23-1723 United States of America v. Lucas Sirois; Alisa Sirois

United States Court of Appeals
For the First Circuit
Nos. 23-1721
23-1723
UNITED STATES OF AMERICA,
Appellee,
v.
LUCAS SIROIS; ALISA SIROIS,
Defendants-Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Barron, Chief Judge,
Gelpí and Rikelman, Circuit Judges.
Timothy C. Parlatore, with whom Elizabeth Candelario,
Parlatore Law Group, LLP, Eric Postow, and Holon Law Partners were
on brief, for appellant Lucas Sirois.
Ronald W. Bourget, with whom Law Offices of Bourget & Banda
were on brief, for appellant Alisa Sirois.
Benjamin M. Block, Assistant United States Attorney, with
whom Darcie N. McElwee, United States Attorney, was on brief, for
appellee.
October 15, 2024

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BARRON, Chief Judge. In each fiscal year since 2015,
Congress has included in its annual appropriations bill a rider
that provides:
None of the funds made available under this
Act to the Department of Justice may be used,
with respect to any of [an enumerated list of
states and territories, including Maine], to
prevent any of them from implementing their
own laws that authorize the use, distribution,
possession, or cultivation of medical
marijuana.
Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, § 531,
136 Stat. 4459, 4561 (2022). This rider is commonly referred to
as the "Rohrabacher-Farr Amendment."1
Based on this provision, Lucas Sirois and Alisa Sirois
seek to enjoin the United States Department of Justice ("DOJ")
from prosecuting them for offenses related to their cultivation
and distribution of marijuana under the Controlled Substances Act
("CSA"), 21 U.S.C. §§ 801-904. The defendants do so on the ground
that the conduct for which the DOJ investigated and indicted them
under the CSA was in "substantial compliance" with the Maine
Medical Use of Cannabis Act (the "Act"), Me. Rev. Stat. Ann. tit.
22, § 2421 et seq.2 That measure, which was enacted in 2009, sets
1 The rider is also sometimes referenced as the
"Rohrabacher-Blumenauer Amendment."
2 Because the indictment alleges that the defendants'
violations of the CSA occurred "through at least about July 21,
2020," all citations to provisions of the Maine Medical Use of

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forth conditions under which it is lawful under Maine law to
possess, use, cultivate, and distribute marijuana for medical
purposes.
The United States District Court for the District of
Maine denied the defendants' request for injunctive relief, and
they now challenge the ruling in these consolidated appeals. We
affirm.
I.
We begin by describing the legal landscape -- both state
and federal -- that bears on the issues before us. We then review
the procedural path that led to these appeals.
A.
As relevant here, the Act and its associated regulations
permit, for purposes of Maine law, individuals who participate in
the Maine Medical Use of Marijuana Program ("MMMP")3 as
"caregivers" and caregiver "assistants" to engage in certain
"authorized conduct" "for the purpose of assisting . . .
qualifying patient[s] with the patient[s'] medical use of
marijuana." Id. § 2423-A(2). To participate in the MMMP,
Cannabis Act are to the versions of those provisions that were in
effect as of July 21, 2020. The parties generally refer to the
Act under its original name, the Maine Medical Use of Marijuana
Act. See Me. Rev. Stat. Ann. tit. 22, § 2421 (2009) (amended
2010).
3 The program's name now uses the term "Cannabis" in place
of "Marijuana." 18-691-001 Me. Code R. § 2.

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caregivers and assistants generally must register with and be
licensed by Maine's Office of Cannabis Policy ("OCP").4 See id.
§ 2425-A. The OCP, an office within Maine's Department of
Administrative and Financial Services, is tasked under the Act
with administering the MMMP. Id. § 2422-A; 18-691-001 Me. Code R.
§ 1.
A registered caregiver may pay registered assistants to
perform services related to the cultivation and distribution of
marijuana. Me. Rev. Stat. Ann. tit. 22, § 2423-A(2)(I). A
caregiver may cultivate up to six mature marijuana plants, twelve
immature marijuana plants, and unlimited marijuana seedlings on
behalf of each qualifying patient who has designated the caregiver
as the patient's caregiver. Id. § 2423-A(1)(B). No caregiver may
cultivate more than thirty mature plants or more than sixty
immature plants at any one time. Id. § 2423-A(2)(B).
Caregivers who are authorized to cultivate marijuana on
behalf of at least one qualifying patient are required to keep
their cultivated marijuana plants in a "cultivation area" unless
the plants are being transported for an authorized purpose. See
id. § 2423-A(3)(B). As part of the OCP registration process, a
caregiver who is authorized to cultivate marijuana is required to
4 The OCP was formerly known as the Office of Marijuana
Policy. See 18-691-001 Me. Code R. § 1.

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disclose to the OCP the location of her cultivation area.
18-691-002 Me. Code R. § 6(H)(1)(c). With limited exceptions, a
cultivation area may only be accessed by the caregiver to whom it
belongs and that caregiver's registered assistants. Me. Rev. Stat.
Ann. tit. 22, § 2423-A(3)(B).
Caregivers may "[r]eceive reasonable monetary
compensation for costs associated with cultivating marijuana
plants or assisting a qualifying patient with that patient's
medical use of marijuana." Id. § 2423-A(2)(E). Caregivers may
also wholesale, in exchange for "reasonable compensation or for no
remuneration," up to 75 percent of the mature marijuana plants and
marijuana products that they produce in any given year to "other
registered caregivers," provided that the receiving caregivers do
"not resell" those wholesaled plants and products "except to a
qualifying patient or to another registered caregiver or
dispensary to assist a qualifying patient." Id. § 2423-A(2)(K-1).
Multiple caregivers are permitted to "operat[e]
separately and occupy[] separate spaces within a common facility"
so long as they "do not share [marijuana] plants or harvested
[marijuana] resulting from the cultivation of those plants." Id.
§ 2430-D(3). Caregivers may "share utilities or common areas"
within that common facility. Id.
Caregivers are expressly prohibited from "form[ing] or
participat[ing] in a collective." Id. § 2430-D. A "collective"

