Charles Lynch and the Significances of the Postponement

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Two weeks ago, Attorney General Eric Holder announced for the second time that federal agents would only target medical marijuana distributors who violate state and federal law.

Last Monday, Federal Judge George Wu postponed sentencing for famed medical marijuana dispensary operator Charles Lynch. Wu asked for more time in order to elicit a memorandum from the Justice Department regarding its “new policy” with respect to these facilities.

The U.S. Attorney heading the Lynch case told the court that the U.S. Attorney’s office has not changed its policy due to Holder’s statements.

Just two days later, the U.S. Attorney’s statements echoed loudly in San Francisco, where the DEA raided a medical marijuana dispensary,  claiming that they suspected that the dispensary was violating state law.

Unfortunately, Holder’s statements are too tentative to create the change he wants in federal prosecutions. The U.S. Attorney’s office must stop prosecuting medical marijuana in California.

Furthermore, when the U.S. Attorney’s office does investigate cultivation or distribution of marijuana in the thirteen states that have permitted its use for medical purposes, the Government must give defendants an opportunity to proffer their defense without risking the very lives of their exculpatory witnesses. For example, if the U.S. Attorney suspects that marijuana is being grown or distributed in violation of state law, the Office must allow defendants to give the Government witnesses who could support their contention, without subjecting these witnesses to federal prosecution and dozens of years in federal prison.

The U.S. Attorney’s office is the only entity that can really effect the change about which Eric Holder is talking.

Unfortunately, getting out of the medical marijuana business is contrary to the DEA’s bureaucratic interest. Until the Attorney General and Obama Administration send a directive to the DEA to not enforce the Schedule I status of marijuana in medical marijuana states, the U. S. Attorney and DEA will continue to investigate and raid clubs they believe are “violating the state law.”

California law regarding collectives is so vague that any dispensary can be “suspected” of violating the law. At the same time, because of the grayness of the law, these same dispensaries are also easily defendable under California law.

Until the DEA is instructed to leave California herb in California, it will run amuck of Holder’s direction simply by following the letter of his proclamation. As long as the smell of marijuana is probable cause for the feds, they will thwart the social experiment that constitutes statewide medical marijuana legalization.
While Judge Wu’s continuance is a good sign for defendants already in the system, one judge’s contemplation of the Justice Department’s change in policy will not immunize those yet to be prosecuted. And even if Wu sentences Lynch to no time, doing so will not mean much for defendants in other courts or for those to come.

The change that is necessary and urgent. California law enforcement and the D.A.’s offices must stop passing cases they can not prosecute to the feds simply to justify their drug-running agendas. Obama can take the DEA and the U.S. Attorney out of medical marijuana by ending federal marijuana prosecutions in medical states. If cultivators and distributors are violating state law, the states can deal with them.Without this change, everyone in the medical marijuana universe is at risk. This is not due process.

Allison Margolin
-Attorney at Law

8484 Wilshire Blvd., Suite 660
Beverly Hills, CA 90211
Telephone: (323) 653-1850

-allisonbrandi@mac.com