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Latest on Obama Administration and Medical Marijuana

By Jeralyn

Some of you may remember the case of Chris Bartkowicz, a Colorado marijuana grower who allowed the media to film and air a news segment on the marijuana grow in his house. When the DEA saw it on TV, they promptly arrested and charged him. The Government said he had 224 plants, and based on the three charges in the Indictment, if convicted, due to his prior convictions, he now faces mandatory minimum sentences of ten years, twenty years, and sixty years. The Government maintains he could receive a life sentence. (The Government's initial complaint is here.)

The Government filed a 50 page motion this week seeking to prevent Bartkowicz from arguing the Holder or Ogden memorandum or Colorado's medical marijuana law as a defense to the charges. The money quote from the motion, which is available on PACER:

The Obama Administration intends, and has always intended, to keep mariijuana as a Schedule I Controlled Substance with no medicinal value.

The AP erroneously reports the Judge granted the Government's motion. Sloppy reporting. The docket shows the government submitted a proposed order along with its motion, but the defense has until Aug. 27 to respond and a hearing is not scheduled until Sept. 8. The AP apparently misread the government's proposed order as one having been issued by the Court. From the docket, available on PACER: [More...]

08/17/2010 ...52... MOTION in Limine FOR PRETRIAL RULING ON IRRELEVANT EVIDENCE AND DEFENSES AND BRIEF IN SUPPORT OF MOTION by USA as to Christopher Bartkowicz. ... (Entered: 08/17/2010)

08/18/2010...53...MINUTE ORDER by Judge Philip A. Brimmer on 8/18/10: On or before 5:00 p.m. on Friday, August 27, 2010, defendant shall file a response to 52 government's Motion in Limine for Pretrial Ruling on Irrelevant Evidence and Defenses. TEXT ONLY ENTRY - NO DOCUMENT ATTACHED (pabsec) (Entered: 08/18/2010)

08/18/2010...54... NOTICE Proposed Order re 52 MOTION in Limine FOR PRETRIAL RULING ON IRRELEVANT EVIDENCE AND DEFENSES AND BRIEF IN SUPPORT OF MOTION by USA as to Christopher Bartkowicz ... (Entered: 08/18/2010)

08/18/2010...55...MINUTE ORDER by Judge Philip A. Brimmer on 8/18/10. A hearing on all pending motions is set for September 8, 2010 at 8:30 a.m. in Courtroom A 701 before Judge Philip A. Brimmer. TEXT ONLY ENTRY - NO DOCUMENT ATTACHED (pabsec) (Entered: 08/18/2010)

(In case the AP republishes the story with correct information and fails to note the error, here's what its article says now):

A Colorado pot grower facing federal drug charges after he bragged about his marijuana business to a TV station won't be allowed to use the state's medical marijuana law in his defense. U.S. District Judge Philip Brimmer has sided with federal prosecutors in their case against Chris Bartkowicz (BART-ko-wits).

Not surprising is the government's take on the Obama Administration's position on medical marijuana: The Obama Administration intends, and has always intended, to keep mariijuana as a Schedule I Controlled Substance with no medicinal value. From the motion:

Lastly, the National Drug Control Strategy for 2010 presented to the Congress of the United States by President Barack Obama makes absolutely clear that the Obama Administration intends, and has always intended to maintain the status of marijuana as a Schedule I Controlled Substance with no medicinal value. The policy states the following about marijuana:

We have many proven methods for reducing the demand for drugs. Keeping drugs illegal reduces their availability and lessens willingness to use them. That is why this Administration firmly opposes the legalization of marijuana or any other illicit drug. Legalizing drugs would increase accessibility and encourage promotion and acceptance of use. Diagnostic, laboratory, clinical, and epidemiological studies clearly indicate that marijuana use is associated with dependence, respiratory and mental illness, poor motor performance, and cognitive impairment, among other negative effects, and legalization would only exacerbate those problems. National Drug Control Strategy, 2010, submitted by President Obama and R. Gil Kerlikowske, Director of National Drug Control Policy.

The 2010 National Drug Control Policy is here. It's long, but from a quick scan I didn't see any statement that marijuana is properly classified as a Schedule I controlled substance with no medicinal value. It merely says the Administration opposes legalization of marijuana, partly because of the reasons quoted by the Government.

The Government's motion also warns no one should rely on Attorney General Eric Holder's statements or President Obama's statements as a presidential candidate and conclude they won't be prosecuted. Quoting a March, 2010 federal court opinion in U.S. v. Stacy (S.D.CA), it maintains:

...a reasonable person would not rely on these statements (Holder’s February 24, 2009, and March 19, 2009, statements and statements made by Barack Obama when he was a presidential candidate) as an assurance against prosecution under federal law.

As to the Ogden Memorandum,the motion states:

...like the rest of the Obama Administration’s pronouncements on the issue, the guidance remains open-ended.

As a general matter, pursuit of these priorities [prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks] should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.

Memorandum from David W. Ogden, Deputy Attorney Gen., U.S. Dep’t of Justice, to All United
States Attorneys (Oct. 19, 2009).

Translation, according to the Government:

Deputy Attorney General Ogden does not state that these kinds of prosecutions will not and will never take place; instead, he writes that resources will not be focused on these cases because it is not likely an efficient use of resources. This creates an open-ended policy, and does not guarantee against prosecution.

The Government also argues that any reliance on the Ogden Memorandum by Mr. Bartkowicz would be entirely unreasonable. Though reliance may be reasonable in light of the identity of the agent, a Deputy Attorney General; it is not reasonable in light of the substance of the Memorandum.

The Government also points out the Memorandum is not enforceable and merely constitutes internal guidance for prosecutors. (One might ask, why, then, did the Attorney General release it publicly and post it on the DOJ's website for all to see.)

One last point of note in the motion:

The Government seeks to try this case in the court of law, and not the court of public opinion. Allowing any evidence of state statutes, administrative regulations, definitions, and provisions will force jurors into policy makers, rather than fact-finders who decide whether a criminal violation of the federal law has occurred.

I wonder if anyone will notice the Government's 50 page motion is not signed. It omits the required signature block and contains only a certificate of service signed by a legal assistant.

While it obviously is a clerical error, one might ask who did write the brief -- the AUSA's in Colorado prosecuting Bartkowicz, or someone from DOJ in DC, who then forwarded it to the AUSAs in Colorado to sign and submit under their own names, and no one noticed it didn't contain a signature line? It reads a like carefully crafted national policy, and one that likely will be submitted in federal courts around the country wherever the issue pops up.

The bottom line is that the Holder statements and Ogden Memo are not enough protection. Congress needs to pass a law disallowing prosecution of medical marijuana patients and providers who are in compliance with state law -- or at a minimum, a law that expressly allows patients, caregivers and providers to raise compliance with state law as an affirmative defense to a federal prosecution.

Full post as published by TalkLeft on August 20, 2010 (boomark / email).