Sacramento Criminal Defense Attorneys Reichel & Plesser In The News On Federal Criminal Case

May 23, 2013 Posted Under: Sacramento Criminal Defense

The Sacramento Criminal Defense Law Firm of Reichel & Plesser is fortunate enough to represent a pretty good guy, charged in federal court. Johnny Poland case featured by clicking here:

Tahoe cop pleads to witness tampering

5:13 PM, May 22, 2013 | 4 comments

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C. Johnson

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Johnny Poland (Photo Courtesy of

SACRAMENTO, CA – A South Lake Tahoe police officer has reached a plea deal in a case accusing him of witness tampering and obstruction of justice.

John Gerald Poland, 44, was accused of persuading two witnesses to conceal and destroy evidence in law enforcement investigations into a South Lake Tahoe gang member and his own conduct. Poland’s “interference” occurred in June, October and November 2011, according to court documents.

Poland pled guilty to one count of witness tampering. He could get up to 20 years in prison when he is sentenced Aug. 7, says the U.S. Attorney’s Office, Eastern District of California.

When asked for comment about the plea, Poland referred to his lawyer.

“He is happy to get this behind him. his life has been hectic and filled with a lot of controversy,” said Poland’s defense attorney Mike Reichel.

The South Lake Tahoe Police Department is moving forward with firing Poland, who has been on unpaid leave.

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Sacramento attorney Mark Reichel featured on local news before taking murder case

May 23, 2013 Posted Under: Sacramento Criminal Defense

The office was interviewed today, Mark Reichel, Sacramento Criminal Defense Attorney, on CBS 13 Sacramento about the murder case. Soon thereafter, Reichel & Plesser, L.L.P., Sacramento criminal and civil attorneys, were hired to represent the defendant.

Here’s the story and link.

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Supreme Court Rules Blood Draw Requires A Warrant

Apr 17, 2013 Posted Under: Sacramento Criminal Defense

Sacramento criminal defense attorneys Mark Reichel and Steve Plesser, at the Sacramento Law Offices of Reichel, Plesser L.L.P., are thrilled with this outcome.

Court Rules Warrants Are Needed to Draw Blood in Drunken-Driving Cases


Published: April 17, 2013

The full 48 page SCOTUS opinion is online @

WASHINGTON — The fact that alcohol dissipates from the bloodstream over time does not by itself give the police the right to draw blood without a warrant in drunken-driving investigations, the Supreme Court ruled on Wednesday.

The case arose from the arrest of Tyler G. McNeely, who was pulled over for speeding on a Missouri highway and exhibited, the State Supreme Court said, “the telltale signs of intoxication — bloodshot eyes, slurred speech and the smell of alcohol on his breath.” He performed poorly on a field sobriety test and was arrested.

Mr. McNeely refused to take a breath test and, after being taken to a hospital, to consent to a blood test. One was performed anyway, about 25 minutes after he was pulled over, and it showed a blood alcohol level of 0.15 percent, almost twice the legal limit.

The state court suppressed the evidence, saying there had been no “exigent circumstances” that excused the failure to obtain a warrant. “Warrantless intrusions of the body are not to be undertaken lightly,” the court said in an unsigned opinion.

Justice Sonia Sotomayor, in an opinion joined by Justices Antonin Scalia, Ruth Bader Ginsburg, Elena Kagan and, for the most part, Anthony M. Kennedy, said that many factors must be considered in deciding whether a warrant is needed. Among them, she said, are “the practical problems of obtaining a warrant within a time frame that still preserves the opportunity to obtain reliable evidence.”

Chief Justice John G. Roberts Jr., joined by Justices Stephen G. Breyer and Samuel A. Alito Jr., concurred in part and dissented in part.

“A police officer reading this court’s opinion would have no idea — no idea — what the Fourth Amendment requires of him,” the chief justice wrote, referring to the Constitution’s ban on unreasonable searches and seizures.

In 1966, in Schmerber v. California, the United States Supreme Court said no warrant was required to take blood without the driver’s consent after an accident in which the driver and a passenger were injured. The fact that alcohol levels diminish over time figured in the court’s analysis, as did the time it took to investigate the scene of the accident and move the injured people to the hospital.

Justice Clarence Thomas dissented in the case, Missouri v. McNeely, No. 11-1425. “Because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime,” he said, “it constitutes an exigent circumstance.”

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“Stingers,” Temporary Or “Fake” Cell Phone Towers Used By Law Enforcement To Capture Cell Phone Data Requires A Warrant

Mar 28, 2013 Posted Under: Sacramento Criminal Defense

Sacramento criminal defense attorneys Mark Reichel and Steve Plesser want the legal profession, criminal defense clients and the courts, to know about this very interesting issue:


New e-mails reveal Feds not “forthright” about fake cell tower devices

E-mails could have implications for accused tax fraudster caught via “stingray.”

by Cyrus Farivar – Mar 27 2013, 6:20pm PDT



It’s difficult to know if the cops are watching your mobile phone’s location by using a stingray.

Ed Yourdon

According to new Justice Department e-mails obtained by the American Civil Liberties Union (ACLU) of Northern California, and published on Wednesday, federal investigators have been routinely using “stingrays” to catch bad guys. A stingray is a device that can create a false cellphone tower, and allows authorities to determine a particular mobile phone’s precise location. Stingrays aren’t new—law enforcement agencies nationwide are believed to have been using them for years.

But one e-mail in the new trove reveals something brand-new: that the Feds were not fully clear about the fact that they were specifically using stingrays (also known as “IMSI catchers”) when asking for permission to conduct electronic surveillance from federal magistrate judges.

A press representative from the United States Department of Justice did not respond to Ars’ request for comment.

Groups like the ACLU are concerned that unsupervised use of such technology can inadvertently collect information of people who are not suspected of any crime, nor under investigation.

Stringray-based surveillance

The ACLU intervened as an amicus in the case of a federal defendant, Daniel David Rigmaiden, who is facing dozens of federal charges of identify theft, mail fraud, and other charges stemming from an alleged massive fraudulent tax refund ring. Rigmaiden and another as-yet unnamed co-conspirator are in federal custody. A third man, Ransom Marion Carter, III, remains a federal fugitive.

Rigmaiden maintains his innocence, and argues that using a stingray without a warrant is unconstitutional.

“Before this e-mail, we did not know whether Rigmaiden was an outlier,” Linda Lye told Ars, explaining that little is known about the scope of stingrays’ use. Now it’s clear they have been using stingrays as a matter of course.

As a result of this new disclosure, Lye has filed a motion to leave the new file with the court. Consequently, Rigmaiden filed a motion that the evidence resulting from the stingray—which allowed authorities to arrest Rigmaiden and search his apartment—be suppressed.

“There’s definitely a lot riding on [his] motion,” Lye added. “The government would have to establish that there was independent probable cause without using this device to know that this was the right apartment to search.” If they can’t prove that, substantial evidence is likely to be suppressed, and that would throw a wrench into the prosecution.

Between 2005 and 2008, federal investigators allege that the trio (Rigmaiden, Carter and the unnamed person) filed over 1,900 fake tax returns online, yielding $4 million sent to over 170 bank accounts.

The ACLU received the group of e-mails last week as the result of a Freedom of Information Act request jointly filed with the San Francisco Bay Guardian, a local alt-weekly newspaper.

