Law

Confusion swirls around federal enforcers and legal cannabis

In the wake of Attorney General Jeff Sessions’s decision to rescind the Cole Memo, an Obama-era rule that essentially restrains local federal prosecutors from pursing most pot cases, California and other states are now wondering how their own U.S. attorneys will proceed. And in states where voters have legalized cannabis for recreational uses, as California recently did, local officials and advocates on both sides of the legal-pot debate are scrambling to make sense of things.

Confusion over the fate of recreational cannabis is the new status quo.

In San Francisco, the United States Attorney for the Northern District of California, Brian Stretch, announced this week that he’ll stepping down to join a private firm, a move that allows the Trump Administration to name an interim, and possibly anti-pot, replacement, though a permanent person for the slot would eventually be selected by either the district court or the US Senate.

In Sacramento, where the U.S. attorney for the Eastern District of California under President George Bush went after a number of players in the state’s medical-marijuana industry, decriminalization advocates, high on their recent victory, are now wondering if McGregor Scott will return to his old ways thanks to Sessions taking the gloves off.

And in Southern California just this week, Sessions named Orange County attorney Nicola Hanna as the interim U.S. attorney for the Central District of California, a vast area that includes Los Angeles and six other counties, again raising the specter of a hard-charging, Trump-supporting go-getter throwing cold water on the legal-pot lobby’s celebration.

And that’s just in California. In other states, including Colorado and Washington where a recreational-pot industry is flourishing, locals are watching to see which prosecutors will embrace their newfound freedom to pursue pot prosecutions and which won’t.

This puzzling game of judicial musical chairs is unfolding on the heels of Sessions’ announcement, and observers are wondering how it will all shake out.

Kristen Quitoriano, a budtender at Caliva cannabis dispensary, prepares Thursday, Dec. 28, 2017, for the coming New Year’s Day start of recreational marijuana sales in San Jose, Calif. (Karl Mondon/Bay Area News Group)

As the Huffington Post reports, the latest development means that U.S. attorneys, who are the chief enforcers of federal law in their own jurisdictions, now have the attorney general’s blessing to aggressively launch marijuana prosecutions of all stripes, a move that strikes fear in the hearts of those who work in, invest in and profit from the now-legal pot industry in eight states across the nation.

“We don’t know a lot about the U.S. attorneys because the president fired all of them,”  John Hudak, a senior fellow at the Brookings Institution and an expert on marijuana policy told the news organization.  “As the acting U.S. attorneys show what they’re going to do and the newly confirmed U.S. attorneys begin to act, we’ll get a better understanding, but until then it’s just uncertainty layered on top of uncertainty.”

A senior Justice Department official told the Post that the message for attorneys general from Sessions is this: approach marijuana cases “like all other cases” and decide which prosecutions are priorities in their district.

Check out our updated map showing shops licensed to sell recreational cannabis in California.

“We think that U.S. attorneys need to determine what cases need to be brought in their districts,” one senior Justice Department official told the Post. “The attorney general believes marijuana is against federal law.”

Here’s a quick look at some of those judicial hot spots:

Where: San Francisco

Who: Brian Stretch, U.S. Attorney for the Northern District of California

What: Stretch announced this week that he’ll stepping down to join a private firm.

Background: Appointed the position on March 30, 2016, Stretch has run an office that’s been in the forefront in prosecuting new types of crime, such as computer hacking, internet fraud and intellectual property theft. He’s been the top cop in a 20,000 square-mile section of the state that includes the entire Bay Area, the northern counties of Humboldt, Mendocino, and Del Norte, and stretches as far south as Monterey.

Possible outcomes: This newspaper has reported that Sessions could appoint an interim replacement, possibly one with a political bent that could translate into the office going harder after marijuana cases. These could include prosecutions that might interfere with the the burgeoning recreational-pot industry that just got started this week.

Trump officials have already appointed 17 such replacements and marijuana advocates worry that Sessions could put a hardliner in the symbolic heart of the state’s booming pot market.  Interim positions are only temporary, and up the district court to appoint a permanent position, unless and until there’s a confirmation by the Senate.

In a state where passage of Proposition 64 is moving a shadowy $7 billion industry into a taxed and highly regulated structure, Lt. Gov. Gavin Newsom accused Sessions of “trampling on the will of California voters. California will stand together to pursue all legal, legislative and political options to protect its reforms and its rights as a state,” as it has on climate, environmental and immigration issues.”

Still, federal prosecution and conviction could be hard, according to Bay Area legal experts.

“For California, it’s not a game-changer,” said Robert J. MacCoun, a professor of Stanford Law School. “But it sends two messages.  It sends a message to investors that this is a risky business and you ought to stay out of it. And it sends a message to the 42 states where it is not legal that ‘you might not want to take this on.’”

