HELENA — Attorneys offered a preview in federal court Thursday of the upcoming medical marijuana case involving Montana Cannabis, which operated mainly out of a large greenhouse on the outskirts of Helena.
Prosecutors say that the case is a straightforward matter of illegal drug distribution and are trying to ban any mention of medical marijuana and state laws as a defense, not just in this but other similar pending lawsuits.
“The intertwined subjects of medical marijuana, Montana law, and medical necessity have no relevance to determining whether the government has proven the crimes charged in the indictment,” U.S. Assistant Attorney Joe Thaggard wrote in a legal brief. “Marijuana is a Schedule I controlled substance under federal law … and can’t be dispensed under a prescription.”
But defense lawyers counter that their clients only became medical marijuana providers after statements by federal officials — including President Barack Obama — saying that patients and caregivers were a low priority for prosecutors. Those statements, the defense attorneys alleged, enticed caregivers into the rapidly growing field.
“It’s unprecedented that the United States has filed a motion trying to prohibit a defense, but in these medical marijuana cases that’s their line of thinking,” said Michael Donahoe, a federal defense attorney. “I want to be frank — the government is wrong here. This was entrapment.”
They also claim that once Obama and the Department of Justice realized that medical marijuana was becoming a big business instead of one consisting of small “mom and pop” operations, the government unduly influenced state legislators to tighten laws. In addition, they argue that while the federal government can regulate controlled substances — as well as guns — they can’t regulate them out of existence.
U.S. District Court Judge Dana Christensen, who heard similar motions in other medical marijuana cases earlier this week, said it’s a lot to sort out.
“The overriding consideration that I am looking ahead and trying to figure out with the trials in these cases is what they will look like and feel like and what will I let the jury know or not know,” Christensen said.
Defendants Chris Williams and Chris Lindsey both briefly took the witness stand Thursday, testifying that they believed they were in full compliance with Montana statutes when they began Montana Cannabis, and wouldn’t be prosecuted for violating federal drug laws because of statements made by Obama and Attorney General Eric Holder.
They said they also relied on the infamous “Ogden Memo” in which U.S. Department of Justice Deputy Attorney General David Ogden directed federal prosecutors in states with medical marijuana laws to prioritize crimes and exercise their discretion in the prosecution of them.
Donahoe said those statements constitute entrapment of his client because they “invited people” into providing medical marijuana to registered users.
“When those remarks were made, the medical marijuana business became a business,” Donahoe said. “People came together to engage in the enterprise to cultivate medical marijuana … and that was entrapment of the defendants. Those representations were made, individuals relied on them and they engaged in the activity.”
But Thaggard noted that while Williams and Lindsey willingly showed their business to Montana law enforcement officers and legislators, they never sought assurance from federal agencies like the Federal Bureau of Investigation or the Drug Enforcement Agency.
Donahoe and Thaggard also clashed over the federal government’s influence in the evolution of Montana’s laws regarding medical marijuana. Donahoe theorized that the federal government
didn’t like the latitude of some state medical marijuana laws, and the executive branch used the prosecutions to influence legislation, violating the Guarantee Clause of Article Four of the U.S. Constitution. He noted that numerous raids on medical marijuana providers “coincidentally” occurred when the 2011 Legislature was in session. Those legislators eventually tightened state laws.
“The Guarantee Clause says, on its face, that the United States shall protect the right of government in individual states,” Donahoe said. “… They wanted to curb Montana’s appetite for medical marijuana, to force legislation to either re-regulate or regulate it better, and that can’t be. They can’t tread into that matter.”
Thaggard countered that during Montana’s 2011 legislative session, the federal government only provided information to legislators at their request. He added that plans for the raids in March 2011 had been ongoing for months before they were carried out.
“What they are guilty of is being courteous and responding to questions,” Thaggard said. “That’s a far cry from telling the state government how to do its business.”
Yet Christensen wanted to know more about Donahoe’s allegation of federal pressure on state legislation, asking for a timeline involving letters from federal agencies to state senators, the raids and legislation that passed tightening medical marijuana laws in the spring of 2011.
“I’m interested in any evidence that would suggest that legislative effort to restrict the previous medical marijuana legal environment, that it was influence by the prosecutions that had been initiated by the U.S. government,” Christensen said.
The Lindsey and Williams case is set for a jury trial at the federal courthouse in Helena on Sept. 23.