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Prohibitionists are Overstating Feds vs. State Marijuana Legalization Case to Media

A mostly great piece in Rolling Stone this weekend, "Obama's Pot Problem," missed the mark on the federal preemption question -- can the feds shut down Washington and Colorado's legalized regulation systems? Tim Dickinson wrote the following on that subject:

[T]he administration appears to have an open-and-shut case: Federal law trumps state law when the two contradict. What's more, the Supreme Court has spoken on marijuana law: In the 2005 case Gonzales v. Raich contesting medical marijuana in California, the court ruled that the federal government can regulate even tiny quantities of pot – including those grown and sold purely within state borders – because the drug is ultimately connected to interstate commerce. If the courts side with the administration, a judge could issue an immediate injunction blocking Washington and Colorado from regulating or taxing the growing and selling of pot – actions that would be considered trafficking under the Controlled Substances Act.
 

But a former Bush administration official quoted in the New York Times on Thursday, former DOJ civil division head Gregory Katsas, made the opposite prediction. Katsas was "skeptical" that a preemption lawsuit would succeed, according to the Times. Why? Perhaps because it's not just that the feds can't force states to criminalize drug possession, as Kevin Sabet selectively pointed out to Dickinson. It's also the case that they probably can't directly force the states to criminalize sales either. The Controlled Substances Act in fact leans against federal preemption of state drug policy, as pointed out in a law professors brief on preemption submitted in a California case this year.

Dickinson also pointed out that federal officials had used threats to prosecute state employees involved in implementing regulations for medical marijuana. In my opinion the US Attorney letters were deliberately vague -- scary enough to influence state officials, but in most if not all cases stopping short of explicitly making that threat. A better piece of evidence, I think, is that in 16 years of state medical marijuana laws, no federal prosecutor has ever tried to actually invalidate such a law in court, not even after the Raich ruling. Why not? They must not think they have a slam dunk case. And if preemption is not a slam dunk for medical marijuana, then it's not a slam dunk when it comes to legalization either, although there are additional arguments to throw against full legalization.

The reality is that no one knows how this will turn out if it goes to court. Raich established that federal police agencies can use their powers in medical marijuana states to continue to criminalize marijuana federally, justified by the Interstate Commerce Clause. But that is not the same as having the power to forbid states from granting exceptions to the states' own anti-marijuana sales laws, which in legal terms is what the regulatory frameworks do, and plenty of smart lawyers are skeptical that they can do that. This is not a slam dunk either way.

Outrage at Potential Sentence for Montana Medical Marijuana Grower [FEATURE]

Chris Williams is sitting in a private federal prison on the Montana prairie these days awaiting sentencing. If the federal government has its way, he won't be a free man again for three-quarters of a century, an effective life sentence for a middle-aged man like Williams.

Medical marijuana provider Chris Williams in happier days (facebook.com)
So, what did he do that merits such a harsh sentence? Did he murder someone? Did he rape, pillage, and plunder? No. He grew medical marijuana. And, as is not uncommon in Montana, he had guns around as he did so. Standing on firm conviction, he steadfastly refused repeated plea bargain offers from federal prosecutors, which could have seen him serving "only" 10 years or so.

Williams is one of the more than two dozen Montana medical marijuana providers caught up in the federal dragnet after mass raids in March 2011 savaged the state's medical marijuana community, including Montana Cannabis, one of the state's largest providers, where he was a partner. A true believer in the cause, Williams is the only one of those indicted after the federal raids to not cop a plea, and he was convicted on eight federal marijuana and weapons charges in September after being blocked from mentioning the state's medical marijuana laws during his trial.

It is the gun charges that are adding decades to his sentences. As is the case in drug raids where police come up against armed homeowners, or as was the case of Salt Lake City rap record label owner and pot dealer Weldon Angelos ended up with a 55-year sentence because he sometimes packed a pistol, the Williams case is one where the rights granted under the 2nd Amendment clash with the imperatives of the drug war.

Williams was not convicted of using his firearms or even of brandishing them, but merely of having legal shotguns present at the medical marijuana grow, which was legal under Montana law. Still, that's enough for the gun sentencing enhancements to kick in, and that's enough to cause a rising clamor of support for Williams as he faces a January sentencing date.

"The sentence shocks the conscience," said Chris Lindsey, a former business partner of Williams who is awaiting sentencing after pleading guilty to a federal marijuana conspiracy charge. "Look at (former Penn State assistant football coach) Jerry Sandusky. For 45 counts of child sexual abuse, he gets 30 years. Chris Williams is going to get three times that for being a medical marijuana provider. It doesn't make any logical sense," he told the Missoulian.

Williams supporters have created a Free Chris Williams Facebook page and are petitioning the White House through its We the People online petition program for a full pardon for him. The White House responds to petitions that achieve over 25,000 signatures; the Williams petition has managed to generate slightly more than 20,000 signatures in less than two weeks. Other petitions seeking clemency for Williams are at SignOn.org and Care2.com.

Williams and his supporters are not just relying on the kindness of the White House. He is appealing his criminal conviction to the 9th US Circuit Court of Appeals, and he is the lead plaintiff in a lawsuit that claims he and other medical marijuana providers were in compliance with Montana state law and the federal raid and subsequent prosecutions were an unconstitutional usurpation of state and local powers under the 10th Amendment. That amendment says powers not granted to the federal government by the Constitution and not prohibited by the states are reserved to the states or the people.

But legal experts said his chances for victory in the civil lawsuit were small, and he would still be saddled with the federal criminal conviction.

"The war on drugs is too sacrosanct a sacred cow for the courts to weigh in favor," said California marijuana attorney Robert Raich, who has argued and lost two marijuana cases at the Supreme Court. "I think we can make better progress by doing something other than filing lawsuits," he said in an interview with the Helena Independent Record.

Still, Raich said he sympathized with Williams' plight and added that the federal attack on Montana providers was among its harshest.

"Montana is the worst," he said. "The federal government has attacked medical cannabis with a vengeance in Montana more than any other state."

Williams' attorney in the civil suit, Paul Livingston, said he would press forward with the appeal even if his client is behind bars.

"He has been made a martyr," said attorney Livingston. "It's a very solid case, it is a case that needs to be decided and I think everyone would agree once they learn the facts of what happened," Livingston said.

