MEMORANDUM FOR SELECTED UNITED STATES ATTORNEYS

FROM: David W. Ogden, Deputy Attorney General

SUBJECT: Investigations and Prosecutions in States Authorizing the
Medical Use of Marijuana

This memorandum provides clarification and guidance to federal
prosecutors in States that have enacted laws authorizing the medical
use of marijuana. These laws vary in their substantive provisions and
in the extent of state regulatory oversight, both among the enacting
States and among local jurisdictions within those States. Rather than
developing different guidelines for every possible variant of state
and local law, this memorandum provides uniform guidance to focus
federal investigations and prosecutions in these States on core
federal enforcement priorities.

The Department of Justice is committed to the enforcement of the
Controlled Substances Act in all States. Congress has determined that
marijuana is a dangerous drug, and the illegal distribution and sale
of marijuana is a serious crime and provides a significant source of
revenue to large-scale criminal enterprises, gangs, and cartels. One
timely example underscores the importance of our efforts to prosecute
significant marijuana traffickers: marijuana distribution in the
United States remains the single largest source of revenue for the
Mexican cartels.

The Department is also committed to making efficient and rational use
of its limited investigative and prosecutorial resources. In general,
United States Attorneys are vested with "plenary authority with
regard to federal criminal matters" within their districts. USAM
9-2.001. In exercising this authority, United States Attorneys are
"invested by statute and delegation from the Attorney General with
the broadest discretion in the exercise of such authority." Id. This
authority should, of course, be exercised consistent with Department
priorities and guidance.

The prosecution of significant traffickers of illegal drugs,
including marijuana, and the disruption of illegal drug manufacturing
and trafficking networks continues to be a core priority in the
Department's efforts against narcotics and dangerous drugs, and the
Department's investigative and prosecutorial resources should be
directed towards these objectives. As a general matter, pursuit of
these priorities should not focus federal resources in your States on
individuals whose actions are in clear and unambiguous compliance
with existing state laws providing for the medical use of marijuana.
For example, prosecution of individuals with cancer or other serious
illnesses who use marijuana as part of a recommended treatment
regimen consistent with applicable state law, or those caregivers in
clear and unambiguous compliance with existing state law who provide
such individuals with marijuana, is unlikely to be an efficient use
of limited federal resources. On the other hand, prosecution of
commercial enterprises that unlawfully market and sell marijuana for
profit continues to be an enforcement priority of the Department. To
be sure, claims of compliance with state or local law may mask
operations inconsistent with the terms, conditions, or purposes of
those laws, and federal law enforcement should not be deterred by
such assertions when otherwise pursuing the Department's core
enforcement priorities.

Typically, when any of the following characteristics is present, the
conduct will not be in clear and unambiguous compliance with
applicable state law and may indicate illegal drug trafficking
activity of potential federal interest:

* unlawful possession or unlawful use of firearms;

* violence;

* sales to minors;

* financial and marketing activities inconsistent with the terms,
conditions, or purposes of state law, including evidence of money
laundering activity and/or financial gains or excessive amounts of
cash inconsistent with purported compliance with state or local law;

* amounts of marijuana inconsistent with purported compliance with
state or local law;

* illegal possession or sale of other controlled substances; or

* ties to other criminal enterprises.

Of course, no State can authorize violations of federal law, and the
list of factors above is not intended to describe exhaustively when a
federal prosecution may be warranted. Accordingly, in prosecutions
under the Controlled Substances Act, federal prosecutors are not
expected to charge, prove, or otherwise establish any state law
violations. Indeed, this memorandum does not alter in any way the
Department's authority to enforce federal law, including laws
prohibiting the manufacture, production, distribution, possession, or
use of marijuana on federal property. This guidance regarding
resource allocation does not "legalize" marijuana or provide a legal
defense to a violation of federal law, nor is it intended to create
any privileges, benefits, or rights, substantive or procedural,
enforceable by any individual, party or witness in any
administrative, civil, or criminal matter. Nor does clear and
unambiguous compliance with state law or the absence of one or all of
the above factors create a legal defense to a violation of the
Controlled Substances Act. Rather, this memorandum is intended
solely as a guide to the exercise of investigative and prosecutorial
discretion.

Finally, nothing herein precludes investigation or prosecution where
there is a reasonable basis to believe that compliance with state law
is being invoked as a pretext for the production or distribution of
marijuana for purposes not authorized by state law. Nor does this
guidance preclude investigation or prosecution, even when there is
clear and unambiguous compliance with existing state law, in
particular circumstances where investigation or prosecution otherwise
serves important federal interests.

Your offices should continue to review marijuana cases for
prosecution on a case-by-case basis, consistent with the guidance on
resource allocation and federal priorities set forth herein, the
consideration of requests for federal assistance from state and local
law enforcement authorities, and the Principles of Federal Prosecution.

cc: All United States Attorneys

Lanny A. Breuer
Assistant Attorney General Criminal Division

B. Todd Jones
United States Attorney
District of Minnesota
Chair, Attorney General's Advisory Committee

Michele M. Leonhart
Acting Administrator
Drug Enforcement Administration

H. Marshall Jarrett
Director
Executive Office for United States Attorneys

Kevin L. Perkins
Assistant Director
Criminal Investigative Division
Federal Bureau of Investigation

David Ogden is Deputy Attorney General. This document appeared at
http://blogs.usdoj.gov/blog/archives/192