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is "an association, cooperative, affiliation or group of
caregivers who physically assist each other in the act of
cultivation, processing or distribution of marijuana for medical
use for the benefit of the members of the collective." Id.
§ 2422(1-A).
The OCP is responsible for assessing caregivers' and
assistants' compliance with the Act and its associated
regulations. Noncompliance "may result in remedial action" by the
OCP. 18-691-002 Me. Code R. § 10(A)(4). The remedial action that
the OCP may take includes: "directed corrective action;
suspension, revocation and denial of [OCP licensing]; civil
penalties; and referral to the appropriate agency, department or
entity if the conduct is determined to be outside the scope of
MMMP, is not appropriate for agency directed corrective action, or
has not been rectified through correct[ive] action." Id. A
caregiver who "sells, furnishes[,] or gives marijuana to a person
who is not authorized to possess marijuana for medical purposes"
is subject to mandatory license revocation by the OCP and is also
"liable for any other penalties for selling, furnishing[,] or
giving marijuana to a person." Me. Rev. Stat. Ann. tit. 22,
§ 2430-F(2).
B.
Notwithstanding the Act and its associated regulations,
federal law, through the CSA, makes it "unlawful for any person

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knowingly or intentionally to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or
dispense," or possess marijuana. 21 U.S.C. §§ 841(a)(1), 844(a),
802(6) (defining the term "controlled substance" by referring to
drug schedules), 812 sched. I(c)(10) (listing "marihuana" as a
Schedule I controlled substance). Thus, the CSA makes the conduct
permitted by the Act a federal crime.
In United States v. Bilodeau, 24 F.4th 705 (1st Cir.
2022), we addressed -- for the first time in our
Circuit -- "whether and under what circumstances" the
Rohrabacher-Farr Amendment "prohibits the [DOJ] from spending
federal funds to prosecute criminal defendants for
marijuana-related offenses" under the CSA. 24 F.4th at 708.
Following the lead of the Ninth Circuit Court of Appeals in United
States v. McIntosh, 833 F.3d 1163, 1176 (9th Cir. 2016), we
concluded in Bilodeau that, by the terms of the Rohrabacher-Farr
Amendment, "the DOJ may not spend funds to bring prosecutions if
doing so prevents a state from giving practical effect to its
medical marijuana laws." 24 F.4th at 713.
We disagreed with our Ninth Circuit colleagues, however,
as to how to determine "under what circumstances federal
prosecution would prevent [a state] from giving practical effect
to" its medical marijuana laws. Id. We rejected the determination
in McIntosh that "defendants would not be able to enjoin their

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[CSA] prosecutions unless they 'strictly complied with all
relevant conditions imposed by state law on the use, distribution,
possession, and cultivation of medical marijuana.'" United States
v. Evans, 929 F.3d 1073, 1076 (9th Cir. 2019) (emphasis supplied
by the Evans court) (quoting McIntosh, 833 F.3d at 1179). We
reasoned that "the potential for technical noncompliance [with
state regulatory regimes] is real enough that no person through
any reasonable effort could always assure strict compliance," and
that "[t]o turn each and every infraction into a basis for federal
criminal prosecution would upend [state regulatory regimes] in a
manner likely to deter the degree of participation in [state]
market[s] that the state[s] seek[] to achieve." Bilodeau, 24 F.4th
at 713, 714.
At the same time, we rejected in Bilodeau the suggestion
by the defendants there that the Rohrabacher-Farr Amendment "must
be read to preclude the DOJ, under most circumstances, from
prosecuting persons who possess state licenses to partake in
medical marijuana activity." Id. at 714. We reasoned 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." Id.

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Although we announced in Bilodeau our intention to
"chart[] [a] middle course" with respect to the Rohrabacher-Farr
Amendment's application, we had no occasion there to "define its
precise boundaries." Id. at 715. We explained that was so because
the "record [was] clear" that (1) the defendants' efforts to appear
compliant with the Act and its associated regulations were merely
"facades for selling marijuana to unauthorized users" and (2) the
defendants had engaged in a "large-scale . . . black-market
marijuana operation" as a matter of Maine law itself. Id. On
that basis, we affirmed the denial of the requested injunction.
Id.
In other words, we made clear in Bilodeau that a party
who seeks to enjoin their prosecution for an alleged
marijuana-related CSA violation need not demonstrate "strict
compliance" with a state's laws and regulations that make the
possession, cultivation, or distribution of medical marijuana
lawful. Id. at 713. However, we did not attempt to decide
precisely how compliant such a party must have been with such laws
and regulations to be entitled to an injunction pursuant to the
Rohrabacher-Farr Amendment.
C.
On November 9, 2021, a grand jury in the District of
Maine indicted then-estranged spouses Lucas Sirois and Alisa
Sirois, along with several other individuals, for conspiracy to

