In a recent Forbes column, I described the limitations of the Rohrabacher-Farr amendment, a spending rider aimed at preventing the Justice Department from interfering with the implementation of state medical marijuana laws. A trial that continues today at the federal courthouse in Tacoma illustrates one of those limitations: U.S. attorneys may claim the medical marijuana suppliers they choose to prosecute are not complying with state law, and that claim can be difficult to refute when the law is hazy, as it is in Washington.
Thanks to a federal indictment that was filed under seal in 2013 and made public in 2014, Lance Gloor faces up to 35 years in prison for operating medical marijuana dispensaries in Lacey and the Key Peninsula. Like hundreds of other dispensaries that have been openly serving patients in Washington for years, those outlets identified themselves as "access points" for "collective gardens." Under a 2011 law, such gardens are limited to 10 patients each and may grow no more than 45 plants at a time. By channeling the produce of many such gardens and treating customers (each of whom is supposed to have a recommendation from a "health care professional") as temporary members of those collectives, dispensaries arguably complied with the letter of the law. But that interpretation is controversial, especially since the "collective garden" provision was not intended to authorize dispensaries, which were addressed by a separate provision that the governor vetoed.
On October 24, Gloor's lawyer, Karen Unger, asked U.S. District Judge Ronald Leighton to dismiss the case against him, arguing that it is barred by the Rohrabacher-Farr amendment. She cited an October 19 decision by Charles Breyer, a federal judge in California who ruled that the rider prohibits the Justice Department from enforcing an injunction against the Marin Alliance for Medical Marijuana (MAMM) "to the extent that MAMM operates in compliance with California law." According to Gloor, this was the first time Breyer's ruling was cited in a criminal case, although other defendants—including former Morro Bay, California, dispensary operator Charles Lynch and the Washington medical marijuana patients known as the Kettle Falls Five—have cited the Rohrabacher-Farr amendment in an attempt to escape federal marijuana charges. So far those efforts have been unsuccessful, and so was Gloor's, which is why he is currently on trial.
Gloor is charged with manufacturing marijuana, conspiracy to distribute marijuana, and conspiracy to commit money laundering. It's pretty clear he is guilty of all those things, but so are many other Washington dispensary operators, few of whom have been prosecuted under federal law. Gloor is also charged with possession of a firearm in furtherance of a drug trafficking crime, which carries a five-year mandatory minimum sentence. Any dispensary operator who owns a gun could be charged with the same offense.
Two of Gloor's business associates, James Lucas and Matthew Roberts, pleaded guilty and agreed to testify against him. In her motion to dismiss, Unger noted that the operators of "over 300 medical marijuana dispensaries in the state of Washington" have not been arrested or prosecuted, "despite the fact that their operations are identical to those allegedly operated by [Gloor, Lucas, and Roberts]." With the "collective garden" provision set to expire in July, many of those entrepreneurs are vying for new state licenses authorized by a medical marijuana law enacted last spring. Those who are successful will join more than 200 marijuana merchants licensed by the state under Initiative 502, which legalized marijuana for recreational use. In this context, trying to put Gloor in prison for decades seems like an outrageous example of selective prosecution.
Addendum: Unlike other federal trials of medical marijuana growers or distributors (including the Kettle Falls Five), Gloor's has featured explicit discussion of medical use. "The whole thing has been about medical marijuana," Gloor reports via Facebook. "The prosecutor couldn't put on a case without it being about [medical marijuana] because all the evidence and video is from medical dispensaries. The witnesses are all former medical store employees, so the whole case has been about the process of how patients get into the stores and paperwork [is] filled out. The DEA witnesses even are calling it medical marijuana on the stand and couldn't get into the stores until they went and got their medical cards. It's amazing." In a ruling prior to the trial, Judge Leighton said the defense would be allowed to present evidence regarding the nature of the businesses Gloor managed "to the extent it does not direct the jury that compliance (or intended compliance) with state law is a defense for alleged violations of federal law."