Marijuana Business Magazine - March 2018

Q&A H enry Wykowski is one of the most well-known cannabis attorneys in the United States. He has a successful track record when it comes to defending marijuana busi- nesses against federal law enforce- ment authorities. The San Francisco lawyer and former federal prosecutor successfully parried a number of attempts over the years by former U.S. Attorney Melinda Haag to shutter Bay Area dispensaries such as Harborside, Berkeley Patients Group (BPG) and Shambhala Healing Center. Haag never beat Wykowski. And while she’s been out of office since 2015, Wykowski remains ready and raring to take on U.S. attorneys who may try to make an example out of law-abiding cannabis businesses. It’s possible Wykowski may be doing just that in the coming months, given Attorney General Jeff Sessions’ bombshell decision in January to rescind Obama- era policies that have allowed legalized marijuana to flourish. This time may be different than in previous years, how- ever, given that government officials of all political stripes have denounced the attorney general’s decision. Marijuana Business Magazine asked Wykowski to revisit what legal dangers MJ businesses face and how potential attacks from anti-cannabis U.S. attorneys could play out. What is the worst-case scenario for cannabis businesses? The worst-case scenario would be some action by the U.S. attorneys, and that could go one of two ways. It could either be a criminal prosecution, or it could be a civil action, such as a forfeiture. Before they do either, they could revert to the practice they had before the forfeitures, which would be to send a letter saying: “It’s come to our attention that you’re Battling the Feds Five Questions with Cannabis Attorney Henry Wykowski By John Schroyer engaged in illegal conduct, and if that conduct is not stopped, we will take fur- ther action.” What role could state or local govern- ment allies play in a civil or criminal case? How could they affect the situa- tion for good or ill for MJ companies? That is an unresolved question. You may recall that in the forfeiture case against Harborside, the city of Oakland attempted to restrain the U.S. attorney from proceeding with the forfeiture. The (city’s) complaint was dismissed by the U.S. district court, and that dismissal was upheld on appeal. The city of Berkeley, in the BPG forfeiture, attempted to intervene, and the court in that case found they had no standing. They appealed that decision, but it was never decided because the case was dismissed before the 9th Circuit ren- dered an opinion. It sounds like it’s unclear what, if anything, the gov- ernor or state attorney general or a local government could do if a U.S attorney tried to attack a state- licensed cannabis business. We have to look at if it’s a criminal prosecution or a civil action. If it’s a criminal prosecution, other than appear as a wit- ness in the case, there’s nothing they could do. And as a witness in the case, I’d attempt to call them, to say (the busi- ness) was in compliance with all state laws, and what he was doing was known and permitted by the state. Now, in a civil forfeiture case, I’d encourage them to file a claim in a forfeiture action stating that they have a valid interest in the forfeiture not proceeding, and in that case they might actually be able to become a participant. They could do that in a civil case. But what effect that would have is unknown. 16 • Marijuana Business Magazine • March 2018