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September 7, 2012

Montana medicial marijuana activist gets (way-below-guideline?) probation sentence

As reported in this local article, headlined "Medical marijuana activist Daubert gets probation in federal drug case," a high-profile federal defendant got a low-level punishment in Montana yesterday. Here are the details:

Tom Daubert, who led the push for the voter-approved law legalizing medical marijuana in Montana, was sentenced Thursday to five years’ probation in a federal drug case. “I’m feeling relieved and grateful for the judge’s mercy and leniency,” Daubert said. “ … I’m very glad he recognized the uniqueness of my particular case.”

Daubert was among several people charged after federal agents raided medical marijuana businesses, including the Helena-based Montana Cannabis, around the state last year. Daubert had ended his interest in Montana Cannabis before the raids, something U.S. District Court Judge Dana Christensen noted in imposing probation.

Daubert pleaded guilty in April to a charge of conspiracy to maintain drug-involved premises, which carries a maximum potential sentence of 20 years in prison. Assistant U.S. Attorney Joe Thaggard sought a prison term of six-and-a-half to eight years for Daubert, calling him “a talented man, (who) also used those talents to exercise leadership in a conspiracy.”

But Christensen noted that Daubert had lobbied long and hard for stricter state regulations of Montana’s medical marijuana industry, and -– while he was still with Montana Cannabis -– routinely conducted tours through the company’s Helena greenhouse for lawmakers and law enforcement officers....

Christensen also sentenced Daubert to pay a total of $50,000 in forfeiture and other fees, which he’s already paid, as well as a standard $100 fee.

Daubert formed Montana Cannabis with partners Richard Flor, Chris Lindsey and Chris Williams. Flor, of Miles City, pleaded guilty in April to maintaining drug-involved premises and was sentenced to five years in prison.  But the 68-year-old Flor, who suffered from dementia and other serious medical conditions, died in custody last month after being moved to Nevada from a private prison in Montana.

Lindsey pleaded guilty Thursday to maintaining drug-involved premises. Christensen set his sentencing for Dec. 13. Williams’ trial is scheduled for Sept. 24.

Peter Lacny, of Missoula, one of Daubert’s defense attorneys, noted he’d submitted more than 70 letters attesting to Daubert’s character, more than in any other case he’s handled. Christensen noted Thursday that he’d read all of the letters and also watched two DVDs, one called “Medical Cannabis in Montana,” and the other a documentary called “Code of the West.” The latter focused on legislative attempts to reform Montana’s vague medical marijuana law, and prominently featured Daubert’s efforts.

Daubert’s work on behalf of medical cannabis patients began years ago as the head of the advocacy group Patients and Families United, which fought for the 2004 voter initiative. That work won Daubert a loyal following, and Thursday’s sentencing hearing was crowded with supporters, who mobbed him with bear hugs after it was over.

The longtime lobbyist who has spent years working the halls of the Montana Capitol said he’s not sure whether he’ll stay politically involved.  “One of the many heartbreaking moments for me right after the raids” occurred when he returned to the Capitol, he said. “Every time I walked into the Capitol, I felt its grandeur and beauty.”  But after the raids, he said, “I lost completely any kind of good feeling going in there.”

I cannot find any press report on this sentencing to confirm my suggestion in the title of this post that the probation sentence here was way below the applicable sentencing guidelines. But, absent evidence to the contrary, I have to believe that the prosecutor's recommendation of a sentence of 6.5 to 8 years came from a guideline calculation setting the suggested sentence at a range of 78-97 months (which comes from an offense level of 28 for a first offender).

I quite interested in this sentencing result not only because of my enduring concern about federal/state conflicts in the criminalization and regulation of marijuana, but also because the guideline calculation, the sentencing process and the departure/variance decision by the sentencing judge here all are notable beyond the specifics of this case and this kind of offense. (Especially if commentors express interest, I may try to track down the sentencing filings in this case and comment more on its more interesting legal elements.)

My sense is that, in many types of cases, federal prosecutors consider very seriously a sentencing appeal when a district judge varies so much from the applicable guideline as appears here. And given the enduring importance of these kinds of issues in the Ninth Circuit, which I believe is home to 8 of the 17 states to legalize medical marijuana, a strong argument could be made that the government ought to appeal in order to clarify the natural and proper application of the sentencing laws in this setting. That said, I would predict that federal prosecutors will not ultimately appeal because a fear of the consequences of a loss were they to take these matters to the Ninth Circuit in this particular high-profile setting.

September 7, 2012 at 10:28 AM | Permalink


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I think the sentence reflects the fact that the defendant was not only selling medical marijuana consistent with state law, but he was also arguing in the legislature for better and more extensive regulation of the industry.

Posted by: anonymous | Sep 7, 2012 2:54:58 PM

By all means post the sentencing memos and jnc. So many great issues!!

Posted by: Mark Allenbaugh | Sep 7, 2012 5:38:00 PM

Posner sees the light:

"Judge Richard A. Posner, a Chicago law school professor and Reagan-appointed jurist on the Seventh Circuit U.S. Court of Appeals, said Thursday that the criminalization of marijuana is “really absurd,” explaining that he sees no difference between the currently-criminalized substance and cigarettes.

