What the feds might do after the Sessions decision: Q&A with attorney Henry Wykowski

Without question, the most successful cannabis attorney in the country when it comes to battling federal authorities is Henry Wykowski.

The San Francisco lawyer has won multiple cases over the years on behalf of his clients.

He successfully fought off a number of attempts by former U.S. Attorney Melinda Haag to shutter Bay Area dispensaries such as Harborside, Berkeley Patients Group and Shambhala Healing Center.

It now appears the battles of old may be about to return, following U.S. Attorney General Jeff Sessions’ bombshell decision this week to rescind Obama-era policies that have allowed legalized marijuana to flourish.

This time may be different than in previous years, given that government officials of all political stripes have denounced the attorney general’s decision. But there’s no guarantee.

Marijuana Business Daily asked Wykowski to revisit exactly 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 engaged in illegal conduct, and if that conduct is not stopped, we will take further action.”

What role could state or local government allies play in a civil or criminal case? How could they affect the situation 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 rendered an opinion.

In the Oakland case, was the city not able to intervene because of jurisdictional questions?

No. Oakland basically was not able to intervene in the actual forfeiture action because they waited too long.

There was a time limit they let lapse.

So it was a technicality.

Yes.

It sounds like it’s unclear what, if anything, the governor 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 witness 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 business) 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.

How practical would that be?

I don’t think that either one of those scenarios is highly likely.

Basically, it would be a PR disaster if the Department of Justice brought a criminal case against somebody and then the jury acquitted (the business) or refused to find them guilty – or protested against the fact that the charges were brought in the first place.

And that could happen in California.

With respect to bringing a civil forfeiture action, I don’t think they would do that, because the message loud and clear in those actions was:

  • No. 1, the judges were not sympathetic to the DOJ for bringing these cases to begin with.
  • And No. 2, one of the issues that was front and center was whether or not the forfeiture actions are themselves restricted by the Eighth Amendment to the Constitution, with respect to excessive fines. They want to seize the entire building from the landlord because of the illegal activity. Isn’t that excessive?

What about a fine or penalty versus seizing a building? 

Some type of fine or penalty may be appropriate, but to seize the entire building would not be appropriate. And this came up in the Shambhala forfeiture.

That building at the time was worth $3.5 million, I think. And the judge said to me, “Henry, you can’t argue with a straight face that these guys weren’t selling cannabis, can you?”

And I said, “No, of course not, that would be ridiculous. My argument here is that it’s excessive to seize the entire $3.5 million building because of the sale of cannabis by a tenant.”

And the judge looked at the U.S. attorney and said, “That’s exactly how I see it. You might be entitled to something, but isn’t it excessive to take the whole building?”

So we went to mediation, and then the DOJ said they’d accept $150,000 from the landlord, and that resulted in the case being dismissed with prejudice.

So they had a terrible victory, because they only got $150,000 from the landlord, and we were allowed to stay open.

They don’t want a debacle like that again.

This interview has been edited for length and clarity.

John Schroyer can be reached at [email protected]

5 comments on “What the feds might do after the Sessions decision: Q&A with attorney Henry Wykowski
  1. Frank on

    Wake up<<< THE STATES HAVE THE POWER TO MAKE LAWS THAT ( ANY ATTEMPT TO INTERFERE IN CANNABIS OPERATIONS IN MEDICAL OR REC OR ANY CANNABIS OPERATIONS BY THE FEDS OR DEA <<THOSE PEOPLE WILL BE ARRESTED AND CHARGED FOR INTERFERING IN STATE LAW<<<

    Reply
  2. Scott Tracy Imler on

    Forfeiture is not the only civil action the DOJ could initiate. In 1998 the Clinton Administration brought a civil action against the CBC 6 (six cannabis buyers clubs in Northern California) seking an injunction to close their doors for violating federal drug laws. The Oakland Cannabis Buyers Cooperative ultimately took the matter to the US Supreme Court, which upheld the federal governmnt’s position and the lower court injuction based on the “commerce clause.” The use of civil injunction was precise, relatively non-combative, and successful. With that existing precedent, why is a civil injunction ill-advised at this point?

    Reply
  3. The Servant in The Garden (MJRabelais) on

    And now here’s something completely different.
    Remember the movie Braveheart when the old Lord told his son to support the rebelion on one hand and attack them and side with the king from an other area? I think that’s exactly what the administration is going to do. They know how popular cannabis is with both parties and attacking local tax revenue after cities reluctantly started accepting it won’t do them any good they don’t hatecannabis anyway.
    But they do hate Democrats and they see the cannabis industry as a bastion of militant liberals and an Obama era policy but theystill don’t give a shit about either of those issues. They are much more shallow than everyone gives them credir for, its nothing personal at all. They rightfully see us as a cash cow and fundraising machine for the Democrats and they would be remis to sit back and allow an ILLEGAL industry to pour cash into their enemies war chests.
    Nope they will go afyer the banks and institutions, they will probably charge a few big businesses with some crimes too and get everyone nervous and worrying more about having bail money and attorney fees than trying to elect Democrats. Actually you could be in mugging old ladies industry and if it paid good and you were a big donar they would make it legal All they careabout is power and having a majority of votes.
    Here’s my opinion you won’t like it. The day after the election the cannabis industry should have woke up Republicans, the Dems lost, we own them anyway. If we ever hope to be fully legal it will never happen until we embrace the Republicans. In fact I’d do for them with our support what Karl Rove dis with Evangelical churches. You got a tight race…you can count on a suitcase of greasy untraceable canna cash contributions! And you know what his middle America farm belt supporters losing their farms like? Wacky Tobaccy. Tell them they can sell it to the gang members and illegal immigrants! Nope we better wake up, why do you think corporations donate to both parties? But you guys could get with up and coming Republicans, tell them tone down the bullshit, take a neutral abortion stanceand leave it to the supreme court, chill on wars and invations and we’ll picknick with Evangelicals and feed homeless for them! VOTE REPUBLICANN! Make America Vape again!! Ha!ha!

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *