Latest on Obama Administration and Medical Marijuana

Bump and Update: I have been advised by the AUSA on the Bartkowicz case that Washington is not involved and did not direct, dictate or write the Government's motion or brief. She wrote the brief, and the case is proceeding with the approval of our new U.S. Attorney who took office this week. So if you are in a federal district other than Colorado, you don't have to worry the motion described below is the product of a coordinated effort by DOJ in Washington to prevent defendants from raising compliance with state law or the Holder/Ogden memos as a defense to federal prosecution. It appears that it's being decided by the individual districts and on a case by case basis.


Original Post

Some of you may remember the case of Chris Bartkowicz, a Colorado marijuana grower who allowed the media to film and air a news segment on the marijuana grow in his house. When the DEA saw it on TV, they promptly arrested and charged him. The Government said he had 224 plants, and based on the three charges in the Indictment, if convicted, due to his prior convictions, he now faces mandatory minimum sentences of ten years, twenty years, and sixty years. The Government maintains he could receive a life sentence. (The Government's initial complaint is here.)

The Government filed a 50 page motion this week seeking to prevent Bartkowicz from arguing the Holder or Ogden memorandum or Colorado's medical marijuana law as a defense to the charges. The money quote from the motion, which is available on PACER:[More...]

The Obama Administration intends, and has always intended, to keep mariijuana as a Schedule I Controlled Substance with no medicinal value.

The AP erroneously reports the Judge granted the Government's motion. Sloppy reporting. The docket shows the government submitted a proposed order along with its motion, but the defense has until Aug. 27 to respond and a hearing is not scheduled until Sept. 8. The AP apparently misread the government's proposed order as one having been issued by the Court. From the docket, available on PACER:

08/17/2010 ...52... MOTION in Limine FOR PRETRIAL RULING ON IRRELEVANT EVIDENCE AND DEFENSES AND BRIEF IN SUPPORT OF MOTION by USA as to Christopher Bartkowicz. ... (Entered: 08/17/2010)

08/18/2010...53...MINUTE ORDER by Judge Philip A. Brimmer on 8/18/10: On or before 5:00 p.m. on Friday, August 27, 2010, defendant shall file a response to 52 government's Motion in Limine for Pretrial Ruling on Irrelevant Evidence and Defenses. TEXT ONLY ENTRY - NO DOCUMENT ATTACHED (pabsec) (Entered: 08/18/2010)

08/18/2010...54... NOTICE Proposed Order re 52 MOTION in Limine FOR PRETRIAL RULING ON IRRELEVANT EVIDENCE AND DEFENSES AND BRIEF IN SUPPORT OF MOTION by USA as to Christopher Bartkowicz ... (Entered: 08/18/2010)

08/18/2010...55...MINUTE ORDER by Judge Philip A. Brimmer on 8/18/10. A hearing on all pending motions is set for September 8, 2010 at 8:30 a.m. in Courtroom A 701 before Judge Philip A. Brimmer. TEXT ONLY ENTRY - NO DOCUMENT ATTACHED (pabsec) (Entered: 08/18/2010)

(In case the AP republishes the story with correct information and fails to note the error, here's what its article says now):

A Colorado pot grower facing federal drug charges after he bragged about his marijuana business to a TV station won't be allowed to use the state's medical marijuana law in his defense. U.S. District Judge Philip Brimmer has sided with federal prosecutors in their case against Chris Bartkowicz (BART-ko-wits).

