July 22, 2019

Archives for September 18, 2013

DOJ: Amendment 64 Implementation can Proceed Without Federal Interference (For Now)

Bill_KyriagisBy Bill Kyriagis

On August 29, 2013, the federal government issued a long-anticipated policy statement regarding Amendment 64, which made clear that the federal government does not currently intend to interfere with Colorado’s efforts to implement a system to regulate the cultivation, distribution and sale of marijuana to adults for recreational purposes. Federal authorities also clarified their approach toward state-regulated medical marijuana industries.

Specifically, United States Deputy Attorney General James M. Cole issued a memorandum directed to all United States Attorneys, setting forth the Department of Justice’s (DOJ) policy toward marijuana businesses in states that have legalized marijuana for medical and/or recreational use. The memorandum is cast as guidance for prioritizing the “limited investigative and prosecutorial resources” available to the federal government.

Like the two previous federal memoranda addressing state-level efforts to liberalize marijuana laws, which were issued in 2009 and 2011, the new memorandum makes clear that marijuana remains illegal for all purposes under federal law, and that federal authorities will enforce federal drug laws where appropriate. Particularly, the memorandum highlights eight enforcement priorities that will guide federal authorities:

  • Preventing distribution of marijuana to minors;
  • Preventing revenue from marijuana businesses from going to criminal organizations;
  • Preventing diversion of marijuana from states where it is lawful to other states;
  • Preventing state-authorized marijuana activities from being used as a pretext for other illegal activity;
  • Preventing violence and use of firearms in the marijuana industry;
  • Preventing driving under the influence of marijuana and other adverse public health consequences associated with marijuana use;
  • Preventing cultivation of marijuana on public lands; and
  • Preventing marijuana possession or use on federal property.

While the memorandum stresses that it does not change federal law, and does not bind federal authorities, it makes clear that federal authorities are at least willing to allow Colorado and Washington state an opportunity to implement “strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.” Federal authorities will watch the implementation of these regulatory regimes closely, and, if they fail to live up to expectations, federal authorities may act. If anything, this reinforces the importance of the process playing out at the state and local level in Colorado, as final regulations and procedures are developed and implemented to regulate the coming recreational marijuana industry.

The memorandum also provides clarifying guidance concerning medical marijuana businesses, noting that they should not be an enforcement priority, regardless of their size or commercial nature, provided that the operation in question “is demonstrably in compliance with a strong and effective state regulatory system.” This represents a reversal of policy guidance provided in the 2011 memorandum, which had drawn a distinction between medical marijuana patients and their caregivers, on the one hand, and large-scale, for profit commercial enterprises, on the other hand. In some states, U.S. Attorneys had seized on this distinction to justify targeting large-scale medical marijuana businesses. In Colorado, however, federal authorities have generally taken a hands-off approach toward state-regulated medical marijuana businesses, which seems even more likely to continue in light of the recent memorandum.

It is important to emphasize that the August 29 memorandum is nothing more than a statement of current policy. It is not law, and it binds no one. U.S. Attorneys in various states may have differing interpretations of the policy guidance, which could lead to variations in enforcement from state to state. If state-level regulatory regimes fail to live up to federal scrutiny, federal authorities could quickly change their approach. Indeed, nothing prevents federal authorities from issuing new policy guidance down the road, which could reverse course. For example, when a new presidential administration comes into office in 2017, it could choose to completely ignore the Obama administration’s approach, and instead aggressively enforce federal marijuana laws.

That said, the significance of the August 29 memorandum cannot be understated. The previous two DOJ memoranda on state-sanctioned marijuana activities have had an enormous impact on the development of medical marijuana industries in a number of states. In removing the most significant potential barrier to the full implementation of Amendment 64 (and Washington state’s similar measure), the recent memorandum will likely have a similarly profound impact.

The legal situation relating to marijuana in Colorado is thus complex and confusing, but recreational marijuana businesses are going to become a part of the landscape in Colorado soon.  This will present business lawyers with new challenges and opportunities. Learn more about advising marijuana businesses at the Colorado Business Law Institute on October 16 and 17 at the Grand Hyatt in Denver. Click here to register for the live program, or click here to order the homestudy.

