DEA letters: Is this how the feds might fight state’s marijuana market
June 01, 2013
Jake Ellison, Seattle Post-Intelligencer
A series of letters from the DEA that have effectively closed a handful of medical marijuana storefronts in Seattle might be an indication of how the feds will fight back against Washington state’s efforts to create a marijuana market for recreational use.
And, even in light of a declaration to create a national marijuana business, angel investors putting a million bucks into the industry and the state publishing draft rules for a pot market, some think the U.S. Department of Justice, regional U.S. Attorney’s offices and the Drug Enforcement Agency are far from capitulation in the war on drugs.
Since August of last year, 41 storefronts in the Seattle region have been notified of similar violations.
“These storefronts are in violation of state and federal law. … We will send out additional letters as we identify locations. This action is part of on-going comprehensive strategy to combat drug trafficking in coordination with five judicial districts in our area of responsibility,” DEA spokeswoman Jodie Underwood explained in an email exchange.
Medical marijuana providers are all but powerless once one of those letters arrives.
“The interpretations are very vague and it leaves a lot of discretion for the DEA to come in and say, ‘Well, this is a protected area and you have to get out.’ And because medical cannabis isn’t recognized under federal law, there really isn’t a whole lot of arguing,” said Seattle lawyer Kurt Boehl.
Boehl has represented medical marijuana storeowners for years and added, “… what’s the alternative here? If they fight, then they paint a target on their back for the DEA to come in … they don’t want to do that.”
Will this tactic be used on stores selling marijuana for recreation?
It’s become a phrase easily passed over in the thousands of stories written about the marijuana revolution here and in Colorado, but the fact that federal law enforcement agencies have not said how they will deal with the newly minted laws legalizing marijuana doesn’t mean a federal crackdown won’t happen.
In fact, some with experience fighting federal prosecution and advocating for medical marijuana users caught up in that prosecution think the federal silence on marijuana indicates that’s just what U.S. Attorney General Eric holder et al. are planning to do.
“That’s definitely a concern,” Boehl said.
State rules and I-502 will spell out even more “protected areas” marijuana sellers will have to stay away from, he said, “But, yes, the DEA could come in and then say, ‘Well, you forgot about this park here and we’re just going to say it’s too close.’ ”
Simple as that?
Federal enforcement of the nation’s laws against marijuana doesn’t have to come in the form of busted-down doors and handcuffs or a major court action designed to shutdown the state’s process for licensing growers, producers and sellers.
It might just come in the form of a letter asserting that the newly opened, state-licensed store in your Seattle neighborhood is too close to a school or a playground or federally subsidized housing, and that it has to close or face the full weight of federal government prosecutors.
When asked about that possibility, DEA’s Underwood wouldn’t speculate.
“Those are all things that have not happened, and we can’t predict what is going to happen in the future. We can only go based on facts, on what’s happening right now. So, I can’t tell you what’s going to happen. That also would be a strategy that we would not discuss because we don’t discuss our enforcement strategy,” she said in a phone interview.
“I think they told us what they think of our state laws,” said Kari Boiter, an advocate for medical marijuana growers and patients who have ended up in federal prison and board member for the Cannabis Defense Coalition and the state chapter of Americans For Safe Access.
She guessed federal officials will go after groups such as the one led by Jamen Shively, CEO of Diego Pellicer Inc., who announced this week that they intend to be major sellers of marijuana. Based on her experience with the medical marijuana market, she expects the government will get aggressive with the recreational market.
“I hope Jamen and (others) are ready to go to prison,” she said. The feds “are backed into the corner and they are going to get more vicious and violent before they realize they’ve lost.”
And, she said, there will be no defense since marijuana is a schedule 1, illegal drug.
“When they decide to put you out of business, they apply what rules they want to,” she said.
Boehl added that since there are no “grandfathering” clauses in the federal laws, a store can open at safe distances from protected areas, but if one moves in – such as a building with federally subsidized apartments or a park with a swing set – you’re suddenly in violation.
