Interlocutory appeals—appeals from orders of the trial court prior to a final decision on the merits of the case—are not typically permitted. In the federal courts, such appeals are exceedingly rare. Yet, some recent case law relating to federal prosecutions that may come into conflict with state medical-use cannabis laws, may remind practitioners of the standards under which such appeals might be permitted.
While many states have legalized both medical and recreational cannabis, the possession of cannabis remains illegal under the federal Controlled Substances Act. As part of its annual appropriations bills, however, Congress has attached a rider each year since 2015 that prohibits the Department of Justice from using appropriated federal funds to prevent any of the states “from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Thus, recent prosecutions of people involved in state medical-cannabis businesses has focused attention on the question of whether those prosecutions interfere with or prevent the states from the implementation of their own medical-cannabis laws.
In United States v. Bilodeau in the First Circuit, the defendants grew cannabis in connection with a facially valid state medical-cannabis operation in Maine. Yet, the defendants were charged in a federal indictment with knowing and intentional violation of the Controlled Substances Act. The defendants sought an injunction prohibiting the use of federal funds to prosecute them, based on the Congressional appropriations rider. The district court denied the injunction. The defendants filed an interlocutory appeal. United States v. Bilodeau, 24 F.4th 705 (1st Cir. 2022).
The federal courts are courts of limited jurisdiction. Thus, the initial inquiry is typically whether the court even has jurisdiction to hear the case or the appeal. Normally, appellate review in criminal cases is not permitted “until after conviction and imposition of sentence.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989). However, interlocutory review may, rarely, be available where the order in question is a “collateral” order. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). This inquiry requires that three factors or elements be true:
Midland Asphalt, 489 U.S. at 798-99.
The court in Bilodeau noted that the issue raised by the defendants’ request for injunction was not the prosecution itself, “but rather the use of federal funds in a manner that prevents the implementation of Maine’s medical marijuana laws.” Bilodeau, 24 F.4th at 712. Once those funds are spent, they cannot be unspent. As such, the defendants stood “as parties with a particularly concrete interest in seeing a congressional spending ban vindicated.” The court therefore concluded that the injunction denial was a collateral order that could be reviewed on an interlocutory basis.
The rationale for that conclusion, though not explicitly stated in the Bilodeau decision, was addressed in more detail in a similar case cited in Bilodeau from the 9th Circuit. Under the U.S. Constitution it is “the exclusive province of Congress” to formulate legislative policies, mandate programs, and establish their relative priority. United States v. McIntosh, 833 F.3d 1163, 1172 (9th Cir. 2016). Having done so, it is the courts’ obligation to enforce those legislative priorities when enforcement is sought. Thus, criminal defendants may seek to enforce the legislative rider that prohibits the expenditure of federal funds where such spending may prevent the states from implementing their own medical-cannabis laws.
While successful, repeatedly, in asserting a right to interlocutory appeal on this issue, criminal defendants should not be too encouraged. In both Bilodeau and McIntosh, the result of the appeal was not dismissal of the prosecutions. In McIntosh, the court of appeals remanded the case to the district courts for evidentiary hearings on whether the defendants had completely and strictly complied with the state medical-cannabis law; if not, the defendants would be subject to federal prosecution, regardless of the spending rider. In Bilodeau, the court of appeals analyzed the merits of the prosecution and concluded that the defendants were not entitled to an injunction or dismissal of the prosecution. Bilodeau, 24 F.4th at 717.
