Feds to Charge Medical Marijuana Grower

On Saturday I wrote about Chris Bartkowicz, a medical marijuana grower who, believing he was in compliance with Colorado law, showed his grow to a local news station doing a story on marijuana cultivation in the Denver suburbs, and was promptly busted by the DEA.

The case has caused a big stir, mostly because of DEA Agent Jeffrey Sweetin's initial comments that contradict the Department of Justice memorandum (pdf)issued by Deputy Attorney General David Ogden in October, implementing a DOJ policy change that was widely heralded around the country. Sweetin on Friday night said:

Nothing in federal law has changed. Wanting federal law to be different is not a great strategy....We will continue to enforce federal law, that's what we're paid to do, until the federal law changes.The only exception to that is discretion and department guidance."


Today, sure enough, the feds charged Bartkowicz. Why? They say he had 224 plants, more than six plants per license he had in his possession. The Complaint is here.

Today Sweetin tells 9News:

"He had fewer than 15 certificates showing he was a caregiver," DEA Special Agent in Charge Jeffrey Sweetin told 9Wants to Know Monday. State law allows caregivers to have six marijuana plants per patient. The law says people who have more can show "that such greater amounts were medically necessary to address the patient's debilitating medical condition."

Not only did they charge him, they are asking he be detained without bond. See the penalty sheet here.

So, they are using the number of plants to allege Bartkowicz was not in compliance with state law. Colorado's Constitution says:

4) (a) A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. A patient's medical use of marijuana, within the following limits, is lawful:

(I) No more than two ounces of a usable form of marijuana; and

(II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana.

(b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient's debilitating medical condition.

At least Sweetin backed off his earlier position that the DEA will enforce federal law regardless of compliance with state law. Here's more from Sweetin a few days ago:

"Technically, every dispensary in the state is in blatant violation of federal law," Sweetin told The Denver Post. "The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They're violating federal law; they're at risk of arrest and imprisonment."
But it's still not enough. Congress needs to pass a law disallowing prosecution of medical marijuana patients and providers who are in compliance with state law -- or at least one that expressly allows them to raise compliance as an affirmative defense.

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    Drug prohibition ITSELF must be put on trial (5.00 / 1) (#19)
    by SeeEmDee on Wed Feb 17, 2010 at 07:51:39 AM EST
    Imagine the reactions of a racially-mixed jury on hearing the racially bigoted justifications for drug prohibition:

    "The primary reason to outlaw marijuana is its effect on the degenerate races."

    "There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, result from marijuana usage. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others."

    "Reefer makes darkies think they're as good as white men." - Harry J. Anslinger,

    For a more in-depth look at the racist origins of the drug laws of this country, I recommend Professor Charles Whitebread's 1995 Speech to the California Judges Association "The History of the Non-Medical Use of Drugs in the United States".

    That kind of racism was the basis of the drug laws, not science. A fact which most of the public are unaware of, yet a fact that most 'people of color' must confront daily courtesy of 'profiling'...a process which would have cost Mr. Obama the Presidency, had he suffered the fate of many of his fellow African-Americans in being caught with the illegal drugs he has admitted to using.

    We simply cannot afford this insanity any longer. The scores of billions wasted every year used to fund drug prohibition is money that could go towards unemployment insurance or single-payer health care or a slew of other more worthy endeavors. A point that drug law reformers need to make again and again and again.

    What's the issue? (none / 0) (#1)
    by jbindc on Tue Feb 16, 2010 at 02:44:26 PM EST
    The law says he cannot have more than 6 plants per license.  If he needs more than that, he can raise it as an affirmative defense - which doesn't mean he can't be arrested for it first.

    Holder's memo says this:

    Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:

    unlawful possession or unlawful use of firearms;

    sales to minors;

    financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;

    amounts of marijuana inconsistent with purported compliance with state or local law;

    illegal possession or sale of other controlled substances; or

    ties to other criminal enterprises.

    So, Holder's memo says that the conduct is not

    in clear and unambiguous compliance with applicable state law.

    I'm confused as to what the issue is about his arrest?  I'm not saying he's a drug trafficker or should even go to jail, but from the facts presented, it seems pretty clear he violated the law and should have been arrested, and then he will be allowed to make a case for the extra plants, right?

    I'm not advocating for anything - it seems pretty black letter here - help me understand since you are more familiar with this law.

