The United States Attorney for the district of Colorado is charging a local man in federal court as a drug dealer for growing medical marijuana. Such establishments are legal under Colorado state law and operate openly and in public.
In October, Attorney General Eric Holder directed the Department of Justice not to raid dispensaries that were operating legally in states that allow it. His memo followed a February statement he made to reporters assuring patients, caregivers and medical pot clubs that as long as they followed state law, they'd be okay.
Holder's announcement, which followed a campaign promise made by President Obama, let loose pent-up state legislation. New Jersey and Rhode Island legalized dispensaries in 2009 and other states are seriously considering doing so, given the safety from federal raids. Colorado's industry expanded rapidly following Holder's February remarks.
The arrest and subsequent charging of Chris Bartkowicz is a setback for a medical marijuana movement that has seen victory after victory since Obama took office. Advocates in Colorado and California said that the raid had club owners and patients nervous and watching closely.
The question facing them is whether the raid represents a shift in Justice Department policy or if the Drug Enforcement Administration, which is part of the department, was going rogue once again.
After all, the DEA has needed more than the spoken directive from Holder or Obama's campaign promise before it slowed medical marijuana raids.
Americans for Safe Access, the nation's largest medical-marijuana lobby, has been tracking DEA compliance with Obama's new policy.
On January 22, Obama's second full day in office, the DEA tested the new DoJ by raiding a dispensary in South Lake Tahoe. On February 5, it raided five clubs in Los Angeles, leading to a statement from White House spokesman Nick Shapiro two days later saying that Obama did not approve of such use of federal resources.
On Feb. 11, the DEA raided a pot shop in Fort Bragg, California. Holder spoke out in late February and there were no more raids until August, when several clubs in Venice and Los Angeles were taken down. Then in August they hit a shop in Upper Lake, California and on September 9 raided at least 20 clubs in San Diego.
Colorado U.S. Attorney David Gaouette was first temporarily appointed in January while Bush was still in office and re-appointed in August by Holder. Obama has yet to nominate anyone for the position.
Gaouette's charging document, signed by an assistant U.S. attorney, begins with the pretense that a serious investigation was done.
[T]hese investigations featured the use of a myriad of investigative tools to include but not limited to physical and electronic surveillance, confidential source (CS) recruitment and management, undercover transactions, the execution of search warrants, and the arrest and prosecution of drug traffickers.
During the course of these investigations, your affiant has spoken on numerous occasions with confidential sources, suspects, and experienced narcotics investigators concerning the methods and practices utilized by drug traffickers involved in the cultivation of marijuana. Your affiant has also attended a specific training course focused on the cultivation of marijuana. As a result, your affiant is experienced in the means and methods used by persons and drug trafficking organizations to grow, purchase, store, and distribute marijuana that are involved in the cultivation of marijuana.
But then Special Agent Michael Tonozzi gives up the goods, conceding what his investigation actually consisted of:
On February 12, 2010, your affiant read an article printed from the internet, dated February 12, 2010, from "9news.com" titled "The jungle of pot in your neighbor's basement" that referred to an individual who was operating a marijuana cultivation operation. The reporter who wrote the article interviewed "Chris BARTKOWICZ" (here after "BARTKOWICZ"). The article stated that BARTKOWICZ was operating a large marijuana cultivation operation in the basement of his $637,000 Highlands Ranch Home. BARTKOWICZ told the journalist in the article that he has grown in his home for more than a year and said he has "been going full steam since day one"
The complaint goes on to detail how the DEA was able to uncover that the "Chris Bartkowicz" featured in the story and interviewed about his medical marijuana operation was, in fact, a man named Chris Bartkowicz who ran a medical marijuana operation. Surveillance follows. [Read the whole complaint here. It's worth it.]
The DEA's been busy in Colorado. In the last several weeks, it also hit two medical pot labs that were testing weed for mold and other contaminants and determining its THC content.
"They shouldn't be speaking out of one side of their mouth and saying the drug is dangerous because of contaminants, and then at the same time busting a facility that tests for those contaminants and that is making the medicine safer for patients," said Kris Hermes, a spokesman for ASA.
"Both those labs were essentially engaged in testing medical marijuana to see if it had mold or any sort of contaminants and to look at THC levels and other quality controls," said Brian Vicente, executive director of Sensible Colorado, which advocates for patient access to medical marijuana. "It's the view of people on the ground here in Colorado that you have these rogue DEA agents who really haven't gotten the memo."
In this case, there literally is a memo, and Denver DEA Special Agent in Charge Jeffrey Sweetin seems only to have missed it in a figurative sense. In an interview with the Denver Post shortly after the bust on Friday, Sweetin references the memo but claims that he still acted appropriately.
"Technically, every dispensary in the state is in blatant violation of federal law," Sweetin told The Denver Post. "The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They're violating federal law; they're at risk of arrest and imprisonment."
In charging Bartkowicz, the U.S. attorney's office said that he was in violation of state law, and therefore the arrest didn't violate Holder's directive. Bartkowicz, said the charging document, was found with roughly 200 plants and had only 12 registered patients for whom he grew. He can legally grow six plants per patient, although he's allowed to grow more if it's medically necessary.
Vicente said Bartkowicz appears to have been operating a small-scale grow operation and could easily argue that the plants were medically necessary. "If there is a questionable issue there, it should be prosecuted under state law," said Vicente.
Bartkowicz's real crime, of course, wasn't growing marijuana, but going on local TV and talking about it. Growers and club owners in California learned the hard way that drawing attention is the quickest way to attract a DEA agent's boot to a club's front door.
Giving an interview to local media may be dumb, said Vicente, but it's not something that should lead to decades in prison. "I don't think this gentleman was acting that prudently, but at the same time, it's still wasteful for them to prosecute this individual," he said.
A spokesperson for the Colorado Department of Public Health and Environment said that it had nothing to do with the raid and merely registers medical marijuana patients. A spokesperson for the Colorado Attorney General, a Republican, declined to comment. "You'd have to talk to the United States Justice Department," said Mike Saccone. "Amendment 20 is part of the Constitution. It is the law of the land. It doesn't matter what our thoughts are on state law. It's our job to respect what the voters passed."
That is not, apparently, how the DEA sees its job.
DoJ spokeswoman Laura Sweeney referred HuffPost to the October memo and said that the policy directive remains in effect. She declined to comment specifically on Bartkowicz's case, referring questions to the Colorado U.S. Attorney, which didn't return requests for comment.
"As a general matter, DOJ is not focusing its limited resources on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana," reads the memo.
Following his saber-rattling on Friday, Special Agent Sweetin walked back the tough talk days later. "Someone probably called him," said Bill Piper, director of national affairs for the Drug Policy Alliance. "It sounds like someone from the Justice Department called him and explained that he obviously must not have gotten the memo."
Amending his earlier comments, Sweetin told the AP that he wasn't going "door to door" looking for pot clubs. "It's up to the state to decide what to do about them and lawmakers are trying to decide how to do that," he told the AP. "I have to make sure that I'm not trying to become the enforcer and the regulator of medical marijuana because I don't have the resources for it."
Ryan Grim is the author of This Is Your Country On Drugs: The Secret History of Getting High in America