This is a letter that I sent this morning to Mr. J. Tony Serra, a San Francisco criminal defense attorney for the so-called Kettle Falls Five. These defendants were medical marijuana growers in the state of Washington, three of which who received federal prison terms. As you will see below, the information in my book BUSTED - A Whistleblower's Guide to the War on Drugs is directly applicable to this case.
Dear Mr. Serra,
I am a 59-year old retired attorney in Indiana who just spent three years writing a book about American drug law. I published BUSTED - A Whistleblower's Guide to the War on Drugs just last week. ($29.95).
This 500-page book contains the complete argument (based on constitutional and statutory law) to dismiss the Kettle Falls Five matter for want of subject matter jurisdiction. (Your clients also had a Rule 8 affirmative defense, as ultimate users, under 21 USC 822(c)(3) and 21 USC 802(27), which they may have waived.)
The jurisdictional argument is this. First, your clients have a constitutional and statutory right to possess drugs for their own use. Article I,Section 3 of the Washington constitution secures their natural right of property possession. 21 USC 822(c)(3) and 21 USC 802(27) (referred to above) say that your clients have a statutory right to "lawfully possess" drugs for their own use and the use of their households. Therefore, under both state and federal law, they could grow marijuana for their own use and for the use of their households.
Second, even if your clients were caught selling weed, their drug commerce is regulated by the DEA - not criminally prohibited. The DEA has NO criminal authority in Washington state, except to assist the state in fighting crime. Their powers are equitable. They can confiscate and enjoin, but not arrest anyone in drug commerce.
This is because Congress has limited criminal authority within the states, which powers are confined to its enumerated powers and offenses against the United States, which do not include growing or trading plants. This is also because Congress regulates all commerce within and among the states, and has no authority to criminally prohibit it.
U.S. drug prohibition, for example 21 USC 841 - 844A, operate only in the federal areas where Congress prohibits drug dealing under its authority at Article I,Section 8, Clause 17 of the U.S. constitution. Otherwise, Congress REGULATES all interstate drug commerce under its interstate commerce authority at Article I, Section 8, Clause 3. In any event, almost all crimes are state crimes (see Bond v. U.S., 134 S.Ct. 2077 (2014), which means that the DEA had no authority to arrest your clients. Based on lack of jurisdiction, theirs were false arrests. Federal regulatory power preempts state regulatory power, but the states' and U.S. criminal jurisdiction are separate and do not operate concurrently over the same subject matter.
So as not to rewrite my book, I suggest that you immediately buy several copies, give some away, and file a motion to dismiss based on lack of subject matter jurisdiction. There is also information at the book's website, including the blog, to help you.
Your arguments would be 1) that the state of Washington has criminal jurisdiction within the state (per Bond v. U.S. above), 2) that the criminal penalty provisions in U.S. Controlled Substances Act do not apply in the state of Washington, but only in the federal areas (because Congress regulates commerce within Washington), and 3) that even if the provisions applied, your clients have a statutory right as ultimate users under 21 USC 844(a), 21 USC 822(c)(3), and 21 USC 802(27) to "lawfully possess" marijuana for their own use, without need of a prescription.
You should also note the differences between how Congress treats production and manufacturing at 21 USC 802. Production for one's own use is lawful and not regulated. As well, the District Attorney lacked standing and a case or controversy, both which require injury in fact. His prosecution was a misrepresentation of law to the court. If he knew what he was doing, it would be fraud.
I have cc:d several of your criminal defense associates at Pier 5 Law so as 1) to authenticate the source of your information, 2) to inform them of my book and its defenses, 3) to raise the standards of all defense attorneys at Pier 5 Law, and 4) to sell more books. I will likely also publish this letter on my blog to illustrate my book's usefulness to criminal attorneys. Those are the conditions with which I give you this free information.
But regardless of one's legal field, my book contains valuable information that all attorneys should know. This page from my website provides a long list of things that my book teaches. The solution for your clients, i.e., knowing federal criminal subject matter jurisdiction, is just one of these valuable things.
If you would like to speak with me, then email me back with your telephone number (so I can program you into my computer) and tell me when is a good time to talk. If not, good luck and take care.
Kurt St. Angelo