On Wednesday, Lye published (PDF) the e-mails, and will formally present them Thursday to a federal court in Arizona, where Rigmaiden’s case is ongoing.

Lye wrote that these e-mails confirm “the need for suppressing the evidence in the Rigmaiden case because it shows that the government was engaged in a widespread practice of withholding important information for judges, and that it did so for years.”

“We hope that the court sends the clear message to the government that it cannot keep judges in the dark. Judges are not rubber stamps—they are constitutional safeguards of our privacy.”

A May 23, 2011 e-mail from Miranda Kane, chief of the criminal division at the United States Attorney’s Office, to her colleagues, states:

As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement’s [stingray] WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual’s location with some specificity) to locate an individual. It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit.

Or, as Lye concludes: “Notably, this email chain is dated May 2011, some three years after the Stingray’s use in Rigmaiden’s case—meaning the government was not ‘forthright’ in its applications to federal magistrate judges for at least three years.”

In December 2011, noted German security expert Karsten Nohl released “Catcher Catcher”—a piece of software that monitors network traffic and looks at the likelihood that a stingray is in use.

“The Hacker”

Rigmaiden’s case dates back several years. In 2007 and early 2008, the Internal Revenue Serviceidentified a bank account at Compass Bank in Phoenix that seemed to be receiving fraudulent tax refunds under the name “Carter Tax & Accounting, LLC.” Authorities identified Carter as being involved in the possible scheme.

By early 2008, undercover operatives identified another man who was dubbed “the Hacker,” as well as another as-yet unnamed co-conspirator who served higher up than Carter. They then opened a bank account for the Hacker, who unknowingly deposited some fraudulently obtained tax refunds electronically into that account.

In April 2008, the second co-conspirator was arrested in Utah, and that case remains under seal. This suspect and the Hacker were deemed to be above Carter in the tax fraud ring.

From April to August 2008, federal investigators tracked the Hacker via his Arizona bank account, and via packages sent to a Northern California apartment. According to the FBI, on July 23, 2008, the Hacker was served with a 50-count indictment under seal. Within two weeks, the man was arrested in Santa Clara, California, “after a foot and car chase,” following the pinpointing of his location because of the stingray.

An FBI press release detailed the rest of the story: after searching the Hacker’s person, authorities found a key to his apartment, and with a search warrant, searched his Santa Clara apartment and storage unit in San Jose, seizing “a laptop and multiple hard drives, $116,340 in cash, over $208,000 in gold coins, approximately $10,000 in silver coins, false identification documents, false identification manufacturing equipment, and surveillance equipment.”

Investigators identified the Hacker, via his fingerprints, as prior felon Daniel David Rigmaiden.

According to an IRS special agent’s search warrant (PDF), Rigmaiden’s computer also included “Email regarding leaving the United States for the country of Dominica…[and] documents regarding obtaining citizenship in other countries; emails regarding paying off Dominican officials to get Dominican birth certificates and passports; and a Belize residency guide.”

Rigmaiden’s indictment was initially sealed, pending cooperation with a federal investigation. But by January 2010, Rigmaiden declined to cooperate, and moved to represent himself (after firing three attorneys) and the case was subsequently unsealed.

The defendant’s trial in Phoenix is slated to begin on May 15, 2013.

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Fourth Amendment Violated By Dog Sniff On Front Porch of Home

Mar 28, 2013 Posted Under: Sacramento Criminal Defense

Opinion issued in Florida v. Jardines (Updated)

Prior to hearing oral argument in the Proposition 8 case this morning, the Supreme Court handed down its decision in Florida v. Jardines, the other dog sniff case (Florida v. Harris was decided last month). In an opinion written by Justice Scalia, the Court affirmed the Florida Supreme Court. The Court held a dog sniff at the front door of a house where the police suspected drugs were being grown constitutes a search for purposes of the Fourth Amendment. Justice Kagan filed a concurrence joined by Justices Ginsburg and Sotomayor. Justice Alito filed a dissent joined by the Chief Justice, and Justices Kennedy and Breyer.

Justice Scalia’s opinion for the Court resolved the Fourth Amendment question solely on property rights grounds, holding that bringing a dog to conduct a forensic search on someone’s porch constitutes a trespass at common law and, under the reasoning of last term’s GPS case, United States v. Jones, constituted a search subject to the limitations of the Fourth Amendment. While the general public, including the police, generally have license to approach a house’s front door (for example, to leave a flier or ask the occupant to answer a question), that license does not include an invitation to bring a dog onto the porch to search for drugs. If a member of the public did that, Justice Scalia observed, it would “inspire most of us to – well, call the police.” For that reason, the majority decision found it unnecessary to decide whether the dog sniff also violated the suspect’s reasonable expectation of privacy. When the police trespass onto private property to conduct a search, the Fourth Amendment applies regardless of whether the trespass also invades someone’s reasonable expectation of privacy.

Justice Kagan’s concurrence was devoted to explaining why, in her view, the case was an easy one under either a property- or privacy-based Fourth Amendment test. No one would think it reasonable for a stranger to come to one’s porch with a pair of high powered binoculars and peer through the windows. In the concurrence’s view, the dog sniff in this case was no different and no less an invasion of the occupant’s reasonable expectation of privacy.

The four Justice dissent found no support in the common law for the majority’s conclusion that the police conduct here constituted a trespass. The majority acknowledged that the public, including the police, have license to approach the front door. Justice Alito found nothing special about the fact that the police brought a drug sniffing dog with them (after all, “Dogs have been domesticated for about 12,000 years; they were ubiquitous in both this country and Britain at the time of the adoption of the Fourth Amendment.”). The dissenters also did not view the dog sniff as invading any reasonable expectation of privacy given that one can expect that odors will waft outside of a house and, possibly, into public areas where there is no question a dog could sniff for evidence of drugs without constituting a search.

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Should Sacramento Criminal Defense Attorneys Consider Suing Sacramento County Jail? Opposition even by FBI to “solitary confinement.”

Mar 19, 2013 Posted Under: Sacramento Criminal Defense

Found this interesting.

For more, check out Reichel and Plesser, L.L.P. criminal and civil attorneys in Sacramento. Here

Growing Opposition to Solitary Confinement

Members of California Families to Abolish Solitary Confinement (CFASC). Kneeling from left to right: Beth Witrogen and Michele Martinez; Standing: Cynthia Machado, Liz Evans, Irene Huerta, Becky Padilla, Pickles Camacho, Dolores Canales.
Carlos Villarreal, Executive Director of the National Lawyers Guild, SF Bay Area Chapter. Photo courtesy of
Carol Strickman, Staff Attorney at Legal Services for Prisoners with Children in San Francisco. Photo courtesy of
By Danielle