    The issue here.. (none / 0) (#4)
    by kdog on Tue Feb 16, 2010 at 02:51:27 PM EST
    for me, is that what he did violated the law at all.  And the bust goes against the spirit of a promise, the promise to call off the rabid DEA dogs, all fine print aside.

    We are lost in the wilderness of law-n-order chaos if this man spends one night in a cage...we really are.  Totally farkin' lost.


    We know :) (none / 0) (#6)
    by jbindc on Tue Feb 16, 2010 at 02:54:20 PM EST
    But you aren't writing the laws.  And while it's an interesting philosophical discussion, in the real world, as of now, he IS accused of violating the law, hence his arrest.

    The real world... (none / 0) (#7)
    by kdog on Tue Feb 16, 2010 at 03:18:06 PM EST
    thanks, as if I needed a reminder how unreal it can be:)

    Are you kidding? (none / 0) (#14)
    by Realleft on Tue Feb 16, 2010 at 10:10:44 PM EST
    Held without bond and facing 5-40 years, $2,000,000 fine.

    You're confused as to what the issue is?  The agent has discretion and is using it with an impure agenda.

    What happens to the assets seized and the profits from the sale of "every dispensary in the state"?  

    What happens to the careers of agents/prosecutors who make high profile arrests and seize the assets for the DEA?  


    I think you're confused (none / 0) (#17)
    by jbindc on Wed Feb 17, 2010 at 07:46:52 AM EST
    He can be arrested under Colorado law (and federal law) - there is no conflict there. He may raise his need for more plants as an affirmativce defense, which means that he will bear the burden of proof to prove to the judge that he needed to grow more plants than the law allowed.

    Are you arguing he shouldn't have been arrested in the first place? Because, despite what you think about the agent having an "inmpure agenda"
    (which, by the way, you or anyone else, have no idea if the agent had an agenda or if it was "impure"),


    finishing my sentence (none / 0) (#18)
    by jbindc on Wed Feb 17, 2010 at 07:49:56 AM EST
    Despite what you think about the agent having an "impure agenda" , until drugs are made completely legal in this country, the government will have the right to arrest someone who oversteps the boundaries.

    (And by the way, you or anyone else on this site, have absotluely no idea if the agent had an agenda or if it was "impure" - but that's a nice strawman to the actual issue).


    The legal right yes... (none / 0) (#20)
    by kdog on Wed Feb 17, 2010 at 08:26:21 AM EST
    but they will never have the moral right...that much is obvious to anyone with half a brain.

    But if you are going to start talking (none / 0) (#25)
    by jbindc on Wed Feb 17, 2010 at 09:43:57 AM EST
    About "moral" rights, then we have a problem.  Our legal framework is based on a set of basic moral values almost every society agrees upon - don't kill, don't take what isn't yours, don't physically hurt others, don't lie under oath, etc.  But it's not about an individual's moral compass.

    The problem with your argument here is that YOUR morality says drugs shouldn't be illegal and the government should stay out of it. Many other people, however think chemical enhancements ARE immoral and the prohibitions on their use and distribution should be codified into our laws.  so, who's right?  Are you saying your morality should trump the morality of those who disagree with you?

    You must realize that your view of morality is way askew from what most people in this country feel, right?  There's nothing wrong with that, but we cannot have a justice system based on what the outliers feel is just  - if that were true, then no one would be complaining about people like Dick Cheney and everyone would instead be embracing his philosophy on criminal justice.  And then of course, we can start having our lawmakers impose their morality on the rest of us with things like reporoductive choice, and religious beliefs, and prayer in school, and what to wear and what to read, etc.  Are some of them trying to go there?  Yes - and people on this blog (including you) rail against them all the time.

    Do we have too many laws in this country?  Yes.  Part of that is because of fear, part of that is because "that's the way it's always been done", and part of it is because frankly, people don't want to take responsibility for their actions.

    Just saying if your only argument is that you find drug law immoral, then that's not a very strong argument.


    It's not the only argument... (none / 0) (#27)
    by kdog on Wed Feb 17, 2010 at 10:01:16 AM EST
    just my favorite argument...infringing on the inalienable right to smoke a herb is immoral, tyrannical, unjust.  It may be an outliers opinion to you and the majority, but in my mind its basic common sense. It baffles me that this is an outlier opinion in a supposed free country...infuriatingly baffling.

    Other arguments include the ineffectiveness of prohibition, the collateral damage of prohibition, the high cost with little to no return...among others.

    Now if we could only get the majority to see the basic immorality of caging human beings...sometimes justified, but not at all justified in the extent we do it.


