Pubdate: Sun, 29 Jan 2012
Source: Missoulian (MT)
Copyright: 2012 Missoulian
Author: Michael Moore


Diane Sands is used to having her name taken in vain.

That's just part of being a liberal from Missoula in the Montana Legislature.

But her name surfaced recently in a way that offended and troubled 
her at a profound level.

A possible witness in a federal drug investigation was asked whether 
Sands might be part of a conspiracy to sell medical marijuana. The 
questions came from Drug Enforcement Administration agents from 
Billings who were investigating medical marijuana businesses, and 
Sands learned about the inquiry from the witness' attorney.

"So now, if you're a state legislator who has been working on medical 
marijuana laws, you are somehow part of a conspiracy," said Sands, 
who represents House District 95 in Missoula and works as development 
director for the Historical Museum at Fort Missoula. "It's 
ridiculous, of course, but it's also threatening to think that the 
federal government is willing to use its influence and try to chill 
discussion about this subject."

Sands isn't the only one with concerns. At least one other legislator 
declined comment regarding DEA questions about the legislator's 
duties out of concern over "additional harassment."

And the American Civil Liberties Union in Montana, which is itself 
full of attorneys, spoke with an outside attorney in regards to its 
advocacy work regarding marijuana.

"When you hear this sort of thing, there's a part of you that just 
gets irritated, but there's a part of you that knows you have to, as 
an organization, make sure you've dotted the I's and crossed the 
T's," said the ACLU's executive director, Scott Crichton.

Sands and the ACLU aren't actually worried about criminal charges. 
They've done nothing wrong other than advocate a point of view 
counter to the opinion held by federal law enforcement.

But both have played high-profile roles in the discussion over 
medical marijuana in Montana, and the ACLU has been vocal for years 
in its support for the legalization of marijuana. And they find 
abhorrent the idea that mere advocacy might be questioned.

"It's chilling, and it dredges up darker days from the '50s and 
'60s," said Crichton.

Sands is more blunt: "Can you say McCarthy? This sounds like stuff 
from the House Un-American Activities Committee and Joe McCarthy. So 
once you talk about medical marijuana in reasonable terms, you're on 
some sort of list of possible conspirators."

Sands was chairwoman of an interim legislative committee that went to 
work before the 2011 Legislature to try to fashion a fix for 
Montana's medical marijuana laws, which many viewed as responsible 
for the unregulated, Wild West atmosphere that seemed to be part of 
Montana's medical marijuana industry.

The committee's efforts, which would have imposed new regulation but 
kept the industry substantially intact, ultimately were swept aside 
as the Republican-controlled Legislature enacted a far more rigorous 
regulatory scheme.

In June, after the session ended, Sands suggested that the federal 
government "delist" medical marijuana - as it had done with wolves - 
and leave the issue to state control.


Control is the issue. Medical marijuana businesses and advocates took 
heart when the Obama administration, through U.S. Attorney General 
Eric Holder, appeared to suggest that the federal government wasn't 
much interested in prosecuting marijuana cases. As recently as 
December, Holder sounded a similar tone, when he answered questions 
from a member of Colorado's congressional delegation.

"Where a state has taken a position, has passed a law and people are 
acting in conformity with the law - not abusing the law - that would 
not be a priority with the limited resources of our Justice 
Department," Holder said.

That statement is open to interpretation, and the government's 
actions don't precisely match Holder's words.

"I think you can draw an opinion on how the federal government feels 
about (Montana) when you consider that the government announced a 
series of raids just as the Montana Senate was voting on our medical 
marijuana laws," Crichton said. "It's no coincidence."

Those raids came on March 15, one day after the Senate Judiciary 
Committee voted to kill a bill that would have repealed the state's 
initiative-passed medical marijuana law. More than 25 search warrants 
were served that day on medical marijuana businesses all over the 
state, and four civil seizure warrants looking to confiscate about $4 
million were also executed.

Now those cases are working their way through the legal system and, 
apparently, that's where Diane Sands' name surfaced in the DEA investigation.

