L.A.’s U.S. attorney declines to say why he ordered prosecutors to stop filing charges, then abruptly changed his mind.

By Scott Glover
March 7, 2009
The U.S. attorney in Los Angeles sent a confidential memo to prosecutors last week ordering them to stop filing charges against medical marijuana dispensaries, then abruptly lifted the ban on Friday, according to sources familiar with the developments.

U.S. Atty. Thomas P. O’Brien declined comment on what prompted him to issue the directive or to later rescind it.

O’Brien’s decision to temporarily halt the prosecutions came two days after remarks by Atty. Gen. Eric Holder, who seemed to imply at a Washington, D.C., press conference that medical marijuana prosecutions would not be a priority for the Justice Department under President Obama.

A Justice Department official said Friday that the attorney general did not direct O’Brien or any other U.S. attorney to alter policies regarding the prosecution of such cases.

O’Brien’s initial order was delivered in a memo by Christine Ewell, head of the U.S. attorney’s criminal division, according to three sources who read the document, which was distributed by e-mail on Feb. 27.

In addition to being told to stop filing new cases, prosecutors were instructed to refrain from issuing subpoenas or applying for search warrants in pending cases, said the sources, who requested anonymity because they were not authorized to speak publicly about the matter. In fact, a few hours after the memo was circulated, Ewell sent out another e-mail admonishing prosecutors not to discuss the contents of the memo with anyone outside the U.S. attorney’s office, the sources said.

Another e-mail came out Friday instructing prosecutors to resume work on medical marijuana cases. Despite the reversal, news of the temporary ban is likely to spark interest amid the ongoing national debate over medical marijuana. Thirteen states, including California, allow for the cultivation, use and sale of doctor-prescribed medical marijuana under certain conditions, according to the Marijuana Policy Project, an organization that supports the legalization of the drug. Federal law, which trumps those of the states, bans the drug altogether.

As a result, operators of dispensaries in California and elsewhere who maintain they were operating under state law have been raided by the Drug Enforcement Administration and charged under federal drug laws.

Such prosecutions have been controversial, with patients and supporters of the dispensaries complaining that operators embraced by their own communities were unfairly targeted. Thom Mrozek, a spokesman for O’Brien, has said that prosecutors target people they consider egregious offenders, such as those accused of selling drugs to minors or proprietors with past drug convictions.

One high-profile case went to trial in U.S. District Court in Los Angeles last summer. Charles Lynch, who sought and received the blessing of elected officials in Morro Bay before opening a dispensary in that Central Coast community in 2006, was charged with distributing more than 100 kilos of marijuana.

At trial, prosecutors portrayed Lynch, 47, as a common drug dealer who sold dope to minors and toted around a backpack stuffed with cash.

Lynch and his lawyers hoped to mount a defense based on the assertion that he was providing a legitimate service to cancer patients and other severely ill people. But they were limited in doing so because the U.S. Supreme Court has concluded that because federal law trumps those of the states, why drugs are being distributed is irrelevant.

Jurors convicted Lynch on five counts, but the jury forewoman said it was not easy to do so. “We all felt Mr. Lynch intended well,” Kitty Meese said after the verdict in August. “It was a tough decision for all of us because the state law and the federal law are at odds.”

Lynch, who is to be sentenced later this month, is facing a mandatory minimum of five years in federal prison. His case has become something of cause celebre among medical marijuana advocates.

Holder was asked about medical marijuana at a Feb. 25 press conference after the arrests of more than 50 alleged members of Mexico’s Sinaloa drug cartel. Specifically, he was asked whether the DEA would continue raiding medical marijuana dispensaries under Obama’s administration. He did not answer the question directly but said: “What the President said during [the] campaign . . . is now American policy.”

Obama was asked about the topic numerous times during the campaign and responded with varying levels of specificity. Generally speaking, the campaign’s position was that DEA raids would not be a high priority in states with their own medical marijuana laws on the books.

“The president believes that federal resources should not be used to circumvent state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal government, he expects them to review their policies with that in mind,” Nick Shapiro, a White House spokesman, told the Washington Times last month. Shapiro declined to elaborate on Friday.

Alex Capron, a professor of law and medicine at USC, said the debate about medical marijuana centers on whether the drug is viewed exclusively as an illegal narcotic or a drug that also has legitimate medical applications.

“It has become a highly politicized issue as to whether it is something that is part of the doctor-patient relationship or something where the authorities have an obligation to protect the community from a dangerous drug,” Capron said.

He added that he wasn’t surprised that O’Brien would want to deliberate over his office’s policy on such a matter in private.

“On the one hand, there’s a very vocal constituency that wants this treated like a medical issue. On the other, there’s a very vocal constituency that regards allowing medical marijuana treatment as a very slippery slope toward the legalization of drugs. He doesn’t want to look like he’s abandoning his commitment to law enforcement,” Capron said.

scott.glover@latimes.com