WASHINGTON -- As the White House revised its position on marijuana policy, U.S. Attorney Benjamin Wagner, an Obama appointee, relied on an evolving rationale to continue prosecuting three people involved with a California medical pot cooperative, according to letters Wagner sent to defense attorneys.
Wagner and his staff cited new reasons to press forward with the case even as they were undermined by shifting administration policy. Ultimately Wagner argued that he had no choice but to push forward because other defendants he had previously prosecuted were still serving long sentences.
The lowest-ranking of the three defendants, Robert Duncan, an employee of the cooperative, surrendered to prison to serve a two-year sentence on Monday.
Wagner initially argued that the large size of the medical pot cooperative, the fact that it had a storefront presence and its for-profit status meant that it violated state law. But the cooperative was legally established as a nonprofit and its owner, Matt Davies, was paid only $50,000 for more than a year's work. And California's courts and its legislature had previously made clear that a storefront presence was legal within state law.
"Perhaps you were not fully briefed on the case, because many of the assertions made in your letter are simply, and demonstrably, incorrect," Davies' attorney, Elliot Peters, wrote to Wagner. Defense attorneys provided Wagner's letters to The Huffington Post.
After the state Supreme Court affirmed that Wagner had misunderstood state law, he shifted his rationale, arguing that federal law prohibited such activity. But after the Department of Justice revised its policy in August 2013 to make explicit that the size of an operation should not be a driving factor in prosecution decisions, Wagner insisted that the new policy only applied to future cases. "[I]t is expressly prospective," Wagner wrote.
Even if the new policy applied retroactively, Wagner added, it would be unfair to apply it, because others who'd been prosecuted were already in prison. "Moreover, [Davies'] conduct occurred in 2010 and 2011. We have prosecuted, and had sentenced, others whose conduct occurred in that same time frame. There is no principled way to distinguish Davies' situation from that of others who were prosecuted or are being prosecuted for criminal conduct during that time period," he wrote.
Wagner never seemed to like the new administration policy to begin with. He was particularly aggressive in pushing back against the so-called Ogden memo, a 2009 document which set up formal guidelines for investigations of medical marijuana facilities, officials involved in the discussions told The Huffington Post last year.
Wagner and his staff noted in their sentencing recommendation in Duncan's case that marijuana defendants cite portions of the Ogden memo "they find useful and ignore the rest."
"As the Court correctly pointed out at the sentencing hearing for defendant Davies, changing and ongoing executive branch priorities in no way bind judicial branch decision making," prosecutors said, applying the argument to Duncan's case.
Wagner and his staff went on to add that even members of the administration are not subject to directives from that administration, but rather will follow the direction of Congress as they interpret it. "The defendant points to press reports about statements of the Attorney General and the latest in a series of memoranda dealing with U.S. Department of Justice policy and priorities dealing with marijuana enforcement ... The Controlled Substances Act continues to be the law until amended by Congress and the Sentencing Guidelines apply no matter where the federal court is located," they wrote. "Thus, defendant Duncan’s argument in this area should be given little weight."
Wagner didn't respond to a request for comment on the letters' content.
His changing rationale for pursuing the cases, as seen in the letters, suggests that his analysis was largely political. "The U.S. Attorney said with some clarity that if these guys didn't get jail time, then that would send the signal that nobody would be jailed for marijuana in the district," said Tom Johnson, Duncan's attorney. "It's just a random application of the federal drug enforcement laws. He was literally at the wrong place at the wrong time."
While Wagner was prosecuting the three defendants, another branch of the administration had begun to protect the workplace rights of medical marijuana shop employees.
Watch HuffPost Live's interview with Duncan above, learn more about his case and sign a petition calling for his release here.
Before You Go
“I think that most small amounts of marijuana have been decriminalized in some places, and should be," he said back in 2000 in an interview with Rolling Stone. "We really need a re-examination of our entire policy on imprisonment.”
He's since spoken about the issue of marijuana and drug prohibition a number of times. Last year, he appeared in the documentary, "Breaking the Taboo," where he argued that the war on drugs has been a failure.
“I don't want to promote that but I also don't want to put people in jail who make a mistake," Paul said. "There are a lot of young people who do this and then later on in their twenties they grow up and get married and they quit doing things like this. I don't want to put them in jail and ruin their lives."