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distribute and possess with intent to distribute marijuana in
violation of § 841(a)(1) of the CSA.5 Shortly after Lucas Sirois
was indicted, he filed a "Motion to Enjoin Prosecution Pursuant to
the Rohrabacher-Farr Amendment," which Alisa Sirois subsequently
joined.6 The motion contended that, because the defendants'
underlying conduct "[is] and [was] in compliance with" the Act,
the DOJ was subjecting each of these defendants to "an unauthorized
and illegal prosecution of a legal, licensed medical marijuana
business."
The District Court granted the defendants' request for
a hearing on the motion. In a procedural order prior to the
hearing, the District Court determined that the movants bore the
burden of persuasion but that the government bore "the initial
burden of establishing the existence of a substantial evidentiary
basis for both its investigative and prosecutorial decisions."
The District Court then determined that to establish that
evidentiary basis:
[T]he record produced by the government should
be such that a reasonable person might accept
it as adequate to support the conclusion that
5 The indictment also charged Lucas Sirois with conspiracy
to commit money laundering, conspiracy to commit honest services
fraud, bank fraud, tax fraud, tax evasion, and conspiracy to
defraud the United States and impede and impair the IRS. In
addition, the indictment charged Alisa Sirois with bank fraud.
Those charges are not at issue here.
6 This opinion uses the appellants' first names solely for
purposes of clarity.

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the conduct under investigation was not only
violative of federal law but also outside the
bounds of what is authorized by Maine’s
medical marijuana law, such that an
investigation was warranted, and that the
investigation, in turn, revealed evidence that
warranted criminal charges.
The District Court elaborated, based on Bilodeau, that
"the evidence should depict something more than a technical
violation of Maine law." At the same time, the District Court
acknowledged "that the 'precise boundaries'" of that requirement
"are not at present well defined." The District Court also
explained that "[u]pon the government's production of the record,
the burden of persuading the court that the government's
investigation and prosecution were unsubstantiated will fall on
the movants."
The government objected to the procedural order and
argued that "the operative question" should be "whether the
defendants were in fact in substantial compliance with Maine's law
during the time period alleged." (Emphasis omitted). Accordingly,
the government argued that "the court's 'inquiry begins with the
charged conduct,' and it is the defendants' burden to prove their
substantial compliance with Maine law 'at the time of their
arrest.'" (Quoting United States v. Pisarski, 965 F.3d 738,
742-743 (9th Cir. 2020)).
The government also objected to the District Court's
order on an additional ground, arguing that the District Court's

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"administrative law standard [would be] improperly applied here to
a criminal grand jury investigation." The government claimed that
applying such a standard to that investigation would provide "an
invitation to conduct a sweeping review into the origins and
evolution of the investigation that resulted in the instant
prosecution" and would "call[] into question the 'presumption of
regularity' that applies to prosecutorial decision-making."
(Quoting United States v. Armstrong, 517 U.S. 456, 464 (1996)).
Relatedly, the government argued that applying the administrative
standard in the criminal context would be "problematic" because,
in order to meet the standard, the government "must produce
materials to the defendants in advance of the hearing that they
are not entitled to receive until the eve of trial, such as Jenks
material for federal agents who are now obliged to testify, and
the identities of cooperating witnesses who would otherwise
continue to remain publicly anonymous."
The District Court overruled the objection, and the
hearing proceeded under the framework set forth by the District
Court in its order. During the hearing, which was held over the
course of three days in June 2023, the government introduced
documentary evidence and presented testimony from eight witnesses.
The testimony and evidence put forward by the government concerned,
among other things, the operations of a medical marijuana "grow
operation," known as the "Shoe Shop," located at 374 High Street

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in Farmington, Maine. The government witnesses included law
enforcement officials, individuals who had worked at the Shoe Shop,
an OCP official, and an individual who allegedly purchased
marijuana from Lucas Sirois to sell on the black market.
The government witnesses testified that the operations
of the Shoe Shop were directed primarily by Lucas Sirois and that
Alisa Sirois assisted in the administrative operations of the Shoe
Shop. There was also testimony submitted that Alisa Siros split
profits from the sale of Shoe Shop marijuana with Lucas Sirois.
The government also introduced documentary evidence that it
contended supported the testimony concerning the Shoe Shop and the
involvement of Lucas Sirois and Alisa Sirois in its operations.
The government relied on the witnesses' testimony and
the documentary evidence to argue that the Shoe Shop operated,
unlawfully, as a "collective" within the meaning of the Act. In
addition, the government relied on the witnesses' testimony as
well as documentary evidence to argue that Lucas Sirois was
involved in black-market sales of marijuana, in that the sales of
marijuana were not directed to registered patients or caregivers
within the meaning of the Act and its regulations.
Although Lucas Sirois and Alisa Sirois bore the burden
of persuasion at the hearing under the District Court's order,
they did not put on any witnesses of their own. In his motion to
enjoin the prosecution, Lucas Sirois did introduce evidence that

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the OCP, after an "On-Site Assessment," issued a document that
read "No finding of Non-Compliance on this date: 7/8/19." He also
submitted to the District Court two letters: one from
Representatives Rohrabacher and Farr to then-U.S. Attorney General
Eric Holder regarding the proper interpretation of the Amendment,
and another from his counsel to the U.S. Attorney's Office for the
District of Maine detailing his compliance with the Act. He also
submitted a caregiver compliance checklist. In addition, both
Lucas Sirois and Alisa Sirois introduced evidence that they
maintained OCP-provided caregiver registry licenses, along with
documentation that the OCP rescinded its initial decision to
suspend those registry licenses.
Following the presentation of evidence at the hearing,
the parties made closing arguments. The District Court found that
the government had met its burden of production, but that Lucas
Sirois and Alisa Sirois had failed to meet their burden of
persuasion. In explaining its conclusion that the movants had not
carried their burden of persuasion, the District Court reasoned:
The presentation they made at the hearing and
the argument presented in their post-hearing
briefs are designed more to sow doubt as to
the existence of knowledge on their part of
the illegal distribution of Shoe Shop
marijuana by others (in particular
co-defendant Brandon Dagnese) and the failure
of [the OCP] to find them in violation of Maine
regulations during the pendency of the
investigation.

