January 14, 2013

Aggressive prosecution #1: California businessman commercially growing medical marijuana.

Adam Nagourney, in the NYT, gives very sympathetic treatment to Matthew R. Davies — "a round-faced 34-year-old father of two young girls" with "graduate-level business skills" who "paid California sales tax and filed for state and local business permits" and got the advice of many lawyers as he set up an enterprise that plainly and overtly is a felony under federal law. Davies told the NYT:
“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”
Cloak illegal activity? It is illegal activity. Federal law is real. Haven't you heard?!

The right way? Cloaking is the right way when you're committing crimes. With your business education, somehow you were all: Hey, what a smart idea I have — being completely out in the open about breaking the law. Why hasn't anybody else thought of this?

And I love the way the NYT suddenly has a pro-business orientation. Davies deserves special grace under the law because he's using the structure of business and because he's excited about making big profits! Compare that to all the articles anguishing over Citizens United and how terrible it is to respect free speech rights when the speech comes from a place that is structured as a business.
“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” [said a letter from United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee.] Mr. Wagner said that prosecuting such people “remains a core priority of the department.”...

“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”
Yes, and it is mind-boggling that those who argue for the broad interpretation of federal power and who scoff at the idea of the 10th Amendment and reserving powers to the state somehow can't grasp the meaning of their general propositions when they encounter an issue where they prefer the state policy to the federal policy. The NYT and other drivers of elite opinion ought to have to face up to the reality of what their legal propositions entail.

And quite aside from the problem of the allocation of power at the federal and the state levels, how about some consistency about equal justice under the law? Let the law — as written — apply the same way to everyone, whether they have a round face and 2 young daughters or not, whether they've gone to grad school or not, whether they have big visions of massive profits or they are living hand to mouth. If the law is wrong, change the law — for everybody. Don't cry over the people you think are nice — like David Gregory and Aaron Swartz. Nonphotogenic and low-class people deserve equal treatment, and cutting breaks for the ones who pull your heart strings is not justice.

56 comments:

cubanbob said...

The silent tenth amendment may suddenly become not so silent. He would of thought that marajuana may become a factor in federalism?

Fernandinande said...

"Federal law is real. Haven't you heard?!"

Those laws are so obviously unconstitutional that I have to ask: "Can't you read"?

Darrell said...

Which makes me ask, what are you smoking?

campy said...

Hey, what a smart idea I have — being completely out in the open about breaking the law. Why hasn't anybody else thought of this?

David Gregory did.

Nonapod said...

It's certainly interesting when you compare the battles over assualt weapons and marijuana legalization. Many of the same people who would be strongly in favor of a Federal assault weapons ban suddenly care about states rights when talking about weed.

AllenS said...

Well, I don't have "graduate-level business skills", but I was smart enough to not tell anyone when I used to grow marijuana.

Hammond X Gritzkofe said...

It's all about selective enforcement and a superfluity of laws. Loss of respect for law and government is a natural and obvious consequence.

bpm4532 said...

Capone ran a business too.

Levi Starks said...

http://www.dailyrecord.co.uk/entertainment/celebrity/gerard-depardieu-fails-to-turn-up-1524352

Cue the google search for "round faced" actors.

Tim said...

"Don't cry over the people you think are nice — like David Gregory and Aaron Swartz. Nonphotogenic and low-class people deserve equal treatment, and cutting breaks for the ones who pull your heart strings is not justice. "

In Barack Obama's America, "justice" is more subjective than ever. Being connected to Democrat institutions most certainly tips the scales.

Levi Starks said...

"Many of the same people who would be strongly in favor of a Federal assault weapons ban suddenly care about states rights when talking about weed"

You just gave me a great idea, a gun buyback program where weed is the exchange currency.

J.R. said...

"I may make you feel, but I can't make you think" Thick as a Brick, Jethro Tull.

An appeal to emotion is always the first instinct of the left.

Surfed said...

The Confederacy of Southern States were legally right/morally wrong where as the United Northern States were legally wrong/morally right in their view of the Constitution. What a shame that the morally bankrupt rich slaveholders of the South forced the issue of States Rights. The various States and peoples of America have suffered ever since.

Michael K said...

Marijuana is the obvious example of a drug that is currently illegal but should be legalized. General legalization probably can't work because, in the past 20 years, we have seen a plethora of new drugs that can be made in motel rooms and are not part of the cartel problem. Some of them we don't even know the contents of. Marijuana, of course, is being made a prime example of the hypocrisy of the left.

Bob Boyd said...

“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”

http://www.youtube.com/watch?v=OJM8yJTn_I0

Rae said...

He made the mistake of not cutting David Gregory in on his operation. That's how things work these days.

And Gregory could have shared a blunt with O during that interview. It would have been great.

edutcher said...

What's interesting here is that this "businessman" didn't care about Federal law, apparently. He thought if he kept everything in CA, he'd be safe?

You silly boy.

Nonapod said...

You just gave me a great idea, a gun buyback program where weed is the exchange currency.

Well a new AR15 goes for something like $1200, you could get maybe 4 ounces of high quality weed for that (or maybe 8 ounces of ditchweed).

Levi Starks said...

I think the key word is "businessman"
He should have set it up as a not for profit, and called himself an administrator, and hired unemployed, undocumented migrant workers and paid them cash.
That seems like a more realistic CA business model.