About 80,000 American prisoners spend 23 hours a day in closed isolation units for 10, 20 or even more than 30 years.
Now, there is growing evidence that such isolation causes mental breakdown, and the Federal Bureau of Prisons has decided for the first time to review its policies on solitary confinement.
A court has just awarded $15.5 million to a man left in solitary for two years.
The United Nations has labeled the practice as torture. Yet most Americans will not hear about it, or they will gloss over it without much thought and go back to their daily routines.
But the U.S. has a higher number of inmates in solitary confinement than any other democratic nation in the world. The 80,000 include men, women, and even children.
“Solitary confinement. When we use that term, what we’re talking about is placing the prisoner in a cell for 22 to 24 hours a day, who does virtually all the functions of life in that cell. [They are] only let out for a shower, maybe brief exercise, alone, and a visit if he or she ever has one, possibly for medical,” said Carol Strickman, staff attorney at Legal Services for Prisoners with Children in San Francisco.
“In some prisons, particularly Pelican Bay, there is no window, people go often years without seeing a tree [or] the stars,” Strickman continued, “Imagine if you’re lost in your own bathroom for 10 years. Maybe you can shout to the person in the room next to you, [but] that’s about it for social contact.”
Dolores Canales, co-founder of California Families to Abolish Solitary Confinement, talks about the SHU, Special Housing Unit, as solitary confinement is frequently called.
“I’m a mother of a Pelican Bay SHU prisoner,” she said. “I knew about the SHU, but I didn’t really give it too much thought. [Now it’s] something that I can’t stop thinking about, to know that these individuals have been housed like this for decades at a time.”
The practice was first reserved for the most violent inmates, but now prisoners are being subject to solitary confinement based on factors like race, religion and sexual orientation, according to some observers.
“It’s difficult to imagine without ever having experienced it. It is a type of punishment and torture that is completely unnecessary. It’s in violation of the Eighth Amendment and in violation of international law,” said Carlos Villarreal, executive director of the National Lawyers Guild, SF Bay Area Chapter.
An estimated one-fourth of those who are placed in solitary confinement are mentally ill. Some went in with previously existing mental disabilities, while others have had breakdowns because of the conditions.
“It’s not just mental torture, but physical as well. [It] affects your bone density, your eye sight, your hearing. They don’t even allow it for a lot of animals,” said Canales.
According to studies, at least half of all prison suicides take place in solitary confinement.
Aside from the mental health concerns, the bipartisan Commission on Safety and Abuse in America’s Prisons concluded that the practice of solitary confinement is linked to increased acts of violence in prisons. Other research shows a link to habitual relapse into crime.
Furthermore, it has been found that keeping prisoners in solitary confinement costs two to three times more than keeping them in the general population.
“Our position is that there are far too many people in prison. [These] major problems [are] because of the epidemic of incarceration in the United States.” said Villarreal.
“They’ve always been able to brush it under the rug. For years, the (California Department of Correction and Rehabilitation] budget was never questioned. But now we’re in such a mass financial crisis.Look at the numbers of what’s being spent in our prison system, and the numbers are tripled because of solitary confinement,” said Canales.
In California, prisoners linked to gangs are held in solitary confinement with indefinite sentences. According to prisoner support groups, over 500 prisoners in California have spent over 10 years in solitary, and over 70 prisoners have spent over 20 years in the SHU.
“The criteria that are used to put someone in solitary confinement are very broad. People are not Hannibal Lector, that doesn’t exist in real life, but we treat a lot of people like that’s what were dealing with,” said Strickman.
While the media generally does not cover what happens in prisons, a recent series of hunger strikes in California organized by over 6,000 prisoners has captured media attention, said Strickman.
There are reports that prisoner hunger strikes may resume in July if demands regarding solitary confinement and other prisoner conditions are not met.

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Hans Blix: Iraq War A Terrible Mistake: Office Bugged By Bush Admin Prior To Invasion Of Iraq

Mar 19, 2013 Posted Under: Sacramento Criminal Defense

I have never posted a purely political post before, but this is worth it. The 10th anniversary of the invasion of Iraq reveals this amazing story from Hans Blix, head of the United Nations Monitoring, Verification and Inspection Commission from March 2000 to June 2003. Astonishing read about weapons of mass destruction and Al Queda terrorists. Neither existed in Iraq before the invasion. Bush must be brought up on war crimes charges. Inexcusable.

Hans Blix: Iraq War was a terrible mistake and violation of U.N. charter

By Hans Blix, Special to CNN
updated 4:36 AM EDT, Tue March 19, 2013
U.S. Marines in northern Kuwait gear up after receiving orders to cross the Iraqi border on March 20, 2003. It has been 10 years since the American-led invasion of Iraq that toppled the regime of Saddam Hussein. Look back at moments from the war and the legacy it left behind. For more, view CNN’s complete coverage of the Iraq War anniversary.

Blix: Lead-up to war shows we must rely on international inspectors’ reports
War aimed to eliminate non-existent WMD, but ended up replacing tyranny with anarchy
Blix: Invading a country is easy for great power, but achieving political aims is more difficult
Blix: It is likely my U.N. office in New York was bugged in lead-up to invasion of Iraq
Editor’s note: Ten years ago the war in Iraq began. This week we focus on the people involved in the war, and the lives that changed forever. Hans Blix was the head of U.N. weapons inspections in Iraq (UNMOVIC) in the lead-up to the 2003 invasion.

(CNN) — On March 19, 2003, Iraq was invaded by an “alliance of willing states” headed by the U.S. and UK. My U.N. inspection team and I had seen it coming — and I felt an emptiness when, three days before the invasion, an American official called me to “ask” that we withdraw from the country.

While we were sad to be ushered out in the midst of a job entrusted to us by the U.N. Security Council — one that we were doing well — there was a certain relief in knowing we had all made it out safely. We had worried that our inspectors might be taken hostage, but as it turned out the Iraqis had been very helpful during our time there.

So it was that a few hundred unarmed U.N. inspectors left Iraq, to be replaced by hundreds of thousands of soldiers who began an occupation that would have a horrendous cost in lives, suffering and resources.

Hans Blix
FULL COVERAGE: The Iraq War, 10 years on

I headed the U.N. inspections in Iraq at the time of the war 10 years ago. Today, I look again at the reasons why this terrible mistake — and violation of the U.N. charter — took place and explore if any lessons be drawn. Here are my thoughts.

After the terrorist attacks of September 11, 2001, George W. Bush’s administration felt a need to let the weight and wrath of the world’s only superpower fall on more evil actors than just Afghanistan’s Taliban regime.

No target could have seemed more worthy of being crushed than Iraq’s brutal dictator, Saddam Hussein. Sadly, however, the elimination of this tyrant was perhaps the only positive result of the war.

The war aimed to eliminate weapons of mass destruction, but there weren’t any.

The war aimed to eliminate al Qaeda in Iraq, but the terrorist group didn’t exist in the country until after the invasion.

The lingering effect of war on Iraqis

10 years later: Iraq’s phantom WMD

Teens see no hope for future in Iraq

Iconic moments from 2003 Iraq War

The war aimed to make Iraq a model democracy based on law, but it replaced tyranny with anarchy and led America to practices that violated the laws of war.

The war aimed to transform Iraq to a friendly base for U.S. troops capable to act, if needed, against Iran — but instead it gave Iran a new ally in Baghdad.

WATCH NOW: Iraq’s phantom WMD

The Bush administration certainly wanted to go to war, and it advanced eradication of weapons of mass destruction as the main reason. As Deputy Secretary of Defense Paul Wolfowitz has since explained, it was the only rationale that was acceptable to all parts of the U.S. administration.

The WMDs argument also carried weight with the public and with the U.S. Congress. Indeed, in the autumn of 2002 the threat seemed credible. While I never believed Saddam could have concealed a continued nuclear program, I too thought there could still be some biological and chemical weapons left from Iraq’s war with Iran. If not, why had Iraq stopped U.N. inspections at many places around the country throughout the 1990s?

