Pubdate: Mon, 02 Nov 2015
Source: Denver Post (CO)
Copyright: 2015 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: John Ingold

CLASH OF FED, STATE VIEWS LOOMS

Marijuana Law

A Lawyer Challenges His DOJ Indictment, Wanting It Tossed.

In a motion that could throw federal enforcement of marijuana laws in 
Colorado into commotion, a lawyer at the center of one of the biggest 
criminal pot cases in the state's legal-marijuana era is asking a 
judge to toss out the case against him.

In the new motion, lawyer David Furtado argues that the federal 
crimes he is charged with - money laundering and trying to deposit 
proceeds from an illegal enterprise into a bank - all stem from 
activity that is legal under state law in Colorado. Because Congress 
last year passed a law prohibiting the U.S. Department of Justice 
from spending money to interfere with state medical marijuana laws, 
Furtado argues that the indictment against him should be dismissed.

"The Department of Justice's continued violation of (the new law) by 
prosecuting this defendant is a troubling exhibition of disdain for 
the Rule of Law," Furtado's attorney in the criminal case, Joseph 
Saint-Veltri, wrote in the motion, which was filed last week.

The motion opens a new front in Colorado in the conflict between 
state and federal marijuana laws. No one in Colorado has previously 
used the new law to argue that the federal case against them should 
be thrown out.

"This is brand new," said University of Denver professor Sam Kamin, 
an expert in marijuana law. "And, as with so much in marijuana law, 
we don't quite know yet how it will play out."

While marijuana possession and marijuana sales are legal with 
restrictions in Colorado, both are banned under federal law. In 
earlier years, people who claimed they were operating legally under 
state law but wound up facing federal charges had no defense.

"Federal law is supreme on this particular point," U.S. District 
Court Judge Philip Brimmer said in 2010, in denying a purported 
medical marijuana grower's attempt to dismiss the felony drug charges 
against him.

But that dynamic changed last year, when members of Congress, 
frustrated by Department of Justice raids on state-legal marijuana 
businesses, pushed through a budget amendment. The amendment 
prohibited the DOJ from spending money on operations that prevent 
medical marijuana states from "implementing their own State laws that 
authorize the use, distribution, possession, or cultivation of 
medical marijuana."

The amendment is expected to be re-upped in the next budget bill.

"The federal government shouldn't be swooping in to Colorado to 
decide how we regulate marijuana any more than it should be swooping 
in to Louisiana to tell them how they should regulate crawfish," 
Colorado U.S. Rep. Jared Polis, a co-sponsor of the original 
amendment, said after the U.S. House voted this summer to reauthorize 
the measure.

At the time, federal authorities said the amendment did little to 
change their approach in pot cases. But last month, a federal judge 
in California ruled that the amendment protected a state-legal Bay 
Area dispensary from an ongoing federal asset-forfeiture case.

Furtado's motion came just days later, and it leans on the California 
ruling for support. Judges in Colorado are not bound by the ruling, 
but they can use it for guidance.

Furtado was one of four people charged following the largest-ever 
federal raids on Colorado's medical marijuana industry, in 2013. The 
four all had ties to the now-defunct VIP Cannabis dispensary, as well 
as other licensed marijuana businesses. The state ordered VIP 
Cannabis to close in 2014 after alleged violations of state law and policy.

A federal indictment delivered days later accused Furtado and the 
others of funneling hundreds of thousands of dollars from Colombia, 
laundering the funds, and then planning to use the money to buy a 
warehouse in Denver for marijuana growing.

In civil asset-forfeiture cases, federal prosecutors have previously 
alleged that the VIP Cannabis operation engaged in activity against 
Colorado law - such as sending marijuana out of state. But the 
criminal indictment makes no claim of state law violations. In fact, 
one of the charges is based on an allegation that Furtado and two 
co-defendants tried to deposit proceeds from VIP Cannabis into a bank 
account, something that is common within Colorado's licensed 
marijuana industry.

One of the four indicted in the case, Hector Diaz, has already 
pleaded guilty and been sentenced to time served plus three years of 
supervised release. The case against Furtado and two others, brothers 
Gerardo and Luis Uribe, is ongoing.

On Friday, Jeff Dorschner, a spokesman for the U.S. Attorney's Office 
in Colorado, said he could not comment on Furtado's motion and said 
prosecutors would file their response in court. After the California 
court ruling last month, Dorschner said authorities in Colorado and 
Washington, D.C., were evaluating the decision to see what impact it 
would have on other cases.

One thing muddying that analysis, Kamin said, is that Furtado's case 
is quite different from the one in California. The former is a 
criminal case, while the latter was a civil matter. Civic leaders 
praised the California dispensary as a model business, while 
Saint-Veltri presented no documentary evidence of Furtado's 
compliance with state law in his motion.

"There are lots of complications where we don't yet know how they 
will work themselves out," Kamin said.
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MAP posted-by: Jay Bergstrom