They say they are focused on large-scale, illegal distribution and sales operations, not the individual patient or the dealer on the street corner.
While dispensaries seem to be a bit of a gray area, it seems that if federal officials in this state stick to 2009 guidelines set by the U.S. attorney general’s office, Colorado dispensaries that keep their noses clean should not attract the attention of federal prosecutors and drug enforcement officers.
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An Oct. 19, 2009, letter — referred to as the “Ogden memo” because it came from U.S. Deputy Attorney General David Ogden — has served as the law of the land when it comes to how the Obama administration intends to deal with medical marijuana in states where its use is authorized. (Marijuana remains illegal as a schedule I controlled substance under federal law.)
The Ogden memo lays out guidance for U.S. attorneys in states where medical marijuana is legal. In an environment of limited resources, the memo says, the Department of Justice is primarily concerned about “significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks.”
The memo says federal resources should not be focused on “individuals whose actions are in clear and unambiguous compliance” with state marijuana laws, and it differentiates between the individual patient/ caregiver and large-scale operations, including questionable dispensaries hiding behind state laws.
“For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources,” the memo states. “On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. To be sure, claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department’s core enforcement priorities.”
The Ogden memo lays out several factors that, coupled with medical marijuana activity, would make conduct fall clearly outside the lines of “clear and unambiguous compliance” with state marijuana laws:
• unlawful possession or use of firearms
• sales to minors
• financial and marketing activities inconsistent with state law, including money laundering and financial gains/cash amounts that are inconsistent with state law
• amounts of marijuana inconsistent with state law
• illegal possession or sale of other controlled substances
• ties to other criminal enterprises Many inferred, perhaps incorrectly, that the Obama administration’s Ogden memo softened the federal government’s stance on regulating marijuana in states that have authorized its use for medical purposes.
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Recently, Michael Ormsby, U.S. attorney for the Eastern District of Washington state, made headlines for notifying landlords of penalties they may face for leasing to dispensaries, and he threatened to take “quick and direct action” against operators of dispensaries. Washington voters approved a 1998 ballot initiative removing the state’s criminal penalties for “physician-prescribed” marijuana, Ormsby said in an April 6 press release, but state law does not allow for “marijuana stores.”
And in California, a Feb. 1 letter from U.S. Attorney Melinda Haag — referred to as the “Haag memo” — outlines concerns about Oakland creating an ordinance permitting “large-scale industrial marijuana cultivation and manufacturing” because it conflicts with federal marijuana laws.
Haag says in her memo that, after consulting with Attorney General Eric Holder and Deputy Attorney General Ogden, it is clear that while the Department of Justice will not go after “seriously ill individuals” who use marijuana in a medically recommended treatment program under state law, “we will enforce the [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”
The latter clause raised the hackles of Colorado’s own Cannabis Therapy Institute, which on March 17 issued an e-mail warning to its stakeholders that the Haag memo marks a departure from the original Ogden memo and “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 law.’” The Institute surmised that ensuing Drug Enforcement Agency raids of dispensaries in California and Montana were prompted by the Haag memo.
“Maybe this will wake people up who think that it can’t happen here,” Kathleen Chippi of the Coloradobased Patient and Caregiver Rights Litigation Project was quoted as saying in the e-mail.
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Congressman Jared Polis, D-Colo., told Boulder Weekly that the medical marijuana industry has been a key economic driver in the state, and that the Ogden memo “gave some needed assurances that patients and legitimate business owners would not have to live in constant fear of DEA agents. This trust was quickly broken right here in Colorado.”
Polis was alluding to the DEA’s arrest of Highlands Ranch resident Chris Bartkowicz on marijuana charges in early 2010 after Bartkowicz told a TV station about his major basement marijuana grow.
“Technically, every dispensary in the state is in blatant violation of federal law,” Jeffrey Sweetin of the DEA subsequently told The Denver Post. “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.”
