a renewed bid by Oklahoma, Nebraska and others to stamp out Colorado’s recreational cannabis sales…

Bid to take down Colorado marijuana laws revived in court

Amid uncertainty about the future of federal enforcement, a renewed bid by Oklahoma, Nebraska and others to stamp out Colorado’s recreational cannabis sales
  • Published: Jan 17, 2017, 5:42 am

By Alicia Wallace, The Cannabist Staff

Federal appeals court judges on Tuesday reviewed the reach of racketeering laws, chewed over case law and opined over olfactory issues in a case that threatens to stamp out Colorado’s recreational marijuana industry.

A three-judge panel for the 10th U.S. Circuit Court of Appeals in Denver took oral arguments in a consolidated case that claims Colorado’s recreational cannabis laws fly in the face of federal controlled substances and racketeering laws.

The states of Nebraska and Oklahoma joined the dispute after the U.S. Supreme Court declined to hear their case. The appeals also included a lawsuit from county sheriffs and another from a Pueblo horse ranch. The plaintiffs’ challenges were among several raised in and after 2014, when Colorado’s first-of-its-kind foray into regulated sales of cannabis didn’t sit well with all, especially neighboring states concerned about federally illicit substances spilling over their borders. Those complaints and the Nebraska-Oklahoma suit were eventually struck down.

On Tuesday morning, in a crowded, small, upstairs courtroom at the Byron White U.S. Courthouse in downtown Denver, attorneys and judges reviewed the reach of RICO and other federal acts and the impacts of marijuana cultivation on nearby properties.

“I went into the courtroom thinking that this was a slam dunk,” Matthew W. Buck, an attorney representing a half-dozen marijuana businesses named in the suits, said in an interview Tuesday afternoon. “And I came out of it thinking that it would be more of a toss-up.”

Buck said his confidence about the outcome waned after judges appeared to align with plaintiffs’ arguments that the wafting smell of federally illegal marijuana from the Pueblo cultivation facility to neighboring properties such as the horse ranch damaged property values. The impact of the greenhouse construction on sight lines from the property also was cited.

“(If this case were remanded to district court), it would effectively open the floodgates for every single dispensary and every single cultivation facility to be sued under federal court for RICO,” Buck said.

The Racketeer Influenced and Corrupt Organizations Act, oft-used in the implication of crime families and fraudulent financiers, also allows for private individuals to sue “racketeers” who allegedly damaged a business or property — in this case, property values. With RICO at the heart of its complaint, the entity backing the Pueblo County horse ranch also argued that the federal prohibition of marijuana overrides state law.

“Colorado is authorizing violation of the (U.S. Controlled Substances Act) through this licensing regime,” Brian W. Barnes, an attorney for plaintiff Safe Streets Alliance, told the judges Tuesday. Safe Streets, a Washington, D.C.-based anti-drug and anti-crime organization, took up the cause of the southern Colorado horse ranchers.


Get caught up on Colorado’s pot lawsuits

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Pot pesticides lawsuit tossed: Denver judge says consumers who sued weren’t actually harmed from smoking pot they say was treated with pesticides

Fewer targets: Federal judge removes the governor and other state and Pueblo County officials as defendants in a high-profile marijuana racketeering lawsuit based in southern Colorado

Nebraska-Oklahoma lawsuit: Previous articles about the landmark lawsuit filed by neighboring states over Colorado’s marijuana legalization

More on the RICO suits: Colorado residents suing to halt recreational marijuana sales

RICO suits: Coverage of cases trying to halt Colorado’s recreational marijuana sales by using a federal law against organized crime

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Asked by Judge Harris J. Hartz as to whether a change in enforcement policy on the federal level, perhaps from a new U.S. attorney general, would solve his concerns, Barnes said he would welcome such a change but added it would be a “bank-shot” enforcement action against a third party and would not get at the heart of the state laws that stand in opposition to federal laws.

Hartz later questioned Barnes on the need for more enforcement beyond the mechanisms already in place through federal law or actions such as the 2013 Cole Memo that set guidelines for federal prosecutors in states with legalized marijuana. State laws regulating the sale of marijuana, Hartz noted, could in effect be a means of enforcement.

“How do you decide where to draw the line of authorizing and limiting pot and encouraging it?” Hartz asked.

Matthew Grove, assistant attorney general for the state of Colorado, said his state’s regulations are not preempted by federal law.

A decision from the 10th Circuit panel could take months, case attorneys and legal experts say.

In that time, the current landscape of the U.S. marijuana industry could see a drastic shift. More states may finalize or decide to pursue legalization measures, and a new presidential administration may shake up the “hands-off” status quo in enforcement.

