Medical marijuana and states rights: Pot dispensary owner faces 10 years in jail for violating federal laws

November 16, 2012

Wes Woods II , San Bernardino Sun

While Aaron Sandusky and his supporters contend he committed no crime under California state law, he stands to spend many years -- and possibly the rest of his life -- behind bars.

Sandusky was president of Upland-based G3 Holistic, a medical marijuana dispensary, which in California, is legal.

In October, however, he was convicted in federal court of eight counts related to growing, possessing and intending to sell marijuana for profit.

His case, one of a handful in which federal prosecutors have charged and convicted purveyors of medical marijuana in states where such use is legal, highlights a fundamental conflict between state and federal law at a time when public opposition to marijuana is waning.

"It really goes to the heart of federalism and the relationship between state government and state rights and federal government and federal power," said former U.S. District Court Judge Stephen Larson. "It's a classic contest between states' rights and federal power, and that contest needs to be resolved in courts and in Congress."

While no meaningful challenge to federal law has been mounted, 18 states permit medical marijuana, and in the Nov. 6 election, Colorado and Washington legalized recreational use of marijuana.

Still, dispensaries and their owners find themselves in the crosshairs of law enforcement.

California's four U.S. attorneys in September announced they were taking aim at large-scale growers and dispensary owners who falsely claim that their operations comply with state law. Many such owners throughout Los Angeles County have found themselves caught in this spotlight as has been the case for the past several years.

The conflict over state and federal law has led to confusion and frustration by dispensary owners who believe what they are doing is legal.

Perhaps Sandusky thought he was safe from federal prosecution after President Barack Obama said the Attorney General would not prosecute marijuana cases in states that had legalized it.

His attorney, Roger Diamond, attempted to make that argument in his defense, but the judge refused to consider it.

On Oct. 12, Sandusky was convicted of conspiracy to grow marijuana, to possess marijuana with intent to distribute it and to maintain a drug-related premises. He was also convicted of one count of possession of marijuana with intent to distribute.

He faces a mandatory minimum sentence of 10 years in prison and could receive as much as a life sentence, said Bruce Riordan, assistant U.S. attorney.

His girlfriend, Darlene Buenrostro of Rancho Cucamonga, said Sandusky is being held in Metropolitan Detention Center in Los Angeles.

"He has good and bad days," Buenrostro said. "He was just shocked and didn't anticipate (his conviction). I don't know if you could read the look on his face. He was still feeling positive. But once the verdict was handed down, he was deflated."

A tangled tale

Sandusky's story is not a simple one.

He opened G3 Holistic in Upland in November 2009, six months after Obama, in a well-publicized interview with the Oregon Mail-Tribune, said the government would not aggressively pursue medical marijuana cases in states that had legalized it.

"I'm not going to be using Justice Department resources to try to circumvent state laws on this issue," Obama said in March 2009.

In the same month, the Justice Department issued its own policy statement, in which Attorney General Eric Holder said federal investigators would only target suspects who appeared to be using medical marijuana laws as a shield for illegal distribution, non-licensed distribution.

Whatever his intent, Sandusky did not receive a warm welcome in Upland.

The city, citing zoning laws banning dispensaries, sought and obtained an injunction, forcing G3 to close less than a year after it opened. Upland has a zoning ordinance on the books that bans dispensaries. The city's authority to ban dispensaries is being challenged in state Supreme Court.

Undeterred, Sandusky opened additional clinics in nearby Colton and Moreno Valley, even as he appealed Upland's injunction.

A few months later, in February 2011, he filed a federal lawsuit, accusing Upland's mayor, John "JP" Pomierski, of extortion, bribery and racketeering.

In March, federal agents arrested Pomierski and charged him with conspiracy, bribery and extortion, accusing him of demanding bribes from unnamed Upland businesses that appeared to be G3 and a local restaurant that also had filed claims against the city.

Sandusky continued to fight the city, winning a stay on the injunction from an appellate court in June 2011.

In November 2011, the court ruled that the city's injunction was valid on the grounds that the dispensary violated the city's zoning ordinances.

In December, G3 re-opened in Upland pending appeal to the state Supreme Court based on Diamond's interpretation of the law.

A start date for the trial has not been set.

Over the past year, the dispensary has closed and opened several times, as motions fly back and forth between the city and Sandusky's attorney, who contends Upland's goal is to ban dispensaries entirely, which is contrary to state law.

"Aaron wants that case to be pursued and I'm going to pursue it," Diamond said in October shortly after his client was found guilty and added nothing had changed.

"We're waiting for oral arguments" in Supreme Court.

As for the mayor, Pomierski ultimately accepted a plea bargain before his case could go to trial and he was sentenced in August to two years in prison for accepting a $5,000 bribe in return for the city's granting of a permit to a local business.