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The District Court then explained that, while such a presentation
might be "effective" at a criminal trial, "it was not sufficient
to demonstrate that either the decision to investigate or the
decision to prosecute lacked a substantial evidentiary basis" or
that either decision "was arbitrary of irrational."7
The District Court acknowledged Alisa Sirois's
"observ[ation] that the Government's presentation did little, if
anything, to justify the grand jury’s indictment of [her] for
participating in a black-market drug distribution conspiracy."
Nonetheless, the District Court explained that it was "not
persuaded that the individual movants enjoy a private right under
the Rohrabacher-Farr Amendment to compel the Government to prove
its case in advance of trial." (Citation omitted). The District
Court further concluded that, "[i]n any event, given the evidence
of both black-market transactions in Shoe Shop marijuana and the
collective nature of the operation . . . the prosecution of Alisa
7 The District Court elaborated that it "d[oes] not believe
that it is necessary or wise for a district court to perform an
analysis that amounts to a constitutional review of each step of
an investigation and prosecution, similar to how it would review
a warrant application or motion to suppress." Continuing, the
District Court explained that it "do[es] not read Bilodeau as
requiring district courts to assess the likelihood of a conviction
and ha[s] instead focused on whether the record demonstrates
conduct by agents of the Department of Justice that, if unchecked,
would prevent a state from implementing its medical marijuana
program, such as through unjustified prosecution of participants
based on technical violations of state laws and regulations."

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[Sirois] . . . does not undermine Maine's implementation of a
medical marijuana program." The District Court noted, too, that
Alisa Sirois did not introduce "evidence to suggest the existence
of special circumstances that would make it unreasonable to include
[her] in a conspiracy prosecution."
Finally, the District Court concluded that "an order
enjoining prosecution . . . would be ill-advised here, as the
State of Maine, through [the OCP], ultimately requested an
investigation based upon, among other things, the report of black
market sales by an insider and possible violation of the rule
against collective grow operations." Accordingly, the District
Court denied the defendants' motion to enjoin prosecution. The
defendants timely filed these appeals, which then were
consolidated.
II.
Ordinarily, we may exercise appellate review in a
criminal case only "after conviction and imposition of sentence."
Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989).
In Bilodeau, however, we concluded we have jurisdiction under 28
U.S.C. § 1292(a)(1) over a party's appeal from the denial of a
motion to enjoin the party's prosecution pursuant to the
Rohrabacher-Farr Amendment. 24 F.4th at 711-12. We then further
concluded that, in the alternative, we could "safely treat" a
district court's denial of a Rohrabacher-Farr injunction "as a

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collateral order" over which we have appellate jurisdiction
pursuant to 28 U.S.C. § 1291. Id. (citing Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949)). We thus proceed to
the merits.
III.
We review the denial of an injunction for abuse of
discretion. Waldron v. George Weston Bakeries Inc., 570 F.3d 5,
8 (1st Cir. 2009). "Within that framework, we scrutinize the
district court's findings of fact for clear error and its handling
of abstract legal questions de novo." Id. In conducting this
review, "we may affirm the District Court on an independent ground
if that ground is manifest in the record." Brox v. Hole, 83 F.4th
87, 98 (1st Cir. 2023).
We held in Bilodeau that the party seeking an injunction
pursuant to the Rohrabacher-Farr Amendment bears the burden of
demonstrating that the challenged DOJ action would "prevent[] a
state from giving practical effect to its medical marijuana laws."
24 F.4th at 713, 715-16. Lucas Sirois and Alisa Sirois therefore
bear that burden of proof here.8 United States v. Dockray, 943
8 Although the parties each raise concerns about how the
District Court allocated burdens of proof below, we bypass those
disagreements because Bilodeau is clear in holding that the party
seeking the injunction based on the Rohrabacher-Farr Amendment
bears the burden of showing an entitlement to it by a preponderance
of the evidence. See 24 F.4th at 715-16. To the extent that Lucas
Sirois argues that he does not bear that burden because there are

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F.2d 152, 155 (1st Cir. 1991) ("[A]bsent en banc consideration we
are bound by our own precedent.").
As we noted above, and as the District Court recognized,
we did not announce in Bilodeau the precise level of compliance
with state medical marijuana laws and regulations that a party
must show to be entitled to enjoin a federal prosecution pursuant
to the Rohrabacher-Farr Amendment. We concluded instead merely
that the scale and nature of the movants' noncompliance with the
state's medical marijuana laws and regulations in that case was so
substantial that it sufficed to permit the prosecution to go
forward notwithstanding the Rohrabacher-Farr Amendment. Id. at
715.
Based on their understanding of Bilodeau, however, Lucas
Sirois and Alisa Sirois on appeal ask us to evaluate their request
for injunctive relief based on a "substantial compliance"
standard. Under this standard, according to Lucas Sirois and Alisa
Sirois, they are entitled to such relief if the record shows, by
"Fifth Amendment problems attendant to assigning the burden of
proof to a criminal defendant," he offers no persuasive reason
for our so concluding, given our reasons in Bilodeau for allocating
the burden of proof as we did in that case. See id. at 716 ("The
issue here is not one of guilt or innocence in a criminal case.
Rather, the defendants are requesting that we enjoin an otherwise
plainly authorized government expenditure. We therefore see no
reason to deviate from the normal rule that parties seeking
injunctive relief bear the burden of proving entitlement to that
relief.").

