Tread With Caution When Representing Marijuana Clients
As state laws permitting the use and distribution of marijuana—medical or recreational—are enacted, many entrepreneurs see an opportunity to be part of this "budding" industry. But because marijuana distribution, even intrastate, remains categorically illegal under federal law, federal authorities may seek to prosecute marijuana distributors, those who aid such distribution and those who launder the proceeds from that distribution, among others.
May 26, 2015 at 01:42 PM
9 minute read
Marijuana, even medical marijuana, is still contraband under federal law and its distribution is illegal everywhere. As state laws permitting the use and distribution of marijuana—medical or recreational—are enacted, many entrepreneurs see an opportunity to be part of this “budding” industry. But because marijuana distribution, even intrastate, remains categorically illegal under federal law, federal authorities may seek to prosecute marijuana distributors, those who aid such distribution and those who launder the proceeds from that distribution, among others. No one considering operating in the marijuana industry should be misled by recent guidance from the federal government and actions by Congress given that neither, thus far, has decriminalized or immunized marijuana-related activity.
Since 1970, the Controlled Substances Act (CSA) has made it illegal to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” marijuana. 21 U.S.C. 841. And this law can be constitutionally applied even to purely intrastate conduct. See Gonzales v. Raich (2005). In addition, federal law criminalizes aiding and abetting the same conduct and there are a host of companion federal crimes to federal drug crimes that can be prosecuted without a conviction for the underlying CSA violation, including conspiracy and money laundering.
These federal laws criminalizing the distribution of marijuana and related actions remain the law of the land to this day, even as states decriminalize marijuana. Twenty-three states and the District of Columbia now permit the use and distribution of medical marijuana in some form, and 13 others permit the use of low-THC, high-cannabidiol products for medical use. Four states—Alaska, Colorado, Oregon and Washington—permit the use and distribution of recreational marijuana.
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