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

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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.

‘THE LANDSCAPE HAS CHANGED’

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.
A FIGHT FOR CLARIFICATION

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 EMPIRE STRIKES BACK

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.”
A MUMBO-JUMBO MESS

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 gary.fields@wsj.com and John Emshwiller atjohn.emshwiller@wsj.com

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

Jan 17, 2013 Posted Under: Sacramento Criminal Defense

BIG BIG WIN TODAY!!!!!

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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Great New Rule From 9th Circuit About Government Interference With Defense Witnesses

Jan 17, 2013 Posted Under: Sacramento Criminal Defense

As federal criminal defense attorneys practicing here in the Sacramento area, attorneys Steve Plesser and Mark Reichel will pay close attention to this recent case.

In United States v. Jarvis Martin Juan, 2013 WL 57894 (9th Cir. Jan. 7, 2013), the defendant Jarvin Martin Juan lost his appeal because he couldn’t prove that the government had conveyed threats to a witness in order to impact her testimony.

However, there were announced two great new rules in the Ninth (and apparently in any federal court). It has long been the rule that the government can’t “substantially interfere” with the testimony of a defense witness by, for example, threatening perjury charges. In Juan, Judge Milan Smith holds for the first time that this due process rule also applies to government witnesses. New rule number one: the government cannot interfere with the effective presentation of a defense by threatening any witness: government or defense.

This “substantially interfere” rule, from a Supreme Court case called Webb, has primarily been applied when government threats completely kept a witness off the stand. In Juan, Judge Smith reasonably concludes that the same should also apply if the coerced witness testifies, but changes their testimony to match the government’s theory. Good rule number two: the “substantially interfere” bar still applies, regardless of whether the witness stays off of the stand or ultimately testifies.

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Supreme Court to Consider Warrantless Blood Draw for DUI’s Wednesday, Jan 9th

Jan 07, 2013 Posted Under: Sacramento Criminal Defense

Sacramento criminal defense attorneys Steve Plesser and Mark Reichel are waiting to watch this: In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.

Article here discusses the argument coming up.

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Troy L. Nunley Re Nominated by President Obama

Jan 04, 2013 Posted Under: Sacramento Criminal Defense

Story here about the 33 re nominations by President Obama.

Good news, sounds very promising that we could have a new and very well awaited quality Judge here in the Eastern District.

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GREAT VICTORY IN STATE SUPREME COURT FOR SACRAMENTO CRIMINAL DEFENSE ATTORNEYS: Felony act, by a gang member, acting alone, does not violate 186.22(a)

Dec 28, 2012 Posted Under: Sacramento Criminal Defense

GREAT VICTORY IN STATE SUPREME COURT FOR SACRAMENTO CRIMINAL DEFENSE ATTORNEYS: Felony act, by a gang member, acting alone, does not violate 186.22(a)
A great victory for anyone practicing criminal defense as a Sacramento Criminal defense attorney. The California Supreme Court ruled in People v. Joe Rodriguez jr that a felony act, by a gang member, acting alone, does not qualify for the enhancement or criminal charge of gang activity under penal code 186.22(a).

S187680
Ct.App. 3 C060227
JOE RODRIGUEZ, JR., )
Defendant and Appellant. ) Super. Ct. No. CRF07288
____________________________________)
We are again called upon to construe Penal Code section 186.22, the California Street Terrorism Enforcement and Prevention Act (the STEP Act) (§ 186.20 et seq.), involving the activity of criminal street gangs. At issue here is
section 186.22, subdivision (a) (section 186.22(a)): “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished . . . . ” (Italics added.)

We granted review to resolve a conflict in the Courts of Appeal. Under the language of the italicized phrase, does a gang member violate section 186.22(a) if he commits a felony, but acts alone? The Court of Appeal below concluded that he does not. We agree and affirm the judgment of the Court of Appeal.

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Senate To Hold Hearings On Federal Marijuana Policy: The beginning of the end?

Dec 13, 2012 Posted Under: Sacramento Criminal Defense

In a first ever, powerful and influential Senator Patrick Leahy of Vermont announced he plans to hold heairngs into the issue of federal enforcement of marijuana laws in states which have legalized the substance. Could very well be the very beginning of the end, and bring to fruition retired Justice Sandra Day O’Connor’s comments in dissent in Raich.

For the story click here

Leahy also sent a letter to the Office Of Drug Policy making inquiry.

