Yesterday, the Justice Department formally accused Highlands Ranch's Chris Bartkowicz of "possession with intent to manufacture, distribute or dispense 224 marijuana plants" -- greenery the Drug Enforcement Administration discovered in his house thanks to a story on 9News, as DEA special agent Jeffrey Sweetin acknowledged in a Westword interview.
But U.S. Attorney David Gaouette, whose office is prosecuting Bartkowicz, feels the charges are wholly justified -- and he hints that other similar cases may crop up in the near future. "We are still considering some investigations that have been presented to us," he says.
When it comes to the Bartkowicz matter, Gaouette says he was directed by an October memo credited to Deputy Attorney General David Ogden that told federal agents how to handle potential violations in states, like Colorado, that have approved the use of marijuana for medical purposes.
"The memorandum said that when there's clear and unambiguous compliance with state law, the Justice Department isn't going to utilize its limited resources to investigate and prosecute individuals who are engaging in that type of conduct," he points out. "And the review of Mr. Bartkowicz's case and evidence that was presented to my office yesterday indicated that he far exceeded the number of marijuana plants allowed by Amendment 20 for the number of patients he had."
Bartkowicz had twelve patients, for whom he could have grown six plants apiece under the Amendment 20 guidelines -- a total of 72. According to the Justice Department, DEA agents seized 224 plants from his home last week.
As Gaouette points out, one of the bullet points in Ogden's memo says federal prosecution might be justified if the amount of marijuana possessed by a suspect was "inconsistent with purported compliance with state or local law." Given that Bartkowicz had over 150 more plants than Amendment 20 specifies, Gaouette felt the case met that standard.
Regarding the prospect of more prosecutions, Gaouette says, "The decision hasn't been made in at least a couple of cases I know of." He declines to go into more detail, although he confirms they have nothing to do with recent DEA raids on laboratories in Denver and Colorado Springs. In his words, "Those were administrative actions taken by the DEA for laboratories applying for a license, I believe. They were not criminal matters. There was no search warrant sought nor obtained from a federal district court judge or federal magistrate judge. So it was more of an administrative matter."
Still, Gaouette sees no reason to shy away from all prosecutions touching on marijuana until the Colorado state legislature pins down regulations of the medical marijuana industry.
"According to federal law, marijuana is illegal when possessed, and when possessed with the intent to distribute," he allows. "So we are going to proceed as we do in all cases. When an investigation's results are presented to our prosecutors, we'll examine those, whether they be marijuana or other controlled substances, or other potential violations of federal law. We'll assess the evidence and determine whether we should go forward.
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"The only difference with marijuana is when there is an indication that it could be for medical purposes -- and then, we have the guidance from the DAG memo to assist us in determining whether a particular case would be something we should devote our resources to prosecuting."
From a legal perspective, marijuana isn't a positive or even benign resource, Gaouette says.
"Congress, as well as the state of Colorado, has determined that marijuana is a dangerous drug. It's a controlled substance, a schedule one controlled substance, and in the federal system, and in the state system, possession of a controlled substance is prohibited and it's a criminal act.
"As we know, Amendment 20 has amended the Colorado state constitution to carve out exemptions and affirmative defenses for the general proposition or law that prohibits the use of marijuana. But we don't need to wait for the state legislature to interpret the amendment. The guidance we have from the deputy attorney general is sufficient for us to do our job, which is to enforce the federal law."