Not surprising is the government's take on the Obama Administration's position on medical marijuana: The Obama Administration intends, and has always intended, to keep mariijuana as a Schedule I Controlled Substance with no medicinal value. From the motion:
Lastly, the National Drug Control Strategy for 2010 presented to the Congress of the United States by President Barack Obama makes absolutely clear that the Obama Administration intends, and has always intended to maintain the status of marijuana as a Schedule I Controlled Substance with no medicinal value. The policy states the following about marijuana:
We have many proven methods for reducing the demand for drugs. Keeping drugs illegal reduces their availability and lessens willingness to use them. That is why this Administration firmly opposes the legalization of marijuana or any other illicit drug. Legalizing drugs would increase accessibility and encourage promotion and acceptance of use. Diagnostic, laboratory, clinical, and epidemiological studies clearly indicate that marijuana use is associated with dependence, respiratory and mental illness, poor motor performance, and cognitive impairment, among other negative effects, and legalization would only exacerbate those problems. National Drug Control Strategy, 2010, submitted by President Obama and R. Gil Kerlikowske, Director of National Drug Control Policy.

The 2010 National Drug Control Policy is here. It's long, but from a quick scan I didn't see any statement that marijuana is properly classified as a Schedule I controlled substance with no medicinal value. It merely says the Administration opposes legalization of marijuana, partly because of the reasons quoted by the Government.

The Government's motion also warns no one should rely on Attorney General Eric Holder's statements or President Obama's statements as a presidential candidate and conclude they won't be prosecuted. Quoting a March, 2010 federal court opinion in U.S. v. Stacy (S.D.CA), it maintains:

...a reasonable person would not rely on these statements (Holder’s February 24, 2009, and March 19, 2009, statements and statements made by Barack Obama when he was a presidential candidate) as an assurance against prosecution under federal law.

As to the Ogden Memorandum,the motion states:

...like the rest of the Obama Administration’s pronouncements on the issue, the guidance remains open-ended.

As a general matter, pursuit of these priorities [prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks] should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.

Memorandum from David W. Ogden, Deputy Attorney Gen., U.S. Dep’t of Justice, to All United
States Attorneys (Oct. 19, 2009).

Translation, according to the Government:

Deputy Attorney General Ogden does not state that these kinds of prosecutions will not and will never take place; instead, he writes that resources will not be focused on these cases because it is not likely an efficient use of resources. This creates an open-ended policy, and does not guarantee against prosecution.

The Government also argues that any reliance on the Ogden Memorandum by Mr. Bartkowicz would be entirely unreasonable. Though reliance may be reasonable in light of the identity of the agent, a Deputy Attorney General; it is not reasonable in light of the substance of the Memorandum.

The Government also points out the Memorandum is not enforceable and merely constitutes internal guidance for prosecutors. (One might ask, why, then, did the Attorney General release it publicly and post it on the DOJ's website for all to see.)

One last point of note in the motion:

The Government seeks to try this case in the court of law, and not the court of public opinion. Allowing any evidence of state statutes, administrative regulations, definitions, and provisions will force jurors into policy makers, rather than fact-finders who decide whether a criminal violation of the federal law has occurred.

I wonder if anyone will notice the Government's 50 page brief is not signed. It omits the required signature block and contains only a certificate of service signed by a legal assistant.

While it obviously is a clerical error, one might ask who did write the brief -- the AUSA's in Colorado prosecuting Bartkowicz, or someone from DOJ in DC, who then forwarded it to the AUSAs in Colorado to sign and submit under their own names, and no one noticed it didn't contain a signature line? It reads a like carefully crafted national policy, and one that likely will be submitted in federal courts around the country wherever the issue pops up.

[Added: the AUSA on the case says it was just the brief, not the motion that wasn't signed and it doesn't need to be signed. Also, see the update at the top on new information that Washington is not involved in this case.]

The bottom line is that the Holder statements and Ogden Memo are not enough protection. Congress needs to pass a law disallowing prosecution of medical marijuana patients and providers who are in compliance with state law -- or at a minimum, a law that expressly allows patients, caregivers and providers to raise compliance with state law as an affirmative defense to a federal prosecution.

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  • Display: Sort:
    The Obama Administration is delusional. (5.00 / 2) (#5)
    by Chuck0 on Fri Aug 20, 2010 at 08:54:24 AM EST
    "Keeping drugs illegal reduces their availability and lessens willingness to use them."

