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D.C. pot program to move forward despite federal directive

Wednesday - 7/6/2011, 5:30pm  ET

The District plans to move forward with its medical marijuana program, according to Mayor Vincent Gray's office. (WTOP)

Gary Emerling,

WASHINGTON - A medical marijuana program in the District will move forward as planned despite a new directive from the Obama administration that's casting a haze over palliative pot programs elsewhere in the U.S.

A memo issued last week by Deputy Attorney General James Cole to U.S. attorneys points out in plain terms those who grow, sell or distribute marijuana are in violation of federal law, despite state laws that may have been passed permitting marijuana growth for medicinal purposes.

The memo is consistent with previous guidelines that prosecuting individuals who use marijuana for legal, medicinal purposes or their caregivers likely is not an "efficient use of federal resources." But it contains direct language regarding growers and distributors.

"Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law," the memo says."Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution."

Department of Justice spokesperson Jessica Smith says the Cole memo reinforces the guidance given in a previous memo and by various U.S. attorneys who earlier this year sent warning letters to some states "in light of changing state laws and increased commercial cultivation of marijuana for purported medical purposes."

The memo is meant as guidance to U.S. attorneys on "prosecutorial actions," Smith says.

"While the department has maintained that we will not focus our investigative and prosecutorial resources on individual patients with cancer or their immediate caregivers, the sale and distribution of marijuana continues to be a federal offense," Smith says.

The memo is causing caution in at least some of the 16 states that permit marijuana for medicinal purposes. In New Jersey, for example, Gov. Chris Christie has solicited advice from the state's attorney general regarding its statute.

In Colorado, Attorney General John Suthers said the memo is a sign the federal government has not approved of the growth in medical marijuana programs. To that point, the city of Denver reportedly has more medical marijuana dispensaries than Starbucks branches.

The District's medical marijuana program is still in its nascent stages after being approved by the D.C. Council in 2010, but a spokesperson for Mayor Vincent Gray says target implementation is sometime this fall. The mayor has no plans to amend the program in light of the new memo, saying through the spokesperson his administration intends "to move forward as planned with the implementation of medical marijuana without alteration."

The D.C. Attorney General's Office also is continuing to review the program but does not anticipate any significant changes being made, WTOP has learned. There additionally appears to be no imminent threat from federal prosecutors in the District: The U.S. Attorney's Office is "reviewing the guidance regarding medical marijuana" and "continuing to study the issue," a spokesman says, but would not comment further.

Among some of those seeking permission to cultivate or dispense medical marijuana in the District, the memo appears to have elicited a mixed response. One potential participant in the city's program, who does not wish to be identified for publication, says he will move cautiously but likely won't halt his plans.

"It definitely makes you a little bit more aware that it's still not a cut-and-dry situation," he says. "I don't think it's going to stop me."

Another potential applicant who wished to remain anonymous notes that Congress did not stop the city's medical marijuana law during its usual review period of the District's statutes. The District also will limit its cultivation centers to growing 95 plants -- a far cry from planned facilities mentioned in the Cole memo that hope to cultivate "tens of thousands of cannabis plants."

The potential applicant says she considered the risks before deciding to pursue participation in the program.

"It's not that I'm not worried, it's that it was a factor taken into consideration prior to even submitting a letter of intent," she says.

But not everyone hoping for a piece of the District's pot program is resting as easy. Montgomery Blair Sibley, who is seeking a cultivation and dispensary permit and has filed a lawsuit against the federal government related to enforcement of the Controlled Substances Act, says the Cole memo is "the ice pick in the eye ... for people who are thinking about going forward."

Sibley says interest from potential partners and employees for his business began to dry up after the U.S. attorney letters were sent in some states. He doesn't expect the Cole memo to make things any easier.

"The word I would use is 'chilled,'" Sibley says. "I am definitely chilled about going forward with this hanging over our heads."

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