However, suspicions are one thing and reality is quite another. U.N. inspectors were asked to search for, report and destroy real weapons. As we found no weapons and no evidence supporting the suspicions, we reported this. But U.S. Defense Secretary Donald Rumsfield dismissed our reports with one of his wittier retorts: “The absence of evidence is not evidence of absence.”

MORE: Share your story of the Iraq War

Rumsfeld’s logic was correct, I believe, but it was no excuse for the American and British governments to mislead themselves and the world, as they did, by giving credit to fake evidence or assuming that if weapons items were “unaccounted for” that they must exist. They did not exist.

We inspected many hundred of sites, including dozens that had been suggested to us by various governments’ national intelligence organizations. In a few cases we found conventional weapons — but no weapons of mass destruction. The governments that launched the war claimed to be 100% convinced that there were such weapons, but they had 0% knowledge of where these weapons were.

I am not suggesting that governments should ignore information coming from their billion dollar intelligence programs. Such information is indispensable and collected with many means that are not available to U.N. inspectors.

However, I think one lesson from the Iraq war is that we should pay equal attention to the results of multimillion dollar international reports that are based on extensive professional inspections on the ground. In 2003, the alliance of willing states did not do that.

After the war it was reported that I and several others in New York had had our offices bugged during this period. If I was bugged, as I find very likely, I regret that those listening in did not pay more attention to what I had to say.

FAREED ZAKARIA: 5 lessons of the Iraq War

Fortunately, enough states did listen, and the U.N. Security Council was saved from green-lighting a war that was justified by false evidence.

The political leaders who have been criticized as responsible for launching the war on false premises have asserted that they acted in good faith, and that interrogation of leading Iraqis showed that the regime planned to revive its weapons program as soon as sanctions disappeared.

GPS: Lessons of Iraq War in Syria

War in Iraq: Ten years later

How will history judge the Iraq War?

I am not questioning the good faith of the political leaders, but rather their poor judgment in bringing war and death to a country on flimsy grounds.

On February 11 — less than five weeks before the invasion — I told U.S. national security adviser Condoleezza Rice I wasn’t terribly impressed by the intelligence we had received from the U.S., and that there had been no weapons of mass destruction at any of the sites we had been recommended by American forces. Her response was that it was Iraq, and not the intelligence, that was on trial.

ARWA DAMON: Iraq suffocates in cloak of sorrow

And during a telephone chat with Tony Blair on February 20, I told the British prime minister that it would be paradoxical and absurd if a quarter of a million troops were to invade Iraq and find very little in the way of weapons. He responded by telling me intelligence was clear that Saddam had reconstituted his weapons of mass destruction program.

At any rate, whatever view one took of the evidence of weapons, no one could believe in 2003 that prostrate Iraq was a threat to any other state.

I cannot judge whether Iraqi prisoners were sincere when they talked about Saddam Hussein’s intentions to revive weapons programs after the end of sanctions. They might have said what they thought their Western interrogators wanted to hear. Either way, the risk of a revived weapons program was remote and hypothetical — and the U.N. foresaw a system of reinforced monitoring to continue in Iraq and to provide an alarm bell even after a lifting of sanctions.

The most important lesson of the Iraq War, I think, has been that an overconfidence in military power has been replaced by an understanding that there are severe limitations on what can be achieved by military means.

OPINION: Media’s failure on Iraq still stings

Intervening swiftly with arms and crippling strikes might be easy for a great power, but achieving desired political aims is another matter and exiting may be hard — the phrase “If you break it, you own it” comes to mind. Vietnam, Afghanistan and Iraq have been long and costly engagements with very mixed results. Since then prudence has held the U.S. back in the case of Libya and so far in Syria.

Another important lesson is that today armed international interventions are likely to be condemned by much of the world unless they are clearly in self-defense or have been authorized by the Security Council.

Iraq was neither. Unless we remember this going forward, I fear there is nothing stopping this kind of tragedy from being repeated.

The opinions expressed in this opinion piece are solely those of Hans Blix.

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Sacramento United States Attorney’s Office Had Lead Role In Reforming Federal Stance On Medical Marijuana Dispensaries

Jan 28, 2013 Posted Under: Sacramento Criminal Defense

Sacramento federal and state criminal defense attorneys Steve Plesser and Mark Reichel have discovered that The Huffington Post reports the crucial lead role that the local Sacramento United States Attorney’s Office played in reforming the Obama administration’s role in prosecution in federal court of medical marijuana cases. The article can be found here.

Obama’s Drug War: After Medical Marijuana Mess, Feds Face Big Decision On Pot

Posted: 01/26/2013 11:18 am EST | Updated: 01/26/2013 7:00 pm EST


Eric Holder, Medical Marijuana, Barack Obama , Video, David Cole, Department Of Justice, Drug Enforcement Administration, Justice Department, Marijuana, Obama Drug War, Obama Medical Marijuana, Cole Memo, David Ogden, Dea, Doj, Marijuana, Michele Leonhart, Obamas Drug War, Ogden Memo, U.s. Attorneys, Politics News

OAKLAND, Calif. — In the summer of 2007, the owners of Harborside Health Center, then and now the most prominent medical marijuana dispensary in the U.S., were reflecting on their rapid rise. Steve DeAngelo had opened the center with his business partner in October 2006, on a day when federal agents raided three other clubs in the San Francisco Bay Area. “We had to decide in that moment whether or not we were really serious about this and whether we were willing to risk arrest for it,” DeAngelo said. “And we decided we were going to open our doors. And we did, and we haven’t looked back since. The only way I’ll stop doing what I’m doing is if they drag me away in chains. And as soon as they let me out, I’ll be back doing it again.”

DeAngelo, looking at his desktop computer during an interview that summer, threw his hands up and shouted, “Yes!” Hillary Clinton, campaigning for president in New Hampshire, had just told a video-camera-wielding marijuana-policy activist that, if elected, she would end federal raids on pot clubs in California. That meant that all three leading Democratic candidates — including the ultimate winner — had vowed as president to leave DeAngelo and his business alone. Within a year of opening, the shop was bringing in $1 million a month in sales.

President Barack Obama made good on his campaign promise shortly after taking office. “What the president said during the campaign, you’ll be surprised to know, will be consistent with what we’ll be doing in law enforcement,” Attorney General Eric Holder said in March 2009. “What he said during the campaign is now American policy.”

In October, the Department of Justice followed up with what became known as the “Ogden memo” — a missive from Deputy Attorney General David Ogden telling federal law enforcers that they should not focus federal resources “on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

Steph Sherer, the head of Americans for Safe Access, a California-based medical marijuana group, was thrilled when she saw the Ogden memo. The group quickly put out a press release touting it.

“We were so beside ourselves in so many ways that we were finally recognized by a government agency, that our press release was victorious,” Sherer said. “What our nuance was, we said, ‘Great, we have an administration that will have a dialogue with us, this is a major step forward.'”

Some members of the medical marijuana industry, however, took a less nuanced view. “Instead, the reaction [from cannabis industry people] was, ‘OK, we’re all in the clear, it’s time to expand our businesses and bring in outside investors,'” Sherer said.

Encouraged by the Ogden memo and DeAngelo’s public assertions of his million-dollar monthly revenue, medical pot shops flooded Montana, Washington, and other states. Legislatures in 18 states, plus the District of Columbia, have now approved marijuana for medical purposes. Twelve, including DC, have laws allowing dispensaries. Local officials in California’s Mendocino County and in towns like Chico moved forward with plans to regulate medical marijuana as well. Before 2009, there were roughly 1,000 pot shops across the country. Today, there are 2,000 to 2,500, according to Kris Hermes, a spokesman for Americans for Safe Access.

