On October 7, 2011, anxious medical marijuana advocates and patients arrived early in the diamond-patterned granite plaza of the Robert T. Matsui United States Courthouse in Sacramento. On the 10th floor of the federal building there, representatives of California's four United States attorneys were meticulously checking credentials, refusing to admit anyone without an up-to-date press pass. A day earlier, the state's top federal prosecutors had announced that they were about to issue a joint statement on the sale, distribution, and cultivation of marijuana. There was a pervasive sense that something seismic was about to take place.
Demonstrators outside the federal building were waving signs at passing traffic with messages like "Closing Collectives Harms Patients," and "By Legal Democratic Vote, Cannabis Is Medicine." Protesters chanted "We're healers! Not dealers!" Advocates had been faxing each other recent letters sent by U.S. attorneys to scores of California dispensaries threatening federal property seizures if the establishments didn't stop selling marijuana within 45 days.
One such letter, directed at the state's longest-operating dispensary, the Marin Alliance for Medical Marijuana (which opened in the San Francisco Bay Area town of Fairfax even before the 1996 passage of the landmark medical marijuana initiative Proposition 215), threatened the alliance's landlord with prolonged prison time for dealing drugs within a thousand feet of a Little League field. "Violation of the federal law referenced above is a felony crime," the missive read, "and carries with it a penalty of up to 40 years in prison." Less than a year after California came close to legalizing recreational marijuana for all adults, the state was ground zero for a vast new federal crackdown.
Run-up to a Crackdown
The Sacramento press conference was being hosted by local U.S. Attorney Benjamin Wagner, the first top California prosecutor appointed by President Barack Obama (in November 2009). Wagner had come into the position after spending nearly a decade as chief of the FBI's Special Prosecution Unit, targeting public corruption and financial and corporate fraud. He would later say that he hoped to be known as the prosecutor who cracked down on mortgage fraudsters, not the guy who "launch[ed] a campaign against medical marijuana."
But Wagner, whose district spanned from the lower Central Valley to the Oregon and Nevada borders, quickly came to see in medical marijuana a similar con game to the one ravaging housing markets in cities like Stockton. Providing cannabis for sick people, he thought, was "a fig leaf" for big-money enterprises that couldn't care less about personal health.
Wagner's office was in the process of prosecuting an L.A. attorney and an Oakland cannabis businessman for allegedly luring two small-town tomato growers into registering as medical marijuana patients in order to lease their greenhouses for marijuana cultivation. He had seen pot farmers amassing medical recommendations for California patients and then trafficking marijuana out of state. There were shady investment schemes, and cash-heavy transactions involving people who "know nothing about treating glaucoma and cancer."
One week after California voters defeated Proposition 19 by a vote of 54 percent to 46 percent in November 2010, Wagner took part in a previously scheduled meeting at the Sacramento offices of the Drug Enforcement Administration (DEA), where fellow U.S. attorneys and midlevel Justice Department officials strategized with the DEA about how to better coordinate a response to California's burgeoning medical marijuana industry. A draft letter from Deputy Attorney General James Cole that Wagner had helped prepare prior to the meeting declaratively spelled out the government's opposition to commercial cannabis operations. It dispelled any notion that a 2009 federal memo-saying the Justice Department wouldn't target individuals complying with state medical marijuana laws-was intended as a green light for a marijuana industry green rush. Cole said the earlier memo only meant the government wouldn't focus resources on individual medical cannabis patients or their caregivers. On June 29, 2011, he declared, "The term 'caregiver' as used in the memorandum meant just that: individuals providing care to individuals with cancer or other serious illness, not commercial operations cultivating, selling or distributing marijuana."
In the months leading up to Cole's declaration, Wagner had done his part, letting the DOJ know that "federal law is totally being flouted here in California and we have to respond." Weeks before the Sacramento announcement, he informed his superiors that California's U.S. attorneys were going to initiate sweeping and continuous actions against purported medical marijuana profiteers. Obama's Justice Department signed off on the plan.
As reporters and camera crews crowded the 10th-floor conference room, Wagner cut to the chase. "We are targeting money-making commercial growers and distributors who use the trappings of state law as cover," he said. "Today, we put to rest the notion that large marijuana businesses can shelter themselves under state law and operate freely without fear of federal enforcement."
Andre Birotte Jr., the U.S. attorney in Los Angeles appointed by President Obama in March 2010, held aloft a pot magazine, Mota, that featured on its cover a marijuana leaf and reams of cash. This wasn't about "backyard grows with small amounts of marijuana for use by seriously ill people," as Wagner said, but rather what Birotte called a "new California Gold Rush" that violated both state and federal law.
The assembled prosecutors announced a handful of new indictments, and warned of forfeiture actions against dozens of dispensaries. The enduring sound bite was delivered by Melinda Haag, the U.S. attorney in San Francisco who had been appointed by Obama in August 2010. Haag, a veteran trial lawyer and federal prosecutor who had specialized in white-collar crime, environmental abuses, civil rights offenses, and child exploitation, presided in the Northern District of California, where the modern medical marijuana movement was born and largely headquartered.
"The California Compassionate Use Act was intended to help seriously ill people," said the University of California, Berkeley, law school grad, with a steely gaze. "But the law has been hijacked by profiteers who are motivated not by compassion but by money."
Haag announced that she was immediately targeting dispensaries "that sell marijuana very close to schools, parks and other places where children learn and play," and threatening landlords and lienholders with property seizures and federal prison time if they didn't cease sales of marijuana "in close proximity to childrenâ€¦[,to] playgrounds and schools and Little League fields." Pointedly, it was the U.S. attorney in the state's most liberal federal district, and cradle of marijuana activism, who symbolized the determination of the Obama administration appointees to crack down hard on California's cannabis commerce.