Pubdate: Thu, 15 Dec 2011
Source: Helena Independent Record (MT)
Copyright: 2011 Helena Independent Record
Author: Eve Byron


A federal defense attorney in Helena is saying that his client should 
be immune from federal prosecution in a medical marijuana case and 
was deprived of his due process rights because of selective 
prosecution by the government.

Michael Donahoe, a senior litigator with the Federal Defenders of 
Montana, acknowledges that his client, Joshua Schultz of Helena, 
pleaded guilty in September to distribution of marijuana, in exchange 
for 24 other counts being dropped. Schultz, 38, as well as his 
codefendants, Jason Burns and Jesse Leland, all of whom accepted plea 
bargains in the case, still face a mandatory minimum of five years in 
prison and could be sentenced to 40 years, a $2 million fine and at 
least four years supervised release under federal sentencing laws.

Federal officials said that in July 2010, law enforcement officials 
counted more than 750 marijuana plants grown by the three men, as 
well as 350 marijuana clones, at a site north of Helena, and said 
they made $1.3 million from the sale of marijuana. Schultz, Burns, 
40, and Leland, 28, are scheduled to be sentenced at 10 a.m. today in 
federal court in Helena. Burns plead guilty to manufacturing 
marijuana and money laundering; like Schultz, Leland pleaded guilty 
to distribution of marijuana.

But Donahoe argues that it recently has come to light that in the 15 
states that have legalized the use of marijuana for medical purposes, 
different United States Attorneys Offices have taken a wide range of 
approaches to implementing the government's medical marijuana policy.

For example, after federal raids on marijuana dispensaries in 
September 2010 in Nevada, 15 people were indicted, but eight of those 
cases were later transferred to state court, where they don't have to 
adhere to federal mandatory minimum sentences. In California, 
hundreds of warning letters were sent to commercial marijuana growing 
businesses prior to raids, and the federal government there was only 
going after significant commercial operations and shops close to 
schools. In Colorado, most federal action took place in civil court, 
and that usually happened only after local officials requested 
assistance, Donahoe said.

He adds that during a congressional subcommittee hearing on Dec. 8, 
U.S. Attorney General Eric Holder made it "unmistakably clear that 
federal resources are not to be expended in charging and/or 
convicting medical marijuana providers and other cognate industries, 
such as banks and commercial and retail landlords, who are dispensing 
marijuana in accordance with state laws."

"In view of these new facts, two issues need to be resolved at or 
before Mr. Schultz's sentencing," Donahoe wrote. "First, whether 
under the government's nonprosecution policy Mr. Schultz should be 
deemed immune from federal prosecution, since at all relevant times 
he was acting in accordance with state law as it existed at the time. 
It is Mr. Schultz's contention that Attorney General Holder's Dec. 8, 
2011, testimony clarifies that caregivers and allied industries such 
as growers, banks and lessors are to be considered immune from 
federal prosecution, so long as they act within the confines of a 
commercial chain consistent with state law."

The second issue is whether the differing approaches by the same 
federal agency in different states violates equal protection and due 
process clauses under the Fifth Amendment, Donahoe adds.

"Just because there may be more dispensaries in California and/or 
Washington state is no reason for the government to vary its effort 
to bring citizens into compliance with the federal drug laws," Donahoe added.

But the U.S. Attorney's Office in Montana countered that not only are 
Donahoe's arguments not timely, they're also irrelevant since Schultz 
already entered a guilty plea.

"After such a guilty plea, a defendant may only attack his conviction 
on the basis that the guilty plea was involuntary or unintelligent," 
Joseph Thaggard, an assistant U.S. attorney, wrote in response to 
Donahoe's court filings. "Defendant Schultz has made no motion to 
withdraw his guilty plea. Accordingly, the reasons advanced for the 
motion to continue are, frankly, spurious."

Thaggard added that Schultz may very well have been prosecuted in 
other states, and that in 2009 a document known as the "Ogden Memo" 
only served to instruct prosecutors about the allocation of 
government resources. That memo in essence said that the federal 
government would not prosecute medical marijuana providers who 
operated within state law.

"At most, the document simply indicates that the federal government 
might not prosecute medical marijuana providers under certain 
circumstances," Thaggard wrote. "Clearly, the Ogden Memo did not 
extend immunity from prosecution to anyone."

As of 5 p.m. Wednesday, Senior U.S. District Court Judge Charles 
Lovell hadn't responded to Donahoe's request to postpone Schultz's 
sentencing while the issues are further explored. However, Lovell 
previously denied a similar prior request.
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