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February 1, 2013

"Medical marijuana grower gets 5 years in federal prison"

The title of this post is the headline of this article from Montana concerning a high-profile federal sentencing case (which I have not recently blogged about because I ended up, for complicated reasons, meddling in a little part of the sentencing process).  Here are the basics:

Medical marijuana grower Chris Williams was sentenced Friday to a mandatory five years on a federal gun charge, and time served on a marijuana charge. In sentencing Williams, U.S. District Court Judge Dana Christensen called him “a principled man, stubborn in his beliefs, [who] remains steadfast in his conviction that he has done nothing wrong.”

Williams was convicted in a September trial of four federal drug counts and four weapons counts in connection with his involvement in Montana Cannabis, a large medical marijuana grow operation with a greenhouse in Helena and operations around the state.  It was one of scores of medical marijuana businesses around Montana that sprang up after voters legalized the medical use of cannabis in 2004. But marijuana remains illegal under federal law, and agents raided many of those businesses in March 2011.  All the other people charged in connection with those raids made plea agreements with the government; Williams was the only one to insist upon a trial.

He could have faced mandatory minimum sentences totaling 85 years -- 80 of those on the firearms charges alone.  “It was my belief that an 85-year sentence in this case would have been unjust,” Christensen said Friday in reviewing the history of the case.  So he urged a settlement conference, presided over by U.S. District Judge Donald Molloy, in which the government agreed to drop all but one of the drug charges and one of the gun charges, in exchange for Williams’ promise not to appeal.

That obligated Christensen to sentence Williams only to five years on the gun charge (penalties would have increased for each addition weapons charge).  In addition to the five years on the charge of possession of a firearm during a drug-trafficking offense, Christensen sentenced Williams to the 130 days he’s already served, on the charge of possession with intent to distribute marijuana.  He also sentenced Williams to four years’ supervised probation on the drug charge, and five years on the gun charge, to run concurrently, and levied the standard $100 federal fee on each charge.

Many in the courtroom packed with Williams’ supporters -- and one pug service dog -- wept as the sentence was pronounced.  “He has done nothing wrong,” said Karie Boiter of Seattle, who described herself as a “full-time supporter of Chris Williams.”  She was among several medical marijuana advocates who traveled in a green school bus from California, picking up people along the way to Missoula, to attend Friday’s sentencing.  The group held a brief protest outside the federal courthouse Friday morning....

Williams was taken immediately into custody Friday.  Christensen recommended that he serve his time in the federal prison in Sheridan, Ore., so that he can be as close as possible to his 16-year-old son, a student at Montana State University.

Prior posts on Williams case and related prosecutions:

February 1, 2013 at 05:44 PM | Permalink


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Mr. Berman makes light of his conduct when he says that he "meddled" a little bit in the Williams case Actually he interfered in the case and did it in a manner that violated a variety of rules.......maybe Mr. Berman would consider publishing the Judge's order in the Williams case denying the government's motion to strike Berman's so-called "Amicus Sentencing Memorandum". People might also want to look at my filing in response to the goverment's motion, docket #261 in the Williams case to get a clear picture of the situation.

Posted by: michael donahoe | Feb 1, 2013 8:39:46 PM

when Berman says that he was "meddling a little bit" in the Williams sentencing for "complicated reasons" that is nonsense........maybe Mr. Berman could post the government's motion to strike his "Amicus Sentencing Memorandum" in the Williams case and the Judge's order in response to that motion......for those interested you may want to take a look at my response to the government's motion, Docket #261 in the Williams case........then ask yourself if Mr. Berman was "meddling a little bit".......I am a federal public defender and was Mr. Williams' counsel.

Posted by: michael donahoe | Feb 1, 2013 8:51:02 PM

I am glad to hear from you, Mr. Donahoe, though I am saddened it is via this forum now rather than when your client first asked you to seek my assistance (which I was eager to provide pro bono). I remain happy to discuss our respective roles in the case, publicly or privately, but I do not think this is the appropriate forum.

