United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING IN PART DEFENDANT'S
MOTION TO DISMISS INDICTMENT AND SCHEDULING EVIDENTIARY
M. LAWSON, UNITED STATES DISTRICT JUDGE.
Honorable David M. Lawson
Frank Bally is charged with violating the federal Controlled
Substances Act by growing and distributing marijuana. He
contends that he has engaged in that practice under the
authority of the Michigan Medical Marijuana Act (MMMA), Mich.
Comp. Laws §§ 333.26421, et seq. Presently
before the Court is Bally's motion to enjoin the
prosecution and for other relief. He contends that a rider to
an appropriations bill bars the Department of Justice from
preventing certain states - including Michigan - “from
implementing their own State laws that authorize the use,
distribution, possession, or cultivation of medical
marijuana.” Consolidated Appropriations Act, 2016, Pub.
L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015);
Consolidated Appropriations Act, 2017, Pub. L. No. 115-31,
§ 537, 131 Stat. 135, 228 (2016).
courts that have confronted this argument have acknowledged
its validity in varying degrees, without providing much
guidance to district courts in how to approach the issue.
This Court believes that the first step is to determine
whether Bally's conduct in fact complies with Michigan
law. Therefore, before finally adjudicating the motion, the
parties will appear for a hearing on that question.
basic facts of the case are straightforward, and mimic
several other federal marijuana prosecutions previously
brought in Michigan and in other states that have enacted
medical marijuana laws.
9, 2015, federal law enforcement agents executed a search
warrant on the defendant's home and discovered (1)
approximately 276 marijuana plants in four large grow rooms
in the basement; (2) clippings, seeds, and processed
marijuana; (3) a butane-fired hash oil laboratory; (4)
thousands of dollars in U.S. currency; (5) a money counter;
(6) a glass sales case with various types of marijuana for
sale listed behind the counter and a jar marked
“donations”; and (7) handwritten records of the
defendant's marijuana distribution. At the time of the
search, the defendant admitted to law enforcement officers
that he operates a marijuana growing facility in his
basement, he distributes the marijuana he grows to others,
and he employs other people to assist him in the operation.
He also admitted to possessing more marijuana than is
permitted under state law.
jury indicted Bally and a co-defendant for conspiracy to
distribute marijuana and hashish oil in violation of 21
U.S.C. § 846 (Count 1) and possession with intent to
distribute marijuana in violation of 21 U.S.C. § 841
says that he suffers from severe and chronic back and neck
pain, degenerative disc disease of the cervical spine and
lumbar spine, sciatica, and post-traumatic stress disorder
(PTSD). He states that he tried in vain to treat his symptoms
with prescription opioids and other psychotropic drugs, but
medical marijuana proved to be the only effective treatment
of his conditions. In order to “legally” consume
medical marijuana in Michigan, Bally is registered with the
Michigan Department of Community Health as both a patient and
a caregiver under the MMMA. He has been a certified medical
marijuana user since February 2014 and possesses a
MMMA became effective in December 2008 following a
citizen-initiated ballot proposal that was approved by
Michigan voters. The law did not create a right for all
Michigan residents to use marijuana, but it did authorize its
medical use by certain qualifying individuals. It also
allowed “caregivers” to grow and furnish
marijuana to patients. See People v. Kolanek, 491
Mich. 382, 393-94, 817 N.W.2d 528, 536-37 (2012).
and possessing marijuana remains a crime under Michigan law.
But the MMMA establishes two affirmative defenses to such
state prosecutions. The first defense, under section 4 of the
Act, could more accurately be characterized as an immunity
provision. Section 4 states that “[a] qualifying
patient who . . . possesses a registry identification card is
not subject to arrest, prosecution, or penalty in any manner
. . ., provided that the qualifying patient possesses an
amount of marihuana that does not exceed a combined total of
2.5 ounces of usable marihuana and usable marihuana
equivalents, and, if the qualifying patient has not specified
that a primary caregiver will be allowed under state law to
cultivate marihuana for the qualifying patient, 12 marihuana
plants kept in an enclosed, locked facility.” Mich.
Comp. Laws § 333.26424(a). A qualified caregiver is
allowed to possess those quantities of usable marijuana and
plants for up to five registered qualifying patients. Mich.
Comp. Laws § 333.26424(b).
second affirmative defense is found in section 8 of the MMMA.
That defense (unlike the section 4 defense) does not depend
on the quantity of marijuana possessed. Instead, the accused
person, who may be a patient or caregiver, must prove,
first, that a physician has given an opinion that
the patient “is likely to receive therapeutic or
palliative benefit from the medical use of marihuana to treat
or alleviate the patient's serious or debilitating
medical condition” or its symptoms. Mich. Comp. Laws
§ 333.26428(a)(1). The opinion must come from a
physician who performed a “full assessment” of
the patient's history and condition “in the course
of a bona fide physician-patient relationship.”
Ibid. The physician's examination and statement
must occur “before the commission of the
offense.” Kolanek, 491 Mich. at 408, 817
N.W.2d at 543. Second, the amount of marijuana
possessed or cultivated “was not more than was
reasonably necessary to ensure the uninterrupted availability
of marihuana for the purpose of treating or alleviating the
patient's serious or debilitating medical condition or