Corry, who says pursuing the charges against his clients would create a "trial balloon that will go down in flames" for the city, is no stranger to high-profile pot cases. He represents the organizers of the controversial Denver 420 Rally and has represented clients in the pot industry against city governments numerous times. Henley, Mauro, Miller and Walker approached him for his services several weeks ago, and his work began January 1 — the same day he believes that much of what the Denver District Attorney's Office has charged them with actually became legal.
Corry's clients and nine more current and former Sweet Leaf employees were arrested during raids at company locations across metro Denver by Denver Police Department officers on December 14. The arrests came after a yearlong investigation into Sweet Leaf on suspicions of looping, or selling unlawful amounts of cannabis to customers, according to the DA. Court documents outline DPD allegations of Sweet Leaf budtenders selling multiple ounces of cannabis to the same customers (some of whom were undercover DPD agents) on the same day, and even instructing them how to do so in some cases. Corry says his four clients never instructed customers on how to break the law. All four are charged with felony marijuana distribution of more than four ounces, a Class 4 felony.
"The constitution has no one-ounce limit in marijuana sales in a licensed facility. It does have a one-ounce limit for possession, but individuals working in a facility aren't law enforcement officers," he says. "If someone came in and said that [they planned to break the law] in a liquor store, then a liquor store wouldn't do that transaction. The same goes for Sweet Leaf — but that conversation didn't happen here. Not once did the undercover officer express intent of any illegal purchases."
Sweet Leaf officials have disputed how law enforcement is interpreting a Colorado law that applied to a one-ounce limit to recreational cannabis possession and transactions, and Corry agrees. They argue that the limit applied to each purchase, not each day, and that the law put the onus for obeying rules on the customer, not the budtender. The law was changed to make it clear the one-ounce limit applies on a per-day basis, but it didn't take effect until January 1, 2018. All the allegedly illegal sales took place in 2016 and 2017.
In 2017, the Marijuana Enforcement Division issued this official position on cannabis transactions:
The division will seek administrative action against licensees attempting to circumvent the statutory and rule requirement imposing the limitation of one ounce per transaction of retail marijuana. Sales that are structured as multiple, stand-alone transactions may be viewed by the division as an attempt to evade quantity limitations on the sale of retail marijuana, resulting in recommendation for administrative action.However, Corry believes the state constitution nullifies any stance or memo by a state enforcement agency, and argues that in his court motion. "The Denver DA should be ashamed to attach her name to this case," he says. "I don't think budtenders are required to advise people of the law. Adults are responsible for knowing the laws themselves."
Further, an individual in possession of more than one ounce of retail marijuana or its equivalent is acting unlawfully.
At least one attorney agrees with Corry's stance on the timing of the charges. Denver business lawyer Michael Bloomston says the MED's memo is "broader than both the statute and regulations" that were in effect in 2017 and should not apply to the budtenders currently facing looping charges. "The new law, effective [January 1], would make Sweet Leaf’s and its budtenders' actions illegal," he writes in an email to Westword. "Sweet Leaf did nothing wrong."
The Denver District Attorney's Office declined to comment on the new law, but according to DA communications director Ken Lane, two budtenders have been arrested since the raids, bringing the number of Sweet Leaf employees arrested to fifteen. The budtenders, Abel Alvarado and Timothy Macrorie, were arrested and charged with misdemeanor distribution of more than one ounce of marijuana in connection with case in late December.
The next hearing for Henley, Mauro, Miller and Walker is set for Monday, January 22, at 8 a.m. in Courtroom 2100 of Denver County Court. Corry expects a response to his motion at the hearing, but hopes to hear back from the DA before then.
None of the dispensary chain's owners listed in the Denver Department of Excise and Licenses suspension order — Anthony Sauro, Christian Johnson and Matthew Aiken — were among those arrested. Sweet Leaf's 26 cultivation, processing and dispensary licenses in Denver are still suspended by the Denver Department of Excise and Licenses until a decision is issued by the City of Denver. Sweet Leaf waived its right for a suspension summary hearing and will comply with the city's upcoming decision, which is expected in March, according to Excise and Licenses communications director Daniel Rowland.
The license for Sweet Leaf's upcoming Thornton location is under review by the City of Thornton. All Denver locations are closed and have been taken off Sweet Leaf's website, with only the stores in Aurora, Federal Heights and Portland, Oregon, still listed as currently open. Although the Aurora outpost was one of the eight Sweet Leaf stores raided on December 14, it was allowed to reopen December 22 after a city inspection of the operation, according to city spokeswoman Julie Patterson.
Update: This article was updated at 9 a.m. January 12 to reflect new arrest information from the Denver DA's Office.