(For the record, the "complicated reasons" I reference started with your decision, sua sponte, to move to withdraw as counsel for Mr. Williams simply because he asked you to allow me to help, pro bono as an amicus, in preparation for sentencing. Since that time, I have not posted anything about the case, but I might if you wish your motion to withdraw and all that followed should be aired here. But as said before, I do not think it prudent to cover all that ground in this forum.)

More critically, may I ask if you still serve as Mr. Williams counsel? If so, please know I remain willing to help him pro bono because, like Judge Dana Christensen, I see him as “a principled man." If you no longer represent Mr. Williams, I hope you have helped him secure new counsel and will convey to that new counsel my continued willingness to help Mr. Williams pro bono.

Finally, just to be clear, I do not in any way mean to make light of my serious conduct in this serious case. Indeed, I have throughout tried very hard to take very seriously Mr. Williams request for my help, and I continue to be deeply disappointed that your abrupt and surprising motion to withdraw made it so very difficult for me to fulfill that serious request.

Posted by: Doug B. | Feb 1, 2013 10:11:15 PM

spare me Mr. Berman...........you are an interloper who caused wide damage in a case that did not concern you............again why don't you just post the Judge's order denying the goverment's motion to strike your unsolicited "Amicus Sentencing Memorandum"......as for your happiness in finally meeting me......gimme a break..........all you had to do was pick up the phone

Posted by: michael donahoe | Feb 1, 2013 10:27:05 PM

The phone lines work both ways, Mr. Donahoe. Why did you not contact me when your client asked you to? I was informed that you had refused offers of pro bono help from others in the past, and that is why I first reached out to other federal public defenders to ask how best I should make an offer to help as an amicus. Then, without contacting me, you moved to withdraw. That decision seemed to me to be the chief cause of whatever "wide damage" you reference.

I am eager to better understand what "wide damage" you think I may have caused. And I am now truly sorry I did not reach out you directly before you abruptly moved to withdraw. But again, I really do not consider this a fitting forum to air all these issues, especially if you still represent Mr. Williams.

I will ask you again: do you still serve as Mr. Williams counsel? If not, who is now representing him? Even after his sentencing today, Mr. Williams has many legal rights that need to be safeguarded, and I want to make sure his rights are still being protected even while you are using to this forum to express your frustrations with me.

Posted by: Doug B. | Feb 1, 2013 10:56:32 PM

I don't know Doug Berman real well, but I know him well enough to be quite sure that his efforts were well intended and fully ethical. I am, in addition, aware of no rule barring ANYONE from writing to a district judge about a forthcoming sentencing; complete strangers do such things all the time. It is up to the judge to determine how much, if at all, he wishes to consider the views others submit to him.

I also find it very hard to believe that the defendant was harmed in any way by Doug's efforts. The defendant was not going to get less than one five-year mandatory minimum if Zeus himself had intervened. DOJ would not, even in this give-away-the-store administration, swallow ALL the gun counts. No prosecutor who takes his oath (or his having a job beyond tomorrow) seriously would do that.

When your client (if he's still your client) gets the best deal one could possibly realistically expect, I don't know that there is much room for complaint.

Finally, it would be very interesting to learn what the client himself has to say about Doug's intervention, if he feels inclined to express an opinion.

Posted by: Bill Otis | Feb 1, 2013 11:18:55 PM

Thanks much for coming to my defense here, Bill. This case proved to be a real sticky wicket as I tried to balance personal and professional ethics after Mr. Donahoe moved to withdraw.

For the record, I will readily send to anyone interested the court order Mr. Donahoe references above --- or any other document concerning my actions here --- though I remain disinclined to post any case documents now or even after the case become finalized. One reason I wish not to post the court order referenced above by Mr. Donahoe is because I think its analysis is flawed when it states my submission was not in compliance with the Local Rules. (My submission was not styled as a motion, but merely as a memorandum in aid of sentencing for the court's consideration. The court, sua sponte, construed the cover letter with my submission as a motion and then noted the filing did not comply with the local rules for making motions.)