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a preponderance of the evidence, that they were in substantial
compliance with the Act and its associated regulations at all
relevant times. They then contend that we must reverse the
District Court's ruling denying their motion for injunctive relief
because the record shows that they have met their burden to show
that they were in substantial compliance.
The government does not contest the substantial
compliance standard that Lucas Sirois and Alisa Sirois ask us to
apply. Instead, the government contends that, even under that
standard and notwithstanding the way the District Court proceeded
below, we must affirm the District Court's order denying the
defendants' motion to enjoin the prosecution because of what the
record shows regarding Lucas Sirois's and Alisa Sirois's
noncompliance in the relevant time period.
Before diving into the record, we emphasize that Lucas
Sirois and Alisa Sirois each bears the burden of persuasion under
the applicable standard for determining whether the expenditure of
DOJ funds they seek to enjoin would "prevent [a state] from giving
practical effect to" its medical marijuana laws. Bilodeau, 24
F.4th at 713; id. at 716 ("[P]arties seeking injunctive relief
bear the burden of proving entitlement to that relief.") (citations
omitted). Moreover, the government put forth a significant amount
of affirmative evidence of what the government contends was the
movants' noncompliance with the Act and its regulations. This

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evidence, according to the government, shows that the Shoe Shop
operated as a "collective" and that Lucas Sirois engaged in
"black-market sales" in violation of the Act and its regulations.
Thus, to be entitled to the injunctive relief that they seek, Lucas
Sirois and Alisa Sirois must show by a preponderance that,
notwithstanding the affirmative evidence of what the government
asserts is their respective noncompliance, it is more likely than
not that they were in substantial compliance with the Act and its
associated regulations. Cf. Pérez-Pérez v. Hosp. Episcopal San
Lucas, Inc., 113 F.4th 1, 8 (1st Cir. 2024) ("[O]ne charged with
proving a negative often relies on simply disproving the
affirmative.").
In assessing whether Lucas Sirois and Alisa Sirois have
shown as much, we recognize that, because of the way that the
District Court allocated the burdens of proof in denying the motion
to enjoin the prosecution, we are not in the position of simply
evaluating the District Court's factual findings regarding whether
Lucas Sirois and Alisa Sirois were in substantial compliance with
the Act and its regulations. Nonetheless, as we observed above,
"we may affirm the District Court on an independent ground if that
ground is manifest in the record." Brox v. Hole, 83 F.4th 87, 98
(1st Cir. 2023). As we will explain, we conclude that it is
manifest from the record that the movants have failed to make the

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required showing, at least given not only what the record shows
but also the arguments that they have put forth to us.
We start by considering Lucas Sirois's grounds for
challenging the District Court's denial of his motion for an
injunction. We then address Alisa Sirois's grounds for challenging
the District Court's denial of her motion for the same kind of
relief.
A.
Lucas Sirois concedes, as we observed in Bilodeau, that
his mere possession of a state license to cultivate and distribute
marijuana for medical purposes is not by itself necessarily proof
that he was in substantial compliance with the Act and its
regulations at all relevant times. See 24 F.4th at 714 ("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."). He argues, however, that
the evidence shows by a preponderance that he was in substantial
compliance because (1) he remained a licensed OCP caregiver
before, during, and following the conduct at issue here; (2) there
was evidence in the record of his interest in complying with the
Act and its regulations; and (3) the evidence at the hearing shows
that, in "direct contrast" to the facts of Bilodeau, "75 [percent]

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of [his] sales were completely legal under Maine's medical
marijuana laws" and "there is no evidence of [him] conducting black
market sales" of marijuana. We are not persuaded.
1.
We begin by setting to one side the evidence that the
government put forward concerning Lucas Sirois's involvement in
black-market sales and focusing instead on what the record shows
regarding whether the Shoe Shop operated at Lucas Sirois's
direction as a "collective" in violation of the Act. See Me. Rev.
Stat. Ann. Tit. 22, §§ 2430-D, 2422(1-A). The government
introduced significant affirmative evidence that the Shoe Shop did
so operate. This evidence tended to show that the marijuana
purportedly belonging to individual caregivers in fact belonged to
Lakemont LLC, a limited liability corporation co-owned by Lucas
Sirois and another individual, Randall Cousineau, who at no point
was an OCP-registered caregiver. The government also put forth
evidence that Lucas Sirois closely controlled the operations of
the Shoe Shop and that Shoe Shop-affiliated caregivers, in exchange
for weekly flat-rate payments, provided their caregiver licenses
to others but did not participate in cultivating or selling
marijuana.
For example, the government introduced a spreadsheet
titled "Shoe Shop" that contains one column labeled "Income" and
thirty-four columns, each labeled with the name of an individual,

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grouped under the heading "Caregivers." The spreadsheet is further
divided into rows that correspond to weekly periods. The
government elicited testimony from Dave Burgess, who worked at the
Shoe Shop, who confirmed the document was, as to that business, a
"tally of the caregivers, maintenance people, and trimmers and
what they got paid each week." The amounts listed within each
caregiver column generally repeat week after week without regular
variation, even as the corresponding amounts listed in the "Income"
column vary widely between from one week to the next. For example,
in the weeks marked 2/17, 2/24, 2/28 and 3/6, income varies from
$3,590 to $240,120, but the amounts listed in the caregiver columns
generally repeat consistently throughout this period.
The government also introduced a services agreement
signed by Lucas Sirois and a caregiver who had a grow room at the
Shoe Shop. This agreement indicates that Lakemont would provide
services including drying and curing, packing, production of
marijuana extract, facilitating sales, and delivering marijuana
for the caregivers.
Additionally, individuals who had worked at the Shoe
Shop testified that, in exchange for flat weekly payments, they
allowed marijuana to be grown and sold in their name and with their
license without their necessary participation in cultivating
marijuana, selling marijuana, or interacting with patients. For
example, Juneva Stratton, who was an OCP-licensed caregiver and