Ironically, as Williams languishes behind bars contemplating spending the rest of his life in prison, Montana could become the next state to legalize marijuana. Medical marijuana activists there, frustrated by the legislature's gutting of their program last year and their inability to get that overturned this year, have filed papers to put a legalization initiative on the ballot in 2014. Even that wouldn't directly help Williams, but it would serve to further underline the senselessness of his sentence.

MT
United States

Chronicle DVD Review: Code of the West

DVD Review: Code of the West, directed by Rebecca Richman Cohen (2012, Racing Horse Films, 71 minutes)

In Code of the West, Emmy nominated filmmaker Rebecca Richman Cohen brilliantly tells the story of Montana's late medical marijuana wars. And now the film is itself part of the story; excerpts from it were played by the defense during the sentencing of Tom Daubert, a central figure in the film, and undoubtedly helped him escape the clutches of the federal Bureau of Prisons with an unanticipated sentence of five years' probation.

But we get ahead of ourselves. Montana's voter-approved medical marijuana program was small-scale and operating quietly for its first five years, but in 2009, when the Obama administration indicated it was not going to go after medical marijuana providers in states where it was legal, the scene exploded. Dispensaries blossomed across Big Sky County, and caravans crisscrossed the state signing up patients after, shall we say, sometimes less than adequate examinations by physicians.

Within two years, the backlash against medical marijuana and its excesses resulted first in a bill passed by the radical Republican legislature to totally repeal the 2004 voter initiative -- vetoed by Democratic Gov. Brian Schweitzer -- and then in a second bill that was as close to outright repeal as you could come without calling it that. Schweitzer let that one stand, effectively wiping out the state's booming industry.

Then, as the legislature was deliberating that spring, the feds struck. In a series of coordinated raids, DEA and FBI agents raided 26 Montana medical marijuana operations in one fell swoop, sending an even clearer signal that the state's medical marijuana glory days had come and gone.

Code of the West takes you behind the scenes during that contentious year at the state house, featuring interviews with medical marijuana patients and providers, state law enforcement and legislative officials, and concerned citizens convinced that medical marijuana was going to turn their children into stoners and their state into a laughing stock.

Two of the central figures in the film are long-time state house lobbyist Tom Daubert, who ran the 2004 medical marijuana initiative and later formed Montana Cannabis, one of the state's larger providers, and Daubert's partner in Montana Cannabis, Chris Williams. Both ended up being indicted on federal marijuana trafficking charges -- this came after the period covered by the film -- and while Daubert copped a plea to earn probation, Williams refused to bend, was convicted on marijuana and weapons charges (because they had shotguns at their grows) and is now facing an 80-year mandatory minimum federal prison sentence.

"Even now, the DEA could come kick our door in and arrest us all," Williams says presciently in the film.

Cohen succeeds at portraying the opposition to medical marijuana. But while Daubert may diplomatically
praise opponents' sincerity and while Cohen takes pains to portray them with a certain degree of sympathy, they don't come off well in my book. Rock-ribbed Republicans like House Speaker Mike Milburn come off as earnest culture warriors, while the conservative Billings church ladies of Safe Kids Safe Communities, the main backlash group, come off as, well, conservative church ladies.

And not only do the Republicans and the church ladies come off as mean and pinched, they lie through their teeth about medical marijuana. (Not to mention having allies who worry about marijuana demons.)

"We stand to lose a whole generation of kids to medical marijuana," declaimed Safe Kids Safe Communities' Cherrie Brady, trumpeting a favorite opposition theme that medical marijuana was leading to skyrocketing teen pot use. The numbers actually show a slight decline.

Speaker Milburn, while attempting to appear earnest and statesmanlike, was also capable of throwing Reefer Madness-style rhetorical bombs.

"Children are prostituting themselves to gain access to drugs and this problem happened because of medical marijuana," he dared say with a straight face "These people who are medicating, they're hippies and the children of hippies."

And one final example of what we're up against. When the 2011 repeal bill passed the state Senate, the Safe Kids Safe Communities ladies were overjoyed. How overjoyed?

"All of the angels are flying up to the ceiling singing hosannas for this repeal," one gushed.

Code of the West is both a civics lesson -- this is how laws get made and unmade -- and a cinematographic pleasure. Scenes of state capital hallway lobbying and floor speechifying are intercut with glorious Montana landscapes. The film is a pleasure to watch and an important intervention in a still-running battle.

While the film ends with the federal raids of spring 2011 and the legislative follies that resulted in repeal-in-all-but name, the story doesn't end there. The worries Williams and Daubert expressed in the film about possible federal prosecution after the raids were all too true. Both were indicted on marijuana cultivation and trafficking charges by the feds, and while Daubert walked away with only probation, Williams now looks likely to become another medical marijuana martyr.

Cohen knows she stopped filming in the middle of the story, and is now working on a Kickstarter campaign to raise the $30,000 she needs to do an update. And it's not just the trials. An effort to undo last year's gutting of the program failed at the polls in November, and some medical marijuana activists have now decided to quit screwing around and just go for out and out legalization. They've already filed a ballot initiative for 2014.

There's likely to be an updated version of Code of the West in a few months.  But the current version is powerful, enlightening, and beautiful. Watch it now.

MT
United States

Marijuana Legalization: What Can/Will the Feds Do? [FEATURE]

In the wake of last week's victories for marijuana legalization in Colorado and Washington, everyone is waiting to see how the federal government will respond. But early indications are that we may be waiting for awhile, and that the federal options are limited.

How will the feds respond to legalization? (justice.gov)
While the legal possession -- and in the case of Colorado, cultivation -- provisions of the respective initiatives will go into effect in a matter of weeks (December 6 in Washington and no later than January 5 in Colorado), officials in both states have about a year to come up with regulations for commercial cultivation, processing, and distribution. That means the federal government also has some time to craft its response, and it sounds like it's going to need it.

So far, the federal response has been muted. The White House has not commented, the Office of National Drug Control Policy has not commented, and the Department of Justice has limited its comments to observing that it will continue to enforce the federal Controlled Substances Act.

"My understanding is that Justice was completely taken aback by this and by the wide margin of passage," said Eric Sterling, former counsel to the House Judiciary Committee and currently the executive director of the Criminal Justice Policy Foundation. "They believed this would be a repeat of 2010, and they are really kind of astonished because they understand that this is a big thing politically and a complicated problem legally. People are writing memos, thinking about the relationship between federal and state law, doctrines of preemption, and what might be permitted under the UN Single Convention on Narcotic Drugs."

