The lucky one 

Tom Daubert was an architect of the state's medical marijuana law. Now he's a convicted felon.

Tom Daubert stands flanked by two attorneys at the Russell Smith Federal Courthouse in Missoula, in front of a judge who can sentence him up to 20 years in prison, and pleads his case one last time. He wears a dark suit that contrasts his white beard, and speaks in a measured tone.

“I would say this is the worst day of my life,” he tells the judge, noting the last 18 months haven’t been great either. “I am ruined in many respects.”

Daubert was a successful lobbyist and public relations consultant for 35 years, working mostly in Montana for groups like the hard rock mining industry, the Helena Chamber of Commerce and the Montana Stockgrowers Association. More recently, he’s known for his work on behalf of legalizing medical marijuana and as a primary author of Montana’s 2004 Medical Marijuana Act. In April, he pleaded guilty to conspiracy to maintain drug-involved premises. The charge resulted from his involvement in Montana Cannabis, at one time among the largest dispensaries in the state. Daubert always envisioned Montana Cannabis as a model for how a caregiver ought to operate.

Daubert had no criminal record before the felony conviction in April. He’s a Princeton graduate who holds a master’s degree in forestry and resource conservation from the University of Montana. He worked for the Montana Environmental Information Center and later from his Helena office of Daubert & Associates. But today he says he is living on borrowed money. His finances were already bleak before the 2011 legislative session, when he tried desperately to reform Montana’s medical marijuana law. The March 2011 raids of Montana Cannabis and dozens of others like it across the state only worsened Daubert’s professional prospects, pushing him closer to bankruptcy.

“I had all kinds of aspirations as a kid,” he tells the judge during the Sept. 6 hearing. “Being a federal felon was never one of them.”

The courtroom is full and most in attendance are here to learn the fate of their friend and colleague. Daubert’s former Montana Cannabis partner, Chris Lindsey, sits with his eyes closed. A woman on the bench in the back row clenches her purse and quietly weeps. Democratic state Sen. Ron Erickson, of Missoula, leans forward to listen. Erickson first met the defendant in the late ‘70s at UM, when Daubert was earning his master’s degree.

Friends say the typically optimistic Daubert seems tired these days. His fatigue comes through in his voice, more subdued than it once was. He’s almost 60. The stress of the medical marijuana crackdown and trial has worn on him.

“I’m not blaming anyone but myself,” he tells the judge. “I am a person who has never sought to hurt others, only to help them.”

click to enlarge Tom Daubert leaves the Missoula County Courthouse after a federal judge sentences him to five years probation. - CHAD HARDER
  • Chad Harder
  • Tom Daubert leaves the Missoula County Courthouse after a federal judge sentences him to five years probation.

Dozens of people submitted character letters to the court on Daubert’s behalf. Nine-term U.S. Congressman Pat Williams says Daubert is trustworthy. Former Seattle Police Chief Norman Stamper, who now works with Law Enforcement Against Prohibition, calls it “grossly unfortunate and unfair” for Daubert to be characterized as a criminal. Roy Kemp, who oversees the medical marijuana program for the Montana Department of Public Health and Human Services, attests to Daubert’s efforts to reform the 2004 marijuana law. Even Daubert’s ex-wife writes in his defense.

The prosecutor acknowledges Daubert’s case is unique. “There’s a lot of good to be said about this defendant,” he says. He still suggests a six-to-eight year sentence would be appropriate. Despite Montana’s Medical Marijuana Act, federal law classifies marijuana as a Schedule I controlled substance. According to the federal government, marijuana has no medical benefit and a high potential for abuse; cocaine is classified in Schedule II, a lower tier level than marijuana.

“It is my judgement that you will hereby be placed on probation for a term of five years,” says Judge Dana Christensen at the end of the sentencing.

click to enlarge Cover.jpg

The judge goes on to explain that Daubert must serve 300 hours of community service and finish paying off $50,000 in fines, the approximate profit that he made during his 18 months at Montana Cannabis. He’s ordered to stay away from marijuana and isn’t allowed to exceed the legal driving limit on alcohol, or .08 on a Breathalyzer test. The judge says he won’t order that Daubert be drug tested.

Daubert’s case is over, but much of his life remains unsettled. He may be able to finally move on from 18 months of legal issues, but when asked what he plans to do next he shrugs his shoulders and says, “When you find out, let me know.” He describes himself as thankful. He knows things could have been, as they are for so many others stuck in the industry’s fallout, much worse.