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had a grow room at the Shoe Shop, testified that someone at the
Shoe Shop applied for the OCP caregiver license on her behalf,
that she "wasn't involved in [the operations] at all," and that
she nonetheless received an envelope with cash in it every week
from her daughter, who was herself a licensed caregiver who also
was affiliated with the Shoe Shop. Burgess himself testified that
he was paid weekly flat-rate payments to assign his caregiver
license to a particular grow room, but he never did any work in
the room; did not select, supervise, or pay the people who worked
in the room; and did not participate in selling the marijuana grown
in the room. In addition, a former Shoe Shop employee, Seth Neal,
testified that Lakemont employed a number of "trimmer[s]" at the
Shoe Shop who, rather than acting as assistants to individual
caregivers, worked together to gather and process for distribution
all the marijuana cultivated at the Shoe Shop.
The government also called OCP Director Vernon Malloch
as a witness. Malloch testified that "sharing plants" and
"sharing . . . proceeds" from marijuana transactions serve as a
"bright-line distinction that [the OCP] look[s] at" to identify
collectives. He further testified that if "a single caregiver
facilitated the paperwork transaction to get [other caregivers]
licensed, that would be a "red flag." In addition, Malloch
testified that a business entity comprised of multiple caregivers
is "not authorized" and that such a company "[w]ould likely be

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considered a collective." He testified, too, that a business model
like that of Lakemont LLC, in which one OCP-licensed caregiver and
one unlicensed individual share profits from the licensed
caregiver's distribution of marijuana, would be illegal under the
Act. Finally, Malloch testified that if the OCP became aware of
such an arrangement it "would make a referral to law enforcement"
and "potentially take action against the caregiver who is
partnering with [the unlicensed individual]."
Notably, Lucas Sirois does not directly dispute any of
this testimony.9 Lucas Sirois does note that Stratton, Burgess,
and Neal cooperated with the government or received immunity for
providing truthful testimony. But he does not suggest at any point
that, in consequence, we must disregard their testimony in
assessing whether he has failed to show that he was in substantial
compliance with the Act.
9 Lucas Sirois does argue in his reply brief that the
"consistent" payments to caregivers reflect the fact that he
"purchased the consistent harvest wholesale, paying the caregiver
a consistent amount minus rent, fees for services, and utilities."
Thus, in his reply brief, he contends the consistent payments paid
to caregivers do not show the Shoe Shop operated as a collective.
"New arguments, however, may not be made in reply briefs." United
States v. Toth, 33 F.4th 1, 19 (1st Cir. 2022) (citation omitted).
Moreover, this explanation of the consistent payments does not
address other evidence of the collective nature of the operation,
including that the amounts in the "Income" column of the "Shoe
Shop" spreadsheet vary widely week to week, or the testimony from
Stratton and Burgess that they were paid to be caregivers
affiliated with the Shoe Shop despite not participating in
cultivating, harvesting, or selling marijuana.

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Lucas Sirois does state, in recounting the testimony of
Stratton, that "Stratton obtained a caregiver card but knew nothing
about the Shoe Shop than that her daughter worked there and paid
her in cash." But this lack of knowledge on Stratton's part does
not contradict Stratton's testimony that someone at the Shoe Shop
registered for a caregiver license on her behalf, that she did not
participate in cultivating or selling marijuana, or that she was
paid a flat rate as a caregiver. And Lucas Sirois does not dispute
that he signed an agreement, introduced by the government, to
provide Stratton professional services related to her growing and
selling marijuana at the Shoe Shop as a licensed caregiver.
Lucas Sirois does also assert that Neal "had no knowledge
of black-market sales," but he does not suggest that Neal lacked
knowledge of whether the Shoe Shop operated as he described it.
And the same is true as to what he contends on appeal as to Burgess.
In responding more broadly to the government's
collective-related evidence, Lucas Sirois argues that the
government only asserted that the Shoe Shop operated as a
collective after the government had initiated an investigation of
him for engaging in black-market sales. But, in highlighting that
point, he does not argue -- nor do we see how he could -- that, in
consequence, the government may only rely on evidence of
black-market sales, and not on evidence of the Shoe Shop operating
as a collective, to defend against his request for injunctive

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relief. So, we do not see how this point regarding the
government's initial black-market-sales-related theory of Lucas
Sirois's noncompliance provides us with any reason to disregard
the evidence of the Shoe Shop having operated as a collective in
assessing whether Lucas Sirois has met his burden to show his
substantial compliance with the Act.
In support of the argument that he was in substantial
compliance, Lucas Sirois does separately invoke our admonition in
Bilodeau that technical noncompliance with a state's medical
marijuana laws would not suffice to defeat a request for an
injunction under the Rohrabacher-Farr Amendment. See Bilodeau, 24
F.4th 705, 715. But, in doing so, he does not then go on to
develop an argument that, even if the evidence established that he
operated the Shoe Shop as a collective, his conduct in so running
that operation would only constitute a technical violation of the
Act and its regulations. Rather, he argues only that, given this
admonition in Bilodeau, the government's evidence of the Shoe Shop
operating as a collective fails to constitute evidence of his
substantial noncompliance because the record shows that the "[OCP]
expressed concerns over this exact issue -- a collective -- and
[Lucas] Sirois addressed them to [the OCP]'s satisfaction" as
evidenced by the OCP reinstating his license and the OCP's multiple
investigations that resulted in no findings of noncompliance.

