The following is a summary of a collection of letters from U.S. Attorneys for the states of California, Arizona, Hawaii, Washington, Montana, Colorado, Rhode Island, Vermont, New Hampshire and Maine sent to Governors, state legislators and state attorney generals.  The letters all have the same theme, i.e., the U.S. will prosecute people involved in the growing and sale of medical marijuana on a large scale, including property owners who allow their land to be used for growing or medical marijuana dispensaries and government workers or officials who facilitate the medical marijuana industry.

• February 1, 2011, letter from Melinda Haag, U.S. Attorney for the Northern District of California, to the Oakland City Attorney.  “The Department is concerned about the Oakland Ordinance’s creation of a licensing scheme that permits large-scale industrial marijuana cultivation and manufacturing as it authorizes conduct contrary to federal law and threatens the federal government’s efforts to regulate the possession, manufacturing, and trafficking of controlled substances. Accordingly, the Department is carefully considering civil and criminal legal remedies regarding those who seek to set up industrial marijuana growing warehouses in Oakland pursuant to licenses issued by the City of Oakland. Individuals who elect to operate “industrial cannabis cultivation and manufacturing facilities” will be doing so in violation of federal law. Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law. Potential actions the Department is considering include injunctive actions to prevent cultivation and distribution of marijuana and other associated violations of the CSA; civil fines; criminal prosecution; and the forfeiture of any property used to facilitate a violation of the CSA. As the Attorney General has repeatedly stated, the Department of Justice remains firmly committed to enforcing the CSA in all states.”

• March 23, 2011, letter from Dennis Burke, U.S. Attorney for Arizona, to Arizona Tribal Leaders.  “we will evaluate every case submitted from Indian Country involving marijuana on a case-by-case basis, and where sufficient evidence is developed taking the matter out of “clear and unambiguous compliance” with the state scheme, we will consider prosecution. . . . Our District policy remains one of “zero tolerance” for illegal distribution or other trafficking of any controlled substance–including marijuana–in Indian Country, no matter what the quantity.”

• April 11, 2011, letter from Florence T. Nakakuni, U.S. Attorney for Hawaii to Jodie F. Maesaka-Hirata, Director of the Hawaii Department of Public Safety.  The U.S. Attorney responds to a request from the DPS about what the federal government would do if Hawaii state law allowed medical marijuana dispensaries.  The following text is from the letter:  “As a way of emphasizing the foregoing, the CSA’s penalties for felony marijuana offenses (manufacture, distribution, possession with intent to distribute) should be considered: – 1,000 or more marijuana plants, or 1,000 kilograms: 10 years – life imprisonment; – 100 or more marijuana plants, or 100 kilograms: 5 – 40 years imprisonment; – so marijuana plants or more, or more than so kilograms: up to 20 years imprisonment; and – Less than 50 marijuana plants, or less than 50 kilograms: up to 5 years imprisonment. . . . This includes, but is not limited to, actions to enforce the criminal provisions of the CSA such as: – 21 U.S.C. § 841 (making it illegal to manufacture, distribute, or possess with intent to distribute any controlled substance including marijuana); – 21 U.S.C. § 856 (making it unlawful to knowingly open, lease, rent, maintain, or use property for the manufacturing, storing, or distribution of controlled substances); – 21 U.S.C. § 860 (making it unlawful to distribute or manufacture controlled substances within 1,000 feet of schools, colleges, playgrounds, and public housing facilities, and within 100 feet of any youth centers, public swimming pools, and video arcade facilities); – 21 U.S.C. § 843 (making it unlawful to use any communication facility to commit felony violations of the CSA); and – 21 U.S.C. § 846 (making it illegal to conspire to commit any of the crimes set forth in the CSA) .”

• April 14, 2011, letter from U.S. Attorney for the Western District of Washington, Jenny Durkan, and U.S. Attorney for the Eastern District of Washington, Michael C. Ormsby, to Christine Gregoire, the Governor of Washington.  The letter was written in response to the Governor’s inquiry as to what the federal government would do if Washington passed a law legalizing medical marijuana dispensaries.  The letter said “The Washington legislative proposals will create a licensing scheme that permits large-scale marijuana cultivation and distribution. This would authorize conduct contrary to federal law and thus, would undermine the federal government’s efforts to regulate the possession, manufacturing, and trafficking of controlled substances. Accordingly, the Department could consider civil and criminal legal remedies regarding those who set up marijuana growing facilities and dispensaries as they will be doing so in violation of federal law.  Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law. ln addition, state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA. Potential actions the Department could consider include injunctive actions to prevent cultivation and distribution of marijuana and other associated violations of the CSA; civil fines; criminal prosecution; and the forfeiture of any property used to facilitate a violation of the CSA. As the Attorney General has repeatedly stated, the Department of Justice remains firmly committed to enforcing the CSA in all states.”

• April 20, 2012, letter from U.S. Attorney for Montana Michael W. Cotter to Montana State Senator Jim Peterson, Senate President, Representative Mike Milburn, Speaker of the House of Representatives.