What is clear is that marijuana remains illegal under federal law. In theory an army of DEA agents could swoop down on every joint-smoker in Washington or pot-grower in Colorado and haul them off to federal court and thence to federal prison. But that would require either a huge shift in Justice Department resources or a huge increase in federal marijuana enforcement funding, or both, and neither seems likely. More likely is selective, exemplary enforcement aimed at commercial operations, said one former White House anti-drug official.

"There will be a mixture of enforcement and silence, and let's not forget that federal law continues to trump state law," said Robert Weiner, former spokesman for the Office of National Drug Control Policy (ONDCP). "The Justice Department will decide if and at what point they will enforce the law, that's a prosecutorial decision the department will make."

Weiner pointed to the federal response to medical marijuana dispensaries in California and other states as a guide, noting that the feds don't have to arrest everybody in order to put a chill on the industry.

"Not every clinic in California has been raided, but Justice has successfully made the point that federal law trumps," he said. "They will have to decide where to place their resources, but if violations of federal law become blatant and people are using state laws as an excuse to flaunt federal drug laws, then the feds will have no choice but to come in."

Less clear is what else, exactly, the federal government can do. While federal drug laws may "trump" state laws, it is not at all certain that they preempt them. Preemption has a precise legal meaning, signifying that federal law supersedes state law and that the conflicting state law is null and void.

"Opponents of these laws would love nothing more than to be able to preempt them, but there is not a viable legal theory to do that," said Alex Kreit, a constitutional law expert at the Thomas Jefferson School of Law in San Diego who co-authored an amicus brief on preemption in a now mooted California medical marijuana case. "Under the anti-commandeering principle, the federal government can't force a state to make something illegal. It can provide incentives to do so, but it can't outright force a state to criminalize marijuana."

An example of negative incentives used to force states to buckle under to federal demands is the battle over raising the drinking age in the 1980s and 1990s. In that case, Congress withheld federal highway funds from states that failed to raise the drinking age to 21. Now, all of them have complied.

Like Weiner, Kreit pointed to the record in California, where the federal government has gone up against the medical marijuana industry for more than 15 years now. The feds never tried to play the preemption card there, he noted.

"They know they can't force a state to criminalize a given behavior, which is why the federal government has never tried to push a preemption argument on these medical marijuana laws," he argued. "The federal government recognizes that's a losing battle. I would be surprised if they filed suit against Colorado or Washington saying their state laws are preempted. It would be purely a political maneuver, because they would know they would lose in court."

The federal government most certainly can enforce the Controlled Substances Act, Kreit said, but will be unlikely to be able to do so effectively.

"The Supreme Court said in Raich and in the Oakland Cannabis Buyers Club cases that the federal government has all the power in the world to enforce the Controlled Substances Act," Kreit said, "and if they wanted to interfere in that way, they could. They could wait for a retail business or manufacturer to apply for a license, and as soon as they do, they could prosecute them for conspiracy -- they wouldn't even have to wait for them to open -- or they could sue to enjoin them from opening," he explained.

"But you can only stop the dam from bursting for so long," Kreit continued. "In California, they were able to stop the dispensaries at the outset by suing OCBC and other dispensaries, and that was effective in part because there were so few targets, but at a certain point, once you've reached critical mass, the federal government doesn’t have the resources to shut down and prosecute everybody. It's like whack-a-mole. The feds have all the authority they could want to prosecute any dispensary or even any patients, but they haven't been effective in shutting down medical marijuana. They can interfere, but they can't close everybody down."

As with medical marijuana in California, so with legal marijuana in Colorado and Washington, Kreit said.

"My guess is that if the feds decided to prosecute in Colorado and Washington, it would go similarly," he opined. "At first, they could keep people from opening by going after them, either enjoining or prosecuting them, but that strategy only works so long."

"I think the career people in Justice will seek to block Colorado and Washington from carrying out the state regulatory regime of licensing cultivation and sales," Sterling predicted. "A lower court judge could look at Raich and conclude that interstate commerce is implicated and that the issue is thus settled, but the states could be serious about vindicating this, especially because of the potential tax revenue and even more so because of the looming fiscal cliff, where the states are looking cuts in federal spending. The states, as defenders of their power, will be very different from Angel Raich and Diane Monson in making their arguments to the court. I would not venture to guess how the Supreme Court would decide this when you have a well-argued state's 10th Amendment power being brought in a case like this."

"Enjoining state governments is unlikely to succeed," said Kreit. "Again, the federal government has taken as many different avenues as they can in trying to shut down medical marijuana, and yet, they've never argued that state laws are preempted. They know they're almost certain to lose in court. The federal government can't require states to make conduct illegal."

At ground zero, there is hope that the federal government will cooperate, not complicate things.

"We're in a wait and see mode," said Brian Vicente, executive director of Sensible Colorado and co-director of the Amendment 64 campaign. "It's our hope that the federal government will work with Colorado to implement this new regulatory structure with adequate safeguards that make them comfortable the law will be followed."

While that may seem unlikely to most observers, there is a "decent chance" that could happen, Vicente said. "Two mainstream states have overturned marijuana prohibition," he said. "The federal government can read the polls as well as we can. I think they realize public opinion has shifted and it may be time to allow different policies to develop at the state level."

The feds have time to come to a reasonable position, said Ethan Nadelmann, executive director of the Drug Policy Alliance.

"There is no need for a knee-jerk federal response, since the states are not required to create a regulatory scheme quickly," he said. "And while anti-marijuana forces more or less captured the drug czar's office early in Obama's first term, they're at odds with other people in the White House and the Obama administration whose views may be closer to our own. I think the White House will be the key. It's very likely that the fact that Attorney General Holder said nothing about the initiatives this fall, unlike two years ago, was because of the White House. I don't mean the drug czar's office; I mean the people who operate with respect to national politics and public policy."

Sterling disagreed about who is running drug policy in the Obama administration, but agreed that the feds have the chance to do the right thing.