Neither the DEA nor the U.S. Attorney's Office will say why Sands' 
name came up. In fact, Montana U.S. Attorney Mike Cotter's office 
answered questions about the incident by emailing a reporter a 
handful of opinions, memos and court decisions. Assistant U.S. 
Attorney Jessica Fehr said the office can't respond to specific 
inquiries about cases, and declined to talk in general about the U.S. 
attorney's goals in terms of prosecuting medical marijuana cases.

And that leaves legislators like Sands irritated.

"All you really want from them is some sense of direction," she said. 
"But you can't get it. Instead, you get vague answers about policy, 
which you can only judge by the way those things seem to be put into action."

State legislative leaders wrote to Cotter in mid-April, requesting 
guidance on the state's proposed regulatory scheme, and got a 
response that reiterated basic facts about federal law and said 
nothing about the state's plan to regulate the industry.

"While the Department of Justice has not reviewed the specific 
legislative proposal for licensing and regulating medical marijuana 
that you indicate is being finalized, the Department has stated on 
many occasions that Congress placed marijuana in Schedule I of the 
Controlled Substances Act and, as such, growing, distributing, and 
possessing marijuana in any capacity, other than as part of a 
federally authorized research program, is a violation of federal law 
regardless of state laws that purport to permit such activities," Cotter wrote.

And that, Crichton said, is where the seemingly arbitrary nature of 
federal prosecution rears its head.

"So, it's all illegal, they're saying, but it's not all going to be 
prosecuted," he said. "That's a very difficult playing field for 
people to navigate."

In fact, John Masterson of Montana NORML, which works to reform 
marijuana laws, said he flatly tells people interested in the medical 
marijuana business to stand aside for now.

"If people ask me now how to start a business, I just tell them to 
stay the hell away," Masterson said. "There's simply no way that you 
could go into business with any degree of certainty about what the 
federal government might do."


Sands' name surfaced close to the time that other public officials' 
names appeared in search warrant applications in federal medical 
marijuana cases. In a case involving former University of Montana 
football player Jason Washington, such an application was 
accidentally unsealed for several days and acquired by the Associated 
Press and the Missoulian. That affidavit revealed a possible plan by 
alleged conspirators to bribe public officials, including Montana 
Attorney General Steve Bullock and state Sen. Dave Lewis.

It's precisely that sort of information that might lead to someone 
like Sands surfacing in a DEA investigation, DEA Special Agent Mike 
Turner said.

Turner is a DEA spokesman in Denver, and he handles questions 
regarding actions taken by the Montana field offices of the DEA. 
Turner said he couldn't comment on any particular case, but he said 
the DEA has a duty to track down names that emerge in investigations.

"Does that mean the person has done something wrong just because 
their name shows up?" Turner said. "Certainly not. But it's our duty 
to investigate why it came up."

Turner said the DEA is not in the business of making political 
statements through name-dropping in its investigations.

"We're certainly not out there dropping people's names with the 
intention of doing them harm," he said. "We're not in the business of 
scaring people."

On the other hand, Turner said anyone who is "profiting 
significantly" from the sale of marijuana should be concerned.

"We're not interested in sick people, but we are interested in people 
who are profiting significantly. If they are, they are fair game as 
long as there is a reasonable expectation for a successful prosecution."

Turner agreed that the debate surrounding medical marijuana is 
wracked by confusion, but he is clear about where the DEA's interests fall.

"It is true that we've got competing laws in place here with states 
with medical marijuana laws, but federal law is clear," he said. 
"Marijuana is illegal under federal law. If you are involved in 
selling marijuana, trafficking marijuana, profiting from marijuana, 
you are in jeopardy. We get questions about what we'll investigate 
and what we won't, and we can't give that answer. But if you're 
involved with profiting from marijuana, you're in jeopardy."

That might provide some small comfort to Sands, but she's not 
convinced that the federal government and DEA aren't in the business 
of sending harsh messages to those who disagree with them.

"The bottom line is, there's no reason for my name to come up," she 
said. "So they can say what they want about who they are going to 
prosecute, but when a state has an ongoing discussion about its laws, 
and its lawmakers' names are being brought up by federal agents, I 
will be hard to convince that there's any other reason than to send a message."
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