21 October 2009

memorandum re: investigations and prosecutions in states authorizing the medical use of marijuana .pdf

click here to download three page .pdf from the justice department website
or our copy here [3.8 mb]
monday morning the justice department blog posted its much anticipated three page memo to all united states attorneys, the drug enforcement agency and federal bureau of investigation, detailing how the justice department will recognize states rights regarding the several states' medicinal marijuana law.

the feds while they do not relinquish any rights to investigate and prosecute marijuana offenses under current federal law, have determined that those (hopefully citizens only) who are honestly complying with state law are not worthy of using limited federal resources to investigate.

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.

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.

it seems that the ball is now in congress court. will they change federal law to be in harmony with the laws of the several states or will congress leave in place conflicting laws that the justice department is on record as saying are not worth enforcing?

in any event, it doesnt look like the medicinal marijuana issue is going to go away anytime soon. it shouldnt either because its an issue of states' rights and the states should fight the feds for control of everything.

if the feds blink on this then they will on other issues again and again. the objective is to destroy wickard v filburn and eventually a lot of other bad opinions and legal theory mumbo-jumbo.

in 2010 there will be even more medical marijuana law news -- according to the california sec'y of state ballot measure update there are three citizen ballot initiaves out gathering signatures in time to be on a 2010 ballot. supposedly at least one of the initiatives would make cannabis completely legal.
1374. (09-0022)
the tax, regulate, and control cannabis act of 2010.pdf
Changes California Law to Legalize, Regulate, and Tax Marijuana. Initiative Statute.
Circulation Deadline: 02/05/10 Signatures Required: 433,971

1377. (09-0024. Amdt. #1S)
regulate, control and tax cannabis act of 2010.pdf
Changes California Law to Legalize Marijuana and Allow It to Be Regulated and Taxed. Initiative Statute. Circulation Deadline: 02/18/10 Signatures Required: 433,971

1378. (09-0025)
common sense act of 2010. pdf
Changes California Law to Legalize, Regulate, and Tax Marijuana. Initiative Statute.
Circulation Deadline: 02/18/10 Signatures Required: 433,971
sunday, gannett/the shreveport times published a story "medical marijuana legislation growing throughout country." [.pdf]. in it, the reporter, melody brumble, informs us that since 1978 louisiana has had a mechanism in place to allow for marijuana prescriptions for glaucoma and cancer patients.

can you believe it? way back in 1978, louisiana was on the cutting edge of medicinal marijuana research.

despite dissolving the marijuana prescription review board in 1989, the legislature in 1991 added paralysis patients to the list of approved recipients.

however, no more action was ever taken by the state department of health and hospitals to promulgate rules and regulations to govern the issuing or filling of medicinal marijuana prescriptions.

then louisiana now sent us to this report in the houma paper about a california man, matthew zugsberger, who's upcoming criminal trial may set medicinal marijuana case law.

it seems mr. zugsberger has a valid california medicinal marijuana prescription. somehow he came to be in thibodaux louisiana on 19 june 2008 thats when he was arrested. his more than two pounds of prescribed medication seized and he was charged with violation of RS 40:966 possession of marijuana with intent to distribute.
The question posed in Zugsberger’s case is one of "first impression" in Louisiana, his attorney Jerri Smitko of Houma wrote in a memorandum to Judge LeBlanc. The term "first impression" means that a case asks a legal question that a state’s courts have not previously ruled upon.
the story leaves a lot of unanswered questions like how did mr. zugsberger come to be arrested in the first place? also is mr. zugsberger some kind of medicinal marijuana activist? the houma paper mentioned that he has pulled a similar stunt in king county, washington. according to the houma paper mr. zugsberger won that case.

houma todays follow up report "medical-marijuana case set for trial in lafourche parish" clarifies a few things, but also goes a step further than the gannett/shreveport times by sending us to La. RS 40:1046:


RS 40:1046
it turns out that louisiana's medicinal marijuana law is still on the books. it just needs to be updated.

mr. zugsberger's attorney, ms. smitko, seems to think that her client's innocence under R.S. 40:966 (the statute he's charged with violating) stems from part C where the law states:
Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner...
then it sends you over to R.S. 40:978 dealing with prescriptions law. neither 40:966 or 40:978 say that a prescription must be issued by a louisiana doctor.

interestingly, the first assistant district attorney, mr. joe soignet is maintaining that mr. zugsberger is in violation of the law hence guilty of possession with intent to distribute under RS 40:1046 the medicinal marijuana law itself -- because it does call for a louisiana doctor's prescription.

what a conundrum. what about whether or not louisiana blanketly honors out of state medical prescriptions?

judge leblanc set the trial date for 22 march 2010 after denying mr. zugsberger's motion to dismiss. ms. smitko plans to appeal to the first circuit court of appeal and we should be able to learn more about the case when their opinion is posted, which probably wont be until after the first of the year or sometime after mr. zugsberger's trial.
this 1942 film "hemp for victory" produced by the u.s. department of agriculture and shown to farmers to encourage them into farming industrial hemp in support of the war effort.

as the video shows, industrial hemp is especially important to not only the naval service but to all branches of the military.

hemp is also used to make long lasting canvas clothing, textiles, paper and hi-quality products like that fire hose and even entire houses. it can be used for biodegradable plastics, health food and fuel.

we dont know if louisiana farmers are interested in planting industrial hemp or even if it will grow in louisiana -- since the agriculture department video seemed to focus on kentucky, part of wisconsin, missouri and the midwest - nebraska -- however, they should have the option of planting and marketing industrial hemp if they want.
with the port of new orleans they could ship it right on out to market.

there are several small ethanol plants in louisiana like the one near pollock in grant parish. its possible that they could produce and market hemp fuel. its the original diesel fuel.

look at all the food that can be made from hemp. shouldnt louisiana producers like zapps potato chips or any other that so desire, restaurateurs, chefs, be given an opportunity produce and market hemp food?

it looks like there could be lots of potential jobs in no telling how many different fields in industrial hemp production.

is the louisiana legislature really interested in asserting states rights or was SCR 2 just a bunch of baloney?