DEA inquiries into state's medical marijuana industry include legislators

2012-01-29T09:00:00Z DEA inquiries into state's medical marijuana industry include legislatorsBy MICHAEL MOORE Missoulian The Billings Gazette
January 29, 2012 9:00 am  • 

Diane Sands is used to having her name taken in vain.

That's just part of being a liberal from Missoula in the Montana Legislature.

But her name surfaced recently in a way that offended and troubled her at a profound level.

A possible witness in a federal drug investigation was asked whether Sands might be part of a conspiracy to sell medical marijuana. The questions came from Drug Enforcement Administration agents from Billings who were investigating medical marijuana businesses, and Sands learned about the inquiry from the witness' attorney.

"So now, if you're a state legislator who has been working on medical marijuana laws, you are somehow part of a conspiracy," said Sands, who represents House District 95 in Missoula and works as development director for the Historical Museum at Fort Missoula. "It's ridiculous, of course, but it's also threatening to think that the federal government is willing to use its influence and try to chill discussion about this subject."

Sands isn't the only one with concerns. At least one other legislator declined comment regarding DEA questions about the legislator's duties out of concern over "additional harassment."

And the American Civil Liberties Union in Montana, which is itself full of attorneys, spoke with an outside attorney in regards to its advocacy work regarding marijuana.

"When you hear this sort of thing, there's a part of you that just gets irritated, but there's a part of you that knows you have to, as an organization, make sure you've dotted the I's and crossed the T's," said the ACLU's executive director, Scott Crichton.

Sands and the ACLU aren't actually worried about criminal charges. They've done nothing wrong other than advocate a point of view counter to the opinion held by federal law enforcement.

But both have played high-profile roles in the discussion over medical marijuana in Montana, and the ACLU has been vocal for years in its support for the legalization of marijuana. And they find abhorrent the idea that mere advocacy might be questioned.

"It's chilling, and it dredges up darker days from the '50s and '60s," said Crichton.

Sands is more blunt: "Can you say McCarthy? This sounds like stuff from the House Un-American Activities Committee and Joe McCarthy. So once you talk about medical marijuana in reasonable terms, you're on some sort of list of possible conspirators."

Sands was chairwoman of an interim legislative committee that went to work before the 2011 Legislature to try to fashion a fix for Montana's medical marijuana laws, which many viewed as responsible for the unregulated, Wild West atmosphere that seemed to be part of Montana's medical marijuana industry.

The committee's efforts, which would have imposed new regulation but kept the industry substantially intact, ultimately were swept aside as the Republican-controlled Legislature enacted a far more rigorous regulatory scheme.

In June, after the session ended, Sands suggested that the federal government "delist" medical marijuana -- as it had done with wolves -- and leave the issue to state control.

Control is the issue. Medical marijuana businesses and advocates took heart when the Obama administration, through U.S. Attorney General Eric Holder, appeared to suggest that the federal government wasn't much interested in prosecuting marijuana cases. As recently as December, Holder sounded a similar tone, when he answered questions from a member of Colorado's congressional delegation.

"Where a state has taken a position, has passed a law and people are acting in conformity with the law -- not abusing the law -- that would not be a priority with the limited resources of our Justice Department," Holder said.

That statement is open to interpretation, and the government's actions don't precisely match Holder's words.

"I think you can draw an opinion on how the federal government feels about (Montana) when you consider that the government announced a series of raids just as the Montana Senate was voting on our medical marijuana laws," Crichton said. "It's no coincidence."

Those raids came on March 15, one day after the Senate Judiciary Committee voted to kill a bill that would have repealed the state's initiative-passed medical marijuana law. More than 25 search warrants were served that day on medical marijuana businesses all over the state, and four civil seizure warrants looking to confiscate about $4 million were also executed.

Now those cases are working their way through the legal system and, apparently, that's where Sands' name surfaced in the DEA investigation.

Neither the DEA nor the U.S. Attorney's Office will say why Sands' name came up. In fact, Montana U.S. Attorney Mike Cotter's office answered questions about the incident by emailing a reporter a handful of opinions, memos and court decisions. Assistant U.S. Attorney Jessica Fehr said the office can't respond to specific inquiries about cases, and declined to talk in general about the U.S. attorney's goals in terms of prosecuting medical marijuana cases.

And that leaves legislators like Sands irritated.

"All you really want from them is some sense of direction," she said. "But you can't get it. Instead, you get vague answers about policy, which you can only judge by the way those things seem to be put into action."

State legislative leaders wrote to Cotter in mid-April, requesting guidance on the state's proposed regulatory scheme, and got a response that reiterated basic facts about federal law and said nothing about the state's plan to regulate the industry.

"While the Department of Justice has not reviewed the specific legislative proposal for licensing and regulating medical marijuana that you indicate is being finalized, the Department has stated on many occasions that Congress placed marijuana in Schedule I of the Controlled Substances Act 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 that purport to permit such activities," Cotter wrote.

And that, Crichton said, is where the seemingly arbitrary nature of federal prosecution rears its head.

"So, it's all illegal, they're saying, but it's not all going to be prosecuted," he said. "That's a very difficult playing field for people to navigate."

In fact, John Masterson of Montana NORML, which works to reform marijuana laws, said he flatly tells people interested in the medical marijuana business to stand aside for now.

"If people ask me now how to start a business, I just tell them to stay the hell away," Masterson said. "There's simply no way that you could go into business with any degree of certainty about what the federal government might do."

Sands' name surfaced close to the time that other public officials' names appeared in search warrant applications in federal medical marijuana cases. In a case involving former University of Montana football player Jason Washington, such an application was accidentally unsealed for several days and acquired by the Associated Press and the Missoulian. That affidavit revealed a possible plan by alleged conspirators to bribe public officials, including Montana Attorney General Steve Bullock and state Sen. Dave Lewis.

It's precisely that sort of information that might lead to someone like Sands surfacing in a DEA investigation, DEA Special Agent Mike Turner said.

Turner is a DEA spokesman in Denver, and he handles questions regarding actions taken by the Montana field offices of the DEA. Turner said he couldn't comment on any particular case, but he said the DEA has a duty to track down names that emerge in investigations.

"Does that mean the person has done something wrong just because their name shows up?" Turner said. "Certainly not. But it's our duty to investigate why it came up."

Turner said the DEA is not in the business of making political statements through name-dropping in its investigations.

"We're certainly not out there dropping people's names with the intention of doing them harm," he said. "We're not in the business of scaring people."

On the other hand, Turner said anyone who is "profiting significantly" from the sale of marijuana should be concerned.

"We're not interested in sick people, but we are interested in people who are profiting significantly. If they are, they are fair game as long as there is a reasonable expectation for a successful prosecution."

Turner agreed that the debate surrounding medical marijuana is wracked by confusion, but he is clear about where the DEA's interests fall.

"It is true that we've got competing laws in place here with states with medical marijuana laws, but federal law is clear," he said. "Marijuana is illegal under federal law. If you are involved in selling marijuana, trafficking marijuana, profiting from marijuana, you are in jeopardy. We get questions about what we'll investigate and what we won't, and we can't give that answer. But if you're involved with profiting from marijuana, you're in jeopardy."

That might provide some small comfort to Sands, but she's not convinced that the federal government and DEA aren't in the business of sending harsh messages to those who disagree with them.

"The bottom line is, there's no reason for my name to come up," she said. "So they can say what they want about who they are going to prosecute, but when a state has an ongoing discussion about its laws, and its lawmakers' names are being brought up by federal agents, I will be hard to convince that there's any other reason than to send a message."

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