Medical marijuana caregivers busted by feds receive minimal sentences

February 18, 2012

Gwen Florio, Missoulian

When federal agents raided medical marijuana businesses around Montana last year, the consequences for those indicted as a result seemed dire.

They faced mandatory minimum sentences of at least five years in prison on some charges, with maximum penalties of 40 years and fines ranging as high as $5 million.

But the sentences handed down so far, all the result of plea agreements that saw some charges dropped, have been considerably shorter, ranging from six months to 18 months.

And in one case where attorneys agreed on sentencing guidelines of 24-30 months for each of three men, a federal judge in Helena halved the minimum, sentencing them instead to a single year. Senior Judge Charles Lovell criticized the guidelines as "excessive," making particular mention of the fact that the three men, who operated businesses in Helena and Great Falls, believed their work to be legal under state law.

"Compared to the sentences they could be facing under a narrow reading of the Controlled Substances Act, these are tiny fractions of the potential liability," said Sam Kamin, a professor at the University of Denver Sturm College of Law, who tracks marijuana issues. "That is a significant admission that what's happening in these places is different than folks who grow (for example) in national parks. Those folks are getting very long terms."

Despite that, "it's still pretty onerous," said John Masterson, head of Montana NORML (National Organization for the Reform of Marijuana Laws).

He pointed out that in addition to prison time, some people face huge forfeitures. For instance, Evan James Corum of Olney was ordered to forfeit $86,850. "It would not be right to say that these are light sentences," Masterson said.

The raids in Montana, most of which took place last March as a legislative committee debated placing stringent restrictions on the state's 2004 voter-approved measure legalizing medical marijuana, were among nearly 170 in eight states in 2010 and 2011, according to Americans for Safe Access. The group advocates for legal access to medical cannabis.

All those states legalized the use of medical marijuana to some degree, and saw - as did Montana - a burgeoning industry after a 2009 Justice Department memo stated that prosecuting medical marijuana patients and caregivers wasn't a priority. Last year, however, the Justice Department reminded states that "that prosecution of significant traffickers of illegal drugs, including marijuana, remains a core priority."

The result has been a near-shutdown of the once-flourishing medical marijuana industry in some states, including Montana.

"In addition to raids, there are threats from U.S. attorneys, resulting in massive closures of dispensaries, especially in California," said Kris Hermes, spokesman for Americans for Safe Access. "They're going after licensed facilities as well as unlicensed. I think that if we were to put in the sort of rationale for what they're doing, it's an attempt to intimidate and chill this type of activity."

More than 60 indictments have resulted from the raids, he said, with some people receiving sentences of up to five years in prison.

"I am heartened to hear that plea deals in Montana have resulted in minimal sentencing and hopefully that will be the same for the dozens of other indictments that have happened over the last couple of years," Hermes said.

Federal prosecutors could not comment on the sentences because the cases continue.

But as the University of Denver's Kamin pointed out, people convicted of federal marijuana offenses in more traditional drug trafficking cases got much harsher penalties.

Last year, for instance, Richard Biggs of Missoula was sentenced to five years and three months in prison after being stopped near Huson, on his return from northern California, with 72 pounds of marijuana and $36,000 in cash in his car.

Another Missoula man, Andrew Burrington, was sentenced to three years and one month in prison. Authorities found 10 pounds of marijuana and $46,000 in cash in his house.

Like Masterson, Chris Lindsey, a Missoula attorney who specializes in marijuana cases, cautioned against thinking anyone is getting off easy.

People who thought they'd followed the letter of Montana law are going to prison, mostly because they felt they had no choice but to plead guilty, said Lindsey, a board member of the Montana Cannabis Industry Association.

"We're talking decades of (potential) prison time." Lindsey said. "At a certain point, what happens is they say, ‘OK, if you go to trial, you will not be able to use any state laws as a defense.' " Because of that, conviction at trial is nearly assured, he said.

"There's a sort of math that happens in people's heads," he said. Even if they believe themselves innocent, "the choice is, ‘Do I go to prison for possibly up to two years and theoretically up to two lifetimes? Maybe it's better for me to cop to something I never did.' "

Lindsey knows whereof he speaks. Early on, he was involved in a medical marijuana business in Helena that was raided last year. Although he left the business in early 2010, "I've been told I'm going to be indicted," he said. The thought of prison keeps him up at night. "I'm scared. I'm mad. ... I can tell you that it sure puts family time on a new frame of reference."

The most prominent among those indicted have yet to be sentenced.

Richard and Sherry Flor, 68 and 54, and their son Justin, 34, of Miles City, ran one of the largest medical marijuana operations raided last year. They initially faced 11 counts, including conspiracy to manufacture, distribute and possess with intent to distribute marijuana, plus money laundering and possession of a firearm during a drug trafficking offense. They faced mandatory minimum penalties of up to 25 years in prison and $5 million in fines.

Last month, Justin Flor pleaded guilty to conspiracy to manufacture and distribute marijuana, as well as possessing the drug with intent to distribute. Richard Flor acknowledged conspiring to maintain a drug-involved premises.

Last fall, Sherry Flor pleaded guilty to money laundering and conspiracy to manufacture, distribute and possess with intent to distribute marijuana. She agreed to forfeit $288,000.

All three negotiated plea deals, but the terms of those agreements are not yet known. They're scheduled to be sentenced April 19 in Helena.

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