Leahy To Examine Marijuana Policy
Plans Senate Judiciary Committee Hearing Next Year

December 13, 2012

WASHINGTON (THURSDAY, Dec. 13, 2012) – In light of recently passed state laws legalizing personal marijuana use, U.S. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Thursday released a letter sent earlier this month to the Director of the Office of National Drug Control Policy (ONDCP) seeking information about how the administration intends to proceed in light of differences between federal and state laws. Leahy also announced Thursday that he intends to hold a hearing looking into the matter when the 113th Congress convenes early next year.

Given the fiscal constraints of federal law enforcement, Leahy asked in his letter to ONDCP Director Gil Kerlikowske how the administration plans to use federal resources in light of new laws in Colorado and Washington State, as well as what recommendations the agency is making to the Department of Justice. In the interest of respecting states’ laws, Leahy also asked the ONDCP director what assurances the administration can give to state officials responsible for the licensing of marijuana retailers to ensure they will face no criminal penalties for carrying out their duties under those state laws.

“The Senate Judiciary Committee has a significant interest in the effect of these developments on federal drug control policy,” Leahy wrote. The Judiciary Committee intends to conduct a hearing on the issue in the new Congress.

“Legislative options exist to resolve the differences between federal and state law in this area and end the uncertainty that residents of Colorado and Washington now face,” Leahy wrote. “In order to give these options full consideration, the committee needs to understand how the administration intends to respond to the decision of the voters in Colorado and Washington. I look forward to hearing your thoughts on this matter.”

The full text of the letter follows. A PDF is available online.

# # # # #

December 5, 2012

The Honorable R. Gil Kerlikowske

Director

Office of National Drug Control Policy

Executive Office of the President

Washington, DC 20503

Dear Director Kerlikowske:

Last month, voters in Colorado and Washington chose to legalize personal use of up to one ounce of marijuana and to enact licensing schemes for cultivation and distribution of the drug. As the states move to implement these new laws, marijuana remains a Schedule I controlled substance according to the Federal Government. Production, distribution, and possession of the drug are Federal criminal offenses punishable by imprisonment.

The Senate Judiciary Committee has a significant interest in the effect of these developments on Federal drug control policy. How does the Office of National Drug Control Policy intend to prioritize Federal resources, and what recommendations are you making to the Department of Justice and other agencies in light of the choice by citizens of Colorado and Washington to legalize personal use of small amounts of marijuana? What assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face Federal criminal penalties for carrying out duties assigned to them under state law?

Legislative options exist to resolve the differences between Federal and state law in this area and end the uncertainty that residents of Colorado and Washington now face. One option would be to amend the Federal Controlled Substances Act to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law. In order to give these options full consideration, the Committee needs to understand how the administration intends to respond to the decision of the voters in Colorado and Washington. I look forward to hearing your thoughts on this matter.

Sincerely,

PATRICK LEAHY

Chairman

U.S. Senate Committee on the Judiciary

#####

Press Contact
David Carle: 202-224-3693

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WOW!!! $8.7 million dollar verdict for attorneys in shooting death of unarmed man by law enforcement in civil rights violation case

Dec 04, 2012 Posted Under: Sacramento Criminal Defense

$8.75 million verdict in L.A. Sheriff excessive force/wrongful death case. Los Angeles County.
Summary

Los Angeles County Sheriff’s deputies, in an unmarked car, pursued plaintiffs’ decedent as a DUI/robbery suspect. When decedent’s car crashed, he was surrounded by multiple sheriff’s cars. Decedent backed his vehicle into a sheriff’s car and deputies opened fire, killing him.

The Case

Case Name: Montalvo v. County of Los Angeles
Court and Case Number: : LASC, South Central District, Compton/ TC023708
Date of Jury Verdict: Tuesday, November 20, 2012
Date Action was Filed: Friday, 06 November 2009
Type of Action: Civil Rights, Excessive Force, Police Shooting, Wrongful Death, Highlighted Verdicts
Judge or Arbitrator(s): Hon. Lynn Olson
Plaintiffs:
Annette Montalvo
Child #1
Child #2
Defendants:
County of Los Angeles
Type of Result: Jury Verdict
The Result

Gross Verdict: $8,756,600
Trial Time: 5 weeks
Jury Deliberation Time: 3 days
Jury Polls: 10-2
The Attorneys

Attorney(s) for Plaintiff:
Taylor & Ring by John C. Taylor and Louanne Masry, Los Angeles.
Attorney(s) for Defendant:
Harold G. Becks & Associates by Harold G. Becks, Los Angeles.
The Experts

Plaintiff’s Technical Experts:
Roger Clark, police policy, practice and procedure, Santee.
Defendant’s Technical Experts:
Clarence Chapman, police policy,practice and procedure, Santa Monica.
Facts and Background

