In California's Medical Marijuana Truce, a Troubling Gray Legal Area

March 28, 2009

Alison Statemen, Time

Marijuana advocates were not the only ones overjoyed when U.S. Attorney General Eric Holder confirmed that he was ending federal raids on medical marijuana facilities unless they are in violation of both state and federal laws. In budget-strapped California, for one, taxpayers are grateful. There, the fed crackdowns, which had continued despite the end of the state's own raids, got in the way of upwards of $100 million in

html'>revenue from medical marijuana sales taxes in 2007, according to Americans for Safe Access (ASA), an advocacy group for prescription pot.

The federal Drug Enforcement Agency (DEA) is estimated to have spent more than $10 million from 2005 to 2007 on raids on California dispensaries alone. (Twelve other states have legalized medical marijuana.) Legal costs are almost impossible to calculate in the Golden State. "I suspect it's well above $10 million and that doesn't even take into account the fee for the time it's taking me to defend these cases. The government doesn't have to pay for that, but it's certainly an expense," says Joe Elford, staff attorney for the ASA . "It's the beginning of the end hopefully, and it will save the taxpayers millions if not tens of millions of dollars." He estimates that $500,000 is spent on the prosecution and incarceration of each individual facing charges. (See pictures from classic Hollywood stoner cinema.)

However, though enforcement on the state and federal level may now be virtually the same in the affected states, a large legal gray area remains. "They've only begun to scratch the surface on this," says Dale Gieringer, California coordinator for NORML, a group lobbying to legalize marijuana. "They're going to have to change the whole treatment of marijuana under federal law because you can't just have a law laying around and say, 'well we're just not going to enforce it in this case' and leave it like that. If they don't change the law there are going to be issues for years to come."

The problem is clearly evidenced in the cases of Charles C. Lynch and 30 to 40 other individuals who faced or were incarcerated for medical marijuana-related charges before the Obama Administration relaxed its policy. Lynch was convicted in federal court in 2008 on five counts including distributing marijuana through his dispensary, Central Coast Compassionate Caregivers in Morro Bay, Calif. Lynch, 47, who believed he was complying with state laws regarding the running of his clinic — he had a business license for his dispensary, a nursery license for the marijuana plants he cultivated and the blessing of local city officials, including the mayor — was charged with violating both state and federal laws. Lynch's defense team was not allowed to inform the jury that medical marijuana was legal in the state or that Lynch was compliant with state law. (Check out if pot is good for you.)

On Monday the judge postponed Lynch's sentencing until April 30 and requested that prosecutors provide a written clarification from the Justice Department on the Obama Administration's newly revised position that federal agents target marijuana distributors only if they violate both state and federal law. Thom Mrozek, spokesperson for the U.S. State Attorney's Office for the Central District of California said they were reviewing the judge's request, but declined further comment.

Lynch's attorney Reuven Cohen, deputy federal defender, said, "The bottom line is this: if this case were brought today Charlie would not be prosecuted period. And anyone who says otherwise is either completely lying or does not know the truth or the facts. If the people at main justice are provided with full and accurate information they will dismiss this case. If they are serious about what [Attorney-General Holder] said, in other words, that someone had to be in violation of federal and state law, then they will dismiss the case."

The prosecution paints a more complex picture, contending that Lynch's operation was pervaded by marijuana transactions outside of the store by his employees and customers; they claim that evidence showed that though Lynch may have not known of such transactions "the atmosphere and example that defendant set, and that his employees and customers followed, was not one of strict compliance with the law, but rather a casual, almost carnival-like attitude toward the use and distribution of marijuana." One of the most serious federal charges leveled against Lynch was that he sold the drug to over 250 minors which is defined as under 18 under state law and under 21 under federal laws.

(Furthermore, the feds can still cite the double-requirement — violation of both state and federal laws — to justify a raid. Just a week after Holder's announcement, the DEA raided Emmalyn's California Cannabis Clinic in San Francisco, claiming it violated both sets of laws. Evidence used to justify the raid is currently sealed and not available to the public. However, the San Francisco Chronicle reported that a source in the city government said that the state law that was broken was a sales tax violation. Emmalyn's attorney and former District Attorney for the city, Terence Hallinan says "They've done everything they're supposed to do. They haven't done any of the things they're accused of. Here a week after the Attorney General makes a statement they go ahead and make this raid. I think it's just a slap in Obama's face.")

Marijuana advocates believe that what happens with Lynch will be a bellwether for other individuals currently facing charges related to medical marijuana. "All of these people are in a wild state of flux that Mr. Holder and Mr. Obama have placed them in," says Allen St. Pierre, executive director of NORML. "[Charlie Lynch] is the case that will probably inform society where we're going to go on this because he got arrested under the Bush Administration. He was a Main Street medical distributor who enjoyed the support of the town council, the mayor, quintessential local acceptance. His case has been caught up for months now in the [transition between the two] administrations. These defendants are caught in this sort of Alice in Wonderland of medical marijuana, between the states and federal government."

While the Obama Administration cannot reverse the charges against Lynch, St. Pierre says it has great latitude over his sentencing. (State prosecutors have recommended the minimum mandatory sentence of five years in federal prison.) "They could commute his sentence. They can pardon his sentence. That will be very demonstrative as to what this new Administration will do about medical marijuana. They can influence it. They can dial back what had been overt federal opposition to medical marijuana and allow, as they should have from the beginning, local mores and values to dictate who is going to run afoul of the law."



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