Because the legal and policy issues raised by this and similar cases remain very important, I am eager to continue a general dialogue on these general topics. And my "let all flowers bloom" approach to comments inclines me to leave up Mr. Donahoe's in this thread. But, especially until Mr. Williams' current representation status is clarified and all his right protected, I continue to want to tread very lightly around the specifics.

Posted by: Doug B. | Feb 1, 2013 11:42:00 PM

Doug, the answer to your question is very simple. AFPD Donahoe was appointed by the District Court to represent Mr. Williams. As a matter of statutory (CJA) and Constitutional (Sixth Amendment) law, he continues to represent Mr. Williams unless and until the defendant retains other counsel (and that attorney enters an appearance that is accepted by the court), or until otherwise relieved of that appointment by the court. It is therefore Mr. Donahoe's duty (which I'm sure he recognizes and readily embraces), not yours or anyone else's, to protect any and all post-sentence legal rights of his client.

Posted by: Peter G | Feb 2, 2013 11:32:47 AM

Peter G --

Citizens write to courts all the time about sentencing in prominent cases, of which this was certainly one. Doug Berman may have no right to represent the defendant, but the First Amendment by itself permits him (or any of the rest of us) to communicate with officers of the government, including judges, about matters of public concern.

I do not know the specifics of this episode, but I know the First Amendment has not been suspended.

Posted by: Bill Otis | Feb 2, 2013 1:25:47 PM

I have no idea to what in my comment you think you are responding, Bill, nor will I otherwise respond to yours than to clarify my own for you, since you missed my simple point: Doug asked AFPD Donahoe whether he still represented Williams, that is, today, after sentence has been imposed. I answered Doug's question for him. I have not commented publicly on any other aspect of this matter.

Posted by: Peter G | Feb 2, 2013 2:06:37 PM

Peter G: I understood your comment, and it confirms my assumption that Mr. Donahoe, today, continues to represent Mr. Williams. But Mr. Donahoe's comments above prompted my questions and concerns -- e.g., in comment #2 above, Mr. Donahoe says he "WAS Mr. Williams' counsel" (my emphasis added) and his assertion of "wide damage" in his follow-up comment did not seem to reflect someone still actively responsible for protecting any and all post-sentence legal rights of Mr. Williams. It is, of course, quite possible that at sentencing yesterday Mr. Williams and/or Mr. Donahoe arranged with the District Court for Mr. Williams to be represented by somebody other than Mr. Donahoe.

Among the reasons I am asking these questions now is because, without getting into any specifics, I am in possession of a letter sent to me last month by Mr. Williams from jail. Because I do not and never have represented Mr. Williams, I remain unsure (1) if this letter is a privileged communication, (2) whether/when/how I should convey this letter to Mr. Williams' counsel in order to help current counsel have all information needed to decide how best to protect Mr. Williams' post-sentence legal rights, and (3) what might now be my professional and personal ethical obligations concerning this letter because it could become evidence in future proceedings. I have started today researching these complicated issues, but knowing for sure who represents Mr. Williams now would help me as I earnestly try to sort all this out.

Ergo, Peter G., I keep hoping Mr. Donahoe will answer ASAP in this forum (or via direct e-mail to me) whether he is still serving as Mr. Williams counsel. Candidly, for fear of damage to my professional representation in light of Mr. Donahoe's comments about me to date, I am now hesitant to contact him directly to ask this question without the public transparency that this blog provides.

Relatedly, if Mr. Donahoe does in fact still represent Mr. Williams and he now believes (as I think he should) that the discussion he engendered may not still be serving Mr. Williams' legal rights and interests, I will take down all the comments here and even the post to which he first responded. But, as has been true throughout my involvement in this serious matter, my enduring and only concern at this stage is doing what Mr. Williams and his duly appointed counsel consider best to serve Mr. Williams' rights and interests.

