Op Ed: Let Colorado Enforce Its Pot Laws Without Federal Interference

Colorado has allowed recreational cannabis sales since 2014.
Colorado has allowed recreational cannabis sales since 2014. Scott Lents
After Robert Troyer, U.S. Attorney for the District of Colorado, penned an op-ed titled "It’s high time we took a breath from marijuana commercialization," published in the Denver Post on September 30, Westword published a Q&A with Troyer. In response to Troyer's media blitz, attorney Rob Corry sent this letter:

Dear Mr. Troyer,

This Law Firm represents, advises, or has otherwise interacted with numerous clients or stakeholders involved in Colorado's regulated marijuana industry. We helped to frame Amendment 64 to the Colorado Constitution, and have helped build an industry through action in courts of law and public opinion. Voters know the truth that prohibition itself, and the hypocrisy that supports it, is far more harmful to people and to a free country than the cannabis plant ever will be.
The same goes for marijuana prohibition and alcohol prohibition, identically-insane government policies that each utterly failed to achieve any of their objectives of limiting the human appetite for the pursuit of happiness, and caused permanent collateral damage to the free principles of the United States and to her people. Both types of prohibition will soon be joined together on the ash heap of history.

We took close note of your statements as expressed in your op-ed in the Denver Post, your interviews with Westword, KUNC, Colorado Public Radio, CBS 4 Denver, Associated Press and others, in which you discuss the Trump administration's plans to take federal action against Colorado state marijuana licensees, and advise that compliance with Colorado state law or regulation is “not relevant” to the Trump Justice Department’s decision on which licensees to target.

This is a departure from your own previous statements on marijuana, particularly on January 4, 2018. At that time, you were widely quoted as committing to no major change in the U.S. Attorney for Colorado’s approach following U.S. Attorney General Jeff Sessions’ rescinding of Department of Justice memorandum known as the Ogden and Cole memos.

Around the same time, Colorado Attorney General Cynthia Coffman also publicly echoed your sentiments that based upon your statements to her, Colorado’s regulated industry had nothing to fear in the wake of Sessions’ new policy. No statement then came from you or your office that contradicted Coffman.

Following Sessions’ formal policy shift, Colorado’s U.S. Senator Cory Gardner immediately took strong action to defend his constituents and imposed a filibuster on Department of Justice nominees. Such impasse was resolved a few months later in April 2018, with President Trump’s commitment to Senator Gardner — and to the American people — that the state-regulated marijuana industry in Colorado will not be targeted by federal authorities. Senator Gardner backed down from his principled stand, only because of this specific assurance from the President of the United States, whose administration you were appointed by and serve under.

Senator Gardner publicly and very specifically discussed the precise terms of this promise, and no correction or reinterpretation was issued by you, your office, the U.S. Department of Justice nor the President.

Coloradans relied on this promise, directly from the President.

Coloradans relied on your words as well, as the top federal law enforcement official in our state.

This reliance on your and the President’s commitments could constitute, itself, a defense to any action you could initiate.

The U.S. Department of Justice and its subordinate agencies such as the Federal Bureau of Investigation, Drug Enforcement Administration, U.S. Marshals Service, National Security Division, INTERPOL Washington and many others have a long history of targeting the most dangerous and serious international or domestic criminal organizations.

click to enlarge
Robert Troyer is the U.S. Attorney for the District of Colorado.
U.S. Department of Justice
Now, the U.S. Department of Justice, through you, uses this considerable power to threaten a peaceful, nonviolent, transparent, regulated industry that employs thousands of Coloradans in good jobs and pays millions in federal and state taxes. Obviously, the extreme and negative side effects of decades of prohibition will not magically disappear overnight, yet our industry has done many good things and is held up as an example by many. Every industry is imperfect, and this is no exception.

Federal action against Colorado’s industry would not be automatically successful. First, there are juries in federal courts. All jurors in Colorado federal courts also live in Colorado, and every adult resident here knows someone who consumes marijuana, or works in the industry, or sees a licensed shop occasionally, or otherwise interacts with it. If you and the Trump administration truly plan for federal law enforcement action that will result in jury trials, please consider that your incendiary public statements will taint potential jurors, thus impeding the fairness of your prosecution, and unconstitutionally stacking the deck against the constitutional presumption of innocence.