• April 26, 2011, letter from Colorado Attorney General John W. Suthers to Colorado Governor John Hickenlooper.  The letter includes this text “These letters indicate that while the Department of Justice will not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law, it does maintain its full authority to vigorously enforce federal law against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law. Of great concern is the fact that some of the letters make clear the U.S. Attorneys do not consider state employees who conduct activities under state medical marijuana laws to be immune from liability under federal law.”  Emphasis added.

• April 26, 2012, letter from U.S. Attorney for Colorado John F. Walsh to Colorado Attorney General John W. Suthers.  This is the now standard state legal medical marijuana laws violate federal criminal laws and the Department of Justice will prosecute violators other than patients.

• April 29, 2011, letter from U.S. Attorney for Rhode Island Peter F. Neronha to Rhode Island Governor Lincoln D. Chafee.  This is the now standard state legal medical marijuana laws violate federal criminal laws and the Department of Justice will prosecute violators other than patients.

• May 2, 2011, letter from U.S. Attorney for Arizona Dennis Burke to Will Humble, Director of the Arizona Department of Health Services.  This is the now standard state legal medical marijuana laws violate federal criminal laws and the Department of Justice will prosecute violators other than patients.

• May 3, 2011, letter from U.S. Attorney for Vermont Tristram J. Coffin to Commissioner Keith W. Flynn of the Vermont Department of Public Safety.  This is the now standard state legal medical marijuana laws violate federal criminal laws and the Department of Justice will prosecute violators other than patients.

• May 10, 2011, letter from New Hampshire Attorney General Michael A. Delaney to New Hampshire State Senator Jeb Bradley.  The AG tells the senator that he opposes a pending bill that would legalize medical marijuana in New Hampshire.

• May 10, 2011, letter from U.S. Attorney for New Hampshire John P. Kacavas to New Hampshire Attorney General Michael A. Delaney.  This is the now standard state legal medical marijuana laws violate federal criminal laws and the Department of Justice will prosecute violators other than patients.

• May 16, 2011, letter from U.S. Attorney for Maine Thomas E. Delahanty, II, to Maine State Senator Earle M. McCormick and Maine State Representative Meredith N. Strang Burgess.  This is the now standard state legal medical marijuana laws violate federal criminal laws and the Department of Justice will prosecute violators other than patients.

In the last and one half year the federal government has made it clear to all but the blind that it intends to prevent the commercial growing and selling of medical marijuana in all fifty states.  The following is the text of a January 17, 2012, letter from the DEA to the Board of Clark County Commissioners that states that Clark County employees and the members of the Board of Commissioners could be prosecuted for assisting a medical marijuana program.

JAN 1 7 2012

Tom Mielke
Marc Boldt
Steve Stuart
Board of Clark County Commissioners
1300 Franklin Street
P.O. Box 5000
Vancouver, Washington 98666-5000

SUBJECT: Application of the Controlled Substances Act (CSA) to the Board of Clark County Commissioners and Clark County Employees

Dear Messrs. Mielke, Boldt, and Stuart:

Thank you for your December 2, 2011 letter addressed to Attorney General Eric Holder which was referred to the Drug Enforcement Administration (DEA) for a response.

The Department of Justice has stated that Congress has determined that marijuana is schedule I controlled substance and, as such, growing, distributing, and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities. This is reflected in the text of the CSA and the decisions of the United States Supreme Court in United Stales v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001), and Gonzales v. Raich, 545 U.S. l (2005). These federal law concepts are premised on the facts that marijuana has never been demonstrated in sound scientific studies to be safe and effective for the treatment of any disease or condition and, therefore, the Food and Drug Administration has never approved marijuana as a drug. As the Supreme Court stated, “for purposes of the Controlled Substances Act, marijuana has ‘no currently accepted medical use’ at all” Oakland Cannabis Buyers’ Cooperative. 532 US. at 491.

In your correspondence to the Attorney General you quote from an April 14, 2011 letter written to the Honorable Christine Gregoire, Washington State Governor by the U.S. Attorneys for both the Eastern and Western Districts of Washington in which they say that “state employees who conducted activities mandated by the Washington [medical marijuana] legislative proposals would not be immune from liability under the CSA.”  Although that letter pertained to the Washington state medical marijuana law and Washington state employees, the principles expressed in that letter are useful in addressing any county “medical marijuana” ordinance or provision implementing state law. As that letter indicated. anyone who knowingly carries out the marijuana activities contemplated by Washington state law, as well as anyone who facilitates such activities, or conspires to commit such violations, is subject to criminal prosecution as provided in the CSA. That same conclusion would apply with equal force to the proposed activities of the Board of Clark County Commissioners and Clark County employees.

Such persons may also be subject to money laundering statutes.  In addition, the CSA provides for forfeiture of real property and other tangible property used to facilitate the commission of such crimes, as well as the forfeiture of all money derived from, or traceable to such activity.

Thank you for your inquiry regarding this important matter.

Sincerely,

Joseph T. Rannazzisi
Deputy Assistant Administrator
Office of Diversion Control

Emphasis added.

SF Gate:  “Attorney General Eric Holder on Thursday [June, 11, 2012] defended the Justice Department’s pursuit of medical marijuana growers and dispensers, saying they “took advantage” of state medical marijuana laws.”