Attorney General Holder sent a memorandum Monday to US Attorneys in states that have legalized marijuana. The memorandum sets out guidelines for handling the prosecution of federal marijuana offenses. In general, US Attorneys are discouraged from wasting federal resources to investigate people that are in “clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” The memorandum also gives some guidance on when US Attorneys should conduct further investigation:
Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:
- unlawful possession or unlawful use of firearms;
- sales to minors;
- financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
- amounts of marijuana inconsistent with purported compliance with state or local law;
- illegal possession or sale of other controlled substances; or
- ties to other criminal enterprises.
Attorney General Holder made it clear that the memorandum does not indicate any change in federal policy:
This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.
The memorandum is a nice reminder that just because a state legalizes something, does not mean you cannot go to jail for it. So if you live in a state that allows medical marijuana or small amounts of marijuana, don’t forget that the feds can still get you.