“When the Obama administration did not push back (on legal states), this litigation was sort of the last chance for people opposed to this,” said Sam Kamin, a professor of marijuana law and policy at the University of Denver’s Sturm College of Law. “Now they can move back to the policy realm and attempt to do so through federal law enforcement.”

If the appeals court judges shoot down the appeal, Kamin said he believes a push to the U.S. Supreme Court would be unlikely.

“That likely will be the end of these legal challenges for the foreseeable future,” he said.

The states’ anti-legalization effort stretches back to December 2014, nearly one year into Colorado recreational marijuana sales.

The states argued that they had to shell out more money because of a spike in marijuana arrests, vehicle impoundments, drug seizures and prisoner transfers.

“This contraband has been heavily trafficked into our state,” Nebraska Attorney General Jon Bruning said at the time, according to a report in the Omaha World-Herald. “While Colorado reaps millions from the production and sale of pot, Nebraska taxpayers have to bear the cost.”

In the months that followed, Colorado’s marijuana laws were the target of several other suits, including disputes by county sheriffs, Pueblo County horse ranchers and a hotel owner in the mountain town of Frisco.

The cases involving the Pueblo horse ranchers and the county sheriffs advanced to appelate court; the suit by the hotel owner was dismissed after a settlement.

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A convicted drug trafficker will get a new trial after a state appeals court overturned his conviction

 

Man Central To Supreme Court Case Wins Trial

Posted: Sep 30, 2012 4:29 PM

LOUISVILLE, Ky. (AP) – A convicted drug trafficker from Honduras who won a 2010 U.S. Supreme Court ruling will get a new trial after a state appeals court overturned his conviction because his attorney gave bad advice about deportation.
The Kentucky Court of Appeals on Friday ordered a new trial for Jose Padilla, a native of Honduras and permanent legal resident of the United States. Judge Kelly Thompson wrote for a three-judge panel that Padilla’s attorney improperly told him that deportation wouldn’t be a concern when he pleaded guilty to transporting 1,000 pounds of marijuana.
Thompson concluded that because Padilla wasn’t properly informed about possible deportation, his decision to accept a guilty plea and five-year prison sentence wasn’t rational.
“There was substantial evidence that had Padilla been properly informed that if he pleaded guilty he faced mandatory deportation, he would have insisted on going to trial,” Thompson wrote. “Under the circumstances, his decision would have been rational.”
The attorney’s advice became central to the U.S. Supreme Court’s decision in 2010, in which it concluded that the attorney’s advice was unconstitutionally bad. The case has made an impact on plea agreements and immigration cases around the country.
The high court at the time did not decide whether the ruling would apply retroactively, sending the case back to Kentucky for a determination about whether Padilla would be allowed to benefit from the case.
Padilla, a U.S. military veteran who received an honorable discharge after serving in Vietnam, was driving 32,000 pounds of cargo from California to Illinois. For unexplained reasons, he passed through Kentucky and was stopped in Hardin County, near Elizabethtown. A police search of his truck turned up 23 boxes of marijuana stacked near the rear of his load.
After being told that deportation wasn’t an issue, Padilla agreed to the guilty plea. Only later, after being paroled from state prison, did Padilla learn he was going to be returned to Honduras.
Hardin Circuit Judge Kelly Easton ruled that Padilla made a reasonable decision to take a plea, despite the errant advice from his attorney. Padilla appealed, hoping to withdraw the guilty plea and work out a deal that wouldn’t result in deportation.
Thompson found that Padilla had several valid defenses he could have used with proper attorney advice. Thompson ruled that Padilla could still be convicted and deported to Honduras, which would take him away permanently from family living in California.
“However, for Padilla, exile is a far worst prospect than the maximum ten year sentence,” Thompson wrote.
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Follow Associated Press reporter Brett Barrouquere on Twitter: http://twitter.com/BBarrouquereAP

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Guilty verdict in case of Yippie caught with 155 pounds of pot

PUBLISHED FRIDAY, SEPTEMBER 7, 2012 AT 6:19 PM / UPDATED AT 8:46 PM
Guilty verdict in case of Yippie caught with 155 pounds of pot
By Paul Hammel / World-Herald Bureau

LINCOLN — One of the original members of the ‘60s revolutionary group, the Yippies, was found guilty this week of possession of marijuana with intent to deliver after being caught with 155 pounds of baled pot in a van at Ashland, Neb.

Saunders County District Judge Mary Gilbride, in an order dated Tuesday, also rejected, for the second time the use of a “choice of evils” defense by Dana Beal, 65, of New York City, a long-time advocate for using marijuana as medicine, and the official historian of the Yippie Museum.

Beal, at a trial last month, admitted he was a passenger three years ago in a van carrying the marijuana.

