Pubdate: Mon, 09 May 2016
Source: San Jose Mercury News (CA)
Copyright: 2016 Associated Press
Contact:  http://www.mercurynews.com/
Details: http://www.mapinc.org/media/390
Author: Sudhin Thanawala, Associated Press

LOOMING POT RULING COULD PUT A LIMIT ON FEDERAL PROSECUTIONS

SAN FRANCISCO (AP) - Rolland Gregg and his family have fought federal 
marijuana charges for more than three years, arguing that the roughly 
70 marijuana plants investigators found on their Washington property 
were for their own medicinal use and fully complied with state law.

A federal jury last year convicted Gregg, his mother and his wife of 
growing 50 to 100 marijuana plants - amounts their attorney said are 
in compliance with state medical marijuana law. With prison sentences 
looming, they have now turned to a recent act of Congress that they 
say should have stopped the U.S. Department of Justice from 
prosecuting them because they were doing what their state allowed. 
Marijuana is illegal under federal law, and the DOJ disagrees with 
Gregg's understanding of the new law.

"It's been the hardest thing I've ever had to deal with in my life 
when you see the government coming down on you for simply trying to 
be healthy," Gregg said.

A federal appeals court is expected to issue a ruling soon on the 
scope of the law that could pave the way to end or overturn at least 
six federal marijuana criminal prosecutions and convictions in 
California and Washington, including Gregg's, and limit future 
prosecutions of medical marijuana users and dispensaries in eight 
Western states that allow them.

"The 9th Circuit is the biggest circuit, one that contains lots of 
marijuana states. If they were to say, 'The federal government is 
prohibited from enforcing medical marijuana law,' that would be 
huge," said Sam Kamin, a professor at the University of Denver Sturm 
College of Law who studies marijuana regulation.

At issue is a Congressional amendment that said the DOJ could not use 
funding Congress allocated to it for 2015 and 2016 to prevent states 
that have legalized medical marijuana from implementing laws that 
permit its use, distribution and possession.

The amendment's bipartisan sponsors - California Congressmen Sam 
Farr, D-Carmel, and Dana Rohrabacher, R-Costa Mesa - say it prohibits 
the DOJ from prosecuting people who are complying with state medical 
marijuana laws. California and more than 20 other states have 
legalized marijuana for medical use. The drug, however, remains 
illegal under federal law.

The DOJ has interpreted the law more narrowly, saying it prevents 
prosecutors from trying to block state medical marijuana laws or 
charging state officials who implement them, yet permits U.S. 
attorneys to go after marijuana dispensaries and growers.

The 9th Circuit is expected to clarify the amendment in appeals by 
three sets of defendants who have cited it as grounds for judges to 
dismiss their marijuana charges.

Steve McIntosh, a dispensary owner in Los Angeles, had permits from 
local officials that show him in compliance with state law, according 
to his attorney, Marc Zilversmit. Under the Congressional amendment, 
the most the federal government can do is refer him to state 
authorities for prosecution, Zilversmit said.

Another defendant, marijuana grower Samuel Doyle, met Washington's 
requirements for collective cannabis grows for medical marijuana 
patients, his attorney Douglas Hiatt said.

"He was growing medical marijuana for people who needed it, whether 
they could afford it or not," Hiatt said.

The DOJ says McIntosh's dispensary had ties to a street gang, and 
Doyle and his co-defendants did not meet the legal requirements for 
medical marijuana in Washington. Investigators found more than 550 
plants growing on the Spokane property Doyle oversaw, and at least 
one of Doyle's co-defendants indicated the marijuana was being sold, 
prosecutors said.

The DOJ did not respond to a request for further comment.

Gregg's case is not among the ones the 9th Circuit is set to rule on. 
But he has raised the same argument as the other defendants, and the 
9th Circuit has put his appeal on hold pending the outcome of the 
other appeals, his attorney Phil Telfeyan said.

"The feds think they have the power to override voters of the State 
of Washington and the will of Congress," said Telfeyan, co-founder of 
the nonprofit civil rights group Equal Justice Under Law. "It's up to 
the 9th Circuit to tell them, 'Enough is enough. You can't keep 
prosecuting people who are using medical marijuana for their needs.'"

The DOJ cited a county investigator's testimony that he saw evidence 
of a for-profit marijuana growing operation on Gregg's family 
property. The investigator said he found records that he believed 
were for drug sales, a scale and packaging material in the house as 
well as firearms, according to court documents.

Gregg, 34, who owns an alternative energy company, denied he sold 
marijuana, saying he used the drug to treat pain following a 
snowboarding accident that left him with a broken back and neck. His 
mother has rheumatoid arthritis and his ex-wife had an eating 
disorder, he said, adding that all three had medical marijuana authorizations.

But the DOJ argued in his case and Doyle and McIntosh's cases that 
the Rohrabacher-Farr amendment doesn't bar it from prosecuting people 
violating federal drug law, even if they meet state law.

Alex Kreit, a marijuana law expert at Thomas Jefferson School of Law 
in San Diego, said the DOJ and marijuana defendants have strong 
arguments for their conflicting interpretations of the amendment.

"The (amendment's) language is not a model of clarity," he said. "It 
really is open to a number of different interpretations."
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MAP posted-by: Jay Bergstrom