“I don’t think we should have a fraction of the drug laws that we have,” he said, speaking to an audience at Elmhurst College in Illinois. “I think it’s really absurd to be criminalizing possession or use or distribution of marijuana. I can’t see any difference between that and cigarettes.”

Posner added that he’s also “skeptical about the other drug laws,” saying it’s not “sensible” to apply criminal law to solve the problem of addiction.

Of course, the irony in Posner’s comments is that he was appointed by a president who went down as one of the nation’s most charasmatic drug warriors ever: President Ronald Reagan, who once declared that he was convinced “smoking even one marijuana cigarette is equal in brain damage to being on Bikini Island during an H-bomb blast.”

Later in his speech, a wide-ranging talk on the troubles posed by the interaction of capitalism and democracy, Posner went on to say that President Barack Obama’s auto-bailouts were “a very good thing” because they saved so many jobs, but added that the healthcare reform bill “probably impeded recovery” somewhat because it created uncertainty in the markets.

The respected conservative jurist made headlines recently when he declared to National Public Radio that he’d become “less conservative since the Republican Party started acting goofy.”

This video was published to YouTube on Friday, Sept. 7, 2012.

Posted by: onlooker | Sep 7, 2012 5:51:39 PM

"That said, I would predict that federal prosecutors will not ultimately appeal because a fear of the consequences of a loss were they to take these matters to the Ninth Circuit in this particular high-profile setting."

Wrongo. The opposite is true. The feds know that a decision NOT to appeal is certain to be seen by every pot's-not-so-bad district judge in the Circuit as a message that they can pull the same thing and get away with it while the government just sits there.

Yes, the government could lose in the 9th Circuit, but so what? A possible loss is better than the certain (and, as Doug notes, highly publicized) loss they have on their hands right now. Plus, with the gigantic size of the departure, I would have to think the government's chances on appeal are pretty good -- certainly worth the candle.

I would file the notice of appeal this very day.

Bill Otis,
Chief, Appellate Division
USAO for EDVA, 1981-1999

Posted by: Bill Otis | Sep 7, 2012 7:13:43 PM

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Great job you people are doing with this website. I like all details that you provide in your articles.

Posted by: printing denver | Sep 8, 2012 9:09:56 AM

Is anyone surprised Bill would file notice of appeal?

Posted by: Anon | Sep 8, 2012 9:52:03 AM

Although the sentence rendered allows Daubert to escape imprisonment and to not lose those years of his life in a warehouse, he still encumbered by the collateral consequences of having a felony on his record and of sacrificing his liberty for 5 years while on supervised release.

I speak as one who is a felon, as a result of a rather sad white collar case, and who is currently on supervised release for a two-year period (after serving 22 months in a 30-month sentence), with supervision ending March 2014. From the perspective of incarceration, supervised release is liberty. From the perspective of freedom, supervised release is a set of chains, the tightness of which is subject to the whim and whimsey of the Probation Officer to whom you are assigned.

My heart goes out to Daubert, who is sighing in relief, but has so much more to face in this journey through Amerika Gulag.

Posted by: Al | Sep 8, 2012 10:02:13 AM

Anon --

"Is anyone surprised Bill would file notice of appeal?"

Translation: Is anyone surprised that I would be as zealous in doing my job as defense lawyers are in doing theirs? Is there something wrong with that? Do tell.

P.S. Do you have any response to the substance of my post? Do you really think the AUSA in charge of appeals should just sit there?

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Posted by: Article marketing | Sep 12, 2012 2:24:02 PM

The sentence mostly reflects the fact that Richard Flor, one of the four Montana Cannabis partners along with Daubert, was sentenced to five years in prison on the same charges as Daubert. Richard was being transported, after waiting several months in a private prison without medical attention, to a facility that had a doctor when he died before he got there. The district judge had denied release pending appeal. Daubert's "light" sentence had more to do with the fact that he didn't have the same judge as Flor and Flor had just died in custody the week before.

Another of the four Montana Cannabis partners is Chris Lindsey, a lawyer. He entered a plea at the same time Daubert was sentenced. And finally, there is Chris Williams. Chris W. has not taken a plea and trial is scheduled for September 24. None of the four committed any crime (except with respect to the nonsensical federal prohibition of marijuana)and they were all committed to helping patients and growing and distributing the "medicine" the law allowed them to provide in Montana. There's a lot more to this story.

The really disturbing part is when you realize that the Montana district Judges and prosecutors had the case all decided (Supremacy Clause, Gonzalez v. Raich, Commerce Clause, Federal Law Preemption, etc.) and probably all the "decisions" written even before the March, 2011, federal "drug" raids on these legal-under-state-law marijuana facilities. Then they dismissed (failure to state a claim) our Constitutional claims and two months later indicted and began prosecuting the victims pursuant to the same "law" they'd already decided on.

There is an appeal, Montana Caregivers, et al., v. United States, et al., 9th Cir. No. 12-35110, now fully briefed, in which I'm representing the Plaintiffs.

Posted by: Paul Livingston | Sep 14, 2012 7:40:23 PM

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Posted by: Strain Spot | Feb 2, 2013 3:37:19 AM

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