Pubdate: Fri, 27 Aug 2010
Source: Times Union (Albany, NY)
Copyright: 2010 Capital Newspapers Division of The Hearst Corporation
Author: Brendan J. Lyons


ALBANY -- The shift by some states to legalize marijuana is being
invoked by a pair of New York City attorneys who are challenging
whether a Saratoga County man implicated in a coast-to-coast drug
smuggling case should be subjected to severe federal penalties at a
time when the Justice Department has arguably softened its position on
the drug.

Michael Kennedy, an attorney associated with the National Organization
to Reform Marijuana Laws (NORML), and his partner, David Holland, are
waiting a decision on their arguments filed in the case that's pending
in U.S. District Court in Albany. Their motions cite a controversial
2009 Justice Department memo that encouraged federal prosecutors not
to pursue criminal prosecutions of medical marijuana growers and users.

The case involves Eric R. Canori, 31, formerly of Wilton, who was
indicted last year on charges of running a large-scale marijuana
trafficking enterprise that the DEA said was funneling trailer-loads
of pot from California to the East Coast. Canori is currently released
on bond. If convicted he could face more than 20 years in federal prison.

The investigation broke open in June 2009 and drew national interest
because a co-defendant, one-time champion mountain biker Melissa
"Missy" Giove, was arrested and charged with being an integral part of
the years-long conspiracy.

Giove, 37, of Chesapeake, Va., pleaded guilty in December to a felony
drug conspiracy charge and awaits sentencing. She is a colorful
athlete once regarded as the fastest female mountain biker in the world.

Last October, as federal prosecutors in Albany added additional
charges against Canori, Giove and a Utah man, Robert Reinfurt, deputy
U.S. Attorney General David Ogden distributed a memo that month
dissuading federal prosecutors from targeting marijuana dispensaries
in states that allow them.

Kennedy and Holland argue that the memorandum effectively instituted a
"de facto" removal of marijuana from a list of priority drugs on what
is known as the federal "Schedule I" list of controlled substances.
The list includes narcotics such as cocaine, heroin and

In motions pending before U.S. District Judge Gary L. Sharpe, Kennedy
and Holland argue that the case against Canori is unconstitutional, in
part, because their client doesn't know what maximum penalty he could
face if convicted.

Also, because 14 states have legalized marijuana for medical purposes
it calls into question a decades-old determination by Congress that
marijuana was dangerous, subject to abuse and had no medical value,
they said.

"That recognition by those states is in direct contravention of the
Controlled Substances Act which placed marijuana in Schedule I on
Congress' belief that marijuana had no medicinal validity," Kennedy
wrote. "The Ogden Memo's recognition and deference to the legislative
actions of those 14 states that have implemented medical marijuana
directly undermines the doctrine of federalism and the supremacy
clause of the United States Constitution."

Kennedy declined to be interviewed for this story. His argument is
testing whether states' legalization of marijuana and its use for
medical treatment is on a collision course with federal laws that
still treat the drug like cocaine and other addictive narcotics.

Federal prosecutors have been quick to note that their softening
position on enforcing federal marijuana trafficking laws in states
that have approved medical use of pot is not a free pass to cultivate,
distribute or use the drug. Indeed, even in states where marijuana has
been approved for medical use federal prosecutors have targeted
growers and traffickers.

They also have said that marijuana remains the top money-maker for
violent Mexican cartels that smuggle the drug into the United States.

In Canori's case, DEA agents who searched his Wilton home after
watching Canori and Giove unload a box trailer that had once been
filled with marijuana said they found an additional 40 pounds of the
drug stuffed in a freezer, a money counter, plastic bags, a heat
sealer and $1.47 million in cash hidden in a duffle bag and shoe boxes.

The truck had been driven across the country by a female courier hired
to drive the illicit cargo. Giove, as she often did, served as a
watchdog and has been described by federal authorities as a key player
who profited from the enterprise. Some of the marijuana was
distributed in upstate New York and large quantities also were
delivered to the Norfolk, Va., area, where Giove lives.

In a 57-page memo that addressed the numerous defense challenges to
the indictment, evidence and seizures, federal prosecutors dedicated
only a couple pages to the defense arguments about the Ogden memo and
any effect it may have on drug cases. They also were critical of any
link between Giove's group and medical marijuana.

"Not only does the evidence indicate that alleged conspiracy involved
the delivery of marijuana to the state of New York (a state that has
not legalized marijuana in any capacity), but investigators have not
discovered any evidence in this investigation indicating that Mr.
Canori, Ms. Giove, Mr. Reinfurt or anyone else identified by
investigators was trafficking marijuana for anything more than illegal
financial gain," wrote assistant U.S. Attorney Richard Bellis, the
lead prosecutor.

Bellis characterized the constitutional arguments as "without

The alleged conspiracy unraveled 14 months ago when the woman paid by
Giove to drive more than 350 pounds of marijuana from San Francisco to
Albany was arrested by state troopers in Moline, Ill. The woman, who
was to receive $3,000 for driving the Ford pick-up and a box trailer,
agreed to cooperate with police and federal agents. As a result,
officials were watching as the courier met Giove at a hotel near
Albany Internation Airport.

Giove, according to her plea agreement, was to be paid $30,000 plus
travel expenses for her efforts to coordinate the smuggling of the
drugs across the country.

The marijuana in the box trailer was lined with dry ice to throw off
drug-sniffing dogs, but that trick did not work and a canine
discovered the cargo when Illinois troopers stopped the truck.

Federal agents who searched Canori's house last June said the
marijuana they found there was packaged in plastic bags similar to
those found in the truck in Illinois. Agents also found a
money-counting machine, bank statements from foreign banks and maps
indicating the location of storage units around the country.

The drug delivery was part of a distribution conspiracy that began in
2006, according to Giove's plea agreement. Giove could have faced up
to 40 years in prison and a fine of up to $2 million. But under the
plea agreement, Giove agreed she would not appeal any sentence of more
than 60 months behind bars. 
- ---
MAP posted-by: Jo-D