Update: Huffington Post article and C-Span video.
I’ve spoken to two reporters today inquiring about Colorado Congressman Jared Polis’ medical cannabis-related questions to Attorney General Holder at a congressional committee hearing that was otherwise a ‘bloodbath’ for Holder—getting grilled about the guns and Mexico fiasco—when Polis, who is not a member of the Judiciary Committee, was allowed to ask Holder two questions about medical cannabis enforcement.
Polis first wanted assurances that Colorado’s medical cannabis dispensaries/cultivation centers compliant with state laws—unlike California’s medical cannabis businesses that are not regulated by the state—are not a Department of Justice (DOJ) target. Holder affirmed the basic tenets of the previous Ogden and Cole memos, and wouldn’t provide assurances, but, re-iterated the DOJ stance that enforcing medical cannabis laws, notably in a state like Colorado with its rules and regulations, and with limited federal resources at hand, is a low law DOJ enforcement priority.
The second Polis question was about banking and medical cannabis businesses in Colorado, where he pushed Holder to acknowledge that the DOJ is not placing a priority on interfering with state compliant medical cannabis businesses and banking concerns.
I assume there will be news and industry coverage later today and tomorrow about this unexpected, but informative exchange between Representative Polis and Attorney General Holder.
To: DEA, HIDTA, Federal task force partners in California for internal law enforcement use only. Not for public use or circulation [Editor's note: Hah! Also, this memo is only applicable in California---not Colorado, New Mexico and Maine, where these states regulate the medical cannabis industry (whereas California does not, arguably opening the door to federal incursions and prosecutions).]
From: California United States Attorneys
This memorandum outlines factors that all four California U.S. Attorneys Offices (the USAOs) agree may render a particular marijuana case suitable for federal prosecution. Identification of these factors is intended to assist federal, state and local law enforcement agencies in determining whether a particular marijuana case has significant potential for federal prosecution and conducting investigations in a manner that develops the best evidence to support federal prosecution (Footnote 1). The USAOS will consider for federal prosecution cases investigated by federal, state or local law enforcement agencies that implicate federal interests as reflected in the factors. Cases investigated by federal agencies will generally be given priority over cases adopted from state or local investigations. The factors listed below are relevant to the USAOs consideration of whether a marijuana case should be prosecuted federally but the presence or absence of one or more of the factors will not guarantee or preclude federal prosecution in any case. In general the federal interest will be greater in prosecuting leaders and organizers of the criminal activity as opposed to lower level workers.
The memorandum is intended as prospective guidance only, is not intended to have the force of law and is not intended to, does not, and may not be relied on to create any right, privilege or benefit, substantive or procedural, enforceable by any person or entity against any type of the USAOs, DOJ or the United States.
1) Domestic distribution cases.
Federal prosecution of a case of domestic distribution of marijuana should generally involve at least 200 or more kilograms of marijuana and also include additional factors that reflect a clear federal interest in prosecution (Footnote 2—This guidance for domestic distribution cases does not apply to cases involving distribution within or smuggling into a federal prison.18 USC 1791). Typically the more marijuana above 200 kilograms the better the potential for federal prosecution. Domestic distribution cases involving quantities of marijuana below 200kilograms should demonstrate an especially strong federal interest or should not be prosecuted with marijuana distribution as the sole federal charge. Set forth below is a non-exhaustive list of factors that USAOs believe indicate a federal interest in a domestic distribution case.
*Distribution by an individual or organization with provable ties to an international drug cartel or a poly-drug trafficking organization.
*Distribution of significant quantities to persons or organizations outside California.
*Distribution by individuals with significant prior criminal histories.
*Distribution by individuals with provable ties to a street gang that engages in drug trafficking involving violent conduct.
*Distribution for the purpose of funding other criminal activities.
*Distribution near protected locations or involving underage or vulnerable people (e.g. in violation of 21 USC 859 persons under 21, 860 near schools, playground and colleges, 861 employment of persons under 18).
*Distribution involving the use or presence of firearms or other dangerous weapons including cases that would support charges under 18 USC 924c.
