Posted: December 14th, 2011 by Militant Libertarian
Criterion guiding federal prosecutors and investigators doing marijuana busts in California were leaked in a memo from California United States Attorneys to DEA and law enforcement. The memo was given to NORML and published online. Of interest to medical cannabis activists is the section on dispensary cases.
That section outlines what is required to make a federal case out of a dispensary investigation and bust. Significantly, it states that just turning a profit from selling marijuana out of a dispensary is not in itself enough proof to validate a federal prosecution. This is interesting since most of the cases involving dispensary operators in California and Washington have centered on this.
Requirements include things like marijuana for sale that was cultivated on federal or tribal land, targets using profit from dispensary sales to support other criminal activity (note the word “other”, implying that operating a dispensary is already a crime), targets have significant prior criminal histories, targets have provable ties to a street gang engaged in drug trafficking, store operations involve the use or presence of firearms or other dangerous weapons (not because this is illegal, since self-defense is a right, but because it would allow prosecutors to utilize madatory sentences for “firearms-related crimes”), and dispensaries selling to or employing minors.
These are the simpler requirements that, with the exception of the firearms rule, I have not really been used against dispensary owners in current cases.
Other requirements are more telling.
“Targets involved in cultivation or distribution outside of the dispensary..” is one that could involve illegal sales, but from prosecutions and allegations given so far, has mostly been used to target dispensaries who “grow their own” or whose employees grow for them. In other words, the feds are attempting to make it impossible for a dispensary to sell marijuana by making that cannabis unobtainable – no inventory, no storefront, no sales.
“Store linked to physician providing marijuana recommendations without plausible legitimate justification..” is another that has been used more than once. Mostly by dispensaries offering in-house physician approval or that are run by physicians themselves. Since this creates an obvious ethics clash, it’s hard to argue against this, but it’s been rare enough so far, that it’s not as if it’s rampant. Ethically, a doctor providing MMJ cards and who sells medical cannabis is akin to a doctor prescribing pills while owning a pharmacy.
Finally, we come to the big boy. The one being used most often. Since the IRS has decided that dispensaries can’t qualify as non-profits (501(3)(c) corporations) under federal law because they are selling an illegal substance, two-pronged attacks on dispensaries have been happening. The IRS has been hitting them and now the (in)Justice Department is following suit.
“Store generates significant profits that are used/concealed in ways that would support charges for federal financial crimes such as tax evasion..” is being used repeatedly now. Anyone who’s been audited or been into “tax court” knows that the rules are very different and are definitely stacked against the citizen. The IRS being the ultimate Gestapo means that ordinary people (including dispensary owners) will potentially spend tens of thousands of dollars in their own defense and still be tossing the dice as to whether they are found guilty of anything. Throwing theIRS (not a typo) at dispensaries is the biggest gun the federal government can point at MMJ patients.
Last, but not least, we also look at the (in)Justice Department’s other big-barreled weapon: civil forfeiture.
Section 4 covers this and specifically spells out how civil forfeiture, even in the absence of a federal case, can also do the job of shutting down the dispensary. All with one sentence: “Nevertheless, circumstances may arise in which civil forfeiture alone is the best option.”
Those who know about forfeiture law and it’s side-stepping of the Constitution realize that this is an extremely powerful weapon. When the feds exercise this option, they can legally take everything through seizure and then you are required to spend your own money going to court to get it back. The cases are never against the defendant, but are instead things like “U.S. Government vs. 101 Used2BFree Drive” with you acting as the property’s “representative.”
Yes, that’s right, they take inanimate objects and real estate to court. In this way, they do not have to prove anything much, since it’s civil court and the property has no rights, and thus force the property’s rightful owner to bear the burden of proof. It’s a slick process that often ruins the target without ever having to prove in court that the person did anything wrong.
This, folks, is a complete list of the tools and procedures used by the federal government to shut down dispensaries. Read ‘em and weep.
“…land of the free? Whoever told you that is your enemy!”