Latest On Obama Administration And Medical Marijuana

[AKenewell]

Latest on Obama Administration and Medical Marijuana

 

By Jeralyn, Section Crime Policy

Posted on Fri Aug 20, 2010 at 08:53:00 AM EST

 

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.

 

 

 

http://www.talkleft.com/story/2010/8/20/3107/51129?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+TalkleftThePoliticsOfCrime+%28TalkLeft%3A+The+Politics+of+Crime%29

[Buck Naykid]

This is a very nice find! Thanx for the post!

[welj31]

It would seem unlikely that there will be a change on the federal level soon, but there some things people can do. Here is one example:

 

Jury nullification occurs when a jury in a criminal case acquits a defendant despite the weight of evidence against him or her.[1] Widely, it is any rendering of a verdict by a trial jury which acquits a criminal defendant despite that defendant's violation of the letter of the law—that is, of an official rule, and especially a legislative enactment. Jury nullification need not disagree with the instructions by the judge—which concerns what the law (common or otherwise) is—but it may rule contrary to an instruction that the jury is required to apply the "law" to the defendant in light of the establishment of certain facts.

 

Strictly speaking, a jury verdict which rules contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of identical verdicts develops in response to repeated attempts to prosecute a statutory offense, it can have the de facto effect of invalidating the statute. Jury nullification is thus a means for the public to express opposition to an unwanted legislative enactment.

 

The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict, through judging both the evidence and the law[citation needed], than officials who may be unduly influenced to follow established legal practice, especially when that practice has drifted from its origins. However, in most modern Western legal systems, juries are often instructed to serve only as "finders of facts", whose role it is to determine the verity of the evidence presented,[2] instructions that are criticized by advocates of jury nullification.

 

Historical examples of nullification include American revolutionaries who refused to convict under English law,[3] juries who refuse to convict due to perceived injustice of a law in general,[4] the perceived injustice of the way the law is applied in particular cases,[5] and cases where the juries have refused to convict due to their own prejudices such as the race of one of the parties in the case.[6] The main consequentialist issue is the tension between equal justice and anarchy.

[+RevThad]

Great read. The author of the article made at least one mistake in their conclussion.

 

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.

 

 

While it is true that Congress needs to do something, it is not the only way to resolve this issue in the meantime. The President could issue an executive order regarding the arrests and prosecutions of legal mmj patients and caregivers. I suggest that this is a viable option because it relates to existing federal law, and the enforcement of that federal law. The last few administrations have used executive orders to affect policy using questionable relations to federal law, and in some cases with no authority at all.

 

Unfortunately, I don't believe that our current president has any interest in changing anything at present moment. If he did, I would think at the very minimum he wouldn't have renominated the head of the DEA, a Bush hold over. Or at the very least, he won't do anything until it will help his own reelection cause.

[Phil78]

okay, i'm reading this, and have to stop partway through to make a comment on this:

 

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.

 

they ALWAYS say this! yes, it does affect your mentality (for the better), motor performance, cognition and other things, WHILE YOU'RE USING IT! Duh! Look at these things when people drink alcohol! They're not banning alcohol.

 

crap! according to this style argument, you should NOT exercise! after all, it increases your heart rate, blood pressure and makes you perspire profusely! that sounds dangerous! - nope, nope... you're not allowed to see what happens after exercise, you're only allowed to focus on what happens WHILE you're exercising. it's dangerous and should be outlawed!

[Phil78]

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.

 

so, in other words: if we're busy, don't bother us with this. but, if we've got a slow day and are looking for something to do, you're screwed

[herb green]

This is why I say to stay under 49

 

nightmare

 

This was a mistake in every way

 

He should never have brought news cameras to his home

 

The neighbors shouldnt have called the DEA of all people when they found out why they were there

 

He should not have had that many plants

 

You can do fine with training plants 49 or less is all you need unless you have a real need for greed

 

We are not going to be able to grow fields of this stuff yet...