The incident prompted Polis to quiz Attorney General Eric Holder about how the feds determine whether someone is in “clear and unambiguous compliance” with state medical marijuana laws. At a May 13 hearing of the House Judiciary Committee, Polis pointedly asked Holder about Sweetin’s comments and whether they conform to the Ogden memo: “Do you agree that statements that could be reasonably taken as threatening to businesses that are legal in our state are, in fact, contrary to your stated policy?” Holder replied that such statements are, in fact, contrary to the Ogden memo if such businesses are in compliance:
“If the entity is, in fact, operating consistent with state law, and is not — does not have any of those factors involved that are contained in that deputy attorney general memo, and given, again, the limited resources that we have and our determination to focus on major traffickers, that would be inconsistent with what the policy as we have set it out.”
Polis says he didn’t feel like he got a clear response from Holder, and he notes that Sweetin was later promoted.
“It appears that a year later, via the Haag memo, I as well as all Coloradans have received an unambiguous response — that it is not the intention of the Department of Justice to respect our state’s laws,” Polis told Boulder Weekly.
“This is an established industry in our state employing thousands of people. The cannabis industry has taken money out of the hands of international drug cartels. Federal prohibition of marijuana is a failed policy. Working with bipartisan colleagues, I plan to continue supporting laws to support the cannabis industry [and] decriminalize its use for adults.”
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Jeff Dorschner, spokesperson for Colorado U.S. Attorney John Walsh, declined to comment on Polis’ statements. But he insists that the Haag memo does nothing to change the feds’ approach to medical marijuana in Colorado. He says the DEA and his office continue to follow the guidance set by the Ogden memo.
According to Dorschner, each U.S. attorney has “a fair amount of discretion,” and the Haag memo applies only to the California district for which it was written.
“It has no bearing on what Colorado’s situation is,” he told Boulder Weekly. “It certainly doesn’t supersede the Ogden memo. It doesn’t clarify the Ogden memo. It only applies to Oakland. Nothing has changed in Colorado because of the issuance of that letter.”
Dorschner agreed that from a federal perspective, there is less protection for commercial distributors of medical marijuana than there is for individuals.
Asked how dispensaries could avoid drawing attention from the feds, he would only say that his office and the DEA follow the Ogden memo, its “clear and unambiguous compliance” standard, and its list of complicating factors that would make a dispensary non-compliant. If the DEA encounters a dispensary where one of those factors is at play, they will contact Walsh’s office for guidance, Dorschner says.
Dorschner says the Bartkowicz incident occurred before Walsh took office, and that initial reports that the Highlands Ranch resident could face up to 60 years in prison were not realistic. Walsh offered Bartkowicz a plea deal of five years in prison, which in Walsh’s analysis was a fair sentence, according to Dorschner.
Mike Turner, a Colorado spokesperson for the Drug Enforcement Agency, agrees that the Haag memo doesn’t change anything for Colorado dispensaries.
“There is no change in our status,” Turner told Boulder Weekly. “We don’t go after sick people.”
The situation in which the DEA would go after a dispensary is “if folks get way over the line” under the parameters set by the Ogden memo. He compared it to speeding while driving:
Those going 20 miles per hour over the speed limit are more likely to get pulled over than those only a few miles per hour over the limit. He also used the analogy of having a bunch of flies in your house and only trying to swat the one that begins to annoy you.
“We’re going after the biggest and the baddest,” Turner says. “We’re typically not spending time going after dispensaries. There’s been no change for us. … Medical marijuana is not something we sit here and chat about every day.”
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A bigger concern for medical marijuana dispensaries in Colorado may be state and municipal regulations that some dispensary owners are calling too onerous.
In addition to any city licensing hurdles that dispensaries have to clear, 77 pages of rules from the Colorado Department of Revenue will go into effect on July 1, thanks to the passage of HB 1284 last year. The full list of those rules is available at http://1.usa.gov/eDUfF4.
In addition, the Cannabis Therapy Institute is hosting a legal seminar, “Compliance with the New Department of Revenue Rules,” at 6:30 p.m. on April 19 at the Holiday Inn in Denver. The seminar, led by attorney Robert Corry Jr., costs $150 per person.
For more information or to register online, see www.cannabistherapyinstitute.com/classes.