    Those are better arguments (none / 0) (#28)
    by jbindc on Wed Feb 17, 2010 at 10:05:54 AM EST
    But constantly saying you think drug laws and the enforcement of those laws are immoral, completely loses many people who might be willing to listen to your argument and even agree with you.  Again - it's like saying your morality is what counts and what should be the law of the land.  Seems to me when the topic is abortion or capitl punishment, you don't agree with other people wanting their morality imposed.

    Just sayin'.


    If it isn't obvious... (none / 0) (#29)
    by kdog on Wed Feb 17, 2010 at 10:28:12 AM EST
    that caging a human being over plants is immoral, I don't what I can do to help the prohibitionists...seriously.  They are lost.  I can only speak what I believe to be the straight dope.  

    I guess thats why I could never be a politician or a good salesman:)


    You're still missing the point (none / 0) (#36)
    by Realleft on Wed Feb 17, 2010 at 12:03:58 PM EST
    When discretion is involved, as it is, and an agent of the law indicates an intent to seize property and profits as a goal rather than simply to enforce law, and that seized property will then be funneled at least partially back to the agency where the agent works, enhancing his own career and power-base, it is appropriate to consider his motives and agenda.  You can say we can have "absolutely no idea" if he has an agenda, but the agent said it outright in his statement that is quoted in the piece.

    There is no fixed enforcement of law.  Discretion is involved.  


    No (none / 0) (#37)
    by jbindc on Wed Feb 17, 2010 at 12:07:55 PM EST
    Since it was a DEA agent, and marijuana is still illegal under federal law, he had a duty and an obligation to do his job.  Now, you may not like what his job is, or you may not like the law, and yes, sometimes cops look the other way, but there's no way this could have been ignored.  The man went on television and admitted to committing a crime.

    I'm not sure where you think "discretion" comes in.


    True, but, (none / 0) (#38)
    by sarcastic unnamed one on Wed Feb 17, 2010 at 12:10:34 PM EST
    as in every job, if you do what your job says you should be doing it enhances your career. Whether you're a DOJ agent or the drive-up window person at McD's...

    Yes (none / 0) (#40)
    by jbindc on Wed Feb 17, 2010 at 12:20:48 PM EST
    But are you suggesting that DEA agents not make drug arrests, the very purpose of them being in existence, especially when people confess on TV to committing crimes? Not only would that be unethical on his part, since he took an oath to uphold the law, he could probably well lose his job for doing things like that.  

    I know many around here wouldn't weep for that, but it's not like the DEA is going to say "Ok, we give up - no more arresting people!"  Someone else would be hired to do the same job.

    Seriously - next people will be advocating that police don't come to domestic violence calls because they pre-determine that the b1tch probably deserved it.


    I think you misread my comment. (none / 0) (#41)
    by sarcastic unnamed one on Wed Feb 17, 2010 at 12:25:48 PM EST
    Ok (none / 0) (#42)
    by jbindc on Wed Feb 17, 2010 at 12:29:47 PM EST
    I'm sorry if I did - are you saying this guy made the arrest to bolster his career? That's what I'm reading...

    I'm saying everyone who does their job (none / 0) (#43)
    by sarcastic unnamed one on Wed Feb 17, 2010 at 12:36:18 PM EST
    bolsters their career. It's kinda how the whole having-and-keeping-a-job thing works...

    But in Fed Court, he doesn't have (none / 0) (#24)
    by Ben Masel on Wed Feb 17, 2010 at 09:39:31 AM EST
    the affirmative defense.

    Well, then (none / 0) (#26)
    by jbindc on Wed Feb 17, 2010 at 09:51:42 AM EST
    He's dumb.  He could have legally had 90 plants, but he chose to have 224 and then broadcast it on the news.  Seems like he should have talked to a lawyer before doing something stupid.

    Bartkowicz is a maroon. (none / 0) (#2)
    by sarcastic unnamed one on Tue Feb 16, 2010 at 02:45:14 PM EST
    Unless it was his goal to sacrifice himself.

    No, on further thought, that'd still make him a maroon...

    There seems to be a high level of (none / 0) (#11)
    by oculus on Tue Feb 16, 2010 at 05:06:42 PM EST
    zealotry in the legalize marijuana community.

    Not the only raid of this kind. (none / 0) (#3)
    by MileHi Hawkeye on Tue Feb 16, 2010 at 02:50:09 PM EST
    As outlined here.  

