In a motion that could throw federal enforcement of marijuana laws in Colorado into commotion, a lawyer at the center of one of the biggest criminal pot cases in the state’s legal-marijuana era is asking a judge to toss out the case against him.
In the new motion, lawyer David Furtado argues that the federal crimes he is charged with — money laundering and trying to deposit proceeds from an illegal enterprise into a bank — all stem from activity that is legal under state law in Colorado. Because Congress last year passed a law prohibiting the U.S. Department of Justice from spending money to interfere with state medical marijuana laws, Furtado argues that the indictment against him should be dismissed.
“The Department of Justice’s continued violation of (the new law) by prosecuting this defendant is a troubling exhibition of disdain for the Rule of Law,” Furtado’s attorney in the criminal case, Joseph Saint-Veltri, wrote in the motion, which was filed last week.
The motion opens a new front in Colorado in the conflict between state and federal marijuana laws. No one in Colorado has previously used the new law to argue that the federal case against them should be thrown out.
“This is brand new,” said University of Denver professor Sam Kamin, an expert in marijuana law. “And, as with so much in marijuana law, we don’t quite know yet how it will play out.”
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While marijuana possession and marijuana sales are legal with restrictions in Colorado, both are banned under federal law. In earlier years, people who claimed they were operating legally under state law but wound up facing federal charges had no defense.
“Federal law is supreme on this particular point,” U.S. District Court Judge Philip Brimmer said in 2010, in denying a purported medical marijuana grower’s attempt to dismiss the felony drug charges against him.
But that dynamic changed last year, when members of Congress, frustrated by Department of Justice raids on state-legal marijuana businesses, pushed through a budget amendment. The amendment prohibited the DOJ from spending money on operations that prevent medical marijuana states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
The amendment is expected to be re-upped in the next budget bill.
“The federal government shouldn’t be swooping in to Colorado to decide how we regulate marijuana any more than it should be swooping in to Louisiana to tell them how they should regulate crawfish,” Colorado U.S. Rep. Jared Polis, a co-sponsor of the original amendment, said after the U.S. House voted this summer to reauthorize the measure.
At the time, federal authorities said the amendment did little to change their approach in pot cases. But last month, a federal judge in California ruled that the amendment protected a state-legal Bay Area dispensary from an ongoing federal asset-forfeiture case.
Furtado’s motion came just days later, and it leans on the California ruling for support. Judges in Colorado are not bound by the ruling, but they can use it for guidance.
Furtado was one of four people charged following the largest-ever federal raids on Colorado’s medical marijuana industry, in 2013. The four all had ties to the now-defunct VIP Cannabis dispensary, as well as other licensed marijuana businesses. The state ordered VIP Cannabis to close in 2014 after alleged violations of state law and policy.
A federal indictment delivered days later accused Furtado and the others of funneling hundreds of thousands of dollars from Colombia, laundering the funds, and then planning to use the money to buy a warehouse in Denver for marijuana growing.
In civil asset-forfeiture cases, federal prosecutors have previously alleged that the VIP Cannabis operation engaged in activity against Colorado law — such as sending marijuana out of state. But the criminal indictment makes no claim of state law violations. In fact, one of the charges is based on an allegation that Furtado and two co-defendants tried to deposit proceeds from VIP Cannabis into a bank account, something that is common within Colorado’s licensed marijuana industry.
One of the four indicted in the case, Hector Diaz, has already pleaded guilty and been sentenced to time served plus three years of supervised release. The case against Furtado and two others, brothers Gerardo and Luis Uribe, is ongoing.
On Friday, Jeff Dorschner, a spokesman for the U.S. Attorney’s Office in Colorado, said he could not comment on Furtado’s motion and said prosecutors would file their response in court. After the California court ruling last month, Dorschner said authorities in Colorado and Washington, D.C., were evaluating the decision to see what impact it would have on other cases.
One thing muddying that analysis, Kamin said, is that Furtado’s case is quite different from the one in California. The former is a criminal case, while the latter was a civil matter. Civic leaders praised the California dispensary as a model business, while Saint-Veltri presented no documentary evidence of Furtado’s compliance with state law in his motion.
“There are lots of complications where we don’t yet know how they will work themselves out,” Kamin said.
John Ingold: 303-954-1068, email@example.com or @johningold