*Distribution generating significant profits that are used or concealed in ways that would support charges of federal financial crimes such as tax evasion, money laundering or structuring. Note: Generation of significant profits alone generally will not be viewed as a factor weighing in favor of federal prosecution.
*Distribution in conjunction with other federal crimes involving violence or intimidation.
2. Cultivation cases.
Federal prosecution of a marijuana case involving cultivation on non-federal or non-tribal land, indoor or outdoor, should generally involve at least 1,000 marijuana plants so that the quantity necessary to trigger the ten-year mandatory minimum sentence can be clearly proven and also include additional factors that reflect a clear federal interest in prosecution. Typically, the more marijuana above 1,000 plants, the better the potential for federal prosecution. Non-federal or non-tribal land cases involving quantities below 1,000 plants should demonstrate an especially strong federal interest or should not be prosecuted with marijuana cultivation as the sole federal charge. Federal prosecution of a marijuana case involving cultivation on federal or tribal land should generally involve at least 500 marijuana plants and also include additional factors that reflect a clear federal interest in prosecution. Cases on federal or tribal land involving quantities below 500 plants will be considered if they demonstrate a strong federal interest, if the cultivation has caused significant damage to federal or tribal lands or has occurred in an area of exclusive federal jurisdiction (Footnote 3– The USAOs will consider the totality of circumstances with respect to all marijuana plant quantities in these guidelines. For example, the presence of especially mature, large or robust plants will generally weigh in favor of prosecution while the presence of seedlings or immature plants will generally weigh against prosecution). Set forth below is a non-exhaustive list of factors that the USAOs believe indicate a federal interest that may justify federal prosecution of a marijuana case involving cultivation whether on federal, tribal or other lands.
*Cultivation causing significant environmental damage, risk to human health or interference with particularly sensitive land or significant recreational interests, ie damage to wilderness area or wildlife, danger to innocent families using a recreation area or use of toxic or dangerous chemicals.
*Cultivation by an individual or organization with provable ties to an international drug cartel or poly-drug trafficking organization.
*Cultivation of significant quantities on behalf or persons or organizations outside California.
*Cultivation by individuals with significant prior criminal histories.
*Cultivation by individuals with provable ties to a street gang that engages in drug trafficking involving violent conduct.
*Cultivation for the purpose of funding other criminal activities.
*Cultivation near protected locations or involving under-age or vulnerable people (eg, in violation…
*Cultivation involving the use or presence of fire-arms, booby traps or other dangerous weapons including cases that would support charges under 18 USC 924c.
*Cultivation generating significant profits that are used or concealed in ways that would support charges for federal financial crimes such as tax evasion, money laundering or structuring. Note—generation of significant profits alone will not be viewed as a factor weighing in favor of federal prosecution.
*Cultivation in conjunction with other federal crimes involving violence or intimidation
3. Dispensary cases.
Given California state law, prosecution of marijuana stores or “dispensaries” purporting to comply with state law face additional challenges. Federal prosecution of a case involving a marijuana store should generally involve a) provable sales through seizures or records of over 200 kilograms or 1000 plants per year. b) sales clearly in violation of state law, eg sales to persons without legitimate doctors’ recommendations, side-sales occurring outside of the store or shipping to persons outside of California (Note—selling for profit, though a violation of state l aw, typically alone will not alone satisfy this requirement), and c) additional factors that reflect a federal interest in prosecution. Set forth below is a non-exhaustive list of such additional factors. Nothing herein should be taken as a limitation on investigation by federal law enforcement to determine the existence of these factors. However, search warrants or other more intrusive investigative techniques directed at marijuana stores should be closely coordinated with the USAOs.
*Marijuana “inventory” obtained from cultivation on federal or tribal land.
*Targets involved in cultivation or distribution outside of the dispensary that merits federal prosecution based on consideration of factors set forth in sections 1 and 2 above.
*Targets using profits from the dispensary to support other criminal activity.
*Store linked to physician providing marijuana recommendations without plausible legitimate justification, eg doctor on site providing recommendation with no on-site examinations or legitimate medical procedures.
