Chris Lindsey: Don’t Be Fooled – Risks Remain High for Marijuana Businesses

By Chris Lindsey

Marijuana professionals, advocates and patients tend to be glass-half-full types. That was certainly the case last week, when ABC News aired a conversation between President Barack Obama and Barbara Walters. During the interview, Obama said government resources should not be spent going against the will of voters. I was getting calls by 6:30 the next morning from fellow activists declaring victory. The common refrain: “The federal government is OK with legalization!”

It took less than 24 hours for one well-known attorney in Colorado to opine that “this gives us the go-ahead to do business here in Colorado,” including “users, growers and sellers.”


I don’t share that sentiment. After living through what happened in Montana in the war on medical marijuana, I am practically a professional rainer on people’s parades.  A hired buzzkiller, if you will.

First of all, there is no way that Obama is OK with legalization. And to see and hear his interview on ABC and think it means that businesses will be protected is to miss the point entirely.

All three branches of the federal government do not like marijuana, much less marijuana businesses. Apart from the fact that both President Obama and Vice President Biden say they do not support legalization, there is an entire Controlled Substances Act, of which you may have already heard. And the judicial branch weighed in when the Supreme Court made it clear that state laws cannot change the federal position on enforcement of its own law.  Then we have the Department of Justice itself in the form of the Haag Memo and the Cole Memo, as well as recent statements by Department of Justice officials in Washington and Colorado.

I mean seriously, what else could the government have done to make its position more clear?

The second reason ex silentio – or drawing a conclusion from Obama’s lack of specifics – is a bad argument: It sounds particularly lame in court. The defense goes something like this:  “Yes, I understand it is illegal, the law hasn’t changed and the feds repeatedly said they would enforce it, but we really thought the government, you know, didn’t mean all that.”  What you thought the federal government meant will make no difference to anyone during the trial.  Wishful thinking is not a legal defense.

Next, you should not base your business plan on how likely it is the jury will sympathize with you and ignore its duty to apply the law. This is like basing a business on investing in lottery tickets. Jury nullification sounds great, but your attorney is prohibited from arguing it in court or suggesting it to the press, and the federal government and the presiding judge will do everything possible to avoid it during trial through motions in limine (or orders based on them) and the voir dire process.

Federal prosecuting attorneys are acutely aware of the threat of jury nullification and work hard to prevent it from taking root in a case. In fact, jury nullification is very rare and tends to happen spontaneously rather than because of a strategy by the defendant. It is a long shot and should not be part of your business plan.

Fourth, I would point out the Department of Justice is run by career drug warriors who want to continue to draw paychecks, take your stuff to pay for their toys and perpetuate a system that has treated them and their department very well for many decades. The Obama Administration spends $10 Billion a year on drug interdiction and law enforcement, most of it marijuana-related.

To quote Melinda Haag, a U.S. attorney in California who has spearheaded a crackdown on the MMJ industry, “the prosecution of individuals and organizations involved in the trade of any illegal drugs is the core priority of the Department of Justice.”  That is not about to change because of a vote in two state elections.

Let’s say the state revenue generated from the sale of marijuana in Colorado ends up being $50 million next year.  That is one half of one percent of the federal budget to prevent those sales from happening.

Finally, I would point out that Obama’s apparent concession to leave individual users alone is a zero sum gain. It’s like your 8-year-old promising not to foreclose on your home. As a practical matter, the DOJ really doesn’t pursue individual users and couldn’t devote the resources to it anyway.  The vast majority of individual drug busts are up to local law enforcement, and those rules have already changed.

I am not saying this as an armchair pundit, I am saying it as an attorney who has been through the process as a defendant. I helped start one of the biggest medical marijuana businesses in Montana at the time, weighing in at a whopping 274 patients – barely a blip on the map compared with providers in other states and quite a bit smaller than several other providers here.

We and 24 other businesses were raided by the DEA and local law enforcement officials after receiving exactly zero warnings. After many attempts at jury nullification, invoking DOJ memos, and arguing about the Commerce Clause and the 10th Amendment, one of my former partners pleaded guilty and caught a 5-year sentence. He died in custody earlier this year. Another former partner, Chris Williams, faces a mandatory minimum sentence of 85 years for having the cajones to go to a jury trial, where he lost on 8 counts and will be sentenced on Jan. 4. We worked hard to stay clearly within state law. The DOJ did not care, nor did the judge.

People will push the envelope. The genie is out of the bottle. There is marijuana to grow and consume, and there is money to be made. But there will be casualties, and it will get rough. Few 18-year-old’s heading into a war zone think they will be the one to get injured or die, but such is the nature of war.

We may be winning the war on drugs, but a war it still is.

Chris Lindsey is a medical marijuana attorney in Montana and is president of the Montana Cannabis Industry Association. Photo by Chad Harder.