Second, even federal law contains within it potential defenses, even if a federal court were to place a gag order prohibiting discussion of the known truth that marijuana is legal under Colorado law. For example, all state, local and “other officials” (such as badged employees of regulated entities) are immune from civil or criminal liability under the Federal Controlled Substances Act, 21 U.S.C. §885(d). This exception does not only cover local police, but any person engaged in enforcement of any law or even municipal ordinance relating to controlled substances. Every badged marijuana employee in Colorado is engaged in enforcement, affirmatively required to report law violations, and even engage in such acts as confiscating false IDs. This provision is why, when even civilian confidential informants purchase, possess and transport illegal street drugs as part of a standard sting operation, these civilians violate no federal or state laws and neither do their police handlers.

Other affirmative defenses, which are alive even in federal court, include “Advice of Counsel” (most of these regulated entities deal with the Colorado Attorney General’s Office or other government lawyers at some level, and most have their own retained counsel, both of whom advised them this is legal); “Selective or Discriminatory Prosecution” (if you go after one marijuana shop, you must go after all of them); “Mistake of Fact/Law” (based on the previous Ogden and Cole memos, and, frankly, President Trump’s own statements); and other defenses.

Third, your rationale potentially imperils legions of elected state and local officials, and their appointees and civil servants, who make up a vast bureaucracy that regulates marijuana in this state. Recently, Denver District Attorney Beth McCann and her office (which frequently invokes her “federal partners” in the Trump administration) has advanced a novel legal theory of “complicity” to attempt to implicate licensed marijuana sellers in the actions of their consumers, after the product is legally purchased and taken off site. This creative legal theory, in conjunction with federal enforcement, places elected officials such as the Colorado Governor, Colorado Attorney General, and lower appointees squarely in the crosshairs of federal prosecution. These officials oversee and appoint directors of a massive organization, which selects and approves all who can commercially produce or sell marijuana in our state, all conduct that you would claim is federally illegal, but with which higher officials are “complicit.” If the officials aren’t prosecuted, those who are will assert this defense.

In your Westword interview, you are directly quoted as saying “I don’t give a shit if they’re state-compliant or not.” (Troyer was talking about a hypothetical situation in which a licensed marijuana grower was using a banned pesticide.)

With all due respect, you should care whether commercial sellers of marijuana go through the expensive and arduous process of compliance and background checks. Although there are thousands of good people throughout Colorado who legally grow without state licenses (as is our constitutional right), a person or entity who surrenders confidentiality and submits to an optional background check and investigation of their structure and finances should be afforded some respect. And your disdain for free markets, free enterprise, and entrepreneurialism (what you call “commercialization”) is slightly out of place in the administration of businessman Donald J. Trump. If anything, Colorado’s marijuana industry needs more openness, true capitalism and less Soviet-style regulation and corrupt cronyism.

Over the decade-plus my firm has been close to this issue, federal officials come and go, and occasionally spew forth vague and scary threats, while rarely giving Coloradans the courtesy of specifics so we can actually make meaningful changes to satisfy the transient concerns of today’s federal propraetor. For example, Jeff Sweetin, lead Colorado DEA agent, on February 13, 2010, said in the Denver Post: “Technically, every dispensary in the state is in blatant violation of federal law...The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They’re violating federal law; they’re at risk of arrest and imprisonment."

There wasn’t much that Coloradans could actually do in the wake of those apocalyptic comments, other than wait for agent Sweetin to leave Colorado, which happened within months. A few working people might have delayed their next dispensary visit a few days after the article, so they wouldn’t be arrested while buying their joint, but the industry eventually managed to recover from agent Sweetin.