•••

Two days after Daubert’s sentencing, he wears Birkenstocks and cargo shorts and smokes American Spirit cigarettes at Hempfest in Caras Park. The hot sun beats down on booths selling hemp soap, feathered earrings and hemp oil. The smell of incense hangs in the air.

Friends and strangers stop to hug Daubert. A man who apparently doesn’t recognize him asks the newly minted felon if he can spare a “a couple of hits.” Daubert quips: “I’m dry by federal order, my friend.”

click to enlarge “I’m grateful for the judge’s leniency, but I will never stop believing that patients who benefit medically from cannabis deserve laws that honor actual science and thousands of years of human history,” Daubert says. - CHAD HARDER
  • Chad Harder
  • “I’m grateful for the judge’s leniency, but I will never stop believing that patients who benefit medically from cannabis deserve laws that honor actual science and thousands of years of human history,” Daubert says.

Daubert long planned on attending Hempfest. Even if he was sentenced to jail, he thought he’d have a couple weeks to arrange his affairs. But he admits that he always believed the judge would be lenient with his sentencing.

Daubert describes himself as a man of faith. He was born on Columbus Day in 1952 to a schoolteacher mother and a father who worked for a pharmaceutical company. Daubert says his parents instilled a strong moral compass in him early on, and it guided him through his classes at William Penn Charter School, a prestigious Quaker high school in Philadelphia.

The Quakers, or Religious Society of Friends, were prominent in Philadelphia while Daubert was growing up. Daubert, an only child, says he always felt comfortable in silence, and the Quakers taught that spiritual guidance comes through quiet reflection.

That teaching was tested in 10th grade when Daubert and two classmates rolled out Vast Minority?, a magazine that promoted antiwar politics. They distributed the Vietnam-era publication throughout Quaker schools in southeastern Pennsylvania, and it didn’t sit well with everyone. Students burned it in protest. Daubert’s boyhood friend and magazine co-founder, Jeffrey A. Hartman, wrote in a letter submitted at Daubert’s sentencing that Daubert did not respond to such “hate speech” with anger, but rather, “something I can only call grace.”

This same sort of diplomacy helped Daubert bring divergent interests together at the Montana Capitol. In 2004, the Marijuana Policy Project hired him to be a part of the campaign to legalize medical cannabis. Daubert focused the campaign’s message on recent studies that show how the plant helps treat cancer, diabetes, muscle spasms, nausea, inflammation and pain, among other conditions, and it’s possible effects on patients. He added historical context, such as the fact the Chinese used it as medicine as early as 5,000 BC.

click to enlarge Richard Flor stands in the middle of his Miles City garden. His daughter Kristin Flor says, “He worked hard to build that garden up.”
  • Richard Flor stands in the middle of his Miles City garden. His daughter Kristin Flor says, “He worked hard to build that garden up.”

Through his work with the Medical Marijuana Project, Daubert met people like Robin Prosser, who suffered from a lupus-like immunosuppressive disease that left her in constant pain. Allergic to many pharmaceuticals, she used medical marijuana to quell muscle spasms. Prosser committed suicide in 2007 when, because of federal law enforcement intervention, she was unable to get the one cannabis strain that eased her pain.

“Getting to know and love those people helped make the issue a passion for me,” Daubert says.

His passion was a driving force behind the 2004 campaign for CI 148, which later became the Medical Marijuana Act. The law passed with 62 percent of the vote.

Though passage of the law marked a professional and personal success, Daubert now says that he would have done things differently. “I would have said to people, ‘Okay, we’ve just won a very important symbolic issue and not a thing has changed. But what we now have is a stronger argument to [Montana’s congressional] delegation to insist that they participate in creating a federal policy that would honor this issue at the state level,’” he says.

Daubert is also the first to admit the law was problematic. “There were a lot of nuances about what it was going to take to really make it work for patients that the law didn’t spell out,” he says.

In successive legislative sessions, Daubert attempted to refine and clarify the Medical Marijuana Act. Those efforts didn’t pan out. In a character letter to the court, Roy Kemp, who oversees the state’s marijuana registry, noted how Daubert aimed for improvements and clarifications while the state was otherwise “unable to obtain any clear statements about how to proceed under state law or even who to ask.”

In 2007, Daubert founded the nonprofit Patients and Families United, a support group for medical marijuana patients and providers that aimed to educate legislators and the public about the merits of cannabis use. Two years later, his role in educating the public drastically changed. “The so-called “Ogden Memo,” which stated that the federal government would not prosecute medical marijuana providers who were in “clear and unambiguous compliance” with state medical marijuana laws, opened the door to a booming new industry. Caregivers who had previously kept their operations behind closed doors suddenly opened dispensaries in clear view across Montana. The patient population ballooned, too. At the end of 2009 there were 7,339 patients on the state marijuana registry. In May 2011, that number peaked at 31,522.