Posted by: Doug B. | Feb 2, 2013 2:49:28 PM

Peter G --

It doesn't really matter who represents Williams at this point. The case is over. Williams got the government to toss over the side of the boat everything except for one gun count, as to which he got the bare minimum, and one pot count, as to which he got time served. That is a good deal by any measure, but good or not, it's a done deal.

In exchange, he agreed not to appeal. No appeal means no appeal. Once you make a promise, you keep it. There's nothing left to do here.

Posted by: Bill Otis | Feb 2, 2013 3:16:07 PM

Bill and Doug: As I tried to make clear before, I will not engage in any discussion of this matter in a public forum, nor express any opinion on the specifics of any issue it raises, whether that issue touches on the attorney-client relationship, the potential role of outsiders in a sentencing, the ethical duties of attorney-experts who receive unsolicited inquiries from represented defendants, the scope, interpretation and/or enforceability of post-trial sentencing agreements and appeal waivers, or anything else. Doug, I will contact you privately about a couple of the questions you raised in your last post.

Posted by: Peter G | Feb 2, 2013 3:52:52 PM

Doug, I for one hope you file a complaint with the 9th Circuit because of the Judge's Order, which is below.

The United States has moved to strike the amicus sentencing memorandum presented to the Court by Professor Douglas Berman, or alternatively to respond to the amicus sentencing memorandum. Defendant’s counsel Michael Donahoe submitted a response to the motion to strike expounding on the unwelcome interference Professor Berman’s conduct has had on his attorney-client relationship with Defendant. The United States’ motion to strike will be denied, but the submission will not be granted the weight of a sentencing memorandum. The Court will not consider Professor Berman’s submission as a sentencing memorandum because it is untimely and not in compliance with the Local Rules
However, the Court will consider the submission under its broad authority to consider materials in aid of sentencing under 18 U.S.C. § 3661. The Court will also consider the responses of the government and Defendant to Professor Berman’s submission.
Professor Berman’s submission is untimely if considered as a sentencing memorandum. The Court ordered the parties to file any sentencing memoranda by January 14, 2013, and responses to sentencing memoranda by January 18, 2013. (Doc. 228.) Professor Berman submitted his letter and memorandum on January 28, 2013, and it is thus untimely.
Professor Berman’s submission also failed to comply with the Local Rules. Construing his letter to the Court as a motion seeking leave to file the amicus sentencing memorandum, it did not comply with Local Rule 47.1 requiring motions to state whether the opposing party objects to the motion. Professor Berman at no point extended the courtesy of contacting counsel in this matter at any time, let alone as required by the rules. Further, Local Rule 83.1 only permits active members of the State Bar of Montana or attorneys who have been granted leave to appear pro hac vice to appear before the Court.Professor Berman is notan active member of the Montana Bar, nor has he sought leave to appear pro hac vice in this case. Professor Berman once again is attempting to inject himself and his opinions into an ongoing criminal proceeding that has very real and profound consequences for the parties, who have tirelessly worked to get to a point where Defendant Williams stands to greatly benefit by receiving a sentence that is decades less than what he otherwise would have received had it not been for the efforts of his able and competent counsel and the cooperation and reasonableness of the United States Government. Professor Berman has not been invited into these proceedings, and has done nothing to adhere to the above-described rules of this Court. He is a meddler at best. This is not an academic exercise. Mr. Williams' liberty is at stake. For all his professed "expertise", Professor Berman has apparently never learned that the relationship between an attorney and his client is sacrosanct, and not to be interfered with, and that there are certain, fundamental requirements that attorneys must adhere to before they are entitled to practice before a court, including this one. The Court awaits further motions by the parties in this case if they believe that Professor Berman should be subject to sanction or discipline. The sentencing will proceed as scheduled for 10:00 a.m. tomorrow morning, February 1, 2013.
In the meantime, Professor Berman’s noncompliance and the untimeliness of his submission compel the Court to construe the submission as a material in aid of sentencing rather than a sentencing memorandum. The Court considers a vast array of sentencing materials submitted from a variety of sources even up to the day of sentencing. Because Professor Berman’s submission will be considered in this context, the Court will likewise consider the government and Defendant’s responses. Therefore,
IT IS ORDERED that the Government’s motion to strike the amicus sentencing memorandum is DENIED as set forth herein.