“Nobody can argue that the number of medical marijuana shops in California and Colorado didn’t grow at an exponential rate directly because of this” Ogden memo, said a former senior White House official who worked on drug policy and, like other former and current members of the Obama administration, requested anonymity in order to speak about internal debates.

The Ogden memo, however, was not the beginning of the end of the war on pot. Instead, it kicked off a new battle that still rages. Since the memo, the Department of Justice has cracked down hard on medical marijuana, raiding hundreds of dispensaries, while the IRS and other federal law enforcement officials have gone after banks and landlords who do business with them. Fours years after promising not to make medical marijuana a priority, the government continues to target it aggressively.

The war has played out not just between federal authorities and the pot industry, but between competing factions within the federal government, as well as between local and state officials and the more aggressive federal prosecutors and drug warriors. As officials in Washington fought over whether and how to continue the war on pot, U.S. attorneys in the states helped beat back local efforts to regulate the medical marijuana industry, going so far as to threaten elected officials with jail. The willingness of elements within the Department of Justice, including its top prosecutors, to use their power in brazenly political ways is, in many ways, the untold story of Obama’s first-term approach to drug policy.


As president, Obama did his best to laugh off questions about marijuana. His own experience with weed had been positive, having spent his high school years hanging out with the “Choom Gang,” a bunch of his stoner buddies in Hawaii. A young Obama coined the term “roof hits” to describe the act of sucking in pot smoke floating near a car roof, and was known to hog extra hits from a joint by jumping around a circle of smokers, snatching the weed and saying, “Intercepted!”

The Drug Enforcement Administration and federal prosecutors, however, found nothing funny about it. “I believe there’s this notion out there that the marijuana industry is just full of organic farmers who are peacefully growing an organic natural plant and that there’s no harm associated with that,” U.S. Attorney Melinda Haag told San Francisco public radio station KQED last March. “And what I hear from people in the community is that there is harm.” Marijuana, Haag said, could stunt brain development in children and act as a gateway drug to other substances. It may also, she warned, lead to armed robberies at dispensaries and grow operations, putting innocent bystanders at risk.

Federal authorities were determined to keep up the fight against pot legalization in any form, medical or recreational. Fighting that political battle often meant carrying out high-profile raids in the midst of legislative debates. In March 2011, agents swept through Montana, seizing property and arresting owners as part of a nationwide crackdown on medical marijuana. They timed the Montana raids to coincide with a legislative debate and votes in the state legislature over the future of medical marijuana, using law enforcement to shift the debate in their favor.

The raids led to images on the evening news of guns, drugs, and men in handcuffs. It imbued medical marijuana with a sense of criminality — even though it was legal under state law — and soured the political climate against it. Before the raids, state lawmakers had been debating two approaches: Repeal the voter-passed medical marijuana law altogether, or create a system of state-regulated and controlled dispensaries. The raids disabused Montanans of the notion that the federal government would allow states to regulate marijuana policy as they saw fit. The bill to sanction dispensaries was a casualty of the crackdown.

Instead, the Montana legislature voted to repeal the law, but the governor refused to sign it. Lawmakers sent him a new bill leaving the law in place, but strictly curtailing it, and disallowing dispensaries. He signed it.

People who felt they’d been baited into the business by the federal government cried foul and began fighting to stay out of prison. The team defending Chris Williams, a Montana medical marijuana provider who was arrested and charged with drug trafficking, reached out to a Huffington Post reporter, who had broken the news of Holder’s announcement that he would lay off medical marijuana, asking him to testify. “Case law in our circuit indicates we may be able to introduce evidence concerning entrapment, such as quotes by govt. officials in news articles, if the writer of the article can testify to the authenticity of the statements,” said an investigator.

The judge in the case, however, ruled that defense attorneys could in no way mention the federal policy — either Holder’s statement or the Ogden memo. Williams was convicted and faces a mandatory minimum of more than eight decades in prison, though the judge has ordered mediation on the sentence overseen by a different judge, an unusual step.

In a separate case now in court, former University of Montana quarterback Jason Washington, a hometown hero, was fingerprinted by the FBI while in the process of setting up a dispensary, apparently as part of an effort to rationalize the growing industry. Washington’s lawyers hoped the FBI’s documented cooperation with the establishment of the business would undermine the effort to imprison its owner. Last week, however, Washington was convicted, and faces two mandatory minimum sentences of five years each.

Federal officials in Washington state ran the same play that had worked to such effect in Montana. As state lawmakers debated legislation to license dispensaries, federal prosecutors said they felt excluded. “There didn’t seem to be a recognition that the use and sale of marijuana is against federal law,” Michael Ormsby, U.S. attorney for the Eastern District of Washington, complained to The New York Times. “No one [in the legislature] consulted with me about what I thought of what they were going to do and did I think it ran afoul of federal law.”

In early April, Democratic Gov. Christine Gregoire, anticipating the bill’s passage, wrote a letter to the Justice Department asking what the federal response to the law would be. Ormsby and the other U.S. attorney with jurisdiction in Washington sent back a fire-breathing letter threatening to prosecute anyone involved with the dispensaries, asserting — falsely — that the Ogden memo was strictly limited to “seriously ill individuals,” when in fact it referenced any individual who followed state law.

A week after the legislature passed the bill and sent it to Gregoire to sign, the DEA carried out coordinated raids on dispensaries in eastern Washington.

The next day, on April 29, Gregoire vetoed the licensing bill. “The landscape has changed,” she explained. “I cannot disregard federal law on the chance that state employees will not be prosecuted.”

In Rhode Island, a U.S. attorney fired off a similar letter to Independent Gov. Lincoln Chafee that same month, as the governor considered whether to create state-run medical marijuana dispensaries, which the state legislature had authorized in 2009, before Chafee took office. the governor scrapped the planned “compassion centers.”

“Federal injunctions, seizures, forfeitures, arrests and prosecutions will only hurt the patients and caregivers that our law was designed to protect,” Chafee said.

Similar scenarios played out in Arizona and Hawaii, with raids and federal intervention followed by state officials backing off attempts to regulate dispensaries. The New York Times, rarely quick to ascribe motives to law enforcement on the news side, noted federal authorities’ timing.

“As some states seek to increase regulation but also further protect and institutionalize medical marijuana, federal prosecutors are suddenly asserting themselves,” the newspaper wrote that May.

For federal officials, the crackdown was necessary because things had accidentally gotten out of their control, said a former White House official. “If you read the memo, with the exception of a few words you maybe could’ve worded better, it’s really not that different from current law,” he said. “It took us by surprise, I will tell you, the way it was received in the beginning, and then the media ran with that narrative, that this was a change in policy and Obama’s gonna allow medical marijuana shops. The smart legalizers ran with that too, even though the really smart ones knew, when you read that memo, there really wasn’t much of a change from the Bush administration. All of a sudden, it took on a life of its own.”

Another official contended pro-marijuana legalization groups “distorted” the Ogden memo, a characterization the groups dispute.

