Lawyers for Matthew R. Davies, who has been described alternately as a selfless dispenser of medical marijuana and as a profit-seeking big-time pot-grower in California, are trying to get their case heard on Capitol Hill. If they succeed, the spotlight will be trained not only on a vexing conflict between federal and state law but on the lawyers’ bitter feud with a federal prosecutor.
The attorneys for Davies, a 34-year-old husband and father with no criminal record, say the hard-line stance adopted toward their client by the United States Attorney for the Eastern District of California, Benjamin B. Wagner, is not only impractical but runs contrary to simple notions of right and wrong.
A federal grand jury last year indicted Davies and two others on charges of cultivating marijuana.
Wagner counters that Davies has been “a major player” in the marijuana marketplace, motivated by profit rather than altruism, that the case amounts to a “very straightforward prosecution,” and that it is the defendant’s own fault that he faces years in prison. (The two Davies’ co-defendants have already pleaded guilty, agreeing to five-year terms.)
In a Feb. 8 letter to Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), Davies lawyer Elliot R. Peters of Keker & Van Nest LLP in San Francisco says he has repeatedly asked Wagner and top DOJ officials for a meeting to discuss the case. “But our requests seem to have fallen on deaf ears,” Peters wrote.
Peters said both Attorney General Eric Holder and Deputy Attorney General James Cole were among the officials who have not responded.
The Senate Judiciary Committee will hold hearings soon on the administration’s stance on marijuana laws, which have so far been defined by President Barack Obama’s statement that the federal government has “bigger fish to fry” than going after small-time pot dealers. Peters asked Leahy to consider inviting his client to testify at a hearing.
A spokesman for Leahy told Main Justice neither a schedule for hearings nor witness lists have been drawn up yet.
Several states, including California, have passed legislation making marijuana legal under some circumstances (although the term “legal” almost calls for an asterisk, since marijuana remains illicit under federal law, which normally trumps state law).
Leahy has called for amending federal law to make possession of small amounts of marijuana legal, at least in those states that have passed such legislation (see Main Justice’s recent report). The senator, a former state prosecutor, has also indicated sympathy for those caught in the conflict between federal and state law.
“What assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face federal criminal penalties for carrying out duties assigned to them under state law?” Leahy wrote R. Gil Kerlikowske, the director of the White House’s Office of National Drug Control Policy.
Davies has become a symbol for this federal-state conflict, as The New York Times reported recently. Keker’s Steven Ragland said in a telephone interview on Wednesday that it would be “obscene” to separate Davies from his wife and children by sending him to prison for five years or more, the punishment he faces if the U.S. Attorney does not soften his position. Law enforcement people found “no cash in the freezer” or anything else improper when they raided Davies’ business in Stockton, Ragland said. Rather, Davies was conducting his business as though he were “any pharmacist,” Ragland said.
That is an argument the U.S. Attorney has rejected entirely. While conceding that the Department of Justice does not regard it as efficient to go after individuals who are ill and use marijuana as part of their treatment under state law, Davies was not in business to help those people, Wagner said. Instead, Wagner asserted in a letter to Keker & Van Nest, Davies was “an industrial scale cultivator” who netted hundreds of thousands of dollars in profits from his thousands of plants and sought to launder those profits.
But Ragland, in a comment that illustrated the chasm between prosecution and defense on the law and the facts, told Main Justice that his client netted perhaps $50,000 for a year and a half of work before being shut down.
In urging Leahy to focus on the Davies case, Peters emphasized Davies’ willingness to appear before the judiciary panel. “We believe that Mr. Davies’ situation illustrates the real-life, tragic consequences of the administration’s mixed messages regarding prosecutorial discretion and its declared respect for state laws which permit the medicinal use of marijuana,” Peters wrote.
A spokeswoman in Wagner’s office said the case against Davies is proceeding. She said she did not know if any meetings between prosecutors and defense lawyers were contemplated.
Wagner, who was appointed in 2009, told the Sacramento News and Review months ago that he doesn’t want his tenure remembered for the marijuana issue: “It is far from the most important thing that we do. I have many other higher priorities that have a much bigger impact on public safety. I did not seek the position of U.S. attorney in order to launch a campaign against medical marijuana.”