"Given the large indifference to drugs as an issue by the Obama administration, its studious neglect of the issue, its toleration of an insipid director of ONDCP, its uncreative appointment of Bush's DEA administrator, it's clear that nobody of any seniority in the Obama White House is given this any attention. Unless Sasha and Malia come home from school and begin talking about this, it won't be on the presidential agenda, which means it will be driven by career bureaucrats in the DEA and DOJ," he argued.

That's too bad, he suggested, because the issue is an opportunity for bold action.

"They should respond in a vein of realism, which is that this is the future, the future is now," he advised. "They have an opportunity with these two different approaches to work with the states, letting them go forward in some way to see how they work and providing guidance in the establishment of regulations that would let the states do this and ideally minimize the interstate spillover of cultivation and sales."

"As part of that, they should ideally move to rewrite the Controlled Substances Act and begin working in the UN with other countries to revise the Single Convention on Narcotics. Our 100-year-old approach is now being rejected, not simply by the behavior of drug users, but by the voters, many of whom are not drug users," Sterling said. "That would be a way that a wise, forward-thinking, statesman-like public official should respond."

That would indeed be forward-thinking, but is probably more than can be reasonably expected from the Obama White House. Still, the administration has the opportunity to not pick a fight with little political upside, and it has time to decide what to do before the sky falls. Marijuana legalization has already happened in two states, and is an increasingly popular position. The federal government clearly hasn't been in the lead and it's not going to be able to effectively stop it; now, if it's not ready to follow, it can least get out of the way.

Feds Unsure What to Do About State Legalization

A Washington Post story by Sari Horwitz reports that federal officials don't know what they are going to do about marijuana legalization in Colorado and Washington:

"I really don't know what we're going to do," said one high-ranking law enforcement official involved in the decision who was not authorized to speak publicly.
 

Dept. of Justice headquarters, Washington, DC (gsa.gov)
Attorney General Eric Holder had ignored a letter signed by all the past DEA chiefs last September urging him to speak out against the ballot initiatives. That may have been a political decision to avoid losing Democratic support in Colorado, the article suggests:

"It was a battleground state," said [another] administration official, who spoke on the condition of anonymity because he was not authorized to talk publicly
.

Horwitz's otherwise good article repeated the same fallacy we have seen crop up in other news reports of late, the idea that states can't do this because of federal law, a fallacy that I predicted here and have already noted here. The article states:

The most likely outcome will be that the Justice Department will prevent the laws from going into effect by announcing that federal law preempts the state initiatives, which would make marijuana legal for recreational use, law enforcement sources said.
 

Perhaps it's just a typo, and I don't know what the sources told Mr. Horwitz, but no matter what the legal and practical outcome of all of this, it is not the case that DOJ can preempt a state's law by making an announcement about. They can ask a court to preempt the laws, and then the court will decide. Significant legal precedent indicates that Congress cannot force states to criminalize conduct they don't want to criminalize, anymore more than states can force Congress to lift such criminalization -- as I've pointed out, in 16 years of state medical marijuana laws, no federal prosecutor has ever tried to do so. Maybe they'll try now, and if so we'll see what the Supreme Court's inconsistent conservatives say and what the liberals say. But they've had plenty of incentive to go that route already, and for some reason haven't.

Not that the feds can't make a fight of things. As the medical marijuana battles show, they have ways to interfere. They can send vaguely threatening letters, implying without directly stating that state employees would be violating federal law by implementing regulations for marijuana, as US Attorneys in most medical marijuana jurisdictions have done. That could scare the governors, who could seek delays implementing the initiatives, which in turn would have to be addressed in court. The IRS could move against the new businesses, auditing and penalizing them under a tax rule that disallows most expense deductions for illegal enterprises. (The law bizarrely allows dispensaries to deduct the cost of marijuana itself, but not other things like payroll or rent.) They can make it hard for marijuana businesses to maintain relationships with banks. And of course they can raid any marijuana store that they choose to.

But none of that is the same as preempting the laws themselves. And none of it would stop people from possession marijuana whenever they want, legally under the states' laws, or in Colorado from growing it. This needs to be repeated as often as possible: Colorado and Washington's marijuana laws are different from federal marijuana law, but that doesn't mean they conflict with it; and not every conflict is legally impermissible. If federal law just preempted state law in that way, 18 states would not have medical marijuana today.

And the Fast Talking Has Started...

I posited yesterday that federal fast talking about the Colorado and Washington initiatives would start soon. It turns out that federal fast talking hasn't even needed feds to get started, a "Network Media Fail" analysis by Peter Guither demonstrates:

Some of the network media have been trying to cover the legalization of marijuana in Colorado and Washington and clearly are in catch-up mode, not really knowing how to talk about it. And they're completely thrown by the fact that the DOJ, for the most part, isn't coming right out and commenting. So they're all forced to turn to… Kevin Sabet.
 

Kevin is a former Office of National Drug Control Policy staffer -- Phil faced off with him in The Fix on Tuesday. He had a respectable level position at the agency, from what I understand, but he was not the drug czar or near it, and he doesn't work at ONDCP now. Pete questions why media would think he knows what's going on behind the scenes or why we should think he does.

I'll just comment on two things from the ABC article by Christina Ng that Pete highlighted:

"When you have the governors of both states [opposing it] as well as the president and Congress, who has already determined that marijuana is illegal, this is not going to be a walk in the park for marijuana enthusiasts," Sabet said. [...]
 

That is an inaccurate characterization by Kevin of the positions of the governors. Colorado Gov. John Hickenlooper opposed the initiative, and according to the Denver Post is speaking with federal officials to assess their intentions -- Eric Holder, head of all DOJ, not ONDCP. But Hickenlooper also told the Post that "[y]ou can't argue with the will of the voters" and they plan to move forward with it. Washington governor-elect Jay Inslee has also said that he'll respect the will of the voters.

The second is a paragraph that was not presented as a quote, so I don't know precisely what Kevin told Ms. Ng, but here it is:

In 2005, the Supreme Court by an 8-0 margin struck down a California law that legalized medical marijuana in the state. The Court said Congress had the power to criminalize marijuana under the Commerce Clause.
 

Raich v. Gonzales was actually 6-3, but more importantly, the court did not strike down California's medical marijuana law! What the court did was decline to limit the reach of federal law. There's a difference.