Bill Kyriagis represents business and real estate clients in litigation, bankruptcy and land use matters. In the land use context, Bill counsels clients on a variety of local government issues, including posturing land use matters for potential litigation and pursuing claims when necessary. Bill has also developed expertise regarding the issues faced by landlords and  property owners related to Colorado’s medical marijuana industry. Bill has worked on a number of pro bono cases, including a successful First Amendment challenge to local government land use regulations, and assisting tenants in landlord/tenant disputes. Bill contributes to his firm’s blog, where this post originally appeared.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

New District Court Judges Appointed in Weld and Boulder Counties

On Monday, September 16, 2013, Governor Hickenlooper announced his appointments to the district court benches in the Nineteenth and Twentieth Judicial Districts, encompassing Boulder and Weld counties.

Shannon Douglas Lyons was appointed to the Nineteenth Judicial District Court bench in Weld County, effective October 11, 2013. Mr. Lyons is currently senior litigation counsel for Otis, Coan & Peters, LLC. He has focused on trial work throughout his career, specializing in complex constitutional, statutory, and commercial issues. Mr. Lyons is a regular presenter for the Weld County Bar Association, and was presented with that organization’s Professionalism in the Law Award in 2007.

Bruce Langer was appointed to the Twentieth Judicial District Court bench in Boulder County, effective immediately. He will fill a vacancy created by the retirement of Hon. M. Gwyneth Whalen. Mr. Langer currently works at the Boulder County District Attorney’s office, where he oversees general felony prosecutions and the felony intake unit. Previously, Mr. Langer was an associate at Franco Domenico and Associates.

For more information about the appointments and other judicial vacancies, click here.

Tenth Circuit: Violation of Eighth Amendment by Admitting Victim Recommendations of Death Sentence Not Harmless Error

The Tenth Circuit Court of Appeals published its opinion in Dodd v. Trammell on Monday, September 16, 2013.

Defendant Rocky Eugene Dodd was convicted on two counts of first-degree murder in Oklahoma state court and received two death sentences. Dodd applied for relief from his convictions and sentences under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. All 15 claims in his application were denied. He appealed the denial of four claims: (1) that the evidence of guilt was insufficient to sustain his convictions; (2) that the trial court denied him the rights to present a complete defense and confront witnesses when it excluded evidence that somebody else had committed the murders; (3) that prosecutorial misconduct denied him a fair trial; and (4) that testimony by the victims’ relatives recommending the death penalty violated the Eighth Amendment’s ban on cruel and unusual punishment.

The Tenth Circuit affirmed denial of relief on the first three claims but reversed on the victim impact testimony claim. As allowed under Oklahoma law, the victims’ family members had testified at the sentencing phase that they felt the defendant should receive the death penalty. The court held that under Payne v. Tennessee, it was “a violation of the Eighth Amendment to allow a victim or a victim’s family member to comment, during second-stage proceedings, on the appropriate sentence for a capital defendant.”

The court also held, for the first time, that the admission of the statements was not harmless error because it could not say the admission did not affect the jury’s verdict. Six of the eight prosecution witnesses recommended the death penalty. In addition, this was a weak case for the death penalty and the guilt of the defendant was not as clear cut as in cases where the error was found to be harmless. The court reversed and remanded with instructions to grant relief on Dodd’s sentences, subject to the State’s right to resentence him within a reasonable time.

Tenth Circuit: Alleyne Does Not Apply Retroactively

The Tenth Circuit Court of Appeals published its opinion in In re Payne on Tuesday, September 17, 2013.

James Edward Payne moved for authorization to file a second or successive motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Payne pled guilty to conspiracy to manufacture less than fifty grams of a mixture or substance containing methamphetamine and was sentenced to 240 months’ of imprisonment. Although he did not appeal, he filed a § 2255 motion asserting various claims that were dismissed or denied by the district court.

Payne sought authorization to file a second § 2255 motion. He contended that the Supreme Court’s recent decision in Alleyne v. United States entitled him to authorization. Authorization will only be granted when a second or successive § 2255 claim is based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The Tenth Circuit held that Alleyne did create a new rule of constitutional law but did not apply retroactively and denied authorization.


Tenth Circuit: Unpublished Opinions, 9/16/13

On Monday, September 16, 2013, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Stover

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.