Just fear talking?
Boehl said he was recently contacted by a person who wanted to open a medical marijuana co-op in the Spokane Valley that was easily more than a 1,000 feet from any protected area. That person received a letter on May 13 – not from the DEA but from Michael C. Ormsby, the U.S. attorney for the Eastern District of Washington.
The letter, provided by Boehl with the name redacted, says unequivocally:
“Using this premises for the distribution of marijuana, or to facilitate the unlawful trafficking in a controlled substance, is violative of federal law. As an owner of this premises, please take note that the federal drug trafficking laws operate independently of Washington controlled substance laws. If your above-identified premises is, indeed, being used to facilitate drug trafficking in violation of federal law, your property is subject to forfeiture … Furthermore, you may be subject to criminal prosecution …”
No mention of distances or other aspects of federal law, just: “You’re in violation and that’s that.”
Joseph Harrington, an assistant U.S. Attorney for that district, wouldn’t confirm the letter’s authenticity over the phone, but did say his office has sent out letters with similar language.
“We have in the past sent notices to landlords where marijuana is being distributed that federal law makes that a violation,” he said. If the storefront is too close to a protected area, that too will be included in the letter.
What will his office do in the absence of direction from the Department of Justice in D.C.? They will proceed on a case-by-case basis, he said, echoing Underwood.
A similar fight has been playing out in California between the U.S. Attorney in San Francisco and the state’s largest dispensary, Harborside Health Center in Oakland.
Despite asserting that her office would focus on storefronts too close to protected areas, U.S. Attorney Melinda Haag has taken action against Harborside because it is too big.
“Marijuana’s illegal under federal law and there are many things I could do as a result of that. I could bring a criminal action. I can bring a forfeiture action or both… A marijuana industry is not off limits. And, if we have significant grow operations, if we have for-profit operations, certainly if those operations are having other impacts, negative impacts on their communities, that isn’t something that we’re able to ignore.”
Absence of a federal statement
In announcing the news conference held Thursday in which former president of Mexico Vicente Fox backed a structured legalization of marijuana in the U.S, organizers stated:
“Cannabis movement leaders have determined that the lack of federal direction puts the progress of the industry and legalization as a whole at risk. This lack of federal direction has created an environment in which investment capital has been restricted so that legal, real estate, and other key infrastructure that is needed to ensure a positive outcome for the legalization initiative are being blocked.”
That group, led by Shively, intends to push the issue by marching forward with big plans.
The Associated Press’ Gene Johnson takes it from here:
Washington and Colorado expect to begin allowing marijuana sales to adults over 21 at state-licensed stores beginning next year, but marijuana remains illegal under federal law, and the Justice Department has repeatedly said it can continue to prosecute large-scale, privately owned marijuana operations even when they comply with state law.
It isn’t clear how Shively’s plans for a national marijuana brand might be accomplished without running afoul of federal laws regarding the distribution of an illegal substance or conspiracy to distribute an illegal substance. He and Davis said no money from their business will travel interstate, nor will the marijuana itself, but neither of those factors would necessarily shield them from arrest.
Shively insisted that his deals with the dispensaries are structured in such a way as to minimize any risk of federal prosecution, but neither he nor Davis would explain how. Shively said he had acquired certain “rights” related to the dispensaries, and made the plan sound like a marketing agreement by which the stores, beginning next month, would be re-branded as Diego Pellicer.
“Neither Diego Pellicer nor our investors are exposed to any significant risk, in terms of criminal risk,” Shively said. “In terms of criminal risk, that is vastly mitigated. … We’re making strategic investments, but we’re making them in such a way that they are not in violation of either federal or state law.”
Asked how his plan didn’t constitute a federal conspiracy to distribute marijuana, Shively described his operation as “a conspiracy to obey the law.”
His securities lawyer, Mike Moyer of the prominent Seattle firm of Dorsey and Whitney LLC, declined to elaborate.