    The Big Lie (4.00 / 1) (#8)
    by PatHat on Fri Aug 20, 2010 at 10:03:36 AM EST
    Works for both parties.

    And works against the people... (none / 0) (#9)
    by kdog on Fri Aug 20, 2010 at 10:13:21 AM EST
    but I guess we deserve it.

    All these clowns have to do is visit any high school cafeteria in America, ask around for a can of Bud and a bag of bud, and see which they can score first...if they had any interest in the truth, that is.  The illegality makes it more available to those it shouldn't be...and it also adds an outlaw allure to it's use.


    What happened to "Follow the Science?" (5.00 / 1) (#12)
    by Ben Masel on Fri Aug 20, 2010 at 10:50:40 AM EST

    What's your best link on the positive (none / 0) (#19)
    by oculus on Fri Aug 20, 2010 at 05:05:53 PM EST
    medicinal effects of MJ?

    thousands of years of usage by humans (5.00 / 2) (#20)
    by Dadler on Fri Aug 20, 2010 at 05:22:40 PM EST
    and nary an overdose on record.  you will never get the science you want as long as this PLANT is illegal and as long as it is the number one threat to the alcohol industry.

    there are too many to just (5.00 / 1) (#21)
    by Jeralyn on Fri Aug 20, 2010 at 06:07:32 PM EST
    list one. NORML.org has some if you are looking.

    The Rescheduling Petition (4.50 / 2) (#22)
    by Ben Masel on Fri Aug 20, 2010 at 07:20:05 PM EST
    To remove marijuana as a Schedule I (none / 0) (#27)
    by oculus on Sat Aug 21, 2010 at 01:40:26 PM EST
    substance, must DEA agree all three factors are met?  DEA

    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.

    failing any 1 would move it. (none / 0) (#28)
    by Ben Masel on Sat Aug 21, 2010 at 09:33:32 PM EST
    Accepted medical use alone would make it Schedule II, ie morphine. Lower abuse potential would move it to a lower Schedule than that.

    Thanks. (none / 0) (#29)
    by oculus on Sun Aug 22, 2010 at 12:42:42 AM EST
    Right, Congress needs to pass a law. (none / 0) (#1)
    by Realleft on Fri Aug 20, 2010 at 07:14:26 AM EST
    Congress needs to pass a law.  Congress.

    Wrong tact, imo... (none / 0) (#2)
    by kdog on Fri Aug 20, 2010 at 07:47:19 AM EST
    all Congress needs to do is repeal some laws....repeal, repeal, repeal.  Passage of additional law will only unnecessarily complicate things further.

    And am I understanding this right?  The government is filing shady "form letter" style motions, unsigned by the author?  

    And didn't Obama say he'd call off the dogs?  Where's his indictment for lying?


    It's merely a question (none / 0) (#10)
    by Jeralyn on Fri Aug 20, 2010 at 10:42:29 AM EST
    that could arise from the omission of the signature block. It will be fixed as soon as they realize it, and I was just pointing it out that it's an unusual ommission that could make one question whether it arrived that way from somewhere else.

    re: AUSA's response & update (4.00 / 1) (#24)
    by Peter G on Fri Aug 20, 2010 at 08:49:00 PM EST
    I've been practicing criminal defense in various forms in federal courts for over 35 years.  I clerked for a federal judge, and taught law school full time for six years.  I have never seen or heard it claimed that a brief can be filed without the signature of a lawyer.  That's absurd.  The signature is not a formality.  It attests that the arguments are made in good faith, on the basis of existing law or a legitimate request for the extension, distinguishing or overruling of existing law, that the citations are legitimate, and that it represents the considered position of the party formally represented by that attorney.  These concerns apply as much or more to the brief as to the motion or other pleading that the brief supports.  