Where: Sacramento

Who: McGregor Scott, U.S. Attorney for the Eastern District of California

What: Scott was appointed last November by President Trump to oversee a sprawling district that runs from the Oregon state line to just north of Bakersfield. This is his second stint: Scott served six years after being appointed by then-President George W. Bush. When he was named for the job this time around, a Sacrament Bee editorial endorsed the appointment, saying Scott’s track record “shows he’s capable of getting at least some things right.”

Customers line up at the counter to purchase marijuana at Harborside in Oakland, Calif., on Monday, Jan. 1, 2018. Residents of California can now legally purchase recreational marijuana. The store opened their doors at 6 a.m. to a crowd of over 250 people. (Jose Carlos Fajardo/Bay Area News Group)

While Scott has overseen mortgage fraud prosecutions, an important public corruption case out of Stockton, and helped establish a program to pursue damages against companies that ignite fires on federal forests, the question remains whether this Trump appointee will take Sessions’ mandate and go after pot cases or not.

Possible outcomes: Some critics point to Scott’s tenure during the Bush Administration as a troubling sign of things to come when it involves the state’s flourishing cannabis industry. The Recorder reported recently that “Scott could play a key enforcement role in California’s emerging legal cannabis market as many growers in the Eastern District gear up for the state’s recreational market launch in January. Northern California’s marijuana community was critical of Scott’s Bush-era U.S. Attorney Office for what it said was an overly aggressive stance on prosecuting medical cannabis-related offenses. Scott’s would-be boss, Sessions, has staked anti-marijuana positions that are raising fears among industry advocates.”

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According to the Sacramento Bee, when he served a Bush appointee, Scott went after a number of people in California’s medical marijuana industry, including a highly publicized case involving two young Modesto men, Luke Scarmazzo and Richard Montes. Scott’s office maintained that the pair’s dispensary was actually a “criminal enterprise that flouted laws and raked in cash.” The Bee said Obama granted Montes clemency in 2017.

On the other hand, Scott is a native of Humboldt County, ground zero for the pot industry, and had the support of Democratic Sen. Diane Feinstein during his nomination process. So perhaps those who fear a new prosecutorial assault on cannabis conveyers in California may be disappointed if Scott’s team continues to focus on non-pot cases.

Where: San Diego

Who: Nicola Hanna, interim U.S. attorney for the Central District of California, a vast area that includes Los Angeles and six other counties

Background: Hanna, named this week at the temporary top prosecutor in San Diego, was one of 17 people tapped by Sessions to fill U.S. attorney seats around the country on an interim basis. He is replacing Sandra Brown, who was appointed last year. Hanna, who has been a partner at the international firm of Gibson, Dunn and Crutcher, and was Assistant U.S. Attorney during the 1990s in the district that he will now oversee, takes the new job starting today. He received his B.A. from the University of California, San Diego, and got a law degree from Georgetown University.

Possible outcomes: Again, some unknowns. First, it’s unclear whether Trump plans to nominate Hanna to the job permanently, though the LA Times reported “he was being considered for the job, according to multiple people with knowledge of the selection process.”

And in an ominous move, at least for those involved in the state’s marijuana business, Sessions praised Hanna’s record prosecuting drug traffickers and other criminals.

KPCC reported that, for now at least, Hanna is playing his cards close to the vest when it comes to describing his prosecutorial plans: Sandra Brown, “the outgoing U.S. Attorney for Southern California and her replacement remained mum Thursday on whether they would pursue prosecutions of recreational marijuana businesses now that Attorney General Jeff Sessions has lifted Obama-era restrictions on such enforcement. Some in the L.A. marijuana industry were defiant, while one investor group said the change could scare away potential entrepreneurs.”

In a detailed report, the PBS affiliate in Pasadena said that Sessions’s fierce support for the federal ban on marijuana, now at odds with California’s legalized cannabis business, leaves Hanna in a difficult position, given California’s overwhelming support of legalization.

“There may be a bit of a tightrope to walk for U.S. attorneys who are only temporary,” Loyola Law School Professor Stan Goldman told KPCC.

Robert Bonner, a former U.S. Attorney for California’s Central District, told the station that politics should not play a role in Hanna’s decision whether to prosecute marijuana cases. “That’s totally inappropriate – no, you do not consider what the politics of this are,” said Bonner, who is also a former federal judge and once headed the U.S. Drug Enforcement Administration.

It’s more likely, said the report, that Hanna will have to consider the resources of his office of about 240 prosecutors, a finite number of lawyers who are tasked with handling both criminal and civil cases in seven counties with a combined population of 18 million. Bonner points out that Hanna’s is the most populous federal district in the country and it deals with everything from national security prosecutions to gang crimes to the opioid crisis.

“You have to say what are the most important cases to prosecute, Bonner said. “The U.S. attorney’s office has limited resources.”

“Jeff Sessions’ appetite may be bigger than what he’s capable of actually doing,” Goldman told KPCC.


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