Posted by: jack | Feb 2, 2013 4:04:59 PM

jack --

I think the court, the government and defense counsel are all over-reacting.

Defense counsel should just have told the court: "I alone represent the defendant, and, while the court is free to consider such materials as it cares to, I do not necessarily either subscribe to or disclaim Prof. Berman's arguments."

The government should have said: "The court is at liberty to consider all pertinent information and arguments pursuant to 18 U.S.C. § 3661. We do not know whether the court will consider Prof. Berman's submission, but if it so chooses, we respond below."

I think it makes the government look small and frightened to resist any reasonably professional argument submitted on behalf of a defendant. The government should be happy to let a thousand flowers bloom.

The court should have said: "While the submission is not in compliance with local rules and deadlines, I will consider the arguments contained in it for such value as I may find in them, and I invite, although I do not require, counsel for both sides to respond."

All this thundering about discipline is so much baloney. The actors here should be less concerned with their own turf and authority and more concerned with getting the case done correctly under substantive law.

Besides, as noted, the whole thing is over with. The defendant made a bargain and a good one. He is now required, morally and legally, to follow through. He gave up only an appeal he couldn't possibly win anyway, and in exchange got the charges pared down as far as any USAO was going to do.

The court, the government, and the defense counsel should all calm down and move on to the next case.

Posted by: Bill Otis | Feb 2, 2013 5:03:34 PM

Bill's description about the court, government and defense is right on the mark - over reaction. On a positive note, this case has served to educate the public. Prosecutorial proceedures were on display as well as the defense. This can only be constructive.

Posted by: beth | Feb 2, 2013 5:46:02 PM

Jack: I have absolutely no interest in filing any complaint about others' efforts unless I have a professional obligation to do so, though I likewise have no interest in telling others whether or not to file complaints using my personal standards.

I do have an interest in just and effective sentencing outcomes, which is really all I was hoping to try to help achieve in this challenging case. As the saying goes, it seems no good deed goes unpunished....

Posted by: Doug B. | Feb 2, 2013 6:10:57 PM

One last point: if the paties file a motion seeking to have me sanctioned, I am very excited about the prospect of calling Bill Otis as a witness in my defense. Among others consequences, any hearing concerning any possible sanctions might require a trip to Montana, a state I have never seen but would love to visit (especially if my travel is covered by the Court).

Posted by: Doug B. | Feb 2, 2013 6:19:31 PM

Doug --

I'll go you one better and write, or help write, the brief in your defense. I personally wouldn't lift a finger to help Mr. Williams, but the idea that your doing so is unethical, much less deserving of sanctions, is beyond absurd.

The defendant got a great deal. It's simply mystifying why people are so upset. Mr. Donahoe will go down in the Annals of Great AFPD's for having foxed the government out of 90% its case. He should be a happy man.

Posted by: Bill Otis | Feb 2, 2013 7:08:24 PM

Is it proper in a criminal case to have a "settlement conference, presided over by U.S. District Judge Donald Molloy?" It seems to me that such a conference violates Fed.R. Crim P. 11(c)(1)that prohibits a district judge from particpating in plea discussions. I would think that a district judge is not allowed to do indirectly what he is not allowed to do directly. Here, Christiansen, J. particpated indirectly through Molloy, J.
Maybe, despite Rule 11 strictures against judcial involvement in plea discussions, U.S. District Court Judge Dana Christensen “a principled man, stubborn in his beliefs, [who] remains steadfast in his conviction that he has done nothing wrong” apparently believes that having Molloy, J. be involved plea discussions is ok.
Note: But for the rule, I think it is ok for judges to particpate in plea negotiations.