“The distortion certainly wasn’t on our side,” Steve Fox, director of government relations for the Marijuana Policy Project, told HuffPost. “The Ogden memo said it wasn’t going to be a priority of the Department of Justice to prosecute individuals who were acting in compliance with state law. It was pretty straightforward, and a lot of people invested a lot of money based on that guidance and put their necks on the line, and some of those people are now being sent to prison by the Department of Justice after that memo had been issued in 2009.”

Still, the consequences of the Ogden memo were unequivocal. Sherer traveled to Montana just before the crackdown to train owners on “raid preparedness.” She asked rooms full of pot shop owners how many had opened their doors because of the Ogden memo. Nearly all raised their hands, she recalled.

Pushing the memo, she thought, as she stared out at the crowd now in dire legal jeopardy, had been a mistake.

The Ogden memo, despite the press coverage — including here at HuffPost — held loopholes an aggressive prosecutor could drive a battering ram through. “Nor does this guidance preclude investigation or prosecution,” it reads at one point, “even when there is clear and unambiguous compliance with existing state law, in particular circumstances where investigation or prosecution otherwise serves important federal interests.”

One of those federal interests was the continuation of current pot laws.

Pushed by political appointees, the Ogden memo, even with its loopholes, faced stiff internal resistance from career Justice Department prosecutors. “That’s just not what they do,” said a former Justice official. “They prosecute people.”

“One of the challenges is that condoning lawlessness is not okay,” another former DOJ official involved the medical marijuana discussions told HuffPost. “On the other hand, you’ve got the reality of resources and priorities. You just don’t go off and make cases just to make a point.”

With the 2011 crackdown underway, federal prosecutors needed some legal justification, some clarification to the Ogden memo. “Their argument was, look, anytime we go to anyone and try to say we’re going to crack down on you, they say, ‘Well, look at the Ogden memo. You can’t.’ They’d get that thrown back in their face,” one former Justice official told HuffPost.

Even supporters of the Ogden memo acknowledged it wasn’t a permanent fix, given the contradiction between state and local laws. But federal officials were surprised by how quickly states moved, writing laws around the Ogden memo.

U.S. attorneys led the rebellion with support from the DEA. Benjamin B. Wagner, a U.S. attorney in Sacramento, Calif., who is currently prosecuting medical marijuana distributor Matthew R. Davies, was particularly pushy, according to officials involved in the discussions. Ogden’s memo, the federal prosecutors argued, created uncertainty. They wanted a memo they could use to push state officials to crack down on their own.

The Ogden memo, or at least the public perception of it, stood in the way.

“There was a fight to get a clarification,” said one White House official.

Despite its name, the key players behind the Ogden memo were then-Associate Deputy Attorney General Ed Siskel and then-Principal Associate Deputy Attorney General Kathy Ruemmler, according to two people involved in the discussions. As two of Ogden’s top associates, they took the lead in drafting the memo.

By the time the push for second memo started, both had already been promoted to the White House. Working in the White House Counsel’s office, they had no say as their replacements at DOJ drafted a memo many contend undermined the Ogden memo. “There was nowhere to hide. They had to get on the bandwagon,” said the White House official involved in the process.

The politics around drug policy do not move in a linear, upward direction like, say, civil rights issues. As civil rights are expanded, the politics become reinforcing, as people become normalized to the new equality and reject the old intolerance as immoral. It’s by no means a smooth transition, but, for instance, the more gay weddings that are held, the more people come to accept the concept of gay marriage as uncontroversial.

But drug politics move in both directions. Drugs of all kinds — cocaine, heroin, speed — were fully legal at the turn of the 20th century, then banned over the next several decades. The pendulum swung back in the 1970s, with more than a dozen states decriminalizing marijuana. Then back again toward criminalization. Drugs are not like gay or interracial couples, where familiarity breeds acceptance. More drugs can lead, instead, to a public backlash.

Nearly everywhere that medical marijuana shops have proliferated, beginning in San Francisco in the early 1990s, there has been some negative public reaction. In the early communities, the public outcry was followed by a moratorium on new dispensaries and tight regulations on how they could operate. Well regulated shops have by and large been accepted where they have been allowed. It’s that pregnant moment in between that the shops are most vulnerable.

After 2009, the shops expanded faster than cannabis movement and industry organizers could keep up with. “People were telling themselves what they wanted to hear,” namely that the Ogden memo provided immunity from raids, said Sherer. “The proliferation got really out ahead of advocates.”

She watched the tragedy unfold. In the 1990s and 2000s, her group organized patients and others sympathetic to marijuana, and as soon as a shop was raided, the owner would immediately notify Americans for Safe Access, which would then send text messages to all its nearby activists. Before the evening news trucks could get to the scene, a throng of protesters would be outside the shop, often joined by local officials, denouncing the DEA. The resulting images in the media were a major blow to the feds. The DEA, Sherer said, signed up for Americans for Safe Access text alerts and would begin leaving the scene of a raid as soon as one went out. But that momentum was broken when the industry exploded.

The way to guard against a raid, said Sherer, had been to talk with neighbors, attend city council meetings, respond to complaints, and generally become a part of the community. “Make sure your community wanted you,” Sherer said she advised businesses. “I’ve been training people for 10 years that the number one reason people get raided is community complaints. The telltale sign of federal activity is the local community rejecting the dispensary.”

Medical marijuana shops’ protection had never been the law, it had been public opinion. With the perception in some local communities that the pot industry had gotten out of control, the DEA and U.S. attorneys were left with an opening.


The drug warriors who had dug in at the DEA and Justice Department won their rear-guard action. The result was a new memo, issued by Deputy Attorney General James M. Cole, in June 2011.

“The second [memo] was kind of like The Empire Strikes Back,” a former DOJ official told HuffPost. “All the people who had been beaten the first time worked for several years to win one, and they won a round in the second one.”

Officially, DOJ took the position they were only further clarifying the Odgen memo, rather than throwing the guidance overboard. Its subject line promised it was merely “Guidance Regarding the Ogden Memo.”

Practically, however, the Cole memo gave U.S. attorneys more cover to go after medical marijuana distributors. The U.S. attorneys, “in unison, were saying, ‘We’re going to shut these down, this is the law.’ Holder could’ve said stop, but he didn’t,” said the White House official.

In August 2011, Justice officials told their local government leaders in the town of Chico, Calif., that they could personally be jailed if they went forward with legislation to regulate medical cannabis. Under criminal conspiracy laws, “all parties involved would be considered, including city officials,” city manager David Burkland wrote in a report on their meeting with U.S. Attorney Benjamin Wagner.

“Staff and Council’s involvement in implementing the marijuana ordinance could be interpreted as facilitating illegal activity associated with marijuana,” Burkland wrote. “U.S Attorney Wagner also stated that although the DOJ may lack the resources to prosecute every case, it intends to prosecute more significant cases to deter the activity of marijuana cultivation and unlawful distribution. In those cases, staff or elected officials will not be immune from prosecution under conspiracy or money laundering laws.”

In October 2011, four California-based U.S. attorneys held a remarkable joint press conference effectively declaring war on medical marijuana. “We were all experiencing the same thing, which is that everyone was saying … the U.S. attorneys are not going to take any actions with respect to marijuana in California because of the 2009 Ogden memo,” U.S. Attorney Haag told KQED. “So it’s fair game. We can have grow operations, we can have dispensaries, we can do anything we want with respect to marijuana. … That was incorrect.”

Haag said she launched her crackdown because she heard Oakland officials were preparing to license and regulate the industry, and allow large-scale growing operations in warehouses, which she opposed.

