Judge won’t dismiss medical marijuana case under Obama made me do it defense

Greg Moran, San Diego Union Tribune
Tuesday, March 16, 2010

James Stacy, the Vista medical marijuana dispensary owner facing federal drug charges, has lost an intriguing bid to have the charges against him thrown out.

Stacy had argued that President Obama, when he was Candidate Obama, had basically said he wouldn’t prosecute medical marijuana providers who were complying with state law, and that Stacy had relied on that — and later statements by Attorney General Eric Holder — to launch his business.

He also said the prosecution violated the Tenth Amendment because it “commandeered” local law enforcement to enforce federal policy. The intriguing arguments received some attention after first being reported by San Diego CityBeat in December.

In an 11-page ruling Moskowitz said, essentially, nice try.

Comments made by Obama and one of his campaign flaks cited by Stacy “cannot be deemed representations of the federal government regarding drug-prosecution policy.” There’s no evidence Stacy even heard those statements or that any government official told him selling medical marijuana was OK under federal policy. Holder’s statements were “vague,” “loose” and did not rule out that the feds could still prosecute medical marijuana cases.

As for the Tenth Amendment argument, the judge said there was no evidence that the San Diego Sheriff’s Office was forced to participate in the investigation and raids of dispensaries in the county. “Voluntary cooperation by the Sheriff’s Department or other state agencies does not give rise to a Tenth Amendment claim,” he wrote.

So now it looks like it is on to trial for Stacy. The judge did leave the door open a bit. He said he would decide later whether Stacy and his lawyer, Kasha Kastillo, could use the Obama-told-me-I-could argument, known as entrapment by estoppel, as a defense at trial.

Federal prosecutors are moving to head that off, filing a motion last Friday asking Moskowitz to ban that defense, as well as several others. Trial is set for April 26.

Stacy was one of two people charged federally in a sweep of dispensaries launched in the fall. He opened the Movement in Action dispensary four months or so before the raids occurred. One of the reasons he may have ended up in federal court is that investigators found a gun in the dispensary and, even under Obama guidelines relaxing prosecutions of dispensaries that comply with state law, that can lead to a federal charges being filed.


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