As I discussed yesterday, state and federal law can be different, but that doesn't mean they're in conflict. And not every type of conflict is legally impermissible. California's medical marijuana law is very much in effect -- the trouble there is to providers, not directly to patients, and it's from federal raids and other actions, and local zoning restrictions. Tellingly, no federal prosecutor in 16 years of state medical marijuana laws has ever tried to undo one of them in court.

Perhaps they'll try now with one of the legalization initiatives, but their prospects for success on that route are unclear. What seems most unlikely is that states would be forced to reverse not only their licensing provisions, but their elimination of penalties for users and some sellers; much less that federal agents, more limited in number than state and local police, would conduct the massive numbers of possession busts (or in Colorado home growing busts) needed to keep prohibition going at that level. That's why the medical marijuana laws work.

In the meanwhile, police and prosecutors in Washington have more or less confirmed the walk in the park beginning December 6th.

Supreme Court Hears Drug Dog Cases

The US Supreme Court Wednesday heard oral arguments in a pair of cases out of Florida involving the use of drug sniffing dogs. One case is about whether it is legal to use drug dogs to sniff around the outside of homes without a warrant and the other is about how reliable the drug dogs actually are. The cases have the potential to either expand or restrict the use of drug dogs under Fourth Amendment jurisprudence.

The two cases are Florida v. Joelis Jardines, in which Jardines was arrested for marijuana cultivation after police without a search warrant brought a drug dog to his door, then returned with a search warrant after the drug dog alerted, and Florida v. Clayton Harris, in which Harris was arrested on methamphetamine charges after a drug dog alerted on his vehicle, but was stopped again two months later in the same vehicle and the same drug dog alerted, but no drugs were found.

In both cases, the Florida Supreme Court held that the drug dog searches were illegal, in Jardines because it was a warrantless search of a home and in Harris because it didn't find sufficient evidence of the drug dog's reliability. In both cases, the state of Florida appealed.

The Jardines case raises the issue of whether homes are subject to a higher Fourth Amendment standard than automobiles in traffic, luggage being sniffed on a conveyer belt, or packages being sniffed at a package delivery service. The Supreme Court has upheld the warrantless use of drug dogs in those cases, but has been inclined to grant greater protections to the sanctity of the home, rejecting, for example, the use of thermal imaging equipment to detect marijuana grow operations.

Gregory Garre, arguing for the state of Florida, ran into problems with some justices when he suggested that a drug dog sniff of a residence does not constitute a search under the law and thus no warrant is needed.

If that were the case, Justice Ruth Bader Ginsburg replied, wouldn't police be able to just walk down the street with a drug dog in "a neighborhood that’s known to be a drug-dealing neighborhood, just go down the street, have the dog sniff in front of every door, or go into an apartment building? I gather that that is your position."

"Your Honor, they could do that," Garre said.

Justice Elena Kagan also questioned Garre's rationale that a drug dog sniff was somehow different from a technology that allowed police to see inside a home -- such as the thermal imaging the court had previously ruled against. If someone invented a "Smell-o-matic" machine, Kagan said, police would still need to get a warrant to use it to search the home.

Jardines' attorney, Howard Blumberg, argued that the thermal imaging precedent applied to drug dogs at a home as well. Using a drug dog outside a house was cut from the same cloth, he said.

"I would submit that would basically be the same thing as a police officer walking up and down the street with a thermal imager that's turned on," Blumberg said.

Justice Anthony Kennedy, often a deciding vote on the closely divided court, challenged Garre on his contention that people with contraband in their homes have no expectation of privacy.

"Don't ask me to write an opinion and say, 'Oh, we're dealing with contraband here, so we don't need to worry about expectation of privacy,'" Kennedy said.

But Kennedy was also reluctant to accept Blumberg's argument that when police are trying to find something people are keeping secret, it amounts to a search under the meaning of the Fourth Amendment.

"To say our decisions establish that police action which reveals any detail an individual seeks to keep private is a search: that is just a sweeping proposition that in my view, at least, cannot be accepted in this case. I think it's just too sweeping and wrong,’" Kennedy said.

"I would add a few words to the end of that statement: Anything that an individual seeks to keep private in the home, and that's the difference," Blumberg replied.

In the Harris case, it was the reliability of drug dogs that was at issue.

"Dogs make mistakes. Dogs err," Harris's attorney, Glen Gifford told the justices. "Dogs get excited and will alert to things like tennis balls in trunks or animals, that sort of thing. There is no canine exception to the totality of the circumstances test for probable cause to conduct a warrantless search. If that is true, as it must be, any fact that bears on a dog's reliability as a detector of the presence of drugs comes within the purview of the courts."

Questions about the reliability of drug dogs have been on the rise in recent years. Last year, the Chicago Tribune analyzed three years of data from suburban police departments and found that alerts from dogs during roadside encounters led to drugs or paraphernalia just 44% of the time, and only 27% of the time for Hispanic drivers.

Justice Sonia Sotomayor cited an Australian study that found a drug dog only correctly identified drugs 12% of the time.

"I'm deeply troubled by a dog that alerts only 12% of the time," she said.

Garre responded that the study could be read differently, raising the number of correct alerts to as high as 70% -- if you included instances where the person the dog alerted to had used in been in contact with drug prior to the dog's alert.

And Justice Department attorney Joseph Palmore, arguing in support of Florida's position, told justices they should not let questioning of the dogs' skills go too far.

"I think it's critical... that the courts not constitutionalize dog training methodologies or hold mini-trials with expert witnesses on what makes for a successful dog training program," he said, citing the use of dogs in multiple search endeavors. "There are 32 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy. So, in situation after situation, the government has in a sense put its money where its mouth is, and it believes at an institutional level that these dogs are quite reliable."

The Supreme Court will decide the paired cases sometime next year.

Washington, DC
United States

Dr. Shaygan's Saga: Prosecutorial Misconduct in the War on Pain Docs [FEATURE]

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

Part 4 in a series, "Prosecutorial Misconduct and Police Corruption in Drug Cases Across America."

In what could become an historic case, a Florida doctor acquitted of drug dealing charges over his prescribing practices is asking the US Supreme Court to reinstate a $600,000 award made to him by a lower court after federal prosecutors were found to have engaged in misconduct that was "vexatious, frivolous, or in bad faith." That language comes from the Hyde Amendment, enacted in 1997, which gives federal judges the power to force the government to pay attorney's fees to acquitted defendants if the actions of those prosecutors met that standard of misconduct.