“What was described to me was that they were going to be quote ‘Walmart-sized.’ And I was hearing that everyone believed that would be okay, and that my office would not take any action. And I knew it isn’t okay. It is a violation of federal law,” Haag said. “If you actually read the so-called Ogden memo from 2009 from the Department of Justice, what it says is that U.S. attorneys will not ordinarily use their limited resources to bring actions against seriously ill individuals or their caregivers. That’s the direction we were given.”

Whatever the authors of the Ogden memo had in mind, the actual words they used said that resources should not be used to target “individuals whose actions are in clear and unambiguous compliance with existing state laws.”

“I didn’t think it was fair to stand by, be silent, let people pull licenses in Oakland, put millions of dollars into setting up a grow operation in a warehouse and then come in and take an enforcement action,” Haag said.

The prosecutor’s pursuit of fairness also took her to Mendocino County, where local officials had established an effective “zip tie program” to regulate its medical marijuana trade. Growers, after paying a licensing fee and submitting to police inspection, were given zip ties by the sheriff. Police officers who found bags of pot cinched by those ties then had reason to believe the product had been grown legally.

Just before the county board of supervisors planned to vote on making the program official and permanent, Haag traveled to the county and, in a meeting with county counsel Jeanine Nadel, threatened the supervisors with legal action if they moved forward, according to a report by California Watch.

The board decided to squash the program, but Haag’s pursuit continued. She empaneled a grand jury and subpoenaed information from the county about its program, looking for the names of people who had registered as growers, as well as all financial information related to it. Mendocino has so far refused to provide the information and is fighting the subpoena in court.

Dan Hamburg, a former member of Congress who’s now a Mendocino supervisor, said that his fellow board members were well aware that if they created an ordinance, they’d be putting themselves at legal risk. “The Board of Supervisors knew the possibility that we could be charged by the U.S. attorney with aiding and abetting criminal behavior, or even a criminal conspiracy,” he said. “However, my worry was, and remains, the possibility of forfeiture.” Under forfeiture laws, the federal government can seize money and valuables connected with criminal activity.

The feds have demanded to know how much money the county has made registering cannabis growers, which Hamburg and others suspect means they have their eye on it. Hamburg said it was just short of a million dollars, far more of a hit than the county budget, with “deteriorating finances,” could withstand.

“Our county doesn’t have a million dollars to turn over to the feds,” Hamburg said.

Hamburg had opposed the initiative, and opposed publicizing it, arguing that it would put a target on Mendocino and draw the ire of the federal government. Now that he’s been proven right, he’s backing his colleagues in defending it.

Just as pot policy split the Justice Department into factions, it pitted local cops against each other as well. The sheriff strongly supported the zip tie program, but some below him had a hard time countenancing what they saw as sanctioning criminal enterprise. Hamburg said that Haag saw there were local law enforcement concerns with the program and exploited those divisions.

The tensions are evident in a 2011 county audit report.

The zip tie program “is by far the program that causes the greatest chasm of disagreement within the department,” reads the audit. Critics “believe the program is illegal, runs counter to overall crime prevention in Mendocino County, is potentially criminal friendly, reduces morale, and is poised to bring more crime to the County and potential corruption to the department.”

The U.S. and Mendocino are scheduled to go to court on Jan. 29. Hamburg said he’s optimistic, but the fight is draining county resources.

“The president said he has bigger fish to fry than Washington and Colorado legalizing marijuana,” Hamburg said. “But apparently his government doesn’t have bigger fish to fry than stopping Mendocino from attempting to regulate its marijuana situation.”

While the Justice Department escalates its fight against medical marijuana, the country is moving beyond it. In November, voters in Washington and Colorado approved initiatives legalizing the recreational use of marijuana. Recent polls show majority support for legalization of pot for any adult, sick or not.

At a recent congressional hearing, DEA head Michele Leonhart was nearly laughed out of the room for refusing to say that marijuana was less dangerous than heroin. Anew HuffPost/YouGov poll found just one in five people thought the drug war has been worth it.

Having lost the public, where does the Justice Department go from here? Where will Obama let it go?

“We have two states that legalized it for even recreational use. So you tell me what Obama’s policy is,” John Pinches, of Mendocino’s Board of Supervisors, told HuffPost. “It’s a mumbo-jumbo mess. It’s time for the federal government to come up with a reasonable policy.”

Complicating things further has been the Obama administration’s mixed signals on recreational pot. In theory, it shouldn’t matter whether states want to legalize marijuana for medical purposes or recreational ones. But DOJ officials considered proposed recreational marijuana laws as fundamentally different from those regulating medical marijuana.

States that passed medical marijuana laws were making a narrow judgement on medical use. DOJ officials believed, however, that states that legalized marijuana were declaring full-on war with federal law.

Holder highlighted the contrast in 2010 as California voters prepared to vote on a ballot measure, Proposition 19, legalizing marijuana for recreational use. Just weeks before the election, Holder wrote a letter stating that the feds would “vigorously enforce” federal law “against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law.”

Prosecuting medical marijuana wasn’t supposed to be a federal priority. Prosecuting recreational marijuana cases was.

The public had supported Prop 19 for much of the race, but the measure ended up failing, 53 percent to 47 percent. Holder’s intervention may very well have tipped the balance against it.

It was a different story in 2012, when Holder kept quiet about legalization initiatives in Washington, Oregon and Colorado, a move one former Justice official said showed how quickly the politics were moving on marijuana legalization. An adviser at the White House at the time said that drug policy officials worried about tipping the electoral balance against Obama in Colorado, a swing state in 2012, and so declined to intervene in either Washington or the Mountain State’s pot legalization initiatives, both of which passed by stronger margins than Obama won.

“He was not as active as in 2010,” the official said of Holder. “People were genuinely worried about Colorado. And you couldn’t talk about Washington without talking about Colorado.”

Walsh, the U.S. attorney in Colorado, was less concerned about the electoral stakes. His crackdown on medical marijuana shops that were fully compliant with state laws came in the heat of election season. Obama campaign officials feared a backlash would send likely Obama supporters into the camp of Libertarian candidate Gary Johnson.

The Obama administration never publicly backed Walsh’s effort, nor did it intervene in the election. Obama won Colorado handily — though 50,000 more people voted to legalize pot than voted to reelect the president. The implications of that margin were lost on nobody.

The feds elsewhere didn’t keep completely quiet. They just waited until after the election. Jenny Durkan, the U.S. attorney for the District of Washington, warned residents the day before her state’s law went into effect in early December that marijuana remains illegal under federal law.

“Regardless of any changes in state law, including the change that will go into effect on December 6 in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law,” she warned.

California stands as an example of what may happen in other states if they continue with plans to legalize pot. In the spring of 2012, Richard Lee, Prop 19’s primary funder, came under attack. The feds raided Oaksterdam University, a school he founded in Oakland, Calif., to teach industry skills, as well as his home.

“This is one battle of a big war, and there’s thousands of battles going on all over,” Lee told HuffPost after the raid. “Before he was elected, [Obama] promised to support medical marijuana and not waste federal resources on this. … About a year and a half ago, the policy seemed to change. They’ve been attacking many states, threatening governors of states to prevent them from signing legislation to allow medical marijuana. They’ve been attacking on many fronts.”

