ATTORNEY: FEDS INCONSISTENT ON MEDICAL POT

A federal defense attorney in Helena is saying that his client should
be immune from federal prosecution in a medical marijuana case and
was deprived of his due process rights because of selective
prosecution by the government.

Michael Donahoe, a senior litigator with the Federal Defenders of
Montana, acknowledges that his client, Joshua Schultz of Helena,
pleaded guilty in September to distribution of marijuana, in exchange
for 24 other counts being dropped. Schultz, 38, as well as his
codefendants, Jason Burns and Jesse Leland, all of whom accepted plea
bargains in the case, still face a mandatory minimum of five years in
prison and could be sentenced to 40 years, a $2 million fine and at
least four years supervised release under federal sentencing laws.

Federal officials said that in July 2010, law enforcement officials
counted more than 750 marijuana plants grown by the three men, as
well as 350 marijuana clones, at a site north of Helena, and said
they made $1.3 million from the sale of marijuana. Schultz, Burns,
40, and Leland, 28, are scheduled to be sentenced at 10 a.m. today in
federal court in Helena. Burns plead guilty to manufacturing
marijuana and money laundering; like Schultz, Leland pleaded guilty
to distribution of marijuana.

But Donahoe argues that it recently has come to light that in the 15
states that have legalized the use of marijuana for medical purposes,
different United States Attorneys Offices have taken a wide range of
approaches to implementing the government's medical marijuana policy.

For example, after federal raids on marijuana dispensaries in
September 2010 in Nevada, 15 people were indicted, but eight of those
cases were later transferred to state court, where they don't have to
adhere to federal mandatory minimum sentences. In California,
hundreds of warning letters were sent to commercial marijuana growing
businesses prior to raids, and the federal government there was only
going after significant commercial operations and shops close to
schools. In Colorado, most federal action took place in civil court,
and that usually happened only after local officials requested
assistance, Donahoe said.

He adds that during a congressional subcommittee hearing on Dec. 8,
U.S. Attorney General Eric Holder made it "unmistakably clear that
federal resources are not to be expended in charging and/or
convicting medical marijuana providers and other cognate industries,
such as banks and commercial and retail landlords, who are dispensing
marijuana in accordance with state laws."

"In view of these new facts, two issues need to be resolved at or
before Mr. Schultz's sentencing," Donahoe wrote. "First, whether
under the government's nonprosecution policy Mr. Schultz should be
deemed immune from federal prosecution, since at all relevant times
he was acting in accordance with state law as it existed at the time.
It is Mr. Schultz's contention that Attorney General Holder's Dec. 8,
2011, testimony clarifies that caregivers and allied industries such
as growers, banks and lessors are to be considered immune from
federal prosecution, so long as they act within the confines of a
commercial chain consistent with state law."

The second issue is whether the differing approaches by the same
federal agency in different states violates equal protection and due
process clauses under the Fifth Amendment, Donahoe adds.

"Just because there may be more dispensaries in California and/or
Washington state is no reason for the government to vary its effort
to bring citizens into compliance with the federal drug laws," Donahoe added.

But the U.S. Attorney's Office in Montana countered that not only are
Donahoe's arguments not timely, they're also irrelevant since Schultz
already entered a guilty plea.

"After such a guilty plea, a defendant may only attack his conviction
on the basis that the guilty plea was involuntary or unintelligent,"
Joseph Thaggard, an assistant U.S. attorney, wrote in response to
Donahoe's court filings. "Defendant Schultz has made no motion to
withdraw his guilty plea. Accordingly, the reasons advanced for the
motion to continue are, frankly, spurious."

Thaggard added that Schultz may very well have been prosecuted in
other states, and that in 2009 a document known as the "Ogden Memo"
only served to instruct prosecutors about the allocation of
government resources. That memo in essence said that the federal
government would not prosecute medical marijuana providers who
operated within state law.

"At most, the document simply indicates that the federal government
might not prosecute medical marijuana providers under certain
circumstances," Thaggard wrote. "Clearly, the Ogden Memo did not
extend immunity from prosecution to anyone."

As of 5 p.m. Wednesday, Senior U.S. District Court Judge Charles
Lovell hadn't responded to Donahoe's request to postpone Schultz's
sentencing while the issues are further explored. However, Lovell
previously denied a similar prior request.