After the Ogden Memo came out, caregivers surfaced who seemed to be impervious to cultural sensitivities or political realities. Daubert took issue with providers that flaunted their business. In 2009, for instance, he publicly chastised the Montana Caregivers Network, known for its traveling medical marijuana clinics and brief doctor visits, in an op-ed column published in the Great Falls Tribune. “A lot of people jumped into the issue with, as far as I could tell, no understanding of the nuances of the law and very little concern for Montana culture and how not to create political backlash,” Daubert says. “I could foresee political disaster right around the corner.”

When he formed Montana Cannabis with Chris Lindsey, Chris Williams and Richard Flor, the men aspired to make it a beacon for other providers who were grappling with the law. They also aimed to prove that a dispensary could operate transparently and in the spirit of the Medical Marijuana Act. They frequently gave tours of the facility to legislators, law enforcement and media. “It seemed to me someone had to do that in a dramatic, visible way,” Daubert says.

But it was unanswered questions in the state’s Medical Marijuana Act, such as caregiver-to-caregiver transactions, or whether hash was permitted under the law, that later gave the federal government ammunition against Daubert and the other Montana Cannabis partners.

It was during the 2011 legislative session, as Daubert was regularly meeting with legislators and law enforcement, such as the state’s top narcotics officer, Mark Long, that the raids occurred.

“I felt that I was forming really solid, trusting, respectful relationships with them, and becoming much more in tune to the problems that they had with the law,” Daubert says.

Despite the fact that his career is now in shambles, Daubert isn’t angry with any one person. He sees the issue in broader terms.

“So many more people are suffering more—and will—than I am,” he says.

•••

On Aug. 29, Kristin Flor packed quickly. She had just learned that her father, Richard Flor, suffered two heart attacks while en route from the Crossroads Correctional Facility in Shelby to an undisclosed federal detention center. He was hospitalized in Las Vegas.

Richard Flor, who was a part owner of Montana Cannabis, was the first registered caregiver in Montana. When Kristin arrived at the hospital, her 68-year-old father was still alive. Two guards watched over him. Richard’s mouth moved when he saw her, but no words came out. Though he was still handcuffed to the bed, Richard squeezed Kristin’s hand.

“He died in his shackles,” she says.

In April, U.S. District Judge Charles Lovell sentenced Richard Flor to five years in federal custody for maintaining drug-involved premises. Richard Flor’s wife and son were also prosecuted for their roles maintaining a medical marijuana business from their Miles City home and from a Billings dispensary.

According to the federal indictment, the Flors “possessed firearms in order to facilitate the drug trafficking crimes…to protect caches of marijuana plants…and proceeds obtained from the distribution of marijuana, and to intimidate those who challenged the manner in which the conspiracy was conducted.” Kristin, who’s 36 and the mother of two, explains her father was a lifelong hunter and gun collector.

“They try to portray my dad like he was the leader of a gang,” she says. “It’s completely ridiculous to me how they can discredit him so much.”

She says a better description of her dad is “a hippie” and a “little bit of a rebel.” Though the Miles City native had no college degree, he loved to write and always knew the answers to questions posed on the TV show “Jeopardy.” He sold siding and real estate until helping launch Montana Cannabis in 2009.

The March 2011 raids changed everything for the family. The federal government seized several of the Flor family’s cars, all of the guns and the family home, which had been handed down from Kristin’s grandparents. “He felt really guilty about losing the house,” Kristin says.

click to enlarge Missoula attorney and former Montana Cannabis partner Chris Lindsey outside the Missoula County Courthouse. - STEELE WILLIAMS
  • Steele Williams
  • Missoula attorney and former Montana Cannabis partner Chris Lindsey outside the Missoula County Courthouse.

“They took everything,” she adds. “They took his freedom, they took his dignity, his pride, everything he had and stripped him until he was dead.”

She now sees Richard Flor’s inability to access marijuana while in prison as partially responsible for his rapid decline in health. Her father was taking more than 30 different medicines and vitamins to treat his ailments, including osteoporosis and diabetes. While incarcerated, she says he also broke both his clavicle and a cervical bone falling out of bed. She alleges Crossroads didn’t give her father access to his full complement of prescription medicines, and is “seriously contemplating” filing a lawsuit.

Corrections Corp. of America, a privately held company, owns Crossroads. Steve Owen, a Corrections Corp. spokesperson, cited privacy concerns when declining to comment on Flor’s specific care. But Owen defended the institution in a written statement.