*Targets have significant prior criminal histories.
*Targets have provable ties to a street gang that engages in drug trafficking involving violent conduct.
*Store operations involve the use or presence or firearms or other dangerous weapons including cases that would support charges under 18 USC 924.
*Store generates significant profits that are used/concealed in ways that would support charges for federal financial crimes such as tax evasion, money laundering or structuring. Note–generation of significant profits alone generally will not be viewed as a factor weighing in favor of federal prosecution
*Store operations in conjunction with other federal crimes involving violence or intimidation.
*Store employs minors under 18 and/or sells a significant portion of marijuana to minors under the age of 21 especially where evidence that minors aren’t using for medical purposes
4. Civil forfeiture.
The USAOs general preference is to pursue forfeiture through criminal forfeiture or civil forfeiture filed in parallel with a criminal case. Nevertheless circumstances may arise in which civil forfeiture alone is the best option. Those cases will generally involve one or more of the following:
*Significant forfeitable assets clearly traceable to marijuana trafficking in violation of federal criminal law that would merit federal prosecution based on consideration of factors set forth in sections 1-3 above.
*Significant forfeitable assets clearly traceable to non-marijuana related violations of federal law such as structuring or money-laundering. Large scale “medical marijuana” cultivation operations that 1) are operating in violation of state law 2) involve real property that has been the subject of a warning letter or similar prior notice or 3) involve real property that has been the subject of a prior forfeiture proceeding arising from marijuana cultivation or a property owner who has been a claimant in such proceedings or individual targets not subject to criminal prosecution eg fugitives or persons whose involvement in marijuana trafficking is too marginal to justify criminal prosecution including off-site land lords and non-resident owners falsely claiming ignorance of tenant’s marijuana trafficking.
By: Diane Fornbacher
From the majestic redwoods of Humboldt county to the glitz and glamour of Hollywood, the NORML Women’s Alliance’s Sabrina Fendrick, Kyndra Miller, Melissa Sanchez and I toured almost the entire Sunshine State for nine days prior to Thanksgiving to rally our sisters and brothers in preparation for what will be a mighty 2012 for us all in drug policy reform.
The tour began at a beach-side co-op in the company of our NORML Women’s Alliance colleague Annarae Grabstein of Steep Hill Lab. We enjoyed a brainstorming session and sunset barbecue, then prepared for the incredibly scenic drive north up to Humboldt county the next day to attend 707 Cannabis College’s Hempfest event at the Mateel Community Center in Garberville.
The panel was moderated by Terri Klemetson, News Coordinator for Redwood Community News (KMUD). Speaking were the esteemed Paul Gallegos, Humboldt County District Attorney; Mark Lovelace, Humboldt County Supervisor; Dan Rush, Director of the Medical Cannabis and Hemp Division of United Food and Commercial Workers International Union; Matt Witemyre, Chief of Staff at Medi-Cone; Alexis Wilson-Briggs, Esq., Criminal Defense Attorney/Pier 5 Law Offices and recently named San Francisco and Sacramento NORML Women’s Alliance Community Leader; Samantha Miller, President-Chief Scientist at Pure Analytics, LLC; and Paul J. Von Hartmann, Cannabis Scholar and Biodynamic Agriculturist.
The panel was very lively, and at times heated, with Wilson Briggs asking for clarification from D.A. Gallegos on many different topics, most specifically regarding enforcement tactics, difficulties reconciling state law versus the federal stance on cannabis and protecting local citizens. Overall, the energy was receptive, friendly and informative. Citizens addressed the panelists at the culmination of the event and what was most enlightening to us was how open and honest the farmers were with officials, genuinely wanting to work with the system, be respected in their industry by the government and have best practices so that they may do clean as well as successful business.
Afterward, we were treated to a tour of 707 Cannabis College with Kellie Dodds, Pearl Moon and Donna King. 707 is located in the heart of the “Emerald Triangle” where, “the highest quality education in the health benefits of appropriate cannabis use, sustainable cannabis horticulture and evolving cannabis law” is provided. We were delighted to see that the NORML Women’s Alliance has a huge presence at 707 with a permanent education access table, lots of enthusiasm and solidarity.