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Dr. Ali Shaygan
The case of Florida physician Dr. Ali Shaygan has been closely watched by pain-management doctors -- an area in which the federal government has waged a fierce "war on prescription doctors" -- a war fueled by a rising death toll in recent years from prescription drug overdoses in America, but also preceding that rise. Since 2003, according to DEA, hundreds of physicians across the nation have been charged in federal or state court for illegally dispensing narcotic pain medicine to patients.

This past August, the 11th US Circuit Court of Appeals overturned the trial court decision awarding the money to Shaygan, who had operated a Miami pain clinic. He was acquitted in March 2009 of 141 counts of illegally distributing narcotics to patients, including one case where a patient died of an overdose.

Shaygan's attorneys charged that two Assistant US Attorneys, Sean Cronin and Andrea Hoffman, as well as a DEA agent, had acted "vexatiously" and withheld materially important evidence after Shaygan was originally charged in a 23-count indictment. US Circuit Court Judge Alan Gold, who presided over the high-profile trial, agreed that prosecutors violated disclosure requirements by withholding information from the defense and the court and ordered the cash award.

Judge Gold also accused the government of launching a separate "tactical" effort to disqualify the doctor's attorney, David Markus, shortly before the trial began. In that effort, which Gold characterized as part of a scheme to undermine the defendant's rights to a fair trial, the prosecutors failed to notify the defense that the DEA had attempted to manipulate two witnesses in the case into trying to entrap Markus into paying off witnesses to give favorable testimony at the trial to help the doctor beat the rap.

Following a sanction hearing after the doctor's acquittal in 2009, Judge Gold issued a scathing ruling against the prosecutors. The government conduct was so "profoundly disturbing that it raises troubling issues about the integrity of those who wield enormous power over the people they prosecute," Gold concluded.

After Gold requested that the Justice Department investigate the government's misconduct, prosecutor Cronin conceded to the Miami Herald, "We should have done a better job," but insisted that "at no time was I acting in bad faith."

He said he authorized secret recordings of attorney Markus because a witness, Courtney Tucker, had told a DEA agent the defense might be trying to tamper with her testimony. Yet Tucker contradicted Cronin's claim when she testified that a DEA agent had tried to pressure her to tailor her testimony to bolster the prosecution's case against Dr. Shaygan.

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Atty. David Markus after the acquittal
When federal prosecutors appealed the cash award to the 11th Circuit, a sharply divided panel overturned it, holding that Gold had overreached and wrongly interpreted the Hyde Amendment by applying the incorrect legal standard for awarding the fees under the statue. The appeals court majority also held that "as long as a prosecutor had an objectively reasonable basis in law (not frivolous and not vexatious), an award of attorney fees under the Hyde Amendment is improper." One judge concluded that the overall prosecution and allegations on the original indictment were "objectively valid."

But in a harsh dissent, Judge Beverly Martin wrote that the majority opinion "will render trial judges mere spectators of extreme government misconduct."

Markus told the Chronicle the appeals court reversal was not what he expected. "The decision was surprising given how the oral argument went and how thorough Judge Gold's order was," Markus said, adding that he was appealing to the Supreme Court.

Now a coalition of former federal judges and prosecutors, organized by the bipartisan group the Constitution Project has signed onto an amicus brief supporting Markus's writ of certiorari asking the Supreme Court to overturn the appeals court decision and reinstate the cash award in US v. Shaygan.

"When a court bends the law to excuse a prosecutor's bad faith, public confidence in the criminal justice system suffers," the Constitution Project brief said.

Just Another Pain Doctor Prosecution

The wheels of justice in Dr. Shaygan's case began turning on June 9, 2007, when one of the long-term patients at his pain clinic, James Brendan Downey, died of a drug overdose from a fatal combination of prescribed methadone and illegal cocaine. Shaygun had prescribed the methadone to Downey two days before he died, and an autopsy found that the levels of methadone in his blood alone were enough to kill him.

In a subsequent undercover sting operation, two Florida police officers posed as potential patients at Shaygan's office to determine how easily they could obtain prescribed narcotics. Federal prosecutors said both officers obtained a prescription for controlled substances on their first visit without presenting medical records, and that Shaygan only administered minimal physical examination.

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Judge Gold
On February 8, 2008, the Southern Florida US Attorneys Office filed a 23-count indictment against Shaygan alleging that "the doctor distributed and dispensed controlled substances outside the scope of professional practice unintended for legitimate medical purposes in violation of 21 U.S.C. 841."

Three days later, DEA agents arrested Shaygan at his office. Agents seized Shaygan's active patient files and even confiscated his leather-bound daily planner. Prosecutors said that DEA agents reported that Shaygan allegedly made a statement to the effect, "I want to cooperate." On May 14, Markus filed a motion to suppress his client's statement during his arrest.

At a post-hearing on the suppression motion held on August 2008, Markus clashed with lead prosecutor Cronin over Markus's attempt to keep his client's alleged statement from being heard by the jury. Cronin threatened Markus with an enhanced prosecution of his client if he persisted in that strategy.

"Cronin told me that if we litigated the suppression issues, there would be no more plea discussions, and that if I went after his witnesses (DEA agents), there would be a 'seismic shift' in the way he would prosecute the case against Mr. Shaygan," Markus said.

Markus dismissed Cronin's threat and forged ahead with the suppression hearing, offering up damaging testimony by Shaygan, who testified that DEA agents, while flashing their weapons, continued to interrogate him, despite his request to speak with a lawyer. Agents denied this happened. After hearing from a defense witness that he overheard Shaygan say, "May I please have my lawyer," Judge Gold granted the motion to suppress, which barred prosecutors from using Shaygan's statements during the trial.

Then, playing legal hardball, prosecutor Cronin made good on his threat, filing an additional 108 drug charges against Shaygan totaling hundreds of years in prison and bringing the total number of charges filed against him to 131. Cronin filed the extra charges after DEA agent Chris Wells located and interviewed Shaygan's former patients Carlos Vento, Trinity Clendening, Courtney Tucker and Andrew McQuarrie. These former patients would play a pivotal role in the misconduct allegations against federal prosecutors Cronin and Hoffman.