“Our dedicated, professional corrections and medical staff at Crossroads are firmly committed to the health and safety of the inmates entrusted to our care; we meet or exceed the rigorous and comprehensive standards of our government partners…” Owen said. “The facility and staff are subject to strong oversight.” 


Kristin says her father’s story isn’t just about problems with the prison system or medical marijuana. “It’s also over how wrong the system is, it’s over how wrong the laws are,” she says. “It’s over how a man can end up in that situation in the first place.”

•••

During the weeks leading up to Chris Williams’ Sept. 24 trial in Helena, the former Montana Cannabis partner found a new home for his dog. He also made sure his 16-year-old son Sage was ready to start college classes at Montana State University.

Williams is preparing to be sent away for a long time. He’s the only Montana Cannabis partner to fight the federal drug charges. Williams’ attorney has said an innocent plea isn’t likely to elicit lenience from the court. Williams is well aware of that. But he’s stubborn. It’s about principle, he says.

“The concept that the government should be able to tell you that you can’t grow a plant and use it as medication for yourself just seems crazy to me,” he says.

Because federal law trumps state law when the two conflict, former cannabis providers facing federal prosecution have not been allowed to shield themselves with Montana’s Medical Marijuana Act. That means Williams is barred from using the state law as a defense in court.

Williams’ former Montana Cannabis partner, Missoula attorney Chris Lindsey, is pleading guilty to charges of conspiracy to maintain drug-involved premises. The father of an 8-year-old son, he says he doesn’t see any other recourse.

Despite Lindsey’s legal challenges, the attorney continues to serve on the Montana Cannabis Industry Association Board and defend former caregivers and medical marijuana patients from federal prosecution. Lindsey is fearful for his future and that of his family, but, he says, somebody has to lead.

“It’s important to me to be part of the change,” Lindsey says. “Social change does not come without risk.” Among Lindsey’s tasks is to raise awareness about IR 124, a Montana initiative asking voters if they want to reject the 2011 Montana Legislature’s changes to the state’s medical marijuana law. SB 423 crippled Montana’s cannabis industry, largely by taking the profit out of caregiving.

If voters say “no” to IR 124 in November, SB 423 gets tossed and state law would revert back to the 2004 Medical Marijuana Act. Lindsey says medical marijuana proponents don’t want a return to the “Wild, Wild West,” a free-for-all with cannabis caravans and assembly line clinics. What the industry does want is a more specific law, one that gives patients, providers and law enforcement predictability and reassurance.

“We want the legislature to go back and do a better law,” he says. “If the voters want this, our elected officials owe it to them to get it right.”

Once Montana gets its house in order, advocates will have a stronger pitch to take to Montana’s congressional delegation. One mechanism to reschedule marijuana under federal law is through congressional action.

Montana’s congressional delegation, however, doesn’t appear poised to take on that cause anytime soon. In fact, marijuana advocates and civil libertarians are decrying their relative silence.

“One of the questions that befuddles me is, where is our congressional delegation on this issue?” asks Scott Chrichton, director of the Montana ACLU. “Why are they just completely silent? And I don’t have an answer for that.”

Daubert points out that there was hardly a peep from the congressional delegation after the raids. He found that puzzling after each member quickly cried foul in September 2011, when the federal government moved to ban gun ownership among medical marijuana patients. Sen. Jon Tester, for instance, fired off a letter to the Department of Justice, urging it to reconsider its stance, saying, “These regulatory changes infringe upon the privacy and Second Amendment rights of Montanans.”

The Independent contacted each member of Montana’s congressional delegation for this article, specifically asking about the lack of substantive discourse on the issue of medical marijuana. Sen. Max Baucus’ spokeswoman issued a two-sentence response via email, as did Tester’s campaign. Rep. Denny Rehberg’s campaign did not respond.

Baucus’ spokeswoman said, “Max believes patients and their doctors should have every appropriate tool to manage pain and their health care choices within the law, while also ensuring the system is not being abused.” Rep. Barney Frank of Massachusetts introduced legislation last year to reschedule cannabis under federal law, but the bill is languishing in committee. The states, meanwhile, continue to mount efforts to loosen marijuana restrictions. Some, like Oregon, Colorado and Washington state, are contemplating legalizing the drug altogether this November.

The Washington state initiative would make marijuana possession legal for adults 21 and older. The drug would be grown by licensed farmers and sold in private marijuana-only stores, also licensed and taxed by the state. Forty percent of tax revenue generated by the program would go into the state’s general fund and local municipalities, while the rest of the proceeds would pay for substance abuse prevention programs, education and health care. The law would create a new marijuana DUI standard that would operate like the state’s drunken driving law.