The next day, before heading to our evening fundraiser and screening of “A NORML Life” in San Francisco, we spent the day at the historic Pier 5 Law offices of Tony Serra, where NWA’s Kyndra Miller, Esq. has an office. Pier 5 has a long history of defending human rights and is an environment that has a strong female presence. While we were nearing the end of our workday, we were treated to a visit from the humble and sweet, Mr. Clint Werner. He stopped by with his amazing book “Marijuana: Gateway to Health”, a new release.
At the screening of Rod Pitman’s, “A NORML Life”, many NORML principals are featured in the film including Members of the Board: Dale Gieringer, Madeline Martinez, George Rohrbacher, William Panzer, Esq., Allen St. Pierre, and Keith Stroup . Tonya Davis, winner of NORML’s Pauline Sabin Award (In Honor Of And Recognition For The Crucial Need And Importance Of Women Leadership In Ending Marijuana Prohibition) was prominently featured in an inspiring narrative. Also in the house was Lynette Shaw (Marin Alliance for Medical Marijuana), Paul Armentano (Deputy Director NORML) who gave a rousing speech in support of the NWA, Ellen Komp (CANORML), Jack Rikess (Toke of the Town), NORML Attorney Matt Kumin, actress Heather Donahue of the Blair Witch Project, and many others at the forefront of reform in California. Executive Producer of the film, Mr. Pitman, gave a very entertaining free form Q&A session after the screening. The event was hosted by NORML Board member Richard Wolfe and his terrific assistant, Grynn. Catering was provided by the lovely Caitlin Martens.
The next day, we headed south to Los Angeles and the Hollywood Hills for our fundraiser, A Cause to Laugh, at The Comedy Union in Los Angeles. The event was hosted by Brooks Colyar and comedienne Simply Cookie emceed. In the house was Co-Founder and Director of Unconventional Foundation for Autism, Ms. Mieko Hester-Perez, well known also as Joey’s Mom. We want to thank everyone who participated in making this event amazing, especially Enss Mitchell, purveyor of the Comedy Union for believing in the NWA and providing valuable insight to achieve our goals for all demographics. Also, special thanks to Cheri Sicard for volunteering, as well as Kandice Hawes (OCNORML) for attending with friends.
It’s really quite difficult to summarize the trip into words but Melissa Sanchez was able to really encapsulate the energy of what we experienced during our whirlwind tour. She explained that, “from the people of Humboldt – people with so much heart living in the beautiful old forest – to the people of San Francisco who are dedicated to the never-ending work of politics and activism to Los Angeles where we were reaching out to a community who knows all about the real impact of the war on drugs, it was inspirational journey. Our movement is large and encompasses people who are not yet active in it: People whose families are affected by the drug war in Latin America, mothers who are patients but can’t speak out because they are afraid of the state taking their children, seniors who are fed up with taking medicine that may end up hurting them instead of healing them, and many others. The NORML Women’s Alliance is here to help bring more people into the movement. The more diverse and broad our movement, the sooner we will see significant change.”
If you too believe in a better and safer world, please consider making a tax-deductible contribution to the NORML Women’s Alliance today. Thank you so much for your financial and moral support.
The award-winning (and totally watchable) Vanguard series from Current TV examines Cannabis Prohibition in America tonight at 9PM (eastern) in ‘The War on Weed’ with not only an obligatory review* of western states’ medical cannabis laws (including California, Colorado and Washington), but, more notable for NORML, is the documentary’s critical review and juxtaposition to the western United States ongoing experiment with allowing medical access to cannabis–and the general cultural and political acceptance for cannabis in most of the western states–to that of the decidedly anti-cannabis attitudes and law enforcement practices for decades in supposedly ‘liberal’ and ‘tolerant’ New York City, where 50,000 cannabis consumers a year are arrested, about ninety percent black and Latino.