In July 2012, the hammer came down on Harborside. The Justice Department served Harborside’s landlords with commercial property forfeiture proceedings on the grounds that it violates federal law. The city of Oakland backed Harborside, and the dispensary fought back in the court of public opinion, bringing forward sympathetic patients who would be harmed by the federal government’s actions.

One of them was Jayden David, now 6, who lives with a rare form of epilepsy. In his short life, he’s taken two dozen different medicines and has been rushed to the hospital in an ambulance 45 times. The boy’s condition, however, slowly began to improve when he started using medical cannabis to ease his chronic pain and seizures.

“He sings and smiles like a normal child now,” DeAngelo told HuffPost, claiming the child has seen an 80 percent reduction in his symptoms and can now spend twice as much time at school. Harborside helped develop a specialized cannabis tincture for Jayden that doesn’t have the same “high” side effects marijuana is commonly known for, he said.

Because DeAngelo is an activist first and a shop owner second, his willingness to go to prison has enabled a firmer stand against the feds. And he’s winning. In December, a state Superior Court judge delivered a sharp rebuke to the federal government: It could not enlist landlords in its drug war.

In January, in a second victory, a judge ruled that Harborside’s landlords could not order it to stop selling pot. The city of Oakland, on the happy end of more than $1 million in tax revenue from Harborside last year, filed suit against the federal government, demanding that it cease its prosecution of Harborside.

The Justice Department may respond to the legalization of recreational marijuana in Washington and Colorado in several ways. One option would be to go after low-level marijuana users as scapegoats and seek a court ruling that would declare federal law trumps state law. One of the more extreme options, which officials acknowledge is currently being weighed by the department’s Civil Division, would be to preempt the laws by suing the states in the same way the feds sued Arizona over its harsh immigration law. Federal authorities could sue Washington and Colorado on the basis that any effort to regulate marijuana would violate the federal Controlled Substances Act.

“The question is whether you want to pick that fight,” a former Justice official said.

Washington Gov. Jay Inslee and Attorney General Bob Ferguson

Marijuana Across The U.S.

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Forfeiture victory for “innocent owner” defense; Sacramento Federal and State Criminal Defense Attorneys

Jan 28, 2013 Posted Under: Sacramento Criminal Defense

Federal and state criminal defense attorneys Steve Plesser and Mark Reichel have noted that there is a recent decision that will make it tougher for the government to initiate forfeiture proceedings or file complaints based on the actions of third parties, a federal court court in Massachusetts ruled. The Wall Street journal article, here disucsses that

A federal judge rejected the Justice Department’s effort to seize a family-owned motel in Tewksbury, Mass., a decision that could rein in the federal government’s power to seize private property.

The government argued the property, known as the Motel Caswell, was forfeitable because it has been connected to criminal activity, in this case 15 drug-related incidents that took place between 1994 and 2008. The Caswell family, owners of the motel through a trust, said it had nothing do with the drug activities.

Wall Street Journal Series

The $57-a-night Motel Caswell was an unlikely prize in a high-stakes tug-of-war between conservative legal activists and the government. The Journal previously wrote about the motelin October 2011 as part of its series Federal Offenses, which examined the consequences of a vastly expanding federal criminal law book.

Read more articles in the series here.

In a sometimes scathing ruling, which for now halts the civil action brought by the federal government, U.S. Magistrate Judge Judith Dein said the federal government “had not met its burden of proving a substantial connection between the Motel Caswell and the forfeitable crimes, and, therefore, has not met its burden of proving that the Property is forfeitable.”

The judge added that the motel’s proprietor, Russell Caswell, of Tewksbury, Mass., did meet his “burden of proving the innocent owner defense.”

Mr. Caswell’s case, which was detailed in a page-one Wall Street Journal article in 2011, challenged the U.S. government’s asset-forfeiture system, which collects billions of dollars each year of cash, real estate, cars and other assets. In some cases, property has been seized without the owner being convicted of a crime. The proceeds from those seizures are often doled out to local authorities who participate in the investigations that lead to the seizures.

Law-enforcement authorities argue the laws afford adequate citizen protections and are important tools used to drain the wealth of drug traffickers and other criminal enterprises.

The U.S. Attorney’s Office said in a statement that it respected the opinion, but added that the case “was strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades. We are weighing our options with respect to appeal.” The government has 60 days to appeal.

Judge Dein said there no evidence that Mr. Caswell or his employees were aware of the criminal activity until after the fact, and noted they had on several occasions contacted the authorities to inform them about suspicious activities. She noted the hotel had been licensed every year by local Tewskbury authorities.

Darpana Sheth, an attorney with the Institute for Justice, a libertarian law firm in Arlington, Va., that represented the Caswells on pro bono basis, said the judge’s ruling could have wider implications if other federal districts pick up on it.

“Until this decision there were very few federal decisions” that maintained that “substantial connection” required a direct link to the crimes by the owner of the property being forfeited, she said. “In the past all they had to establish was someone was selling drugs on the property. That’s all that was necessary.”

The decision “will make it tougher for the government to initiate forfeiture proceedings or file complaints based on the actions of third parties,” Ms. Sheth said.

Write to Gary Fields at and John Emshwiller

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Big Win In California Supreme Court For Medical Marijuana Lawyers and Attorneys

Jan 17, 2013 Posted Under: Sacramento Criminal Defense


Sacramento California medical marijuana state and federal criminal defense attorneys Mark Reichel and Steve Plesser are thrilled about a new California ruling. The California Supreme Court has now spoken very clearly about the legality under California state law of medical marijuana storefront dispensaries.

Specifically, today, the California Supreme Court refused to order de- publishing and refused to review a published appellate court ruling from a few years back which taught all lower courts that there is a defense against state prosecutions that the defendant was following California medical marijuana law. That case, People v. Jovan Jackson, held as follows:

“We reverse Jackson’s conviction. In opposing the People’s motion, Jackson’s burden was not very great. Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the MMPA had been established. The defense the MMPA provides to patients who participate in collectively or cooperatively cultivating marijuana requires that a defendant show that members of the collective or cooperative: (1) are qualified patients who have been prescribed marijuana for medicinal purposes, (2) collectively associate to cultivate marijuana, and (3) are not engaged in a profit-making enterprise. As we interpret the MMPA, the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court’s ruling, the large membership of Jackson’s collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense.

However, we also recognize that in determining whether a MMPA defense has been established, a trier of fact must consider whether the organization operates as a for profit enterprise or is a nonprofit enterprise operated for the benefit of its members. In resolving that question, an organization’s large membership and governance processes, if any, are relevant. As we explain, where, as here, a collective has a large membership, the overwhelming number of whom do not, in any fashion, participate in the operation or governance of the collective and there is evidence of a high volume of purchases by the members, a trier of fact could reasonably conclude that, notwithstanding Jackson’s testimony to the contrary, the organization is a profit-making enterprise which distributes marijuana to customers rather than to members of a nonprofit collective organization and is therefore outside the scope of the defense offered by the MMPA. Thus, on remand, the jury should be instructed that in determining whether Jackson is entitled to a defense, the jury must determine whether the collective he participates in is a profit-making enterprise and further that in resolving that question, it should consider, in addition to other evidence of profit or loss, the size of the collective’s membership, the volume of purchases from the collective and the members’ participation in the operation and governance of the collective”

This is now the law of the land in California.

The appellate court opinion which the Supreme Court refused to reverse, is found here

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