    The letter from the Attorney to the IG was interesting.

    what congress needs to do (none / 0) (#8)
    by cpinva on Tue Feb 16, 2010 at 04:45:50 PM EST
    is get rid of the DEA. a useless agency, started by nixon, to do a job already being done by the FBI. the DEA is essentially a gang of well armed thugs, seemingly accountable to no one. they serve a purpose yet to be well articulated, but spend an awful lot of taxpayer dollars doing it.

    their record is horrible, if a ballplayer had the same record, as a batter or, era as a pitcher, they'd be fired. after 40 years on the job, the country is more awash in illegal drugs then it's ever been. fire the bums.

    Not so (none / 0) (#9)
    by jbindc on Tue Feb 16, 2010 at 04:48:15 PM EST
    A 30% record in MLB as a hitter gets you in the Hall of Fame.....

    But the DEA... (none / 0) (#21)
    by kdog on Wed Feb 17, 2010 at 08:32:49 AM EST
    isn't even close to the Mendoza Line at the plate, and is near the league lead in fielding errors:)

    A demotion to Double-A would be too kind...these cats need to be sent off to sell insurance or something:)


    What Congress needs to do, upon (none / 0) (#12)
    by oculus on Tue Feb 16, 2010 at 05:07:54 PM EST
    continuous lobbying by those who wish marijuana to be a legal substance, is to remove it from the list of restricted substances.

    common sense (none / 0) (#10)
    by TheRefugee on Tue Feb 16, 2010 at 04:53:02 PM EST
    FEDERAL LAW SAYS POT IS A NARCOTIC.  Why should a pseudo-medicine practitioner be exempt from state or federal law?  If pothead B wants to be a "caregiver" they had better understand that the feds don't like the states countermanding fed laws and they most certainly don't like stoners selling pot to stoners under the guise of "medicine."

    We already know that the law was supposed to benefit the infirm with serious medical problems for which pot could provide an alternative to traditional medicine.  What has happened is the same thing as any other lobby pushed agenda:  it has been misinterpreted, misused, and turned away from something positive to something negative.

    For every cancer patient in need of a powerful anti-emetic there is a twenty-something suffering from residual pain of a car accident.  For every MS patient actually in need of temporary pain relief that pot offers there is a twenty-something claiming to suffer from eating disorders or stomach ailments.  The people who are getting med mj licenses are the people kids who went to the fairs and hung out on campuses with the leaf logo and petitions.  

    It is asinine of states to pretend that they can legalize a drug that is already abused and that only the cancer patients etc are the one's who will benefit.  It was asinine of states to think that "Joe" wanted to start a business to help his MS stricken neighbor more than he wanted to be able to grow and sell the premium bud he'd been shelling out $500/oz for.

    I'm not anti-state's rights.  I smoked pot for five years and I am most definitely anti-pot.  Pot is not the harmless drug its proponents claim.  It is addictive.  It does cause all the same health related risks as cigarette smoking.  It does cause personality disorders and memory loss.  All of this is documented.  But like any lobby the MJ lobby has their own "science" that dispels accepted scientific evidence.  

    As far as drug laws/med MJ...I don't particularly like fed drug and sentencing laws and I'm not anti medical marijuana if the right people are getting "prescriptions".  That said...I have absolutely no problem with the DEA or ATF or any other federal agency enforcing the law.  On this site and all across the country an accepted expression is: enforce the laws on the book.  But when immigration laws are enforced we cry racism.  When drug laws are enforced we cry unfair.  Well, no law is absolutely fair.  Not one. But if an individual decides they are going to start a business that flies in the face of federal law or relies on the omnipotence of a "loophole" that individual better follow the state laws or loopholes to the exact letter or they deserve to lose the business and face the punishment allowed for breaking said law.

    Do you have a medical license? (5.00 / 2) (#13)
    by cenobite on Tue Feb 16, 2010 at 06:02:14 PM EST
    For every cancer patient in need of a powerful anti-emetic there is a twenty-something suffering from residual pain of a car accident.  For every MS patient actually in need of temporary pain relief that pot offers there is a twenty-something claiming to suffer from eating disorders or stomach ailments.  The people who are getting med mj licenses are the people kids who went to the fairs and hung out on campuses with the leaf logo and petitions.  

    If you don't, I would say it's pretty asinine of you to tell docs what they can and can not prescribe to patients.

    It is addictive.  It does cause all the same health related risks as cigarette smoking.  It does cause personality disorders and memory loss.  All of this is documented.

