DENVER — U.S. Attorney John Walsh on Thursday rebuffed claims that the federal government sat idly by as state lawmakers enacted regulations that have allowed Colorado's marijuana industry to boom the past two years.
Walsh said letters sent last week to 23 marijuana dispensaries near schools and their landlords — giving them until Feb. 27 to shut down, move or face federal penalties — are not a bluff and that criminal prosecution is possible.
Dispensary and property owners are being threatened with losing their assets and property in civil action in federal court if they don't comply with the letters.
Marijuana advocates in Colorado say the feds, by not stepping up enforcement action earlier, tacitly approved of Colorado's booming marijuana industry that now includes tight regulations that tax pot from seed to sale.
"We haven't been sitting by," Walsh said in an interview Thursday with The Associated Press. "We've been taking marijuana enforcement action."
Colorado's industry began its boom during a time when there was no permanent U.S. attorney in office. Then-Gov. Bill Ritter in January 2009 nominated his deputy chief of staff, Stephanie Villafuerte, for the post. But her nomination got wrapped up in a controversy over access to a restricted law enforcement database during Ritter's 2006 campaign.
Villafuerte withdrew her nomination about a year later.
In September 2009, then-Deputy U.S. Attorney General David Ogden, a high-ranking official in Washington, issued a memo that said federal prosecutors should not focus investigative resources on patients and caregivers complying with state laws. At the time, acting Colorado U.S. Attorney David Gaouette had other matters to deal with: FBI and national security authorities uncovered an al-Qaida plot to bomb New York subways involving Aurora shuttle driver Najibullah Zazi.
Zazi later pleaded guilty in New York to federal terrorism charges and is awaiting sentencing.
But months later, as the industry began to grow, federal agents raided the suburban Denver home of Christopher Bartkowicz in February 2010.
Bartkowicz tried to argue in federal court that he cultivated large amounts of medical marijuana in his basement under the belief that Ogden's memo meant he was free from prosecution. He lost that argument, which federal officials hoped would send a message about the government's stance on marijuana.
"Certainly the judge's ruling in that case, which clearly stated that compliance with state law is not a defense to a federal charge of illegal trafficking of marijuana was something that we thought was important precedent to set publicly," Walsh said.
It didn't work, and Colorado's industry continued its boom.
Walsh last year said he and about a dozen U.S. attorneys in states with medical marijuana laws sent letters to officials in their respective states, saying marijuana is still illegal under federal law. Walsh said he sent his letter to Colorado Attorney General John Suthers specifically in connection with a bill that was pending in the state Legislature regarding regulations.
"That was intended to make clear that the federal government's position had not changed," Walsh said.
It had no effect. Colorado approved medical marijuana regulations. Advertisements colored the pages of some newspapers, and retail medical marijuana shops even outfitted their locations with green crosses that look like the plus sign of the American Red Cross.
Faced with dispensaries and states passing laws regulating medical marijuana, Ogden's replacement, James Cole, in June issued another memo that took a tougher stance and said state medical marijuana laws do not provide immunity from federal prosecution. He said commercial enterprises that sell or profit from marijuana sales should be a priority.
Federal authorities last fall began cracking down on state-sanctioned medical marijuana businesses in California, Washington and Montana. But unlike those states, Colorado officials and medical marijuana advocates had hoped that clearly defined state regulations would prevent such a crackdown.
"I support the notion that in total, these regulations ought to satisfy the federal government," said Rob Corry, a Denver lawyer who represents dispensaries. He was a member of a task force that wrote Colorado's regulations, and his clients are among the dispensary and property owners who received warning letters.
Corry said he's planning a challenge to Walsh's enforcement action, though landlords might be a little less willing to risk losing their property in court.
The letters sent Jan. 12 target dispensaries within 1,000 feet of schools, and Walsh said more are on the way as prosecutors find other businesses near schools.
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Walsh points to surveys that he says suggest medical marijuana contributes to an increase in drug use among teens. This summer, the Substance Abuse and Mental Health Services Administration released a survey that says illicit drug use — marijuana, cocaine, painkillers outside a prescription and other substances — in Colorado was 11.3 percent among those 12 and older in 2010. Nationally, the figure is 8.4 percent.
"When we send a warning letter of this kind, we mean it," Walsh said. "If a dispensary or other marijuana facility receives a letter like this and they do not comply, then we will take enforcement action."