d 315, 318 (5th Cir. 2011) (“[T]he defense of public authority requires the defendant reasonably to rely on the actual, as opposed to apparent, authority of a government official to engage him in covert activity.”) In addition to this legal impediment, no evidence suggests that the Government possessed information that Defendants had a basis for asserting a public ...


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