Before trial, prosecutors Cronin and Hoffman received a tip from DEA agent Wells that Shaygan's defense team might be tampering with the witnesses. Wells said one witness, Courtney Tucker, "was about to go south and not testify." Prosecutors relayed this new information to Karen Gilbert, the Assistant US Attorney in charge of the narcotics unit. Gilbert authorized DEA agent Wells to ask witnesses Tucker and Carlos Vento to record phone calls with the defense team and for the witnesses to ask attorney Markus for funds to testify that Dr. Shaygan had not overprescribed medication that killed James Downey. Vento later signed a confidential informant agreement with the DEA.

Trial Shenanigans

During a three-week trial in beginning in 2009, prosecutors characterized Dr. Shaygan as a drug dealer who recklessly sold prescriptions for dangerous narcotic painkillers, such as oxycodone and methadone, to increase his wealth. Prosecutor Cronin told the jury the government would prove that Shaygan's illegal distribution of methadone contributed to Mr. Downey's death. Jurors viewed evidence showing prescription bottles from Shaygan found in Downey's bedroom, where he died in his sleep. Downey's girlfriend, testifying for the government, said her boyfriend had obtained methadone from Shaygan hours before he died.

But the girlfriend also undercut the prosecution's case by testifying that Shaygan had questioned and cautioned Downey about the large amount of methadone he had requested. Defense attorney Markus further undercut the prosecution case by presenting evidence of additional medicine bottles at the scene prescribed by other doctors.

For the defense, renowned expert forensic pathologist Dr. Michael Baden testified that when Downey used multiple prescribed drugs there was no verifiable way to conclude the drugs given to him by Dr. Shaygan actually caused his death.

Then, in a dramatic twist right out of Perry Mason, former Shaygan patient and government witness Trinity Clendening let slip that he had recorded for the DEA a telephone call he made to to Markus's office to solicit payment for testifying on Shaygan's behalf. A recording later heard in court showed that that Markus had directly refused to offer bribes. "I am not paying money for anything," he said on the tape.

Markus was furious. During a hearing outside the presence of the jury, he hammered the witness. Clendening, now unraveling the government's deceit, revealed the whole scheme to set up Markus for a witness tampering charge. Markus attacked the prosecutors relentlessly over their withholding evidence of the scheme. In closing arguments, Markus rhetorically compared the prosecutorial misconduct in Shaygan's case with the infamous Salem Witch trials, and told the jury it had been misled by the government's flagrant violation of the law through withholding evidence that the defense had asked for under the law and not received.

Judge Gold instructed jurors that they were legally bound to consider the prosecutor's violations of the law during their deliberations over Shaygan's guilt or innocence. After deliberating four hours, the jury acquitted Dr. Shaygan on March 12, 2009.

Shaygan's relatives, friends and colleagues erupted with cheers after hearing the verdict, and jurors hugged Shaygan as he left the courtroom.

"I feel vindicated," Shaygan told the Miami Herald. "I feel that my life can move forward again."

"This verdict sends a message that justice prevails," Markus added.

But justice hasn't prevailed just yet. The federal prosecutors who engaged in the misconduct have not been punished for their actions, either criminally, professionally, or financially. The 11th Circuit Court of Appeals decision reversing the $600,000 award for misconduct that is "vexatious, frivolous, or in bad faith" remains the last word on the affair -- unless the Supreme Court agrees to take the case.

At least, Dr. Ali Shaygan is out from under his legal woes and, having had his license to prescribe medicine reinstated, he is once again helping patients.

Medical Marijuana Update

A California appeals court has made a landmark ruling, the DEA keeps on raiding, and a Montana medical marijuana provider refuses a post-conviction plea bargain, and those are just the top stories. Let's get to it:

Arizona

On Monday, it was revealed that a Mesa dispensary had been raided on October 5. Gilbert Police raided Arizona Natural Solutions, serving a search warrant and seizing "suspected marijuana, candy, cookies, powder, suspected ecstasy, and US currency." No information was offered about the reason for the raid. Three owner/employees are accusing of selling marijuana and "narcotics" (because Arizona state law defines marijuana products like hash as "narcotics").

California

Last Wednesday, a state appeals court threw out the conviction of a San Diego dispensary operator. In what Americans for Safe Access called a "landmark" decision, the 4th District Court of Appeal reversed the conviction of Jovan Jackson, convicted in September 2010 after being denied a defense in state court. The ruling also reversed the lower court's finding that Jackson was not entitled to a defense, providing the elements for such a defense in future jury trials. The ruling also recognized that collective members do not need to be actively involved in marijuana cultivation to access the marijuana they purchase.

Last Thursday, DEA agents arrested 12 people involved with Southern California dispensaries. Most of the dispensaries had been raided and closed in 2010 and 2011, but at least one was still operating. Charges against those arrested include failure to report taxable income, conspiracy to distribute marijuana and maintaining a drug location near schools.

Also last Thursday, the Santa Monica city council extended a 45-day moratorium on dispensaries. On a unanimous vote, the council voted to extend the moratorium for another 10 months. "This is about waiting for the Supreme Court to settle some law. At least I can hope, that with a little bit of time that the law will become clearer and every city's rights are better understood," said Mayor Richard Bloom.

Also last Thursday, the Napa city council told staff to prepare an ordinance banning outdoor grows. The move came after Police Chief Jackie Rubin told the council police had raided a property where 15-foot-tall marijuana plants were visible from a neighbor's yard.

Over the weekend, the California Medical Association addressed four marijuana resolutions. It rejected one (from a doctor who owns a winery!) to rescind the CMA policy in support of marijuana legalization, it passed one referring that policy to the American Medical Association, it passed another asking the governor to petition the DEA to reschedule marijuana, and it referred for further study one examining medical marijuana use in hospitals.

On Monday, the Los Angeles city clerk approved a petition to regulate dispensaries. Petitioners want to get on the May ballot; to do so, they must gather 41,138 valid signatures by December 7. The proposed initiative would bar new medical marijuana dispensaries, but allow those collectives that registered with the city as of Sept. 14, 2007 and meet other criteria, to continue operating. The ordinance would also establish operating standards, including mandatory annual police background checks and distances from schools, parks and other designated places.