    It's all one document (none / 0) (#25)
    by Jeralyn on Fri Aug 20, 2010 at 09:18:26 PM EST
    It's 50 pages, the first two are the motion and the signature is on page 3. The brief then starts and goes to page 50. There's no signature at the end of the brief, just the certificate of service. I've never seen a document without the signature at the end, but I guess since the signature appears on p. 3 that's all that's needed. I'll email you the pleading.

    Muchas Gracias Senora...n/t (none / 0) (#14)
    by kdog on Fri Aug 20, 2010 at 11:25:21 AM EST
    and it turns out (none / 0) (#17)
    by Jeralyn on Fri Aug 20, 2010 at 04:49:58 PM EST
    Washington is not involved, see the update at the top.

    I am sceptical. U.S. Attorney here was one (none / 0) (#18)
    by oculus on Fri Aug 20, 2010 at 05:00:33 PM EST
    of the 12 replaced by Bush's AG.  She apparently wasn't heeding the call to prosecute more immigration and drug cases.  Sounds like Washington, either explicitly, of by implication, has a lot of input on local discretionary decisions.

    Wait for it (none / 0) (#3)
    by Xclusionary Rule 4ever on Fri Aug 20, 2010 at 08:18:43 AM EST
    Changes in drug policy will not come until second Obama term.  Pot is a wedge issue that repubs could be using right now to slaughter dems instead of GZM. I still think the administration is capable of moving decriminalization forward - passage of prop 19 might do it.

    Reefer is more popular... (5.00 / 2) (#4)
    by kdog on Fri Aug 20, 2010 at 08:26:05 AM EST
    than the Cordoba Center, if you put any stock in polling.

    Dems might be better off politically getting demonized for not hatin' on the sweet leaf...sh*t they'd be better off actually smokin' spliffs at a presser than defending the Cordoba Center project.


    Hahahaha! (none / 0) (#7)
    by Zorba on Fri Aug 20, 2010 at 09:33:35 AM EST
    I want to see Robert Gibbs "smokin' spliffs at a presser"!  Maybe he'd mellow out and not take himself, or criticism of the Obama administration, so seriously.

    it will be interesting to see how they react (none / 0) (#6)
    by Capt Howdy on Fri Aug 20, 2010 at 09:20:47 AM EST
    if CA legalizes it for recreational use.  which Rolling Stone makes a pretty good case for the possibility of.

    Just Say Now

    (pretty great cover too)


    I don't think Congress will (none / 0) (#11)
    by Jeralyn on Fri Aug 20, 2010 at 10:46:14 AM EST
    pass many criminal laws, particularly on sentencing or decriminalization, until its new 18 month crime commission has wrapped up and made recommendations. That commission is like a pass to do nothing until it's finished it's work. ("Let's wait and see what the Commission recommends." And who knows when it will start its work. Or if Obama will get a second term.

    Is throwing the book at a medical grower, (none / 0) (#13)
    by Joan in VA on Fri Aug 20, 2010 at 11:22:02 AM EST
    Obama's first eleventy-dimensional chess move toward decriminalization of all mj use? He is so skillful that I can't even see it. His Reaganesque drug policy is great cover for his true intentions.

    slaughter them how? (none / 0) (#15)
    by jondee on Fri Aug 20, 2010 at 11:40:20 AM EST
    by reminding people that marijuana use is associated with witchcraft, idolatry, the occult, miscegenation and listening to music with jungle rhythms in many parts of the world?

    For sh&ts and giggles last night... (none / 0) (#16)
    by kdog on Fri Aug 20, 2010 at 11:49:52 AM EST
    inspired by the indictment against Clemens, I read some trancripts of the congressional hearings prior to the vote and passage of the Marijuana Tax Stamp Act of 1937...Anslinger, by all rights, could have been indicted into the next millenium for all them lies.  

    I gotta believe we've evolved past that kinda crap still flying, but I've been so very wrong about such things before.