US Department of Justice
John P. Kacavas
United States Attorney
District of New Hampshire

Federal Building
53 Pleasant Street
Concord, New Hampshire 03301
(603)225-1552 (PHONE)
(603)225-7789 (FAX)

May 10, 2011

Attorney General Michael A. Delaney
New Hampshire Department of Justice
33 Capitol Street
Concord, New Hampshire 03301-6397

In re: House Bill 442

Dear Attorney General Delaney:

I am writing in response to your request for guidance on “the position of the United States Department of Justice [the Department] as it relates to enforcement of 21 U.S.C. Chapter 13, the Uniform Controlled Substances Act, against state-established treatment centers that would dispense, produce and process marijuana for medical use by qualifying patients.” This letter will set forth the Department’s view of state-sanctioned schemes that purport to regulate the manufacture and distribution of medical marijuana.

As you know, Congress has determined that marijuana is a controlled substance and, as such, has placed it in Schedule I of the Controlled Substances Act (CSA). Accordingly, growing, distributing and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law despite state laws permitting such activities.

The disruption of drug trafficking organizations and the prosecution of individuals and organizations involved in the trade of any illegal drugs is a core priority of the Department. This core priority includes the prosecution of business enterprises that unlawfully market and sell marijuana. As I publicly stated last year, while my office will not focus its limited resources on seriously ill individuals who use marijuanaas part of a medically recommended treatment regimen that complies with state law, the Department maintains the authority to enforce the CSA vigorously against organizations and individuals who unlawfully manufacture and distribute marijuana, even if such activities are permitted under state law. The Department’s investigative and prosecutorial resources will continue to be directed toward these objectives.

Consistent with federal law, the Department of maintains the authority to pursue criminal and/or civil actions for any CSA violation when the Department determines that legal action is warranted. This includes, but is not limited to, actions to enforce the criminal provisions of the CSA, such as:

• 21 U.S.C. §841 (making it illegal to manufacture, distribute, or possess with intent to distribute any controlled substance including marijuana);
• 21 U.S.C. §856 (making it unlawful to knowingly open, lease, rent, maintain, or use property for the manufacturing, storing, or distribution of controlled substances);
• 21 U.S.C. §860 (making it unlawful to distribute or manufacture controlled substances within 1,000 feet of schools, colleges, playgrounds, and public housing facilities, and within 100 feet of any youth centers, public swimming pools, and video arcade facilities);
• 21 U.S.C. §843 (making it unlawful to use any communication facility to commit felony violations of the CSA); and
• 21 U.S.C. §846 (making it illegal to conspire to commit any of the crimes set forth in the CSA).

Additionally, federal money laundering and related statutes thatprohibit financial activities that facilitate the movement of drug proceeds may also be utilized.  The government may also pursue civil injunctions, and the forfeiture of drug proceeds, property traceable to such proceeds, and property used to facilitate drug violations.

As I understand it, House Bill 442 would authorize the New Hampshire Department of Health and Human Services (DHHS) to register an unlimited number of treatment centers to cultivate, process and dispense marijuana.  Accordingly, the legislation appears to permit large-scale marijuana cultivation and distribution, which is contrary to federal law and undermines the federal government’s efforts to regulate the possession, manufacturing, and trafficking of controlled substances.  Accordingly, the Department could consider civil and criminal legal remedies against those entities and individuals who establish marijuana growing facilities and dispensaries as such actions constitute a violation of federal law.  Others, including property owners, landlords, and financiers who knowingly assistthose entities and individuals should be aware that their conduct violates federal law.  Consequently, the Department  could consider include injunctive actions to prevent cultivation and distribution of marijuana and other associated violations of the CSA; civil fines; criminal prosecutions; seizure of the controlled substances and seizure and forfeiture of any personal and real property used to facilitate the production and distribution of controlled substances, or that is derived from a violation of the CSA.  As the Attorney General of the United States has statedrepeatedly, the Department remains firmly committed to enforcing the CSA in all states.

I hope you find this letter responsive to your request regarding the Department’s position on the state-sanctioned cultivation, manufacture and distribution of marijuana, as well as related financial transactions.

Sincerely,

/s/ John P. Kacavas
John P. Kacavas
JPK/tal

NOTES