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Feds to Charge Medical Marijuana Grower

By Jeralyn

On Saturday I wrote about Chris Bartkowicz, a medical marijuana grower who, believing he was in compliance with Colorado law, showed his grow to a local news station doing a story on marijuana cultivation in the Denver suburbs, and was promptly busted by the DEA.

The case has caused a big stir, mostly because of DEA Agent Jeffrey Sweetin's initial comments that contradict the Department of Justice memorandum (pdf)issued by Deputy Attorney General David Ogden in October, implementing a DOJ policy change that was widely heralded around the country. Sweetin on Friday night said:

Nothing in federal law has changed. Wanting federal law to be different is not a great strategy....We will continue to enforce federal law, that's what we're paid to do, until the federal law changes.The only exception to that is discretion and department guidance."

[more...]

Today, sure enough, the feds charged Bartkowicz. Why? They say he had 224 plants, more than six plants per license he had in his possession. The Complaint is here.

Today Sweetin tells 9News:

"He had fewer than 15 certificates showing he was a caregiver," DEA Special Agent in Charge Jeffrey Sweetin told 9Wants to Know Monday. State law allows caregivers to have six marijuana plants per patient. The law says people who have more can show "that such greater amounts were medically necessary to address the patient's debilitating medical condition."

Not only did they charge him, they are asking he be detained without bond. See the penalty sheet here.

So, they are using the number of plants to allege Bartkowicz was not in compliance with state law. Colorado's Constitution says:

4) (a) A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. A patient's medical use of marijuana, within the following limits, is lawful:

(I) No more than two ounces of a usable form of marijuana; and

(II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana.

(b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient's debilitating medical condition.

At least Sweetin backed off his earlier position that the DEA will enforce federal law regardless of compliance with state law. Here's more from Sweetin a few days ago:

"Technically, every dispensary in the state is in blatant violation of federal law," Sweetin told The Denver Post. "The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They're violating federal law; they're at risk of arrest and imprisonment."

But it's still not enough. Congress needs to pass a law disallowing prosecution of medical marijuana patients and providers who are in compliance with state law -- or at least one that expressly allows them to raise compliance as an affirmative defense.

Full post as published by TalkLeft on February 16, 2010 (boomark / email).