COPY OF MEMORANDUM REGARDING PROSECUTION OF
STATE LICENSED MARIJUANA DEALERS
USDOJ Seal
U.S.
Department of Justice
Office
of the Deputy Attorney General
The
Deputy Attorney General Washington,
D.C. 20530
October 19,2009 MEMORANDUM FOR
SELECTED UNITED STATES ATTORNEYS
FROM:
David W. Ogden - Signature of David Ogden
Deputy
Attorney General
SUBJECT:
Investigations and Prosecutions in States Authorizing
the Medical Use of Marijuana
This memorandum provides
clarification and guidance to federal prosecutors in States that have
enacted laws authorizing the medical use of marijuana. These laws
vary in their substantive provisions and in the extent of state
regulatory oversight, both among the enacting States and among local
jurisdictions within those States. Rather than developing different
guidelines for every possible variant of state and local law, this
memorandum provides uniform guidance to focus federal investigations
and prosecutions in these States on core federal enforcement
priorities.
The Department of Justice is
committed to the enforcement of the Controlled Substances Act in all
States. Congress has determined that marijuana is a dangerous drug,
and the illegal distribution and sale of marijuana is a serious crime
and provides a significant source of revenue to large-scale criminal
enterprises, gangs, and cartels. One timely example underscores the
importance of our efforts to prosecute significant marijuana
traffickers: marijuana distribution in the United States remains the
single largest source of revenue for the Mexican cartels.
The Department
is also committed to making efficient and rational use of its limited
investigative and prosecutorial resources. In general, United States
Attorneys are vested with "plenary authority with regard to
federal criminal matters" within their districts. USAM 9-2.001.
In exercising this authority, United States Attorneys are "invested
by statute and delegation from the Attorney General with the broadest
discretion in the exercise of such authority." Id.
This
authority should, of course, be exercised consistent with Department
priorities and guidance.
The prosecution of significant
traffickers of illegal drugs, including marijuana, and the disruption
of illegal drug manufacturing and trafficking networks continues to
be a core priority in the Department's efforts against narcotics and
dangerous drugs, and the Department's investigative and prosecutorial
resources should be directed towards these objectives. As a general
matter, pursuit of these priorities should not focus federal
resources in your States on
Memorandum
for Selected United States Attorneys Page 2
Subject:
Investigations and Prosecutions in States Authorizing the Medical Use
of Marijuana
individuals
whose actions are in clear and unambiguous compliance with existing
state laws providing for the medical use of marijuana. For example,
prosecution of individuals with cancer or other serious illnesses who
use marijuana as part of a recommended treatment regimen consistent
with applicable state law, or those caregivers in clear and
unambiguous compliance with existing state law who provide such
individuals with marijuana, is unlikely to be an efficient use of
limited federal resources. On the other hand, prosecution of
commercial enterprises that unlawfully market and sell marijuana for
profit continues to be an enforcement priority of the Department. To
be sure, claims of compliance with state or local law may mask
operations inconsistent with the terms, conditions, or purposes of
those laws, and federal law enforcement should not be deterred by
such assertions when otherwise pursuing the Department's core
enforcement priorities.
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;
•
violence;
•
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.
Of course, no State can
authorize violations of federal law, and the list of factors above is
not intended to describe exhaustively when a federal prosecution may
be warranted. Accordingly, in prosecutions under the Controlled
Substances Act, federal prosecutors are not expected to charge,
prove, or otherwise establish any state law violations. Indeed, this
memorandum does not alter in any way the Department's authority to
enforce federal law, including laws prohibiting the manufacture,
production, distribution, possession, or use of marijuana on federal
property. 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.
Memorandum
for Selected United States Attorneys Page 3
Subject:
Investigations and Prosecutions in States Authorizing the Medical Use
of Marijuana
Finally, nothing herein
precludes investigation or prosecution where there is a reasonable
basis to believe that compliance with state law is being invoked as a
pretext for the production or distribution of marijuana for purposes
not authorized by state law. Nor does this guidance preclude
investigation or prosecution, even when there is clear and
unambiguous compliance with existing state law, in particular
circumstances where investigation or prosecution otherwise serves
important federal interests.
Your offices should continue to
review marijuana cases for prosecution on a case-by-case basis,
consistent with the guidance on resource allocation and federal
priorities set forth herein, the consideration of requests for
federal assistance from state and local law enforcement authorities,
and the Principles of Federal Prosecution.
cc:
All United States Attorneys
Lanny A. Breuer Assistant
Attorney General Criminal Division
B.
Todd Jones
United
States Attorney
District
of Minnesota
Chair,
Attorney General's Advisory Committee
Michele M. Leonhart Acting
Administrator Drug Enforcement Administration
H.
Marshall Jarrett
Director
Executive
Office for United States Attorneys
Kevin
L. Perkins
Assistant
Director
Criminal
Investigative Division
Federal
Bureau of Investigation