Nice try, but no dice

United States v. Bilodeau, No. 19-2292 (1st Cir. 2022)

In this proceeding in the First Circuit Court of Appeals, the defendants — two individuals and three companies who were licensed medical cannabis cultivators — attempted to convince the judges that their previous indictment did not follow the law. Specifically, they argued that the Department of Justice’s prosecution, based on the Controlled Substances Act, was improper due to the Joyce-Blumenauer Amendment appropriations rider — which prohibits the spending of federal funds to prosecute criminal defendants for certain cannabis-related activities.

Although this rider has curtailed the enforcement of cannabis laws against certain state legal medical cannabis programs, it nevertheless has been interpreted to place the burden of proof with the defendant that their activities are in compliance with state cannabis laws. The DOJ had previously alleged that the defendants had engaged in “blatantly illegitimate activity,” and the District Court found that the defendants did not “engage in marijuana-related conduct for the purposes of assisting qualifying patients but instead were part of a “large- scale . . . black-market marijuana operation.”

While allowing that strict compliance with state laws may not be a requirement given how the amendment is written, nonetheless the Court found that the defendants engaged in cultivation, possession and distribution activities “aimed at supplying persons whom no defendant ever thought were qualifying patients under Maine law” including non-patients and out of state purchasers, clearly in violation of Maine law.

Baby steps but steps nonetheless

United States v. Vigneau, 473 F. Supp. 3d 31, 38

While Congress continues to address the MORE Act and other legislative efforts that could provide expungement of prior lengthy cannabis sentences, some courts are making their own moves in the meantime. One recent example of compassionate release comes from the U.S. District Court for the District of Rhode Island.

In 1998, defendant Patrick Vigneau was sentenced to 365 months (over 30 years) in prison — to be followed by five years of supervised release — for engaging in a “continuing criminal enterprise, possessing marijuana with intent to distribute, attempting to possess with intent to distribute, conspiring to distribute marijuana, and conspiring to commit money laundering.” At the time, this was consistent with sentencing guidelijes.

The First Step Act now allows for prison inmates seeking early release to file motions directly with the court, independently of the Bureau of Prisons. Vigneau filed his own petition, and the Court agreed could properly evaluate his request based on whether sentencing statutes had been lowered over the years.

The Court determined that in 2017, the average sentence for cannabis trafficking was twenty-seven months, and 86% of offenders received less than five years imprisonment. Also, if Vigneau was being sentenced today, the only statutory restraint on his sentence would be the twenty-year mandatory minimum sentence for a continuing criminal enterprise. And of course, the Court took notice at how the nation’s position on legal cannabis has changed over the years; although not legal in Rhode Island, the state has since decriminalized cannabis possession — and the list of states with full legalization continues to grow.

The Court held that after Vigneau had spent more than twenty-three years in prison, the factors for extraordinary and compelling circumstances weighed in favor of granting him compassionate release. This case demonstrates how federal policy may already be changing toward those who are serving long prison sentences for cannabis offenses.

Weed for workers

Matter of Quigley v. Vill. of E. Aurora, 2021 NY Slip Op 01174, 193 A.D.3d 207, 142 N.Y.S.3d 636 (App. Div. 3rd Dept.)

Does an employer have to provide reimbursement for medical cannabis as part of a workers compensation claim? In New York State, the answer is yes — in the case of a NYPD officer who was in chronic pain from work-related injuries.

The officer was experiencing severe upper right extremity pain which, according to his physician, impacted his ability to perform the activities of daily living: driving, bathing, dressing and performing household chores. Prior treatments including injections, physical therapy and a home exercise program had not produced acceptable therapeutic results. So the physician submitted a variance form requesting authorization to use medical cannabis to treat the chronic pain from these work-related injuries.

Although the employer balked when the variance was granted, the Court made it clear that “No reference is made in the text of the statute to an exemption from coverage under the Workers’ Compensation Law. If the Legislature intended for said exemption to apply to workers’ compensation insurance carriers, it certainly could have included such language in the text of the statute; it chose not to.” The ruling also made note that medical cannabis not only has been shown to treat chronic pain, but also reduces the need for habit-forming opiates.

In conclusion, the Court ruled that, “pursuant to Workers’ Compensation Law § 13 (a), the employer is liable “for the payment of the expenses of medical, dental, surgical, optometric or other attendance or treatment, nurse and hospital service, [and] medicine . . . for such period as the nature of the injury or the process of recovery may require.” Other states are taking notice, and expected to make similar rulings.

LAWYER JOKE OF THE DAY

An attorney was working late one night in his office when, suddenly, Satan appeared before him. The Devil made him an offer. “I will make it so you win every case that you try for the rest of your life. Your clients will worship you, your colleagues will be in awe, and you will make enormous amounts of money. But, in return, you must give me your soul, your wife’s soul, the souls of your children, your parents, grandparents, and those of all the your friends.” The lawyer thought about it for a moment, then asked, “But what’s the catch?”