Pomierski's successor, Ray Musser, sought federal assistance in the city's fight against Sandusky, writing on May 5, 2011, to U.S. Attorney Andre Birotte, Jr., asking the federal government to help the city "prohibit the commercial cultivation and dispensing of `medical marijuana."'

Agents from the Drug Enforcement Agency raided G3 in March, and in June Sandusky and five of his employees were arrested on suspicion of violating federal drug laws.

While his employees pled guilty to lesser charges, Sandusky maintained the prosecution was unjust.

U.S. District Judge Percy Anderson refused, however, to admit evidence or testimony related to conflicts between state and federal law or to consider statements made by the president or the Justice Department. Anderson refused because the matter was a federal case.

In October, Sandusky was found guilty.

Law of the land

Sandusky's conviction drew national attention and coverage from publications as diverse as the Washington Times, Huffington Post and any number of medical marijuana niche publications.

Kris Hermes, spokesman for Oakland-based Americans for Safe Access, the largest national member-based organization promoting safe and legal access to cannabis for therapeutic use and research, said the manner in which courts consider evidence is a roadblock to a fair trial in cases such as Sandusky's.

Federal law is such that the government doesn't recognize the medical value of medical marijuana, and there is no distinction between medical use and non medical use, Hermes said.

Without that distinction, the government can effectively exclude any evidence of medical use even if people being tried are in compliance with local and state laws.

"That's the situation with Aaron Sandusky," Hermes said. "As with really every defendant that's tried in federal court, the lack of a defense is a huge problem. We've tried to introduce legislation on several occasions to help a defendant with a reasonable defense but we haven't been successful on that front yet."

Hermes said his group has a lawsuit in Washington D.C. federal court challenging the government's position that marijuana has no medical value and oral arguments for it were recently made.

"We're hopeful that will begin a process that if we prevail in court of establishing a more sensible health policy for medical marijuana," Hermes said.

Larson, the retired federal judge, declined to speak specifically about Sandusky's case, but noted that in federal court, it's not unreasonable or unusual for arguments based on state law to be prohibited.

"State law does not govern in federal court," Larson said. "State law would not be admissible. It's something the U.S. Congress needs to resolve. The states cannot force the federal government to change their law. This is something federal law will have to accommodate."

Lanny Swerdlow, a Palm Springs resident and local advocate for medical marijuana, believes that if courts could consider medicinal use of marijuana or state laws, cases like Sandusky's would end very differently.

"That is the biggest," Swerdlow said of allowing the prohibited testimony.

"There is more of a likelihood that a defendant in federal court could be acquitted by a jury if they're allowed to present evidence of medical necessity or compliance of state law. But it's just a formality for the court to side with the federal prosecution. The U.S. Supreme Court has indicated no difference between medical and non medical use of marijuana."

Bigger issues

The important issue Sandusky's case reveals is not limited to medical marijuana, Larson said.

"I would hope that the courts and Congress take a longer view on this issue and look beyond the particulars of whether or not medical marijuana dispensaries are going to be lawful and consider the impact this has for our constitutional form of government and what role the states continue to play in that framework," Larson said.

Besides medical marijuana, there are numerous issues, such as gay marriage, immigration, healthcare and energy that fall under the same umbrella, Larson said.

"We saw that play out big time, and we see it going forward in health care," Larson said.

"The passage of Obamacare and challenge of states by the mandatory nature of it. The federal government, the Supreme Court, found that the tax and spending power of the federal government trumped states rights. If you take an overview of the history of the U.S. since the founding constitution, a general erosion of states rights and growth of federal power, that's been the general trend for 225 plus years. But there are instances where there's adjustments. It's interesting to see how this plays out."

Sandusky will be sentenced Jan. 7 in U.S. District Court.

Diamond, Sandusky's attorney, said his client's spirit was not broken despite the case.

"He feels strongly about the importance of providing medical marijuana to people who need it," Diamond said. "He is extremely sincere in his beliefs. And he has faith in the appellate system. I do, too."

Jeremy & Gerald Duval

Father and son Gerald, right, and Jeremy Duval of Michigan were convicted in May of conspiring to manufacture more than 100 marijuana plants, manufacturing marijuana plants with intent to distribute them and maintaining a place to distribute marijuana.

Sentence: They received 10 years in prison.

Charles C. Lynch

Charles C. Lynch was convicted in 2009 of five marijuana-related offenses for running a medical marijuana dispensary collective in San Luis Obispo.

Sentence: One year

Aaron Sandusky

Aaron Sandusky of Upland was convicted in October on violating two counts of federal marijuana laws and conspiracy to manufacture marijuana plus intent to distribute.

Sentence: He is in custody awaiting sentencing in January, facing 10 years prison.

Christopher Williams

Christopher Williams of Montana was convicted in September 2012 of eight counts of conspiring to grow and distribute marijuana, possession with intent to distribute and possession of a firearm during a drug-trafficking offense, despite medical marijuana being legal in the state.

Sentence: Minimum of 92 years in prison.

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