Jail Term to Be Sought in Medical Marijuana Case

April 23, 2009

Solomon Moore, New York Times

LOS ANGELES — Government lawyers asked a federal judge on Thursday to impose a five-year sentence on the owner of a marijuana dispensary, less than a month after Attorney General Eric H. Holder Jr.

announced that federal authorities would not prosecute owners of medical marijuana shops if they complied with local and state laws.

But the United States attorney for the Central District of California, Thomas P. O’Brien, argued that the dispensary owner, Charles C. Lynch, had broken state laws because he was not a primary caregiver to his customers — a requirement under California law — and provided no medical services beyond the sale of marijuana.

Judge George H. Wu, a Bush appointee who is hearing his first federal case, postponed sentencing until June 11, by which time he will receive final briefings from government and defense lawyers. Judge Wu seemed inclined at times Thursday to hand down a lighter sentence than the government was seeking but repeatedly said he was constrained by federal mandatory minimum sentencing laws.

Mr. Lynch, who ran a small dispensary in the surfing hamlet of Morro Bay, has become a symbol for the medical marijuana movement since his shop was raided in 2007. A registered business owner, Mr. Lynch has the support of the city’s mayor and the city attorney, both of whom testified on his behalf Thursday.

Medical marijuana advocates see the case as a test of the Obama administration’s policy of noninterference on state marijuana laws. California is among 13 states that allow thecultivation and sale of marijuana for medicinal purposes.

Mr. O’Brien said Mr. Lynch’s dispensary attracted illicit marijuana sales that took place near the business and involved employees and customers. Prosecution documents said Mr. Lynch’s dispensary had “a casual, almost carnival-like attitude towards the use and distribution of marijuana.”

Mr. Lynch’s lawyer, Reuven Cohen, said his client paid taxes and followed California laws. Mr. Cohen argued that if the federal government believed that Mr. Lynch had broken California laws, prosecutors should have consented to have the case moved to state court.

“This is really a states’ rights issue,” said Mr. Cohen, referring to Proposition 215, which legalized marijuana for medicinal purposes. “We voted for this stuff, and for the federal government to do this is undemocratic.”

Mr. Lynch was convicted on five counts related to running a marijuana dispensary, which is illegal under federal law, and selling medical marijuana to customers under 21, who are minors under federal law.

The director of the Executive Office for United States Attorneys, H. Marshall Jarrett, sent a letter last Friday to Mr. O’Brien guiding him to seek a five-year sentence. Mr. Jarrett was the chief of the Justice Department’s ethics office until Mr. Holder replaced him after accusations of prosecutorial misconduct in the corruption case against former Senator Ted Stevens of Alaska.

Justice Department officials did not respond to an interview request Thursday.

Since the passage of Proposition 215 in 1996, more than 100 marijuana dispensaries in California have been raided, virtually wiping out the businesses in some places, like San Diego. But in other cities, including Los Angeles and San Francisco, the shops have flourished, despite occasional federal crackdowns during the Bush administration.

Kris Hermes, a spokesman for Americans for Safe Access, a national medical marijuana advocacy group, said that about half of the raids resulted in prosecutions and that about a dozen owners received prison sentences.

Mr. Lynch said in a telephone interview that he would appeal his conviction and accused Sheriff Patrick Hedges of San Luis Obispo County of overzealous prosecution of the law.

“The local sheriff wanted to shut me down,” Mr. Lynch said, “and I don’t think they appreciated me putting up a fight.”

The sheriff’s office did not respond to an interview request.

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