But in court and in jail interviews, he has said his crime should be set aside because the cannabis was being delivered to a group of AIDS and cancer sufferers in New York and Michigan who use the pot for pain relief, appetite enhancement and for other medical reasons.

Beal and his attorney, Glenn Shapiro of Omaha, said they want a jury to weigh whether Beal had chosen a lesser evil —and should be found innocent — because he chose to break the law to provide medicine for sick people.

Seventeen states have legalized marijuana for medical uses, but Nebraska and New York are not among them.

Shapiro or Beal could not be reached for comment Friday afternoon, but both have said they plan to appeal the conviction.

Beal will be sentenced on Nov. 19. The marijuana delivery charge is a felony, punishable by five to 50 years in prison. Two others arrested in the van, James Statzer and Christopher Ryan, were sentenced to 36 to 48 months and 24 to 36 months, respectively, in prison.

Saunders County Attorney Scott Tinglehoff said his office would not have a sentencing recommendation for Beal until after a pre-sentence investigation is completed.

But, he said, it was unlikely that he will not recommend some time in prison because Beal, while he was awaiting a trial on the 2009 drug stop in Nebraska, was arrested in Wisconsin for transporting pot across that state.

“He obviously doesn’t care about following the law and acts like he’s above it,” Tinglehoff said. “Because of that, we have a problem with it.”

The Yippies, or Youth International Party, were a radical group that used satire and pranks to mock the status quo. They were best known for leading protests that disrupted the Democratic National Convention in 1968. Jerry Rubin and Abbie Hoffman were among their leaders.

One fellow Yippie, Ed Rosenthal, is among the Beal supporters who have said they will testify at his sentencing hearing.

Contact the writer:

402-473-9584, [email protected]

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Judge tosses 150 pounds of marijuana over GPS use in Kentucky

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LOUISVILLE — When Kentucky State Troopers stopped 49-year-old Robert Dale Lee on Interstate 75 in September 2011, they knew he would be coming their way and what to look for in his car.

The Drug Enforcement Administration had been following Lee’s car from Chicago using a GPS — a tracking device placed on the vehicle as part of a multi-state drug probe — and troopers found 150 lbs of marijuana in his car.

Now, a federal judge has ruled the stash inadmissible in the case against Lee because the DEA and troopers didn’t have a warrant to place the device on the car.

“In this case, the DEA agents had their fishing poles out to catch Lee,” Judge Amul R. Thapar wrote. “Admittedly, the agents did not intend to break the law. But, they installed a GPS device on Lee’s car without a warrant in the hope that something might turn up.”

Lee is charged with conspiracy to distribute marijuana. No trial date has been set. His attorney, Michael Murphy of Lexington, did not immediately return a message seeking comment Wednesday.

Kyle Edelen, a spokesman for the U.S. Attorney’s office in Lexington, said prosecutors are reviewing the ruling and evaluating whether to appeal Thapar’s decision.

The U.S. Supreme Court in January struck down law enforcement’s use of GPS tracking in investigations without a warrant. Justice Antonin Scalia wrote for the 5-member majority that it was the attachment of the device that violated the Fourth Amendment’s protection against unreasonable searches and seizures. That case involved a GPS placed on the Jeep of suspected Washington, D.C. drug kingpin Antoine Jones. The ruling overturned Jones’ conviction and life sentence.

Lee’s case predated that ruling, so the admissibility of the marijuana remained in question until Thapar’s decision.

The case arose after a cooperating witness told investigators that Lee, who previously served 42 months in federal prison for gun and drug convictions, had been buying marijuana in Chicago and bringing it back to eastern Kentucky in his car.

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Federal marijuana trial adjourned again

DETROIT —

A federal court trial date for three men charged in a Lenawee County marijuana growing operation has once again been adjourned.

No new date has been scheduled for a trial that was to begin March 27 for Barry Lee Fisher of Onsted, Todd Bacon of Kalamazoo and Lloyd Richard Smoke of Clayton.

A federal district court notice stated a March 19 plea deadline and the trial date were adjourned by agreement of all parties in the case. Hearing and trial dates have been adjourned several times, reportedly to allow plea negotiations to continue.

The three men were transferred from Lenawee County District Court to federal district court in Detroit a year ago. Fisher and Bacon were arrested after a Feb. 17, 2011, bust of a marijuana growing operation at the Oak City Antiques store in Clinton Township and a rented house in Tipton. The OMNI Team 3 drug enforcement unit reported seizing 345 marijuana plants. Fisher and Bacon face marijuana manufacturing and conspiracy charges. Smoke, the owner of the antique store, was charged with maintaining drug-involved premises.

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