Facts and Background:On April 26, 2009, plaintiffs’ decedent, Alfredo Montalvo, age 29, a forklift operator and private security guard, was shot and killed by nine Los Angeles County Sheriff’s Department deputies in Lynwood. Montalvo is survived by his wife and 2 young children, ages 4 and 7.
Two deputies in an unmarked vehicle attempted to pull over Montalvo who they believed was driving drunk or fleeing from a robbery. After a short pursuit, Montalvo’s vehicle crashed and was trapped between two parked cars. Twelve sheriff’s vehicles and 16 deputies surrounded Montalvo’s car. Montalvo backed his vehicle into a sheriff’s car and, upon impact, deputies opened fire. Nine deputies fired 61 rounds at Montalvo. Montalvo was unarmed.

Plaintiff’s Contentions:That as the unarmed decedent was attempting to comply with the commands of the deputies to get out of his car, which was trapped between two parked cars, he backed his car up and impacted the unmarked sheriff’s vehicle parked a few feet behind.
The coroner testified that a gunshot wound to Montalvo’s left arm/head indicated that his arm was most likely raised when he was shot.

Plaintiffs contended that the deputies used excessive force and violated Montalvo’s civil rights.

Defendant’s Contentions:Defendant’s deputies claimed the amount of force used was justified.
Injuries and Other Damages

Economic and non-economic wrongful death damages.
Additional Notes

Result: Verdict for Mrs. Montalvo: $2,756,000 Verdict for Child #1: $3,000,300 Verdict for Child #2: $3,000,300 Total Verdict: $8,756,600 The jury also made a finding that Montalvo’s civil rights had been violated.

Information on settlement demands and offers could not be published due to a confidentiality agreement.

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Good news: Supreme Court refuses to hear appeal in case allowing citizens to tape record police encounters.

Nov 28, 2012 Posted Under: Sacramento Criminal Defense

Yes, the State of Illinois passed a law making it a crime to audio tape a police officer if you are a citizen. Yes, for god’s sake, the last thing we want is an honest record of the encounter. Thankfully, the ACLU sued and alleged that such a statute would violate the First Amendment. They won in the federal appellate court. Now, the Supreme’s refused to overturn that. YEAH!!!!!!

Supreme Court rejects plea to ban taping of police in Illinois
November 26, 2012|By Jason Meisner | Tribune reporter

Cook County States Attorney Anita Alvarez at a news conference in June with Gov. Pat Quinn, Police Superintendent Garry McCarthy and Mayor Rahm Emanuel. (Phil Velasquez, Chicago Tribune)
The U.S. Supreme Court on Monday declined to hear an appeal of a controversial Illinois law prohibiting people from recording police officers on the job.

By passing on the issue, the justices left in place a federal appeals court ruling that found that the state’s anti-eavesdropping law violates free-speech rights when used against people who audiotape police officers.

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A temporary injunction issued after that June ruling effectively bars Cook County State’s Attorney Anita Alvarez from prosecuting anyone under the current statute. On Monday, the American Civil Liberties Union, which brought the lawsuit against Alvarez, asked a federal judge hearing the case to make the injunction permanent, said Harvey Grossman, legal director of the ACLU of Illinois.

Grossman said he expected that a permanent injunction would set a precedent across Illinois that effectively cripples enforcement of the law.

Alvarez’s office will be given a deadline to respond to the ACLU request, but on Monday, Sally Daly, a spokeswoman for Alvarez, said a high court ruling in the case could have provided “prosecutors across Illinois with legal clarification and guidance with respect to the constitutionality and enforcement” of the statute.

Illinois’ eavesdropping law is one of the harshest in the country, making audio recording of a law enforcement officer — even while on duty and in public — a felony punishable by up to 15 years in prison.

Public debate over the law had been simmering since last year. In August 2011, a Cook County jury acquitted a woman who had been charged with recording Chicago police internal affairs investigators she believed were trying to dissuade her from filing a sexual harassment complaint against a patrol officer.

Judges in Cook and Crawford counties later declared the law unconstitutional, and the McLean County state’s attorney cited flaws in the law when he dropped charges in February against a man accused of recording an officer during a traffic stop.

Alvarez argued that allowing the recording of police would discourage civilians from speaking candidly to officers and could cause problems securing crime scenes or conducting sensitive investigations.

But a federal appeals panel ruled that the law “restricts far more speech than necessary to protect legitimate privacy interests.”

Chicago police Superintendent Garry McCarthy has said he would favor a change allowing citizens to tape the police and vice versa.

Meanwhile, several efforts to amend the statute in Springfield have stalled in committee amid heavy lobbying from law enforcement groups in favor of the current law.

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