    Then it shouldn't be too hard for you to find some links documenting that. Because what I've read says that no case of lung cancer or emphysema has ever been attributed to pot smoking alone. However, I saw my dad die of emphysema from smoking tobacco -- oh yes and that's legal isn't it.


    I'd also like to see those citations (none / 0) (#30)
    by SeeEmDee on Wed Feb 17, 2010 at 11:03:56 AM EST
    Ever heard of Lysenkoism? As in the bastardization of science for political gain?

    One could argue quite effectively that the 'scientific' rationale for drug prohibition was little more than pseudoscience mixed with racism and marketed as fact, a practice that continues to this day courtesy of the very governmental bodies charged with scientific research regarding illicit drugs.

    When it comes to illicit drugs (and especially with cannabis) and an experiment or a study is conducted and the results are contrary to government political 'orthodoxy', as has happened numerous times with cannabis research, the government regularly ignores the findings from the studies it commissioned. (The most notable example of this practice was the Institute of Medicine's 1999 report on medicinal cannabis.)

    IMHO, what the government truly fears, and has feared for a long time, is that an admission of error regarding the basis of cannabis prohibition will open a  floodgate of litigation intent upon providing the victims of that error with monetary restitution for the destruction visited upon them courtesy of that 'error'.

    Hence the government's increasingly strained repetition of long-discredited 'talking points' regarding the 'need' for cannabis prohibition. Several score million lawsuits seeking damages would be the final nail in the country's fiscal coffin, and those in charge know it.


    It's a narcotic? (5.00 / 1) (#15)
    by gyrfalcon on Tue Feb 16, 2010 at 11:22:42 PM EST
    Where are you getting your information from, Glenn Beck?



    Yes, it is (none / 0) (#32)
    by jbindc on Wed Feb 17, 2010 at 11:07:48 AM EST
    It is classified as a Schedule 1 narcotic - see the DoJ

    Marijuana is a Schedule I substance under the Controlled Substances Act (CSA). Schedule I drugs are classified as having a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use of the drug or other substance under medical supervision.

    Pardon me (none / 0) (#33)
    by jbindc on Wed Feb 17, 2010 at 11:11:26 AM EST
    Not a NARCOTIC legally speaking, but still the highest level of controlled substance.

    Damn... (none / 0) (#34)
    by kdog on Wed Feb 17, 2010 at 11:19:12 AM EST
    That DOJ mocks itself better than I ever could:)

    The DOJ (none / 0) (#39)
    by cawaltz on Wed Feb 17, 2010 at 12:17:03 PM EST
    should change it's definition since the reality is that Marijuana does have accepted medical usage in treatment in places like Colorado,which are quite definitivelty part of the US(and let's face it when you have a synthetic form patented you pretty much blew the argument there is no medical use for it.)

    They can always make it a schedule 2 or 3.

    Quite frankly, when the DOJ  behaves as they did in the above posts they look like a bunch of thugs insistent on providing "protection" for the pharmaceutical companies who want it both ways(Marijuana has no medical usage unless we can patent it in oral form for anorexia or put it in some form of patch form since the oral absorption rate is all over the place).  


    Pot is addictive? (5.00 / 2) (#16)
    by cawaltz on Wed Feb 17, 2010 at 01:39:38 AM EST
    Since when? That's contrary what I learned in pharmacology. Unless you are saying addictive in the sense some people, who have compulsive tendencies, might be addicted. In which case we'd also need to outlaw shopping, sex, and a whole sundry of other behaviors that also show "addictive" properties.

    You're anti-pot... (none / 0) (#23)
    by kdog on Wed Feb 17, 2010 at 09:07:09 AM EST
    good for you Refugee...pursue your happiness, just don't be a hater and advocate for the state to deny me and those like me some happiness too.  I'm on 15 years and love it as much as the first time...everyone is different.

    As for crying about unjust laws, that is the duty of every citizen...keep cryin' about 'em and breakin 'em till the man gets his collective head out his collective arse and changes the laws so they are worthy of more respect.  Blind allegiance to unjust laws is a road to tyranny.


    One man's tyranny (5.00 / 1) (#35)
    by jondee on Wed Feb 17, 2010 at 11:52:07 AM EST
    is another man's security blanket.

    Rereading Elaine Pagels's The Gnostic Gospels, and you can see the same dynamic going on in the 3rd century. The only hope is to make your tribal voice as loud and as powerful as theirs is. And we've got a lot of catching up to do.