Pubdate: Fri, 16 Dec 2011
Source: Helena Independent Record (MT)
Copyright: 2011 Helena Independent Record
Author: Eve Byron, Independent Record


Three men who openly operated medical marijuana businesses in Helena 
and Great Falls were sentenced in federal court Thursday to a year in prison.

In an emotionally charged hearing, Senior U.S. District Court Judge 
Charles Lovell handed down the prison terms to Joshua Schultz, Jesse 
Leland and Jason Burns. About 75 friends and family members who packed 
into the federal courthouse in Helena were hoping the judge would take 
the recommendation of probation made by the men's attorneys, but also 
feared that the judge might impose a mandatory minimum sentence of 
five years or even the maximum of 40 years.

Yet judges are allowed discretion when it comes to sentencing, even 
with mandatory minimums. Since the men had admitted their guilt, 
cooperated with the U.S. Attorney's Office, had minimal if any 
criminal records and believed they were in compliance with state laws 
governing medical marijuana, court officials recommended a guideline 
sentencing range of 24 to 30 months.

But Lovell lowered the sentences even further, noting that this was a 
highly unusual case, pitting state against federal laws regarding marijuana.

"The sentencing range that established the guidelines has been, in the 
judgment of the court, excessive for utilization in this particular 
case under what I find to be very unusual circumstances," Lovell said. 
"While it is true that the law was violated and while it is true that 
the computation set forward by the U.S. Probation Office complies with 
the guidelines in an ordinary case, this is not an ordinary case as to 
each of the three defendants.

"... We need to avoid unwarranted sentence disparity among defendants 
found guilty of similar misconduct and who have similar records."

Still, the 12-month sentences to a federal penitentiary shook the 
courtroom, with mothers, wives and friends breaking into tears, sighs 
of "no" ringing out and men dropping their heads into their hands.

Attorneys for the three men noted that this wasn't the typical drug 
case involving clandestine manufacturing of drugs without regulations. 
In 2004, 62 percent of Montana voters passed an initiative removing 
criminal penalties under Montana state law related to the medicinal 
use, possessing and cultivation of marijuana for qualifying patients 
and registered caregivers.

Few people registered with the state as patients or caregivers until 
2009, when the "Ogden Memo" was issued to federal prosecutors by then 
U.S. Deputy Attorney General David Ogden. Generally, it said 
prosecution of marijuana cases in states with medical marijuana laws 
should be low on the priority list.

But many people who read the memo thought it said the federal 
government wouldn't prosecute medical marijuana cases, and the number 
of caregivers and patients skyrocketed in Montana. Leland, 28, and 
Burns, 40, formed Queen City Caregivers LLC and registered the 
business with the Secretary of State's office.

The men maintained records regarding the eligible patients for which 
they could manufacture marijuana under the state law and even met with 
local law enforcement officials, who counted 749 plants growing at 
their nursery on Westhaven Road in Helena. The officials determined 
that Burns and Leland were in compliance with state laws and didn't 
issue any citations.

Meanwhile, Schultz, 38, opened Natural Medicine of Great Falls, which 
operated like a broker, buying and selling marijuana among caregivers.

"As (Schultz's) character letters attest, he is a good family man and 
a productive member of the community," defense attorney Michael 
Donahoe wrote on behalf of his client in court documents. "Absent the 
government's publication of the Ogden Memo, there is no evidence to 
support the conclusion that (Schultz) would have engaged in the 
business of selling marijuana.

"... And under the Ogden Memo it was more than reasonable for (Schultz) 
to assume that he would not be targeted for federal prosecution, so 
long as he was making a good faith effort to remain in compliance with 
Montana's medical marijuana laws."

But in March, the federal government carried out dozens of raids in 
Montana, including at the three men's businesses. They were arrested 
and jailed on about 25 charges each including manufacturing and 
distributing marijuana and money laundering.

In court Thursday, Assistant U.S. Attorney Joseph Thaggard reiterated 
that the Ogden Memo only spoke about prioritization of crimes, and 
federal prosecutors in Montana felt a need to corral the state's 
exploding medical marijuana industry. He added that the memo also said 
people wouldn't be prosecuted when there was "clear and unambiguous 
compliance" with state law, and the three men didn't fall into that 
category. For example, Leland had sold marijuana to an undercover 
officer, and the state law doesn't allow for caregiver to caregiver 

"The memo didn't say sort of comply or try to comply or attempt to 
comply ... and the use and distribution of medical marijuana is still 
against federal law," Thaggard said. "So it's a little disingenuous 
for these defendants to come forward saying they didn't believe they 
would be fair game for prosecution."

The court received dozens of letters from supporters of all three men, 
who noted that they were upstanding fathers, uncles and friends, as 
well as caring individuals who were only trying to help people who 
were ill. Thaggard noted that while that may be true, the men also 
made quite a bit of money - around $1.3 million by the government's accounting.

Burns, who also owns a construction business in Helena, pleaded guilty 
in September to growing marijuana and money laundering. Leland pleaded 
guilty to manufacturing marijuana and Schultz pleaded guilty to 
distribution of marijuana. In exchange for the guilty pleas, the other 
charges were dropped Thursday and the defendants agreed not to appeal 
the sentences.

Leland and Burns each forfeited $454,666 in a bank account that was 
seized and Schultz paid the government $110,000 prior to the 
sentencing. He also forfeited a 2001 Mercedes Benz.

All three men were set free Thursday, but will have to report to 
federal prison as soon as they're ordered to begin their sentences. 
After the release, Burns will be on supervised probation for three 
years and Leland and Schultz will be supervised for four years.
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