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In advancing this argument, Lucas Sirois highlights
evidence in the record that shows both that the OCP's 2019
investigation into his operations resulted in no finding of
noncompliance and that the OCP reinstated his caregiver license
after it was suspended following the execution of federal search
warrants. He then contends that "[t]o permit the Federal
government to overrule the State's determination of compliance
with State law and find [him] in violation of federal law . . . is
to fly in the face" of the Rohrabacher-Farr Amendment. (Emphases
omitted).
But, as we noted above, Lucas Sirois concedes that state
licensure does not in and of itself prove his substantial
compliance with state law. Indeed, in Bilodeau, we held that the
defendants were not entitled to injunctive relief because of the
level of their noncompliance -- notwithstanding the fact they,
too, held caregiver licenses and were found to be "largely in
compliance with Maine law" by state inspectors after an inspection.
24 F.4th 705, 710. Moreover, Malloch, the OCP Director, testified
that the OCP's actions in not finding noncompliance and reinstating
a license following its suspension only indicate that the OCP found
the caregiver in compliance on the "day that [the OCP] conduct[ed]
the inspection for the elements [the OCP] inspected against."
Malloch also testified that the OCP's enforcement of the Act and
associated regulations occurred "a hundred percent [on] the honor

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system" due to the Office's lack of investigative power and policy
to "try to take the approach of compliance first and enforcement
only when needed."
In sum, on his own account of what must be shown on
appeal insofar as he bears the burden of persuasion, Lucas Sirois
bears the burden to show that he was in substantial compliance
with the Act and its regulations. To show that he could not meet
that burden, the government introduced the significant affirmative
evidence described above that the Shoe Shop, at Lucas Sirois's
direction, operated as a collective in violation of the Act and
its regulations. Yet, in arguing that he has shown by a
preponderance that he was in substantial compliance with the Act
and its regulations, Lucas Sirois does not directly dispute or
otherwise provide a basis for our disregarding this body of
evidence that the government has set forth. Nor does he develop
an argument that, insofar as the Shoe Shop was operating as a
collective, such noncompliance was merely technical rather than
substantial. Instead, he contends only that we must treat the
evidence of the Shoe Shop operating as a collective as a technical
violation simply because Maine investigated the Shoe Shop for being
a collective and ultimately did not find noncompliance. Thus,
considering the record as a whole, we conclude that it is manifest
that, even if we were to accept that Lucas Sirois did not
participate in any black-market sales, he has failed to show by a

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preponderance of the evidence that he was in substantial compliance
with the Act and its regulations.
2.
Although Lucas Sirois's challenge to the District
Court's denial of his request for injunctive relief fails for the
reason just explained, we will also address his contention
regarding the second factual predicate for his challenge. In
advancing this contention, which is equally necessary to his
challenge, he argues that he has shown by a preponderance of the
evidence that he did not engage in any black-market sales. Here,
too, it is clear from the record that he has not made that showing.
In pressing this aspect of the challenge, Lucas Sirois
contends that the record contains no "evidence that [he] himself
sold marijuana on the black market, [or] that he knew any of his
sales went to parties who intended to resell on the black market."
But the record contains testimony from Burgess and Brandon Dagnese
that tends to show that Lucas Sirois not only knew of, but
personally conducted and directed, black-market sales of marijuana
through Dagnese between 2018 and 2020.
Burgess testified that he conducted sales of marijuana
at the direction of Lucas Sirois to Dagnese and that Burgess
understood these sales were intended for the black market. Burgess
further testified that Lucas Sirois offered him additional income
to facilitate the sales to Dagnese, that the volume of sales was

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unusually large, and that the sales were generally not recorded in
Lakemont LLC's books.
Further, Dagnese testified that he had never held an OCP
caregiver or patient license, that he had purchased approximately
$1 to $1.5 million dollars' worth of marijuana from Lucas Sirois
between 2018 and 2020 with the intention to resell on the black
market despite not having a license, that some of those sales had
been conducted by Lucas Sirois himself, and that Lucas Sirois never
requested a caregiver license from him.
Lucas Sirois did not introduce any evidence that would
tend to directly rebut the relevant testimony of Burgess or
Dagnese. Lucas Sirois does appear to argue that we must disregard
the testimony concerning his involvement in black-market sales
because Burgess and Dagnese testified pursuant to cooperation
agreements and because Dagnese previously lied to law enforcement
and wiped his phone while being investigated.
Ultimately, however, the burden of proof to show
substantial compliance lies with Lucas Sirois. Even if we were to
set the testimony of Dagnese to one side, notwithstanding that
Lucas Sirois does not challenge the testimony's relevant content
specifically, there would remain the undisputed testimony of
Burgess. And we do not see how the mere fact that Burgess gave
testimony pursuant to a cooperation agreement requires us to negate
his testimony for the purpose of evaluating what the record shows

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regarding the black-market sales that Burgess describes.
Moreover, Lucas Sirois does not directly dispute the relevant
testimony of Burgess or Dagnese. Indeed, there is undisputed
evidence of text messages between Lucas Sirois and Dagnese
evidencing sales of marijuana between them. And at oral argument,
Lucas Sirois's attorney acknowledged it was "undisputed that
transactions were made between [Lucas] Sirois and Mr. Dagnese."
It is also undisputed that Dagnese never held an OCP license.
Lucas Sirois has argued that the record does not show he
knew that Dagnese would resell the marijuana on the black market
and that, instead, he believed Dagnese was purchasing the marijuana
on behalf of a licensed dispensary called New Horizons. Lucas
Sirois does not argue, however, that he would have been in
substantial compliance with the Act and its regulations if he knew
during the relevant period that Dagnese was unlicensed.
To the extent Lucas Sirois argues that he did not know
that Dagnese was unlicensed, he clearly cannot make that showing
by a preponderance of the evidence on the facts in the record.
Lucas Sirois does not dispute that Maine law required him to sell
marijuana only to OCP-licensed patients or caregivers, and he does
not dispute that Dagnese never held an OCP license. Lucas Sirois
also does not dispute that he only requested a resale certificate
from Dagnese more than one year into their working relationship,
that the resale certificate belonged to a third party, or that,

