U.S. Attorney John Walsh's letter objecting to elements of HB 1043, a bill meant to clean up parts of last year's medical marijuana rules, has alarmed activists and confused legislators like Senator Pat Steadman, the measure's co-sponsor. Could dispensary raids like those taking place in Spokane this week be in Colorado's future? Comments from the U.S. Attorneys Office don't eliminate that possibility.
Walsh wrote at the request of Colorado Attorney General John Suthers, who included it in a packet of information provided to legislators that contained letters from U.S. Attorneys in several states, including Washington and California -- the latter being the controversial Melinda Haag memo threatening federal crackdowns on medical marijuana centers regardless of state law. See the package below.
In his missive, Walsh reiterated that marijuana remains a Schedule I controlled substance under federal law and referred to the prosecution of medical marijuana grower Chris Bartkowicz, who was sentenced to five years in prison after his attorney was told he couldn't use Colorado's MMJ laws in his defense.
He then attacked an element of the bill that had been stripped out by the Colorado House; it would "license a marijuana investment fund or funds under which both Colorado and out-of-state investors would invest in commercial marijuana operations." In addition, he criticized a provision still in the text allowing infused-product facilities containing up to 500 plants, "with the possibility of licensing even larger facilities, with no stated number limit, with a state-granted waiver based upon broad factors such as 'business need.'" Walsh emphasized that the feds would consider civil and criminal actions regardless of whether the fund or the facilities had been legislatively blessed by the State of Colorado.
Why did Walsh target these two measures? According to spokesman Jeff Dorschner, "The U.S. Attorney has spent a substantial amount of time in framing the argument in his letter to the Attorney General, and as far as he is concerned, the letter speaks for itself. But what he continues to emphasize is that the Department of Justice has no interest in going after an individual medical marijuana user or an individual caregiver, especially as originally defined by the constitutional amendment" -- Amendment 20, passed by Colorado voters in 2000.
Note that Dorschner does not exclude dispensaries or other retail operations from possible Justice Department scrutiny.
"Our focus has been and will continue to be large scale drug-trafficking organizations and substantial marijuana grows -- and thus, substantial marijuana production," he continues.
Does the U.S. Attorney differentiate between big medical marijuana grows -- the type okayed under Colorado law -- and those presumably focusing on the illegal or underground market? Dorschner replies, "In the eye of the federal government, there's only one type of marijuana. And marijuana is a Schedule I controlled substance. So the short answer would be 'no.'"
Dorschner says Walsh was troubled by the medical-marijuana fund "in large part because of the interstate nexus -- the fact that money would be crossing state lines."
How about the infused-product facilities with 500 plants, and possibly more? In our interview with Steadman linked above, he wondered if the objection meant the feds were fine with 500 plants, but 501 was too many. But that's an incorrect assumption, notes Dorschner, who declines to say how many plants would be too many, in Walsh's view.
"We analyze these matters on a case-by-case basis, and therefore don't feel it's appropriate to provide a specific number," he allows. "There are a number of factors we analyze, including the aggravating factors in the Ogden memo" -- the 2009 guideline by Deputy Attorney General David Ogden that originally implied the Justice Department would steer clear of medical marijuana businesses following local laws in states that had approved MMJ. "But again, a reading of the U.S. Attorney's letter says that large-scale drug trafficking operations will be the focus of this office."
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Could a more precise definition of "large-scale" come as a result of a future raid on a medical-marijuana grow? Time will tell...
Page down to read the package of information presented to the Colorado General Assembly by Attorney General John Suthers. The Walsh letter is the second item, followed by the Haag memo and more.