Although we disagree with some of the statements you made in your recent interviews, and do take issue with your demonization of people based upon their national origin or ethnicity (your boogeyman “Mexicans,” “Cubans” and “Chinese” perpetrators you repeat over and over in print and in interviews, while in fact federally legal Canada is by far the worst marijuana invader of Colorado), there yet may be some common ground between us.

click to enlarge
Cannabis attorney Rob Corry
First and foremost, we share the view that Colorado’s regulatory system is in dire need of improvement and re-prioritizing, both in policy and in personnel. The one core justification — sold to the public and the industry over and over again — for Colorado’s massive state and local layers of bureaucracy is to prevent federal intrusion by “keeping our own house in order.” The serious concerns you express demonstrate that Colorado’s regulatory system is failing, because its main stated purpose and reason for existence is keeping you happy. And you clearly aren’t happy. Although there are many good people working within the regulatory agencies, the leadership and regulations themselves do not work.

Our clients don’t make the regulations, and don’t agree with some of them, but follow them to the best of their abilities. Our clients and I have many ideas of how the regulatory system could be streamlined and improved.

For example, current Colorado law permits a medical marijuana patient to purchase at each dispensary, once per day, the full amount of the physician’s recommendation as to what amount is medically necessary. For some patients, this purchase can be up to two pounds of medical marijuana, per day, per dispensary. This is clearly legal under Colorado law, for the dispensary. It isn’t even a close call, and regulators have unquestionably validated the practice. And yet, although this type of legal sale happens thousands of times a day throughout Colorado, regulators remain distracted by such things as, in a recent example, sending a squad of regulators to make certain that no licensed dispensary, at a marijuana-themed festival, distributed any stickers or advertising material that actually included the logo of the dispensary, which did pay for booth space at the event. This is the level of distraction and misplaced priorities of the regulations, and of the regulators.

In your opinion, should these two regulations be changed? Should the focus be on marijuana and quantities that enter the market, or on totally cosmetic and useless “regulation for the sake of regulation?”

Perhaps the Trump administration’s new approach you announced last week presents an opportunity for the industry to make meaningful and positive changes that satisfy federal and state authorities. A critical aspect of your comments, which we have analyzed closely for any guidance, is that you emphasize ongoing public safety in the present. Safety happens now and in the future, not in the past. Logically, nothing can be done retroactively that in any way advances the public’s safety. Thus, we believe you will not reach into the past to prosecute or otherwise expend federal resources addressing past conduct of anyone, since things that occurred in the past and which are no longer occurring have no impact on present safety.

Please correct this if it is incorrect, but your public safety-focused approach must mean that federal authorities would not bother with a now-defunct dispensary chain that operated in the past, but which no longer operates, since devoting any scarce federal resources to such an entity that is already completely out of business, would have precisely zero impact on public safety. Thus, it would seem logical that your concerns are with what is happening in the present, right now, and with what Colorado might improve moving forward.

And there is much happening in the present. Let me please conclude by respectfully requesting that you provide Coloradans with the specific actions or changes we should make — now — to this industry and its practices that will reduce or alleviate the concerns of the Trump Department of Justice. I am confident that the majority of this industry will quickly adopt nearly any reasonable or proportional suggestion coming from the U.S. Attorney for Colorado, and will be eager to demonstrate same to you. It would not be waste of your time to make suggestions now, rather than keep everyone guessing as to when, whether, and why you will initiate some enforcement action — if you truly believe that it is about improving safety. Collaboration moves quickly; federal criminal jury trials move slowly.

Thank you very much for your consideration of this matter.

Robert J. Corry, Jr.

Robert Corry is an attorney who represents clients in the cannabis industry and those facing criminal charges related to cannabis, including former employees and current ownership of Sweet Leaf, a dispensary chain that was investigated and shut down by various local and state law enforcement for illegal marijuana sales. Reach him at [email protected] or 303-634-2244 with any thoughts about his letter, or feel free to comment below.

Westword occasionally runs opinion pieces on matters of interest to residents of metro Denver. Have one you'd like to share? Email [email protected]
KEEP WESTWORD FREE... Since we started Westword, it has been defined as the free, independent voice of Denver, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.