Also on Monday, a state appeals court held that trial judges can ban the use of medical marijuana for some probationers. A three-judge panel of the Court of Appeal unanimously upheld a sentence in which Contra Costa County Superior Court Judge Leslie Landau last year prohibited Daniel Leal, 28, of Antioch, from using medical marijuana during his three years of probation. Leal was on probation for possessing marijuana for sale, and he argued the ban violated his right to use the substance under the state's Compassionate Use Act, which allows patients with a doctor's approval to use marijuana for medical purposes. But the ban on use of the substance was justified by "abundant evidence of need to rehabilitate Leal and protect the public," wrote Judge Andrew Kline. "Leal used Compassionate Use Act authorization as a front for illegal sales of marijuana, sales partly carried out with a loaded semiautomatic handgun in a public park occupied by mothers and their young children."

On Tuesday, DEA agents raided the ASPC dispensary in San Bernadino. The agents "descended in force," making arrests and confiscating evidence from the store.

Montana

Last Thursday, Chris Williams rejected a post-conviction plea offer from federal prosecutors that would have cut his prison sentence from as much as 85 years to as little as 10 years. Williams was part of Montana Cannabis, whose other partners have all either been convicted or pleaded guilty to federal drug charges. He faced the decades-long sentence because four or his charges involved having a gun during the commission of a drug crime. Prosecutors offered to drop some charges if Williams dropped his appeals, but he refused. "I have decided to fight the federal government, because for me not defending the things that I know are right is dishonorable," Williams wrote. "Every citizen has a responsibility to fight for what is right, even if it seems like the struggle will be lost. It is the power of the people to control this government that is supposed to protect us. If we shun this struggle, this government will control us instead of protecting us."

On Monday, a state district court judge blocked the state from enforcing some provisions of its new medical marijuana law. District Judge Jim Reynolds said he will suspend enforcement of the law while evaluating its constitutionality. The suspended parts include the ban on medical marijuana providers receiving money for their product, and other provisions that advocates argue essentially shut the industry down. Voters in Montana will vote on throwing out the new, restrictive law next week.

Medical Marijuana Update

It's been a relatively quiet week on the medical marijuana front, with the big news being the DC Circuit Court's interest in determining whether Air Force vet Michael Krawitz has standing to challenge the federal government's refusal to reschedule marijuana. But that isn't all. Let's get to it:

National

On Monday, plaintiffs in the federal marijuana rescheduling case filed an additional brief at the court's request after it heard oral arguments last week. In the case Americans for Safe Access v. Drug Enforcement Administration, the DC Circuit issued an order last week seeking details on the harm sustained by plaintiff and disabled US Air Force veteran Michael Krawitz as a result of the federal government's policy on medical marijuana. The federal appeals court will use this additional briefing to decide whether the plaintiffs have legal "standing" to bring such a lawsuit against the government. The lawsuit argues that the government has acted arbitrarily and capriciously by keeping marijuana classified as a Schedule I substance, a dangerous drug with no medical value. By ignoring the overwhelming scientific evidence, ASA argues that the federal government has kept marijuana out of reach for millions of Americans who would otherwise benefit from its therapeutic value.

Arizona

Last Friday, a lawsuit against Maricopa County officials for refusing to process dispensary applications got underway. The White Mountain Health Center filed a lawsuit against Maricopa County after it refused to provide documentation and information required in order to obtain a dispensary permit under the voter approved 2010 Arizona Medical Marijuana Act. White Mountain was the first to apply for a dispensary permit under county jurisdiction, but Maricopa County DA Bill Montgomery opposes the Arizona Medical Marijuana Act because he says it would force public employees in Arizona to violate federal drug laws that prohibit the use, sale and cultivation of marijuana. Lawyers from the ACLU, who are representing White Mountain, argued that the state has the right to have a medical marijuana law, and that the federal government has not punished officials in any of the other 17 states where it is legal. The case continues.

California

Last Friday, San Francisco's first unionized dispensary opened. The Mission Organic Center applied for its permit more than three years ago, but had to navigate the permit process and overcome an appeal at City Hall before opening. Dispensary owner Eugene Popov has been paying rent on the storefront the whole time, as well as shelling out $10,000 in permit fees. The United Food and Commercial Workers Local 5 has supported the dispensary throughout the process and now has the union shop dispensary in the city.

Also last Friday, neighbors of a Berkeley dispensary threatened to sue the building owner if the dispensary does not stop "all illegal drug activities at the location" associated with the Perfect Plants Patient's Group. Residents complained of bags from the business in neighborhood yards, drug deals openly occurring on the street and kids loitering and smoking marijuana, all of which they attribute to the continued operation of the dispensary. The city is contemplating ordering the dispensary shut down, but the neighbors issued their lawsuit threats because they felt the city wasn’t moving fast enough. The dispensary is not on the city's list of permitted dispensaries.

On Wednesday, the San Francisco Weekly revealed that Mayor Ed Lee blocked a plan to let shuttered dispensaries operate on city property. The number of dispensaries in the city has shrunk from 30 to 20 under the federal onslaught, and city officials had bruited about the idea of letting some of them open on city property while they sought new locations. But Lee's office nixed the idea earlier this month, according to emails retrieved by the Weekly.

Late Wednesday afternoon, an alert went out on the San Diego Americans for Safe Access email list saying San Diego's only known dispensary, Next Generation on San Ysidro Boulevard, was being raided. The dispensary is "currently under attack and in full raid condition," the alert said.

Michigan

On Wednesday, a Big Rapids medical marijuana provider was sentenced to federal prison. John Clemens Marcinkewciz was a registered caregiver when he was arrested on state charges, which were then handed off to the feds. After the federal court ruled that he could not mention the state's medical marijuana law in his defense, he pleaded guilty to conspiracy and manufacture of 100 or more marijuana plants. While there was no word at press time what sentence he received, he was looking at at least a five-year mandatory minimum.

Oregon

Last week, Lane County authorities filed an asset forfeiture complaint against a dispensary they raided in August. They hit Kannabosm on August 30 and arrested the owner, Curtis Shimmin, on marijuana and money laundering charges. The store had been open for a year. Now, they want to seize $60,637 in cash, Shimmin's personal automobile, and an ATM machine that was at the business. Shimmin had argued that cash-for-marijuana transactions were not illegal under the Oregon Medical Marijuana Act because they were not technically sales, but compensation to growers for their expenses. Lane County begged to differ.

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