Confusion lingers in the wake of last week's raids of medical marijuana businesses around the state. Affidavits filed by the U.S. Attorney's office indicate the federal government based the warrants largely on suspicions of caregivers purchasing marijuana from other caregivers. But state law is mute on the subject, so the justification doesn't square with the feds' claim that the raided businesses violated state law in ways "clear and unambiguous." In fact, little about Montana's Medical Marijuana Act seems clear and unambiguous, leaving those targeted in the raids—who saw their plants and growing supplies seized and, in some cases, bank accounts frozen—baffled about the laws they allegedly broke, and bracing for federal indictments.
The U.S. attorney's office in Montana has said nothing to clarify the situation. Assistant U.S. Attorney Victoria L. Francis declined to comment, except to say that the federal agents' focus on businesses that supposedly violated state law "may be an exercise of prosecutorial discretion." Still, the search warrants and affidavits cite only federal laws, and, as Francis says, "The thing we would be enforcing is federal law."
Speaking last Friday at a statewide Montana Bar Association meeting, Montana U.S. Attorney Mike Cotter said the policy of the Department of Justice, which in 2009 announced its intention to stop prosecuting state-sanctioned medical marijuana, has not changed. But that policy appears now to be open to question.
The affidavit filed for the warrant to search Montana Cannabis, one of the largest "cannabusinesses" in the state, underscores the legal ambiguities. One allegation is that Montana Cannabis, after it was vandalized in early 2010, purchased large quantities of marijuana from Bozeman's Big Sky Patient Care. State law doesn't explicitly permit the transfer of marijuana among caregivers, but it doesn't preclude it either. Of the law's many gray areas, "the caregiver-to-caregiver exchange concept is clearly one of them," says Tom Daubert, who co-founded Montana Cannabis before severing ties last fall, and directs Patients and Families United, a group that lobbies the Montana Legislature for marijuana patients' rights. He hoped the current Legislature would clarify the rules for wholesale exchanges of marijuana.
The feds also cite tax evasion as reason for the raids, but that's a knotty issue, too. Caregivers are prohibited from declaring on federal tax returns expenses associated with medical marijuana operations, leading to an artificially high tax bill or charges of tax fraud.
"If compliance with state law is the question, only state courts can evaluate that, and I don't see why state law enforcement would have needed this federal intrusion in order to effectively do that," Daubert says.
A U.S. Department of Justice memo may help explain why. The "Ogden Memorandum," issued in October 2009 by Deputy Attorney General David Ogden, emphasizes that prosecuting marijuana traffickers continues to be a "core priority," but pursuing them should not focus resources "on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." In particular, the memo singles out individuals with cancer and other serious illnesses, and says prosecuting them "is unlikely to be an efficient use of limited federal resources."
But the memo goes on to state that the "prosecution of commercial enterprises that unlawfully market and sell marijuana for profit" continues to be a priority.
"To be sure," the memo says, "claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department's core enforcement priorities."
The language gives federal law enforcement plenty of leeway. It also appears to protect state-authorized patients, but doesn't give the same protection to people who provide them with medicine.
At the nexus of the state and federal uncertainties surrounding medical marijuana stands Daubert. He helped author Montana's medical marijuana law, and, because of his connection to Montana Cannabis, he was named in the warrant to search its facility west of Helena.
"There's a feeling that our law has functionally been repealed by the federal government," Daubert said before a March 19 rally in Missoula to protest the federal raids. During the demonstration a couple of hundred people marched through downtown chanting "DEA Go Away" and waving signs with messages like, "Fix it, don't nix it." A bill moving through the Montana Legislature would repeal the Medical Marijuana Act, but it stalled in committee on the day of the raids.
Daubert says the search warrants were executed despite repeated attempts by him and others in the medical marijuana community to seek clarity from state officials about the Montana attorney general's interpretation of the law, and how it would be applied.
"If the people involved in medical marijuana can't get an answer from the government about how it intends to enforce the law and interpret it, how can any of them ever be accused, even, of intending to violate that law?" he asks.
The state attorney general's office offers no insight, saying only that federal officials made their own determinations.
For Chris Lindsey, a Helena-based medical marijuana attorney, it boils down to a frustrating twist.
"While people will accuse those in the industry of taking advantage of the gray areas, it sort of feels like that's exactly what the feds did," he says.