It remains to be seen how the federal government would respond to legalization.

•••

Montana state Rep. David Howard, from Park City, evoked colorful imagery last year when summing up his take on the Montana Legislature’s attempts to reform the state’s medical marijuana law. “A good friend of mine said it’s impossible to make chicken salad out of chicken scat,” he said. “But that’s what this body is trying to do.”

Howard chaired the House Human Services Committee, which worked with Billings Republican Sen. Jeff Essman to draft and amend SB 423. Now law, the legislation stripped the profit out of caregiving and limited how many patients providers can have. Howard made the comments in April 2011 during a debate about the merits of SB 423.

Human Services Committee Vice Chair Cary Smith, a Republican, also testified that day in support of SB 423. He told those gathered in the House chambers that it was incumbent upon the legislature to “put the genie back in the bottle.”

Opposition to medical marijuana in Montana remains vigilant. In a recent interview with the Independent, Smith highlighted some of the concerns legislators grappled with in the weeks leading up to passage of SB 423. Opponents called it a de facto repeal of the state’s Medical Marijuana Act, but Smith saw the changes in SB 423 as a return to the original ballot language, which was about “taking care of grandma that’s dying of cancer.”

The original ballot language, Smith says, never called for building a cannabis industry. Mainstream Montanans don’t want to see marijuana dispensaries on every corner, he says. There was a regulatory vacuum because the legislature never envisioned an industry.

“And, of course, that became the problem that the federal government had with it also,” Smith says. “They were leaving people pretty much alone as long as you were growing it for yourself and you weren’t selling it. But when you started trying to have a business or an industry that’s when the raids came about.”

The federal government’s marijuana prohibition means that there’s no top-down regulatory scheme in place. While federal agencies regulate tobacco, alcohol and pharmaceuticals, that’s just not doable with marijuana. In the face of that void, the state simply isn’t equipped to regulate a booming marijuana industry, Smith says.

“What kind of quality control do you have when you don’t have all these agencies?” Smith says. “And then, what are we going to do? Are we going to try to grow the government in the state of Montana?”

Smith says the arguments marijuana proponents use, saying that the drug is less dangerous than alcohol, pharmaceuticals and tobacco, don’t hold water with him. Montana already tops many of its peers when it comes to alcohol and prescription drug abuse. Why open the door to another vice?

“It’s almost like saying, ‘Why don’t you let people drive 80 miles an hour, it’s not as dangerous as 90 miles an hour?’” Smith says. “I just don’t see the point in adding another thing to the mix.”

Safety was also a significant worry for police. Law enforcement, including Missoula Police Chief Mark Muir, testified in favor of repealing the medical marijuana law. When expressing concern about the rapid growth of the cannabis industry, Muir compared the industry to the Gulf oil spill and said, “Think again when people say…’We can’t put a cap on this.’”

During Daubert’s sentencing, federal prosecutor Joe Thaggard pointed to the combination of drugs and guns at Montana Cannabis, specifically, as being “volatile and dangerous.” As further proof of the potentially explosive situation, Thaggard highlighted the fact that the dispensary employed convicted kidnapper Dan Nichols. In 1985, Nichols was convicted along with his father, Don Nichols, of abducting and injuring Olympic biathlete Kari Swenson.

“The defendant cannot just walk away from that,” Thaggard said.

•••

Before Judge Christensen announced his decision in Daubert’s case, he made a point of saying that the federal Department of Justice decides who is prosecuted, but sentencing decisions are “mine to make and mine alone.” The judge also explained that he’d read every word of the 72-character letters submitted on Daubert’s behalf. Christensen seems to respond to the letter writers when he acknowledges that there “appears to be an irreconcilable conflict” between state and federal law. That conflict may seem unfair in the minds of some, he says, but it’s to Daubert’s credit that he didn’t try to take on federal law.

It may seem strange, but Daubert says the ordeal has been good for him in some respects.

“I would almost recommend this as an incredible growth opportunity,” he says. “You either get yourself together, to the extent that you’re not already, or you don’t.”

He plans to use his recent experiences with the federal government to write a book about how it feels to be a prosecutorial target. Other than that, he’s not sure of his plans. As for future advocacy efforts, Daubert says he’s committed to remaining a personal supporter of medical marijuana, but he’s not yet sure if he can stomach a continued career championing Montana’s medical marijuana movement.

“You can only take so much cynicism and still operate in the political arena,” he says. “The judge said I am allowed to go to the legal limit on alcohol. I think I’m way beyond the sensible operational limit on cynicism right now.”

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