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Wednesday, February 24th, 2010 8:50 pm | by cadfy
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By Mike McPhee
Published February 24, 2010
U.S. prosecutors wrestling the legal issues of an Oct. 20, 2009, raid on a marijuana-growing operation in Fort Collins say federal law trumps an amendment to the Colorado Constitution making it OK to use or sell medical pot.
"Possession or distribution of any quantity of marijuana, for any purpose, remains illegal as a matter of federal law throughout the State of Colorado. (Federal prosecutors have) the discretion to prosecute individual cases of possession and distribution without regard to state law," wrote Assistant U.S. Attorney Stephanie Podolak last week in a brief supporting the Drug Enforcement Administration raid on the home of Martin Pieper.
DEA agents seized 150 marijuana plants, eight grow lights and a variety.
Federal vs. state law
Federal officials say the operation was not in compliance with Amendment 20 to the Colorado Constitution. The amendment, passed in 2000, allows small amounts of marijuana to be used by patients suffering from a list of eight symptoms, provided they receive the endorsement of a physician and a license issued by the state.
Pieper has not been charged with any crime.
Pieper's home was raided the day after U.S. Attorney General Eric Holder issued a memorandum advising federal prosecutors not to focus resources on prosecuting patients who use marijuana in a way that complies with state law.
As medical-marijuana cases make their way into state courts, one of the key issues being raised by defense attorneys is whether federal law trumps state law involving controlled substances.
Defense attorneys in various cases have claimed that Amendment 20 exempts their licensed clients from federal and state prosecution for use and distribution of marijuana.
Podolak's brief was among the first definitive statements from federal prosecutors as to their view of the protection offered by Amendment 20.
Attorney general agrees
Denver attorney Joseph Saint-Veltri, who represents one of the Fort Collins defendants, said he is not sure federal law "completely trumps the Colorado Constitution to the extent of depriving citizens their rights engendered by the amendment.
"This brief makes the process of amending the Colorado Constitution by the citizens at best a meaningless act of insolence," Saint-Veltri said.
Through a spokesman, Colorado Attorney General John Suthers concurred with the Podolak brief, citing the argument "that no state law can, by its own force, create an exception to federal provisions criminalizing the possession, manufacture and the distribution of marijuana."
"From our standpoint, there is no gray area in federal law. Marijuana is still illegal," said Suthers' spokesman Mike Saccone. "The gray areas are in state law. The legislature is working to resolve the ambiguities, some of which we support and some of which we don't."
Mike McPhee: mmcphee@denverpost.com
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