Posted by: ? | Feb 2, 2013 8:37:39 PM

What a bizarre set of circumstances.

Because I was intrigued, I accessed some of the filings in this case via PACER.

Interestingly, in the briefing filed on January 8, 2013, by Mr. Donahoe in connection with his motion to withdraw (specifically, at pp. 3-4 of docket entry # 239 --- "Brief In Support of Qualified Motion to Withdraw as Defense Counsel and Request for Hearing"), Mr. Donahoe notes that the client, "Mr. Williams[,] rejected an eleventh hour offer from the government before trial that probably would have resulted in prison exposure of one year or less; and perhaps even a probation sentence."

That strikes me as a pretty significant fact in this saga.

Posted by: Wild | Feb 2, 2013 10:43:27 PM

i agree Bill looks like he got a hell of a deal considering the routine multi decade sentences they now give out.

But i have a major problem with this!

"The Court will not consider Professor Berman’s submission as a sentencing memorandum because it is untimely and not in compliance with the Local Rules"

Last time i looked this was a FEDERAL prosecution. So who gives a fuck about the "local yocal" rules! The Federal Rule Book applies and that one sould apply NATIONALLY! same rules for everyone and everywhere!

So as long as the submission was within the federal National rules they would take their "local yocal" rules and shove em someplace the sun don't shine!

Posted by: rodsmith | Feb 3, 2013 12:29:07 AM

I think the Judge's order completely unfair. And I agree with Bill. Federal judges routinely receive and consider letters from the community (of course, provided that the parties are afforded an opportunity to review and respond.

Also, Doug raised a bunch of very good points in the letter.

Doug, I hope this doesn't deter you in the future, as I know your opinion would be valuable to many judges.

Posted by: AnonymousOne | Feb 3, 2013 1:53:10 AM

Chris Williams’ defense was Montana’s medical marijuana law. Whose fault was it that he does not know what his basic fundamental rights are as he heads off to prison for political reasons.

Marijuana remains illegal because the judiciary has determine the constitutionality of the marijuana laws by rational basis. Rational basis is used when no fundamental rights have been declared injured by the defendant from the enforcement of the law.

Criminalizing marijuana is unreasonable and unnecessary because the private use of marijuana does not threaten the rights of others. There is no victim of a crime. The rights of marijuana users to be secure in their persons, houses, papers and effects from unreasonable searches and seizures has been violated. Marijuana users have been deprived of life, liberty and property without due process of law. Rational review of criminal laws is deprivation of rights under the color of law.

Does Mr. Williams’ lawyer believe Chris is a non person and not entitled to equal protection of Amendments IV and V? Try Declaratory Judgment. Just make sure you claim the law deprived you of your right to liberty to question the reasonableness of the marijuana laws you were convicted of.

Posted by: Michael Dee | Feb 3, 2013 2:56:25 PM

This is a state issue. The federal government needs to get out of the law making business. Our federal laws are getting way out of control they have really made a mess of this. All the way back to the 1920's, prohabition has and will alway's be a disaster. There are laws in place for people braking the laws againest their fellow American. It was and is not nesssery to make things like drugs against law. That's a presonal choose just as alcohol is. And alcohol in my family has destroyed much more then pot ever has. Because of the violents and death that is assocated with it in this country. Like I have said before there are laws in place to thoughs that abuse either or. It should and always be a personal choose not a law. This a major violation of our rights. maybe we should go back to We the people going back to the popular vote when it come's to law makers just reccomend what law they think is best and leave it to the people.

Posted by: Tamara Diane Sanford | Feb 5, 2013 5:06:16 PM

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