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.
It was a curious coincidence last month, that as PBS was broadcasting the Ken Burns/Lynn Novick documentary, Prohibition, describing the Hoover Justice Department’s last-gasp crackdown on alcoholic beverages in the late 1920s, prosecutors in the Obama Justice Department were announcing a crackdown on medical marijuana in California, threatening to confiscate the property of people “involved in drug trafficking activity,” which is fedspeak for providing pot for sick people.
After nearly a decade under the Volstead Act, the utter futility of enforcing public abstinence from alcohol was evident to all but prohibition’s stakeholders – chiefly police, prosecutors and bootleggers. Despite the draconian penalties imposed by the 1926 Jones Act, which turned Volstead violations into felonies, booze remained generally available. Similarly, despite the draconian penalties of the Nixon-era Controlled Substances Act, and nearly a million arrests annually, marijuana has proven itself ineradicable, and, indeed, has become a part of our culture. (more…)
Mayor Michael Bloomberg, by most all accounts, is one of the most fascinating political characters of the last decade. A self-made billionaire who, with a clear love for his fellow human beings and with great civic pride, chose to effectively become New York City’s mayor for the last nine years—spending more personal wealth than most any other political candidate in US history, for a mayor’s office no less—as the ultimate expression of his ability and want to positively effect as many people as possible, in a city (and region) that he clearly loves, during his tenure in a position where he can get things done.
Along the way to becoming one of America’s wealthiest individuals, Mr. Bloomberg has donated a remarkable amount of money to many worthy causes, notably in the field to improve public health in America and the world, most especially at his alma mater, one of the best universities in the world, Johns Hopkins in Baltimore.
With good health and continued good fortune, who knows what further impact Mr. Bloomberg will choose to make in national politics in his lifetime? He possess all the requisite skills and resources to become president if that’s what he chooses.
Today we find out that Mayor Bloomberg is once again demonstrating why he is one of the most interesting and charitable politicians in the modern era in reading today’s New York Times about his most recent donation of $30 million to help black and Latino youth get better integrated into the region’s economy, develop valuable skill sets and to find productive employment.
The Times reports that Mayor Bloomberg’s initial grant will be matched by New York City-based hedge fund manager and philanthropist George Soros.
Here is the ironic point to this blog post: If Mayor Bloomberg is genuinely serious about creating more favorable employment environs for black and Latino youth in New York City, he should converse with Mr. Soros, who, has donated more money than anyone on the face of the earth in favor of drug policy reform—notably for cannabis law reforms—who, I’m sure would insist that the good mayor stop arresting black and Latino youth in New York City en mass.
Regrettably, embarrassingly, for such an enlightened and civic-minded man, Mayor Bloomberg has largely maintained the shameful and starkly racially disparate cannabis law enforcement policies that he inherited from former Mayor (and drug prosecutor) Rudolf Giuliani. Mayor Giuliani exploded the annual cannabis arrest rate in the five boroughs of New York City from an average of about 2,000 arrests to an eye-popping 60,000 arrests per year.
Bloomberg’s administration has, on average, maintained an annual arrest rate for simple cannabis possession cases over 45,000, with a disturbing ninety percent of arrests happening to….black and Latino youth.
Mayor Bloomberg, please, listen to Mr. Soros and stop arresting and negatively effecting future employment opportunities for an entire generation of minorities in New York City who got caught doing the same thing you did in your more youthful years.
And look how well you turned out after using cannabis?
Why deny over 45,000 other New Yorkers (and tourists) annually the opportunity to pursue their life’s goals and dreams just because, like you, absent an arrest for your cannabis use, they chose to use a little ganja to relax? Unfortunately for them and New York taxpayers, they’re getting permanently scarred by your feckless and expensive Cannabis Prohibition law enforcement practices in Gotham.
Mayor Bloomberg, your generous and thoughtful donation of $30 million—and that of Mr. Soros’—will be working at cross purposes if you continue to give the green light to the NYPD to arrest 45,000 cannabis consumers annually into the criminal justice system, the vast majority of whom are the very population you’re concerned with.
Mr. Bloomberg, if you’re worried about saving face or “what does the NAACP think about all of this?”, don’t be. Because, hundreds of thousands of cannabis consumers and tourists in New York City will very much appreciate the change in policy and the NAACP now supports changing America’s antiquated Cannabis Prohibition laws.
Mayor Bloomberg, please magnify the positive impact of your philanthropy and concerns for civil society by ending the practice of ‘collaring’ cannabis consumers in New York City, and, instead, return to the cost effective and less detrimental practice to cannabis consumers (notably for minorities) by simply issuing a civil fine in the form of a written ticket for cannabis possession cases rather than employ valuable police time and resources unnecessarily arresting so many black and Latino cannabis consumers.
Ironic kudos to Political Rhetoric graduate student ‘Steve’ from the University of Maryland for asking President Obama last Friday a spot on and searing rhetorical question from the Millennial generation about our country’s need to end the nation’s longest war…the failed war on some drugs.
Steve gets it. The audience gets it. According to all polling, in excess of 90% of U.S. citizens broadly believe the ‘war on drugs’ is a failure (75% support medical access to cannabis. 73% support decriminalizing adult possession for cannabis; and 46% support cannabis legalization outright).
When will the two major political parties and presidents—like Obama—get it?
According to polling last week, President Obama is quickly falling out of favor with the Millennial generation that helped sweep him to power in 2008. Lest President Obama forget who brought him to the dance, he might want to look at the clear discontent—across all party lines—with the way the federal government has been conducting drug warring, notably its full-throat perpetuation of antiquated and tax-draining Cannabis Prohibition policies.