 

Maybe in Oakland California but thats another thing altogether

 

DEA should have not prosecuted him... I understand the head to DEA in Colorado has retired due to his statement around the case...or the head DEA in charge of this...anyhow hes gone but they are still prosecuting?

 

They should let it go...

 

State wont prosecute him... hes legal under state law

 

And that's the real fight right there

 

It goes against their directive from the Attorney General

 

If they are following state law leave them alone...or at least dont prosecute

 

So that's it...they are prosecuting someone who is legal under state law

 

Should be a good case to watch....

 

... keep your numbers at 49 including clones and seedings just in case it ever happens to you

 

Then this basically cant happen....they probably wouldnt prosecute you even if you had no med card...It would be left to the state

 

And youre Legal...

[dutch&Dutchess]

That statement was one I always took as being a "just be patient" type of response. Mollification as it were. Seems I have heard that before. to wit "NOW is not the time to...." in response to any attempt at changing social mores and or laws.

The Civil Rights movement sure got plenty of "just be patient" messages

Well now I am A Patient!!! Thank you and I ain't got as much time as you Think I DO!

9/8/10 Oakland County Circuit Court Telegraph Rd 11am

see you there

[greenbuddha]

Obama is turning out NOT to be the person I thought he was.

 

No fool like an old fool, as they say.

 

I'll be more careful next time.

 

And YES... that's the way I feel about it!

[Phil78]

obama (imo) is a joke. if he could take a dump while being taped, he would. he loves being on camera, and he's a media whore. he is good at saying whatever whomever is listening, wants to hear.

 

he is the true form of the term scheister

 

he "says" "DEA leave them people alone," and what happens? the problem, is there is no large scale media reporting on it. there is no one saying, "hey, obama, i thought you told the DEA to leave the mmj people alone?"

 

i think if he was called on the carpet, specifically asked on his direction for the DEA, nothing will have changed. he was just making "a pretty" for the cameras.

[+wolfgang]

obama (imo) is a joke. if he could take a dump while being taped, he would. he loves being on camera, and he's a media whore. he is good at saying whatever whomever is listening, wants to hear.

 

he is the true form of the term scheister

 

he "says" "DEA leave them people alone," and what happens? the problem, is there is no large scale media reporting on it. there is no one saying, "hey, obama, i thought you told the DEA to leave the mmj people alone?"

 

i think if he was called on the carpet, specifically asked on his direction for the DEA, nothing will have changed. he was just making "a pretty" for the cameras.

 

 

"i think if he was called on the carpet, specifically asked on his direction for the DEA, nothing will have changed. he was just making "a pretty" for the cameras."

 

but hey we might get invited for a beer in the garden,and then a kick in the donkey.

[+Silverblue]

I don't think Obama could reschedule it even if he wanted to, it'd have to be done by congress, and they sure won't do it, especially not in an election year, they'd be too afraid.

 

I'm deeply disappointed in him, too, though he did do some good, but he did more good for the wrong people than he did for us, despite his promises. Although he spoke pretty words, I didn't feel the real hope I had wished for, though there were a few highlights that did show glimmers of hope and change. He's better than bush. I know whoever gets in next could be a lot worse.

 

Sb

[peanutbutter]

I don't think Obama could reschedule it even if he wanted to, it'd have to be done by congress, and they sure won't do it, especially not in an election year, they'd be too afraid.

 

I'm deeply disappointed in him, too, though he did do some good, but he did more good for the wrong people than he did for us, despite his promises. Although he spoke pretty words, I didn't feel the real hope I had wished for, though there were a few highlights that did show glimmers of hope and change. He's better than bush. I know whoever gets in next could be a lot worse.

 

Sb

 

The DEA are the gatekeepers of the reschedule process.

 

To reschedule, you file a request with the DEA for a hearing.

 

President Obama is the commander, the high boss, of the DEA.

 

He can cause the process to start with one stroke of a pen.

[GanjaWarrior]

it amazes me how hard it is for Americans to admit we were scammed....freedom isnt free but it doesnt need to cost this much, if we only got what we paid for.