"I really believe we should treat marijuana the way we treat beverage alcohol," Robertson said in an interview with The New York Times in 2012. "I've never used marijuana and I don't intend to, but it's just one of those things that I think: this war on drugs just hasn't succeeded."
Robertson has made similar remarks on his "700 Club" show before, but the Times, like many others, perhaps felt they must have misheard him.
“[T]o me, marijuana is no different than wine," he said in an interview with High Times. "It's a drug of choice. It's meant to alter your current state -- and that's not a bad thing. It's ridiculous that marijuana is still illegal. We're still fighting for it ... It comes down to individual decision-making. There are millions of people who smoke pot on a social basis and don't become criminals. So stop with that argument -- it doesn't work.”
[H/T Marijuana Majority]
From his campaign platform:
"By managing marijuana like alcohol and tobacco - regulating, taxing and enforcing its lawful use - America will be better off. The billions saved on marijuana interdiction, along with the billions captured as legal revenue, can be redirected against the individuals committing real crimes against society."
“Marijuana should not only be legal, I think it should be a cottage industry," he said in an interview with High Times. "My wife says, and I agree with her, that what would be really great for Maine would be to legalize dope completely and set up dope stores the way that there are state-run liquor stores.”
[H/T Marijuana Majority]
While marijuana has been made legal for various uses in a number of states, the Obama administration continues to enforce federal laws across the nation. This has led to numerous raids of marijuana-based businesses, as well as prosecutions of growers and other people involved in pot.
"I think it's about time we legalize marijuana," he said. "We have to make a choice in this country. We either put people who are smoking marijuana behind bars or we legalize it, but this little game we're playing in the middle is not helping us, it is not helping Mexico and it is causing massive violence on our southern border."
"Decriminalization does not result in increased drug use. Portugal's 10 year experiment shows clearly that enough is enough. It is time to end the war on drugs worldwide. We must stop criminalising drug users. Health and treatment should be offered to drug users - not prison. Bad drugs policies affect literally hundreds of thousands of individuals and communities across the world. We need to provide medical help to those that have problematic use - not criminal retribution."
"I don't tend to say this publicly, but we can see it's a curative thing. The narcotics industry is also enormous. It funds terrorism and - this is a huge problem in America - fuels the foreign gangs," he said. "More than 85 percent of men incarcerated in America are on drug-related offences. It costs $40,000 a year for every prisoner. If they were really serious about the economy there would be a sensible discussion about legalization."
While Obama and his administration have responded to state marijuana reforms by saying they must enforce federal laws against marijuana, the president has the power to reschedule the drug, which would allow federal authorities to shift resources away from a prohibitive approach.
"However, I think we need to prioritize our law enforcement efforts," Palin said. "If somebody's gonna smoke a joint in their house and not do anybody any harm, then perhaps there are other things our cops should be looking at to engage in and try to clean up some of the other problems we have in society."While Obama has spoken repeatedly about not being interested in prosecuting small-time marijuana users, he hasn't done anything to prevent them from being busted by law enforcement in states where the drug is still illegal.
In 2012, the former president said he was fine with state legalization efforts, though he himself doesn't necessary support legalizing the drug.
“As president 35 years ago I called for decriminalizing -- but not legalizing -- the possession of marijuana,” Carter said. “Since then, U.S. drug policies have been very horrible to our own country because of an explosion in prison populations.”
"I don't have a problem with states experimenting with this sort of thing I think that's the role of states," Cuccinelli said, according to Ryan Nobles of WWBT.
“The proof will be in the policy. The war on drugs has gotten a really bad rap, when you ask people if they support the war on drugs they say no ... [Obama's] budget once again has the same old drug warrior policy ... I reject the assumption that everybody who is using drugs needs treatment or is an addict and needs to get arrested ... Not all drug use is abuse.”
He's kept up the fight for drug policy reform since.
[H/T Marijuana Majority]
“We've been fighting the war on drugs since the '60s. And guess what? Trillions of dollars later, we are losing," Sharpton said during a segment on MSNBC. "When you look at the disparities in sentencing drug offenders, hasn't this kind of injustice undermined the legitimacy of our criminal justice system?”
[H/T Marijuana Majority]
Tancredo continued, “The arguments against marijuana today are the same as the arguments against liquor years ago.”
Years later, the former congressman agreed to smoke pot on camera with a documentary filmmaker, a deal that he later backed out of.