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Medical marijuana update: U.S. Attorney John Walsh rejects safe harbor for MMCs

Additional update below: Yesterday, attorney Rob Corry shared correspondence with U.S. Attorney John Walsh about seizure-threat letters sent to 23 dispensaries within 1,000 feet of schools; get details and see the documents below. Corry interprets Walsh's letter as establishing what he calls "safe harbor" for MMCs more than 1,000 feet from school. But Walsh and spokesman Jeff Dorschner say he couldn't be more wrong.

"That is absolutely, unequivocally false," Dorschner allows. "There is no safe harbor."

He adds, "We will continue to use the Ogden and Cole memos" -- separate directives from the Justice Department regarding federal policy toward medical marijuana operations in states that have legalized them -- "as guidance. But we do not want anyone to think Corry's interpretation of this initiative equates to safe harbor."

His conclusion: "The U.S. Attorney has discretion, and when appropriate, he will use it."

Update 2:59 p.m. March 2: Moments ago, the U.S. Attorney's Office released a letter by John Walsh responding to attorney Rob Corry's assertion that previous correspondence had established a "safe harbor" for dispensaries more than 1,000 feet from schools. In it, Walsh echoes the quotes spokesman Jeff Dorschner shared with us earlier today. As for the tone, it can be described as exasperated.

According to Walsh, "Your letter yesterday described mine in a way that bears little or no resemblance to my letter's actual contents." Here's a key passage:

The letter does not discuss in any way a "safe harbor" from federal enforcement, let alone create one. Let me be very clear: The purported safe harbor described in your March 1, 2012 letter does not exist. To advise your (still unidentified) clients that such a safe harbor from federal enforcement exists would be incorrect and untruthful, and would mislead them, factually and legally, as to the position of the Department of Justice and of this office.

The entire letter can be found on page two of this post, following the previous three we published earlier. In the meantime, continue reading for the rest of the story to date.

Original item, 7:04 a.m. March 2: Attorney Rob Corry is sharing correspondence with U.S. Attorney John Walsh over the issue of seizure-threat letters sent to 23 dispensaries within 1,000 feet of schools.

Corry sees Walsh's response to him as evidence that dispensaries more than 1,000 feet from schools are safe from federal action. Is he right? Or is that wishful thinking?

Corry's first missive to Walsh is dated February 6, three weeks before the closure deadline for shops targeted by the feds. (One of the letters sent by the U.S. Attorney's Office was subsequently withdrawn because the building in question was administrative rather than a school attended by children. The other 22 centers closed by this week, as directed.) In it, he lays out a series of legal arguments detailing why he feels the office's actions should be immediately curtailed and requests a meeting with Walsh to discussion the situation.

In his reply to Corry, dated February 22, Walsh declines such a meeting because none of the center owners who received letters had listed him as their legal representative. However, he noted that his office had gone to the trouble of considering his arguments, and had rejected all of them. "During this office's criminal prosecution in United States v. Chrisopher Bartkowicz," he wrote, "we litigated the vast majority of the legal claims you now raise.... The United States prevailed on every one of those legal issues."

Bartkowciz, as you'll recall, was a Highlands Ranch marijuana grower who was arrested in February 2010 shortly after showing off his operation, located not far from a school, to a 9News reporter. In January 2011, he was sentenced to five years in prison, despite his argument that he was following state law -- a supposition the judge in the case rejected.

Walsh concluded his letter by asserting that "this office will continue to enforce federal law in this complex arena in a measured and just manner, so as to protect the people of Colorado."

Corry's response? In a March 1 letter also signed by Corry associate Travis B. Simpson, he states that none of his clients have given him permission to identify them. The implication: He represents other dispensaries within 1,000 feet of schools, and their owners worry they'll be swept under via a second wave of seizure-threat letters U.S. Attorney's Office spokesman Jeff Dorschner says is currently being assembled.

He then plays off Walsh's last quote in this section: "Your letter discusses your office's 'measured' approach to this 'complex arena,' and confirms a safe harbor from any Federal civil or criminal enforcement action for any operation measured over 1,000 feet from a school. This safe harbor is further confirmed by your office's withdrawal of one letter after it was shown there was no school within 1,000 feet."

Based on Walsh's statements, Corry goes on, "we will advise our clients and others that they have nothing to fear from the federal government so long as any operation can be measured at over 1,000 feet from a school. Thank you for providing concrete federal guidance after over a decade of uncertainty in this area. Even though we may disagree with the answer, at least it is an answer, and now all can move forward."

Page down to read the exchange of letters between Rob Corry and John Walsh.

Rob Corry Letter to John Walsh 1
John Walsh Reply to Rob Corry
Rob Corry Letter to John Walsh 2
John Walsh March 2 Reply to Rob Corry

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More from our Marijuana archive: "Dispensary owner whose shop closed at feds' order: 'Screw this f*cking city.'"


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