Pubdate: Fri, 27 Aug 2010 Source: Times Union (Albany, NY) Copyright: 2010 Capital Newspapers Division of The Hearst Corporation Contact: http://www.timesunion.com/forms/emaileditor.asp Website: http://www.timesunion.com/ Details: http://www.mapinc.org/media/452 Author: Brendan J. Lyons WILTON POT BUST TESTS FEDS ALBANY -- The shift by some states to legalize marijuana is being invoked by a pair of New York City attorneys who are challenging whether a Saratoga County man implicated in a coast-to-coast drug smuggling case should be subjected to severe federal penalties at a time when the Justice Department has arguably softened its position on the drug. Michael Kennedy, an attorney associated with the National Organization to Reform Marijuana Laws (NORML), and his partner, David Holland, are waiting a decision on their arguments filed in the case that's pending in U.S. District Court in Albany. Their motions cite a controversial 2009 Justice Department memo that encouraged federal prosecutors not to pursue criminal prosecutions of medical marijuana growers and users. The case involves Eric R. Canori, 31, formerly of Wilton, who was indicted last year on charges of running a large-scale marijuana trafficking enterprise that the DEA said was funneling trailer-loads of pot from California to the East Coast. Canori is currently released on bond. If convicted he could face more than 20 years in federal prison. The investigation broke open in June 2009 and drew national interest because a co-defendant, one-time champion mountain biker Melissa "Missy" Giove, was arrested and charged with being an integral part of the years-long conspiracy. Giove, 37, of Chesapeake, Va., pleaded guilty in December to a felony drug conspiracy charge and awaits sentencing. She is a colorful athlete once regarded as the fastest female mountain biker in the world. Last October, as federal prosecutors in Albany added additional charges against Canori, Giove and a Utah man, Robert Reinfurt, deputy U.S. Attorney General David Ogden distributed a memo that month dissuading federal prosecutors from targeting marijuana dispensaries in states that allow them. Kennedy and Holland argue that the memorandum effectively instituted a "de facto" removal of marijuana from a list of priority drugs on what is known as the federal "Schedule I" list of controlled substances. The list includes narcotics such as cocaine, heroin and methamphetamine. In motions pending before U.S. District Judge Gary L. Sharpe, Kennedy and Holland argue that the case against Canori is unconstitutional, in part, because their client doesn't know what maximum penalty he could face if convicted. Also, because 14 states have legalized marijuana for medical purposes it calls into question a decades-old determination by Congress that marijuana was dangerous, subject to abuse and had no medical value, they said. "That recognition by those states is in direct contravention of the Controlled Substances Act which placed marijuana in Schedule I on Congress' belief that marijuana had no medicinal validity," Kennedy wrote. "The Ogden Memo's recognition and deference to the legislative actions of those 14 states that have implemented medical marijuana directly undermines the doctrine of federalism and the supremacy clause of the United States Constitution." Kennedy declined to be interviewed for this story. His argument is testing whether states' legalization of marijuana and its use for medical treatment is on a collision course with federal laws that still treat the drug like cocaine and other addictive narcotics. Federal prosecutors have been quick to note that their softening position on enforcing federal marijuana trafficking laws in states that have approved medical use of pot is not a free pass to cultivate, distribute or use the drug. Indeed, even in states where marijuana has been approved for medical use federal prosecutors have targeted growers and traffickers. They also have said that marijuana remains the top money-maker for violent Mexican cartels that smuggle the drug into the United States. In Canori's case, DEA agents who searched his Wilton home after watching Canori and Giove unload a box trailer that had once been filled with marijuana said they found an additional 40 pounds of the drug stuffed in a freezer, a money counter, plastic bags, a heat sealer and $1.47 million in cash hidden in a duffle bag and shoe boxes. The truck had been driven across the country by a female courier hired to drive the illicit cargo. Giove, as she often did, served as a watchdog and has been described by federal authorities as a key player who profited from the enterprise. Some of the marijuana was distributed in upstate New York and large quantities also were delivered to the Norfolk, Va., area, where Giove lives. In a 57-page memo that addressed the numerous defense challenges to the indictment, evidence and seizures, federal prosecutors dedicated only a couple pages to the defense arguments about the Ogden memo and any effect it may have on drug cases. They also were critical of any link between Giove's group and medical marijuana. "Not only does the evidence indicate that alleged conspiracy involved the delivery of marijuana to the state of New York (a state that has not legalized marijuana in any capacity), but investigators have not discovered any evidence in this investigation indicating that Mr. Canori, Ms. Giove, Mr. Reinfurt or anyone else identified by investigators was trafficking marijuana for anything more than illegal financial gain," wrote assistant U.S. Attorney Richard Bellis, the lead prosecutor. Bellis characterized the constitutional arguments as "without merit." The alleged conspiracy unraveled 14 months ago when the woman paid by Giove to drive more than 350 pounds of marijuana from San Francisco to Albany was arrested by state troopers in Moline, Ill. The woman, who was to receive $3,000 for driving the Ford pick-up and a box trailer, agreed to cooperate with police and federal agents. As a result, officials were watching as the courier met Giove at a hotel near Albany Internation Airport. Giove, according to her plea agreement, was to be paid $30,000 plus travel expenses for her efforts to coordinate the smuggling of the drugs across the country. The marijuana in the box trailer was lined with dry ice to throw off drug-sniffing dogs, but that trick did not work and a canine discovered the cargo when Illinois troopers stopped the truck. Federal agents who searched Canori's house last June said the marijuana they found there was packaged in plastic bags similar to those found in the truck in Illinois. Agents also found a money-counting machine, bank statements from foreign banks and maps indicating the location of storage units around the country. The drug delivery was part of a distribution conspiracy that began in 2006, according to Giove's plea agreement. Giove could have faced up to 40 years in prison and a fine of up to $2 million. But under the plea agreement, Giove agreed she would not appeal any sentence of more than 60 months behind bars. - --- MAP posted-by: Jo-D