Recent Conviction of Medical Marijuana Distributor Highlights Continuing Federal Efforts To Prosecute Medicinal Marijuana Under The CSA

Jan 28, 2013   

On January 7, 2013, Aaron Sandusky, operator of three medicinal marijuana dispensaries in Southern California, was sentenced to ten years in federal prison for violating federal drug laws. Sandusky’s conviction highlights the interplay between State and Federal law and provides an example of how operators of medicinal marijuana dispensaries still face the threat of federal prosecution even though their activities may fully comply with State law.

As we have previously reported, in spite of the fact that 18 States have sanctioned the use of marijuana in various forms, the federal government has proceeded unchecked in its efforts to criminalize the entire industry. More specifically, marijuana remains classified as a Schedule I drug under the Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq, which means that marijuana has been found by Congress to: 1) have a high potential for abuse; 2) have no currently accepted medical use in treatment in the US; and 3) lack accepted safety for use under medical supervision. Therefore, although it may be legal under state law to possess cultivate, and/or distribute marijuana, such actions still violate federal law.

For example, in Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court directly addressed the issue of whether Congress, pursuant to its Commerce Clause authority, could regulate and prohibit the local cultivation of marijuana which complied with California state law. In holding that the CSA’s prohibition of locally grown and used marijuana was permissible, the Court found that Congress had a rational basis for concluding that local marijuana substantially affects interstate commerce. The Court found that Congress can regulate purely intrastate activity that is not itself “commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The Court went on to find that due to the inability to distinguish or prevent locally cultivated marijuana from entering the interstate market, the failure to regulate it would undermine the purposes of the CSA as a whole.

In addition to prosecutions for violating federal law, federal authorities have used various other techniques in an attempt to quash the burgeoning medical marijuana industry. Such techniques include the use of civil asset forfeiture pursuant to 21 U.S.C. § 881 and disallowing medicinal marijuana dispensaries from taking business deductions pursuant to 26 I.R.C. §  280E. More information regarding the joint Department of Justice and Internal Revenue Service efforts can be read in our previous report.

In this case, Mr. Sandusky was charged with: 1) conspiracy to manufacture and possess marijuana with intent to distribute it, 2) conspiracy to operate a drug-involved premises and 3) possession of marijuana with intent to distribute it. Sandusky was ultimately convicted in October 2012. While Mr. Sandusky faced a maximum of life in prison, United States District Court Judge Percy Anderson sentenced Sandusky to ten (10) years in prison, the federal mandatory minimum for such charges.

Mr. Sandusky’s case is the fourth nationwide where federal prosecutors have filed charges against medical marijuana dispensary owners in states where such dispensaries comply with State law. The other prosecutions previously occurred in California, Michigan, and Montana. Additionally, because marijuana sale and distribution violates federal laws prohibiting drug trafficking, dispensary owners face the possibility of other separate yet interrelated federal charges. The Montana indictment of Christopher Williams is an example of this. As the Helena Independent Record reports, in addition to being charged with conspiracy to grow and distribute marijuana, Williams was also charged with possession of a firearm during a drug-trafficking offense. Williams currently faces five years to life in federal prison and is scheduled to be sentenced February 1, 2013.

The attorneys at Fuerst Ittleman David & Joseph, PL have extensive experience dealing with administrative law, regulatory compliance, and white collar criminal defense. You can reach an attorney by emailing us at