*Obligatory, because starting at 10PM (eastern) on December 1st is the Discovery Channel’s Weed Wars, a new series that looks at the fine legal line between compassion and big commerce regarding California’s medical cannabis industry.
Contrastingly, Discovery Channel is also premiering that same week a new series called Moonshiners.
NORML Attorneys Matt Kumin, David Michael, and Alan Silber, have filed suit (read here) in the four federal districts in California to challenge the Obama Administration’s recent crackdown on medical marijuana operations in the Golden State. Aided by expert testimony from NORML Deputy Director Paul Armentano and research from California NORML Director Dale Gieringer, the suits seek an injunction against the recent federal intrusion into state medical marijuana laws at least and at most a declaration of the unconstitutionality of the Controlled Substances Act with respect to state regulation of medical marijuana.
Video streaming by Ustream
The NORML attorneys allege the federal government has engaged in entrapment of California patients and their caregivers. They point to the courts’ dismissal of County of Santa Cruz, WAMM et al. v. Eric Holder et al. where the Department of Justice (DOJ) “promised a federal judge that it had changed its policy toward the enforcement of its federal drug laws relative to California medical cannabis patients.” So after 2009, California providers had reason to believe that the federal government had changed its policy. The legal argument is called ‘judicial estoppel’, which basically means that courts can’t hold true to a fact in one case and then disregard it in another.
Kumin, Michael, and Silber also argue the government has engaged in ‘equitable estoppel’, which most people commonly think of as ‘entrapment’. That is to say, you can’t bust a person for committing a crime when the authorities told him it wasn’t a crime to do it!
Under established principles of estoppel and particularly in the context of the defense of estoppel by entrapment, defendants to a criminal action are protected and should not be prosecuted if they have reasonably relied on statements from the government indicating that their conduct is not unlawful. That principle should be applied to potential defendants as well, the plaintiffs in this action. Such parties, courts have noted, are “person[s] sincerely desirous of obeying the law”. They “accepted the information as true and [were]…not on notice to make further inquiries.” U.S. v. Weitzenhoff, 1 F. 3d 1523, 1534 (9th Cir. 1993).
The US Constitution figures prominently in the legal challenge as well. The 9th Amendment says that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The NORML attorneys argue that threatening seizure of property and criminal sanctions violates the rights of the people to “consult with their doctors about their bodies and health.”
The 10th Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The NORML attorneys argue that the States have the “primary plenary power to protect the health of its citizens” and since the government has recognized and not attempted to stop Colorado’s state-run medical marijuana dispensary program, it cannot suggest Colorado has a state’s right that California does not.
The 14th Amendment says that all citizens have equal protection under the law. The NORML attorneys argue that the federal government:
1. Actively provides cannabis for medical purposes to individuals through its own IND program.
2. Actively allows patients in Colorado to access medical cannabis through a state-licensing system that allows individuals to make profit from the sales of medical cannabis.
3. Actively restricts scientific research into the medical value and use of cannabis to alleviate human suffering and pain.
Thus, according to Kumin, Michael, and Silber, the government can’t be allowing Colorado medical marijuana commerce, engaging it its own IND program that mails 300 joints a month to four federal medical marijuana patients yet squelching all attempts to study medical value of marijuana, then have a rational basis for shutting down medical marijuana dispensaries in California. Under the 14th Amendment, the feds can’t treat Californians differently than Coloradoans and differently than four US citizens who get legal federal medical marijuana.
Finally, while acknowledging that Raich v. Gonzales 545 US 1 (2005) set the precedent that the Constitution’s Interstate Commerce Clause does allow the feds to prosecute California’s medical marijuana, the NORML attorneys argue:
…it is still difficult to imagine that marijuana grown only in California, pursuant to California State law, and distributed only within California, only to California residents holding state-issued cards, and only for medical purposes, can be subject to federal regulation pursuant to the Commerce Clause. For that reason, Plaintiffs preserve the issue for further Supreme Court review, if necessary and deemed appropriate.
We will keep you posted on all updates related to this groundbreaking lawsuit. Archive of our interview with the lead attorneys in this case is available in our “Audio/Video” section on The NORML Network.
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