Holder's pot policy unclear on old state cases

April 10, 2009

Bog Egelko, San Francisco Chronicle

The owners of a medical marijuana dispensary near Hayward are looking at 15 years in federal prison on charges that might not get them arrested today. The owner of a former Hayward pot co-op faces similar charges that carry at least a five-year term.

They're among as many as two dozen defendants in California who - according to advocacy groups and defense lawyers - are guilty of nothing more than bad timing.

They were charged with growing or distributing marijuana during the administration of President George W. Bush, when federal agents regularly raided pot clubs and suppliers. The administration argued, and federal courts agreed, that California law allowing medical marijuana was no defense to charges of violating the federal ban on the drug.

Their cases were still pending when President Obama's attorney general, Eric Holder, announced a new policy on marijuana raids: Federal agents, he said March 18, would target only "those people who violate both federal and state law."

In other words, anyone who was complying with the medical marijuana law in California, or any of the 12 other states with similar laws, would be left alone.

Unanswered questions

But Holder left two questions unanswered: whether the same rule would apply to defendants who had been charged under the former policy, and who would decide whether marijuana suppliers were violating state law - federal authorities or state and local governments that were already licensing and regulating pot clubs.

So far, those decisions in California have been left to the four regional U.S. attorneys in the state. Their first response came exactly a week after Holder's announcement, when Drug Enforcement Administration agents raided Emmalyn's California Cannabis Clinic on Howard Street in San Francisco, which was operating with a city permit.

No one was arrested, and no charges have been filed. The supervising DEA agent said federal authorities believed the clinic was violating state law but didn't elaborate.

Medical marijuana advocates were outraged.

"The ink's barely dry on the Obama administration's kinder, gentler approach to medical marijuana, and the DEA is up to its old tactics," said Stephen Gutwillig of the Drug Policy Alliance.

State prohibits profit

But the U.S. attorney in San Francisco, Joseph Russoniello, said he saw no inconsistency between Holder's "sort of offhand comment" and the long-standing practice by federal prosecutors in the Bay Area of targeting traffickers and profiteers.

"We're not interested in people who have a legitimate claim of being compassionate providers," Russoniello told a student audience Wednesday in a forum on medical marijuana at UC Hastings College of the Law.

But he said California's 300 marijuana dispensaries are fair game, because most of them sell pot for profit - and under guidelines announced last August by state Attorney General Jerry Brown, only nonprofit collectives or cooperatives comply with state law.

Prosecutions move ahead

Although Russoniello wouldn't discuss the Emmalyn's case, his comments indicated that local government approval isn't enough to shield a dispensary from federal enforcement. That's reflected by several cases his office is prosecuting.

One involves the Compassionate Cooperative of Alameda County, whose headquarters in an unincorporated area near Hayward were raided by the DEA in October 2007.

The owners, brothers Winslow and Abraham Norton, had a county permit and had been paying taxes on their multimillion-dollar annual sales, their lawyers said.

The charges against them include drug distribution, money laundering and carrying guns during drug trafficking - firearms held by their licensed security guards, a charge that ratchets up the mandatory minimum sentence to 15 years.

'Height of arrogance'

The Nortons "went to extraordinary lengths to make sure they violated no state law," said their lawyer, Susan B. Jordan. It's the "height of arrogance," she said, for federal prosecutors to claim the authority to decide whether a dispensary is following California law.

In December 2006, federal agents raided the Local Patients Cooperative in Hayward and said it was a front to sell pot for profit. The dispensary had a city permit but local officials had recently ordered it closed, saying it had more marijuana on the site than the city's rules allowed. The owner, Shon Squier, and the operator, Valerie Herschel, face mandatory sentences of at least five years if convicted.

Dennis Roberts, a lawyer for Squier, said the federal prosecutor had told him the cooperative was violating state law, and he asked which law that might be. "He said, 'You either accept my offer (of a guilty plea) or you'll find out at trial,' " Roberts said.

Another defense lawyer tried to test the new policy in a San Francisco federal court last month. William Panzer asked a judge to remove Russoniello's office from the case of his client, Kenneth Hayes of Petaluma, operator of a San Francisco marijuana club that the DEA raided in 2002.

Panzer said the prosecutor's office had a conflict of interest because Holder's policy would protect someone like Hayes, whose dispensary, the Harm Reduction Center, was complying with the city's rules when it was raided.

U.S. District Judge Charles Breyer was unmoved.

"Don't drag the court into being the referee or the policeman of the Justice Department," he told Panzer. But Breyer agreed to a 30-day delay to give Panzer time to contact Holder.

Questions for Holder

Another federal judge, George Wu of Los Angeles, has asked Holder to explain his policy on prosecutions before April 30, when Wu is scheduled to sentence Charles Lynch for distributing marijuana at a Morro Bay dispensary that Lynch said had city approval.

Ideally, medical marijuana advocates say, Holder should tell his prosecutors to leave enforcement of state law up to state and local authorities. At a minimum, said Kris Hermes of Americans for Safe Access, they'd like some clarity.

"We want to work with his administration and get a sensible way to deal with these cases," he said.



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