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despite never seeing an OCP license for Dagnese, he continued to
sell to him. With these facts in mind, it is significant that
Malloch testified that "[i]t's the responsibility of the caregiver
making the transaction to verify either the patient's credentials
or the caregiver's registration card."
Given these features of the record and the arguments
presented to us, we do not see how the record could support a
finding that, insofar as Lucas Sirois bears the burden, he has
shown what he himself acknowledges he must as to the alleged
black-market sales -- namely, that it is more likely than not that
he did not knowingly engage in them. Thus, just as we conclude
that it is manifest in the record that Lucas Sirois has failed to
show by a preponderance of the evidence that he was not operating
the Shoe Shop as a collective, we also conclude that it is manifest
in the record that he has failed to show that he engaged in no
black-market sales.
3.
For these reasons, we conclude that it is clear that, on
this record, Lucas Sirois cannot prove by a preponderance of the
evidence either of the grounds on which, in combination, he
predicates his claimed substantial compliance with Maine's medical

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marijuana laws.10 We therefore affirm the District Court's denial
of a Rohrabacher-Farr injunction as to Lucas Sirois.
B.
Alisa Sirois, like Lucas Sirois, appears to argue that
she is entitled to an injunction because she showed that she was
in substantial compliance with Maine's medical marijuana laws.
But she does not dispute that, as an OCP-registered caregiver, she
was required under Maine law to conform her conduct to the
strictures of the Act and its regulations, which prohibited her
from, among other things, participating in a collective. See Me.
Rev. Stat. Ann. tit. 22, §§ 2430-D, 2422(1-A). Moreover, Alisa
Sirois does not dispute that to meet her burden to satisfy the
substantial compliance standard that she contends applies, she
must show by a preponderance of the evidence that she was not
participating in a collective. For the reasons we will next
10 In seeking to enjoin his prosecution, Lucas Sirois contends
that the DOJ's pre-indictment investigation was itself carried out
in violation of the Rohrabacher-Farr Amendment. It is not evident
how that contention relates to the prospective relief that he now
seeks, however, given that he seeks to enforce a prohibition
against the expenditure of funds by the DOJ on a going-forward
basis. In any event, in light of what the record shows regarding
the operations of the Shoe Shop and the black-market sales as well
as Lucas Sirois's acceptance of the "substantial compliance"
standard as the correct one, we do not see how on this record he
has shown by a preponderance of the evidence that the
pre-indictment investigation here "prevent[ed] a state from giving
practical effect to its medical marijuana laws." Bilodeau, 24
F.4th at 713.

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explain, we conclude that it is manifest in the record that she
has not done so.
On appeal, Alisa Sirois does not dispute any of the
evidence in the record described above that the government put
forward to show that the Shoe Shop operated as a "collective."
Nor does she dispute on appeal the evidence that the government
put forward through testimony by Stratton and Neal that tends to
show that she personally distributed flat-rate weekly payments to
Shoe Shop caregivers and trimmers, including Stratton and Neal
themselves. Moreover, she fails to dispute to us the documentary
evidence that the government introduced that indicated that she
used unregistered individuals who worked at the Shoe Shop to assist
her in growing marijuana and that she sold nearly all her harvested
marijuana to Lakemont LLC. And, similarly, she does not dispute
evidence that the government put forward that indicated that she
was not paid the same weekly flat rate as other Shoe Shop
caregivers and that, through her co-ownership with Lucas Sirois in
a company called Narrow Gauge Botanicals, she was splitting Lucas
Sirois's share of Lakemont LLC's significant profits from the
distribution of Shoe Shop marijuana. For example, the government
introduced a balance sheet for "NGB" that reflected income of
$55,000 from "S[hoe] S[hop] split 100k with Randy [Cousineau]"
followed by a $20,000 expense for "Lisa's [p]ortion of split
(55k)."

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In response, Alisa Sirois points to the fact that she
was a licensed caregiver, and that, although her license was
suspended by the OCP in response to the DOJ investigation
concerning the Shoe Shop marijuana, the license was reinstated
after she requested a hearing concerning its suspension. The mere
fact that she was a licensed caregiver during the relevant times
is, as Bilodeau makes clear, however, not dispositive of whether
she is entitled to injunctive relief under the Rohrabacher-Farr
Amendment. And, apart from her argument about her license having
been suspended but then reinstated, she develops no argument as to
why the record shows by a preponderance that she was in substantial
compliance with the Act and its regulations, notwithstanding the
evidence described above about the Shoe Shop having operated as a
collective and her particular role in that business's operations.
Because we conclude that it is clear from the record that she has
not carried her burden of persuasion, at least given the arguments
that she has advanced on appeal, we affirm the District Court's
denial of her request for injunctive relief.11
11 Because our decision to affirm rests on grounds different
from those relied on by the District Court in denying Alisa
Sirois's request for an injunction, we need not reach her argument
that the District Court's denial of the injunction as to her was
erroneous because it did not rest on a "defendant-specific showing"
justifying the DOJ prosecution that she seeks to enjoin.

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IV.
For the foregoing reasons, the District Court's denial
of the defendants' motion to enjoin prosecution is affirmed.

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