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US MT: Attorney: Feds Inconsistent on Medical Pot

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URL: http://www.mapinc.or...1/n713/a07.html

Newshawk: http://www.drugsense.org/donate.htm

Votes: 0

Pubdate: Thu, 15 Dec 2011

Source: Helena Independent Record (MT)

Copyright: 2011 Helena Independent Record

Contact: http://helenair.com/...ters_to_editor/

Website: http://helenair.com/

Details: http://www.mapinc.org/media/1187

Author: Eve Byron

 

 

 

ATTORNEY: FEDS INCONSISTENT ON MEDICAL POT

 

A federal defense attorney in Helena is saying that his client should be immune from federal prosecution in a medical marijuana case and was deprived of his due process rights because of selective prosecution by the government.

 

Michael Donahoe, a senior litigator with the Federal Defenders of Montana, acknowledges that his client, Joshua Schultz of Helena, pleaded guilty in September to distribution of marijuana, in exchange for 24 other counts being dropped. Schultz, 38, as well as his codefendants, Jason Burns and Jesse Leland, all of whom accepted plea bargains in the case, still face a mandatory minimum of five years in prison and could be sentenced to 40 years, a $2 million fine and at least four years supervised release under federal sentencing laws.

 

Federal officials said that in July 2010, law enforcement officials counted more than 750 marijuana plants grown by the three men, as well as 350 marijuana clones, at a site north of Helena, and said they made $1.3 million from the sale of marijuana. Schultz, Burns, 40, and Leland, 28, are scheduled to be sentenced at 10 a.m. today in federal court in Helena. Burns plead guilty to manufacturing marijuana and money laundering; like Schultz, Leland pleaded guilty to distribution of marijuana.

 

But Donahoe argues that it recently has come to light that in the 15 states that have legalized the use of marijuana for medical purposes, different United States Attorneys Offices have taken a wide range of approaches to implementing the government's medical marijuana policy.

 

For example, after federal raids on marijuana dispensaries in September 2010 in Nevada, 15 people were indicted, but eight of those cases were later transferred to state court, where they don't have to adhere to federal mandatory minimum sentences. In California, hundreds of warning letters were sent to commercial marijuana growing businesses prior to raids, and the federal government there was only going after significant commercial operations and shops close to schools. In Colorado, most federal action took place in civil court, and that usually happened only after local officials requested assistance, Donahoe said.

 

He adds that during a congressional subcommittee hearing on Dec. 8, U.S. Attorney General Eric Holder made it "unmistakably clear that federal resources are not to be expended in charging and/or convicting medical marijuana providers and other cognate industries, such as banks and commercial and retail landlords, who are dispensing marijuana in accordance with state laws."

 

"In view of these new facts, two issues need to be resolved at or before Mr. Schultz's sentencing," Donahoe wrote. "First, whether under the government's nonprosecution policy Mr. Schultz should be deemed immune from federal prosecution, since at all relevant times he was acting in accordance with state law as it existed at the time. It is Mr. Schultz's contention that Attorney General Holder's Dec. 8, 2011, testimony clarifies that caregivers and allied industries such as growers, banks and lessors are to be considered immune from federal prosecution, so long as they act within the confines of a commercial chain consistent with state law."

 

The second issue is whether the differing approaches by the same federal agency in different states violates equal protection and due process clauses under the Fifth Amendment, Donahoe adds.

 

"Just because there may be more dispensaries in California and/or Washington state is no reason for the government to vary its effort to bring citizens into compliance with the federal drug laws," Donahoe added.

 

But the U.S. Attorney's Office in Montana countered that not only are Donahoe's arguments not timely, they're also irrelevant since Schultz already entered a guilty plea.

 

"After such a guilty plea, a defendant may only attack his conviction on the basis that the guilty plea was involuntary or unintelligent," Joseph Thaggard, an assistant U.S. attorney, wrote in response to Donahoe's court filings. "Defendant Schultz has made no motion to withdraw his guilty plea. Accordingly, the reasons advanced for the motion to continue are, frankly, spurious."

 

Thaggard added that Schultz may very well have been prosecuted in other states, and that in 2009 a document known as the "Ogden Memo" only served to instruct prosecutors about the allocation of government resources. That memo in essence said that the federal government would not prosecute medical marijuana providers who operated within state law.

 

"At most, the document simply indicates that the federal government might not prosecute medical marijuana providers under certain circumstances," Thaggard wrote. "Clearly, the Ogden Memo did not extend immunity from prosecution to anyone."

 

As of 5 p.m. Wednesday, Senior U.S. District Court Judge Charles Lovell hadn't responded to Donahoe's request to postpone Schultz's sentencing while the issues are further explored. However, Lovell previously denied a similar prior request.

MAP posted-by: Jay Bergstrom

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