Joseph Saint-Veltri, lawyer for Chris Bartkowicz, the medical marijuana grower whose Highlands Ranch home was raided by the Drug Enforcement Administration after talking about his operation on 9News, takes a more old-school approach, declining to discuss ongoing legal developments even when they're positive -- like a Friday ruling ordering the DEA to preserve some of the marijuana seized from Bartkowicz's residence.
However, Saint-Veltri agreed to chat in a general way about the inherent conflicts between federal and state marijuana law -- and his comments highlight some of the fascinating legal questions likely to be addressed in future litigation.
"Colorado is in a unique position," Saint-Veltri notes, "because medical marijuana is the subject of a constitutional amendment, which elevates its stature above, for instance, a state that has merely passed a statute. Because, as you know, the legislative branch approves statutes written by representatives of the people, but only rarely do the people themselves vote on any issue.
"In this case, they did," he continues, "and as I understand it, they overwhelmingly approved the constitutional amendment that provides for the use of marijuana for medical purposes and activities allied with the use of medical marijuana, such as its production."
(Amendment 20's margin of victory in the 2000 election was approximately 53.8 percent in favor, 46.2 percent opposed.)
The nuts-and-bolts aspect of implementing Amendment 20 are particularly key, in Saint-Veltri's opinion.
"A doctor could write a prescription for a multitude of different drugs that, let's say, would be referred to in the vernacular as mood-altering drugs," he points out. "And presumably, that prescription would be filled by a pharmacist, and presumably some of us would have insurance that would cover it. But no pharmacy carries marijuana, and Merck is not in the practice of producing marijuana."
For this reason, the portions of Amendment 20 that pertain to production "are fairly extensive and panoramic, and in many ways, very specific" Saint-Veltri believes. "And I hope no one assumes that people who voted for it didn't know what they were voting for. The amendment has been degraded by those kinds of comments. But it was approved by a popular vote, and there was opposition to it -- well-funded opposition, as I understand it. I imagine the people in favor of the amendment were well-funded, also. But the final results bring into play the concept of populism, and that's what the vote is for."
The rub? "According to the federal authorities, some aspects of the amendment are in conflict with Title 21 of the U.S. Code, which is the Controlled Substance Act of 1970 as it's been amended from time to time," Saint-Veltri says.
Which takes precedence -- the federal code or the state constitution? That's a compelling question, in Saint-Veltri's view.
"This was not a state statute passed by a rogue legislature," he stresses. "It was well-debated, with compelling evidence given on both sides of the issue, with the voters determining that the more compelling evidence was presented on the side of the amendment, which passed. So it's a constitutional amendment in conflict with a federal statute.
"Let's turn that around for a second. Suppose it was a state statute in conflict with the federal constitution. The result there would be unmistakably easy to predict: The federal constitution prevails over any state statute that's directly in conflict with it. But once again, that isn't the case."
A court resolution of this issue "may not be as broad as we might speculate," Saint-Veltri feels. "If we reduce it to the smallest concern of controversy, it would be: In a federal prosecution, is the defendant, the accused, entitled to have a jury that is trying him instructed that it is a defense to the federal charge that the defendant had a good faith belief that he was in full compliance with the state law -- and, in this case, let's say adjunctly, in compliance with what has been called the Holder Memorandum."
Saint-Veltri refers to an October memo penned by Deputy Attorney General David Ogden at the behest of Attorney General Eric Holder. The document gives the Justice Department instructions about how to proceed and when to back off in relation to the potential prosecution of marijuana cases in states that have approved use of the substance for medical purposes.
To Saint-Veltri, the memo (he sees it as more of "an encyclical") "does not directly provide any real guidance as prosecutorial policy," in part because of its references to "resource allocation." He elaborates:
"Suppose some federal district has more resources than another district. If resource allocation and deployment of resources is the core and compelling principle in this memorandum, are they then entitled or permitted or authorized to prosecute more medical marijuana cases than another district that doesn't have as many resources available? I think the memo says it would be an unwise use of limited resources to prosecute a cancer patient for marijuana use, which is not exactly a profundity. But once again, it's not a prohibition. It doesn't say, 'You shall not prosecute.' It merely observes that it would be unwise."
As such, the memo "is subject to different determinations," Saint-Veltri allows. "And the DEA has chosen to interpret it in a way that's on one side of the controversy."
Of course, other interpretations are possible as well -- which dovetails back to the subject of jury instructions.
"If," Saint-Veltri wonders, "a jury was instructed that a defendant had a good faith belief that he was in compliance with the state law, and adjunctly, a good faith belief that he believed it would be an unwise allocation of resources to prosecute him, or some variation on that, should a jury be allowed to consider that in determining whether to acquit the defendant?"
A defendant's motivations are also important to consider, Saint-Veltri says: "To elevate the possession of a controlled substance from a misdemeanor to a felony, the prosecution is presumably required to prove that you possessed it with the intent to distribute the controlled substance" -- something that would likely be more difficult to prove from a criminal standpoint if an individual is allowed to show that he felt he was in compliance with state laws and Justice Department guidelines.
According to Saint-Veltri, "There are a lot of issues that seem to be connected to this discussion. So I leave it to other more knowledgeable and educated individuals to take up the task of informing us what all of that means. And I'll bet you they are out there and willing to speak."
That's a safe wager.