While medical marijuana is legal in Colorado, it remains against U.S. law -- and the push and pull between the state and the feds continues to concern the local MMJ community. Case in point: The Haag memo, a letter sent in February by California-based U.S. Attorney Melinda Haag promising that federal crackdowns on dispensaries will continue despite local laws allowing medical marijuana: Read it below. Does this mean medical marijuana businesses in Colorado should be worried?
The folks at the Cannabis Therapy Institute certainly think so. In a recent release, also on view below, CTI argues that the Haag missive, sent to the Oakland city attorney in response to a request for MMJ-related guidance from the community's city council, "clarifies" a 2009 memo from Deputy Attorney General David Ogden. That document directed U.S. Attorneys not to target medical marijuana businesses in areas where they're legal as long as they're following state law.
The Ogden memo didn't protect Highlands Ranch MMJ grower Chris Bartkowicz, who was convicted of violating federal marijuana cultivation laws. Bartkowicz thought he was legal by Colorado standards -- a matter of some dispute -- but his attorney, Joseph Saint- Veltri, was not allowed to use a medical defense in court.
However, Bartkowicz's arrest last year, following his appearance on 9News, wasn't followed by dozens of wholesale busts on medical marijuana growers and businesses, whose operations are governed by recently finalized regulations developed by the Colorado Department of Revenue.
In the wake of the Haag memo, however, Drug Enforcement Administration raids have taken place in California and Montana. Could Colorado be next?
We put that question to Jeff Dorschner, spokesman for the U.S. Attorney's Office in Colorado. In conversation, he certainly doesn't portray the Haag memo as having superseded Ogden's in the eyes of John Walsh, his boss.
"In Colorado, the U.S. Attorney relies on the Ogden memo to provide guidance specifically as it pertains to how best to utilize our resources when it comes to marijuana prosecutions," Dorschner says. "Our focus in the District of Colorado remains on large-scale drug-trafficking organizations, and that would include large marijuana grows. But again, it would have to be in the context of the Ogden memo."
Does Dorschner's statement mean Haag's letter shouldn't be construed as setting federal policy?
"If you look at an organizational chart at the Department of Justice, U.S. Attorneys are all on a parallel line," he replies. "Then they report up the chain of command to various officials in Washington." He adds that "the Ogden memo, when it was written, was issued by the Deputy Attorney General of the United States, who was authorized to set guidance."
In other words, Walsh is bound by the Ogden memo, not by Haag's. So does that mean a significant escalation in raids here isn't in the cards?
"The U.S. Attorney evaluates marijuana matters on a case-by-case basis, again using the Ogden memo as a guide as to how best utilize resources," Dorschner reiterates. "That is something this U.S. Attorney has done consistently since he was sworn into office."
Presumably, then, the Bartkowicz case might provide a better gauge of Walsh's approach than does the Haag memo. Walsh was confirmed last August, months after Bartkowicz was indicted. And while he didn't drop the prosecution when he took office, he signed off on a plea agreement that sentenced Bartkowicz to five years -- far less than the forty-to-sixty year jolt he might have received.
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Will these words reassure local advocates fearful that Haag's letter translates to open season on medical marijuana? Judge for yourself after paging down to read the Haag memo and the aforementioned Cannabis Therapy Institute release.
Cannabis Therapy Institute release:
Feds Threaten State Dispensaries Nationwide
Protest Federal Intervention into State Medical Marijuana Laws
Call the White House at (202) 456-1414 between 9:00 AM to 5:00 PM EST and send an e-mail right now: SEND THE WHITE HOUSE AN E-MAIL
In a little-publicized memo, the federal government has indicated that the gloves are off with regards to medical marijuana dispensaries, "regardless of state laws." Previous memos had indicated a loosening of federal prosecutions of medical marijuana, however the new memo states very clearly that the feds consider all dispensaries illegal under federal law and that their prosecution is a "core priority" of the feds.
The "Haag Memo" was written on Feb. 1, 2011 from United States Attorney Melinda Haag (Northern District of California) to John A. Russo, Esq., Oakland City Attorney, in response to an Oakland City Council request for guidance regarding medical marijuana and federal law. The memo was written with consultation and approval from U.S. Attorney General Eric Holder.
The "Haag Memo" clarifies the "Ogden Memo", which was written by former Deputy Attorney General David W. Ogden on Oct. 19, 2009 for the Department of Justice. The "Ogden Memo" seemed to indicate that the new Obama administration would restrict federal prosecution of medical marijuana providers in states that had medical marijuana laws. This was heralded by many as giving them the green light to pursue medical marijuana activities, as long as they were in compliance with state law.
The "Haag Memo" clears up that misconception with some very unambiguous statements. The memo says clearly that the feds will not look the other way on medical marijuana. The "Haag Memo" states very clearly that the feds will continue to investigate, arrest and prosecute medical marijuana dispensaries in every state "regardless of state laws."
In addition, the memo calls prosecuting medical marijuana dispensaries a "core priority" for the feds.
According to the memo, medical marijuana commercial activity is still considered by the Department of Justice to be "a violation of federal law regardless of state laws permitting such activities."
The memo may be the cause of the recent increase in federal raids at medical marijuana dispensaries. Only 4 days after the memo was issued, the DEA raided 4 dispensaries in California. Just this week, the DEA raided more dispensaries in California and Montana. They arrested dozens of people, and seized the assets and bank accounts of several dispensaries.
IMPLICATIONS FOR COLORADO
"Maybe this will wake people up who think that it can't happen here," says Kathleen Chippi of the Colorado-based Patient and Caregiver Rights Litigation Project (cannabislawsuits.com), who is trying to raise money to file lawsuits to uphold Colorado's Constitutional right to cannabis medicine. Many legal observers agree that Colorado has the best chance of fighting the feds in court because Colorado is one of the only states whose medical marijuana law is actually in the state Constitution.
However, last year the state of Colorado set up a regulatory scheme that required caregivers to surrender their Constitutional rights. The state created a new entity called a Medical Marijuana Center (MMC). However, in order to apply to become an MMC, the applicants had to surrender their Constitutional rights to be caregivers, leaving them with no Constitutional protection.
MMC applicants also had to sign their power of attorney over to the state Department of Revenue for extensive investigations of every aspect of their lives, including family, spouses, children, and bank accounts. Over 700 people applied to become MMCs last July 1, 2010. The investigations on these applicants are in full swing, and no licenses to applicants have yet been granted.
MORE QUOTES FROM THE HAAG MEMO
"We will enforce the CSA vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law."
"Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law."
"As the Attorney General has repeatedly stated, the Department of Justice remains fumly (sic) committed to enforcing the CSA in all states."