The February arrest of Highlands Ranch marijuana grower Chris Bartkowicz, as well as his subsequent indictment, has been a rallying point for local medical-marijuana activists -- and it will continue to be so for months to come. The judge at a two-day hearing has allowed the case, which could net Bartkowicz a mandatory sixty-year sentence, to move forward.
Bartkowicz was arrested shortly after showing off his crop to a 9News reporter. Local Drug Enforcement Administration personnel saw a website piece about the interview and raided his home, which was less than 1,000 feet from a school. That and Bartkowicz's past convictions on marijuana-related charges add immeasurably to the prison jolt he could receive, notes his attorney, Joseph Saint-Veltri.
According to Saint-Veltri, the federal mandatory minimum sentence for cultivation of marijuana within 1,000 feet of a school is five years -- but that's multiplied by Bartkowicz's previous criminal history. According to the government's indictment papers, he's facing a minimum sixty-year sentence -- meaning U.S. District Judge Philip Brimmer's only discretion would be to tack on additional time, up to life in prison, not lessen it.
"Some would say this was not a crime of violence," Saint-Veltri notes. "Some would say many other people are doing what Bartkowicz is accused of doing and aren't being prosecuted at all, much less being subjected to a mandatory minimum sentence of sixty years."
This week's hearing dealt in part with Saint-Veltri's contention that Bartkowicz's arrest was illegal because he was coerced into signing search-consent forms and waiving his right to remain silent. The prosecution argues that the search and Bartkowicz's subsequent questioning was consensual.
During the hearings, testimony cast a light on exactly what "consensual" might mean under these circumstances. On the day in question, Bartkowicz and a companion, Enoch Crago, hopped into Crago's Dodge pickup with the intention of driving to Home Deport to buy security doors. But before they could begin this journey, they were surrounded by multiple vehicles and five or six DEA personnel outfitted in full raid gear.
Crago said in court that the DEA staffers on site drew weapons, but prosecution witnesses denied that, saying their sidearms stayed hosltered. However, they confirmed the use of lights and sirens.
Despite this display of force, Judge Brimmer didn't agree with Saint-Veltri that Bartkowicz's signing of the documents had been coerced in a legal sense -- but neither did he call it consensual. Rather, at the end of the two-day hearing, Brimmer ruled that the Channel 9 story constituted the equivalent of an investigative tip that justified the feds' subsequent actions -- although he tossed some statements Bartkowicz made before inking a Miranda waiver.
Where's that leave Bartkowicz?
Saint-Veltri says the trial is slated for November 1, with pre-trial hearings scheduled two weeks prior. At that time, Saint-Veltri will make seven separate arguments to dismiss the indictment against his client.
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They include suggesting that the sixty-year sentence would constitute cruel and unusual punishment and pointing out that a Justice Department memorandum directing federal authorities to defer to local laws in the fourteen states that have approved medical marijuana was never explained to the grand jury that indicted Bartkowicz.
Saint-Veltri also cites selective prosecution, noting that the Channel 9 piece that led the DEA to Bartkowicz also had information about other growers who the agency never bothered to investigate.
Oh, yes: Saint-Veltri also says "we've invited the Attorney General of the state of Colorado" -- John Suthers, who's no fan of current medical marijuana laws -- "to join us in litigating the Tenth Amendment issue" involving state's rights. Simply put, the prosecution argues that Colorado's Amendment 20, which legalized medical marijuana here, should have no bearing whatsoever on the case against Bartkowicz, because it's trumped by federal drug laws that treat marijuana as illegal at all times, no matter the use.
Whether Judge Brimmer agrees to exclude all reference to Colorado's constitution and other laws governing medical marijuana in the state will have a major impact on Bartkowicz's chances to avoid spending the next six decades in stir.