Instead, he should deliver a clear message for supporting a system of legally controlling cannabis, rather than deny economic reality, waste taxpayers’ money and constantly face embarrassing questions about a failed public policy that has long festered in the public’s mind.
President Obama should endorse a ‘drug peace’ where cannabis is legally controlled like alcohol products; patients can access a safe and non-toxic naturally occurring medicine; and farmers, entrepreneurs and consumers in America can benefit from industrial hemp production.
President Obama, NORML and tens of millions of cannabis consumers and lovers of liberty ask you not to re-commit us to war against ‘weed’, but, instead, to re-think the leaf.
By David Edwards of Raw Story
President Barack Obama said Friday that the U.S. would not be ending its war on drugs under his watch.
“Much is being asked of our generation,” a doctoral student named Steve told the president at a town hall event in Maryland. “So, when are our economic perspectives going to be addressed? For example, when is the war on drugs in society going to be abandoned and be replaced by a more sophisticated and cost effective program of rehabilitation such as the one in Portugal?”
“I have stated repeatedly — and it’s actually reflected in our most recent statement by our office of drug policy — that we need to have an approach that emphasizes prevention, treatment, a public health model for reducing drug use in our country,” Obama said. “We’ve got to put more resources into that. We can’t simply focus on interdiction because, frankly, no matter how good of a job we’re doing when it comes to an interdiction approach, if there is high demand in this country for drugs, we are going to continue to see not only drug use but also the violence associated with the drug trade.”
After several minutes of explaining U.S. efforts to help Mexico fight transnational drug dealers, the president got to the point.
“Just to make sure that I’m actually answering your question, am I willing to pursue a decriminalization strategy as an approach? No.”
“But I am willing to make sure that we’re putting more resources on the treatment and prevention side,” Obama added.
Watch the video from MSNBC, broadcast July 22, 2011 here.
Let states enact their own marijuana policies
By Paul Armentano, Special to CNN
July 6, 2011
(CNN) — It is hardly surprising that former drug czar William Bennett would, in his CNN.com op-ed, oppose any changes to America’s criminalization of marijuana. But it is surprising that he would lump Barney Frank and Ron Paul’s proposal to allow states the opportunity to enact their own marijuana policy with the effort to legalize drugs.
Let’s be clear: HR 2306, the Ending Federal Marijuana Prohibition Act of 2011, proposed by Reps. Barney Frank and Ron Paul, does not “legalize drugs” or even so much as legalize marijuana. Rather, this legislation removes the power to prosecute minor marijuana offenders from the federal government and relinquishes this authority to state and local jurisdictions. In other words, HR 2306 is just the sort of rebuke to the “nanny state” that conservatives like Bennett otherwise support.
The House bill mimics changes enacted by Congress to repeal the federal prohibition of alcohol. Passage of this measure would remove the existing conflict between federal law and the laws of those 16 states that already allow for the limited use of marijuana under a physician’s supervision.
It would also permit states that wish to fully legalize (for adults) and regulate the responsible use, possession, production and intrastate distribution of marijuana to be free to do so without federal interference. In recent years, several states, including California and Massachusetts, have considered taking such actions either legislatively or by ballot initiative. It is likely that several additional states will be considering this option in 2012, including Colorado and Washington. The residents and lawmakers of these states should be free to explore these alternate policies, including medicalization, decriminalization and legalization, without running afoul of the federal law or the whims of the Department of Justice.
Of course, just as many states continued to criminalize the sale and consumption of alcohol after the federal government’s lifting of alcohol prohibition, many states, if not most, might continue to maintain criminal sanctions on the use of marijuana.
But there is no justification for the federal government to compel them to do so. Just as state and local governments are free to enact their own policies about the sale and use of alcohol — a mind-altering, potentially toxic substance that harms the user more than marijuana — they should be free to adopt marijuana policies that best reflect the wishes and mores of their citizens.
Does Bill Bennett believe that state and local governments cannot be trusted with making such decisions on their own?
Speaking during an online town hall in January, President Obama acknowledged the subject of legalizing and regulating marijuana was a “legitimate topic for debate,” even as he expressed his opposition. Yet Texas Rep. Lamar Smith, chairman of the House Judiciary Committee, recently boasted that he would not even consider scheduling HR 2306 for a public hearing.
There might be another reason people like Smith and Bennett will go to such lengths to try to stifle public discussion of the matter. To do so would be to shine light on the fact that the federal criminalization of marijuana has failed to reduce the public’s demand for cannabis, and it has imposed enormous fiscal and human costs upon the American people.
Further, this policy promotes disrespect for the law and reinforces ethnic and generational divides between the public and law enforcement. Annual data published in the FBI’s Uniform Crime Report, and compiled by NORML, finds that police have made more than 20 million arrests for marijuana violations since 1970, nearly 90% of them for marijuana possession offenses only.
It is time to stop ceding control of the marijuana market to unregulated, criminal entrepreneurs and allow states the authority to enact common sense regulations that seek to govern the adult use of marijuana in a fashion similar to alcohol.
In Bennett’s own words, “We have an illegal drug abuse epidemic in this country.” How is such a conclusion anything but a scathing indictment of the present policy? After 70 years of failure it is time for an alternative approach. The “Ending Federal Marijuana Prohibition Act of 2011″ is an ideal first step.
Editor’s note: Paul Armentano is the deputy director of NORML , the National Organization for the Reform of Marijuana Laws, and is the co-author of the book “Marijuana Is Safer: So Why Are We Driving People to Drink?” (2009, Chelsea Green).