I'm pretty sure illegal immigrants on the premises would have shielded him from federal prosecution.

ndspinelli said...

AllenS, You know "Loose lips sink ships."

Althouse is obviously a Holder/Obama sycophant on this.

David said...

Secession bad! Nullification good???

Do you supposed anyone at the NYT even understands the historical relationship between between nullification and secession?

What a bunch of unprincipled dopes.

Pogo said...

The law is such an ass, or collection of asses, that pert much anyone can be found guilty of something.

It's all prosecutorial discretion, meaning headlines and ambition.

This dope is some prosecutor's ticket to the next gubmint pay level. There but for the grace of the DA go I.

ndspinelli said...

edutcher, You're an idiot. The rules were laissez-faire during the Bush administration. When Obama came in the crackdowns started out of the fucking blue. Get some facts ass eyes.

Levi Starks said...


"Marijuana is the obvious example of a drug that is currently illegal but should be legalized"

I've been studying glass working, and a few weeks ago watched a you tube video of an artist making an elaborate blown glass bong.

A few day later in my "videos you might like" cue there was a very nice instructional video on marijuana cultivation.

Bruce Hayden said...

And Gregory could have shared a blunt with O during that interview. It would have been great.

Contrast this with the suicide of Aaron Swartz, facing 30 years in federal prison for trying to make academic journals free online. The tie is selective prosecution. Gregory intentionally violated the D.C. gun laws on national TV, but isn't going to be prosecuted - possibly because his wife, a prominent DC atty, knows (and is shown with) the DC AG. Swartz, on the other hand, got the other end of selective prosecution, where the Holder DoJ appears to have been doing the work of powerful players (including, most prominently, MIT) by loading up the criminal charges on what were arguably 1st Amdt. oriented activities.

The problem with selective prosecution is that we cease being a nation of laws, and become rather a nation of personal relations, where prosecution depends more on who you know than what you have done wrong.

edutcher said...

ndspinelli said...

edutcher, You're an idiot. The rules were laissez-faire during the Bush administration. When Obama came in the crackdowns started out of the fucking blue. Get some facts ass eyes.

And we've had 4 years of them.

Time, for him - and you, to get a clue. This didn't start yesterday.

Mitchell the Bat said...

I found Mr. Nagourney's treatment of Mr. Davies to be reasonably sympathetic, not very sympathetic, and I don't see the problem.

Even if it is true that the NYT is generally anti-business (and I do not think that is true), still we should welcome the occasional pro-business slant, when we see it.

Strelnikov said...

So, where are the users of medical chronic supposed to get it? Rhetorical question.

Once again, thank God David Gregory did not have to go through something like this. Society certainly dodged a bullet there.

Jeff said...

Davies should demand a jury trial. Then his attorney should emphasize to the jury that what Davies did is legal under the California law that they themselves passed.

Once the Feds lose a few of these cases to jury nullification, they'll shut up and go away.

Balfegor said...

It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”

It's incomprehensible to me. But there's lots of well-educated people -- and not just drug-addled college grads -- who seem to have believed that state marijuana laws would trump federal law, even as the Obama administration was cracking down on medical marijuana.

MadisonMan said...

Once the Feds lose a few of these cases to jury nullification, they'll shut up and go away.

Agreed. If I were a lawyer and the prosecution was hardening against my client, that's the tactic I would suggest.

gemma said...

In Massachusetts we have been told by our Attorney General that it is not illegal to be illegal here. From that... where do we go with the law? What is legal and what is illegal -- it seems to depend on what the politicians decide on a particular day.

Ann Althouse said...

"Even if it is true that the NYT is generally anti-business (and I do not think that is true), still we should welcome the occasional pro-business slant, when we see it."

Inconsistency is a problem, and by the way, business needs consistency in the application of rules.

Ann Althouse said...

"In Massachusetts we have been told by our Attorney General that it is not illegal to be illegal here. From that... where do we go with the law?"

You think state Attorneys General have the authority to immunize the citizens of a state from the application of federal law? How could that possibly work as a general principle? And obviously, it's not the way things work in the U.S. You might wish they did, but that's war that's been fought. It's over.

NotquiteunBuckley said...

Chris Bartkowicz went on tv and said he expected to make about $400,000 growing 120 marijuana plants in his house.

The feds then said he will serve five years in prison, and he is.

F I V E years.

Lovernios said...

The AG in Massachusetts was responding to criticism that the state was not willing to crack down on illegal immigrants.

Hugh said...


The closest I have ever seen marijuana come to harming anyone was during an air drop. We brought in 1100 pounds from Jamaica and dropped it in a peanut field in middle Georgia. The bales were dropped from a small plane at 125 feet altitude. One of the bales, about 80 pounds, missed my compadre by only a few feet... but it surely messed up his truck.

You can read about it in: Shoulda Robbed a Bank

That is my contribution to helping point out just how ludicrous our pot laws truly are.

Hugh said...

"...the essence of tyranny is the enforcement of stupid laws,”
---Edmund Burke

Levi Starks said...


"You think state Attorneys General have the authority to immunize the citizens of a state from the application of federal law? How could that possibly work as a general principle? And obviously, it's not the way things work in the U.S."

The way things work is that the US Attorney General has the authority to immunize citizens of a state from state law.
When the President says so.

AllenS said...

Sounds like your operation was a little bit bigger than mine, Hugh.

gerry said...

In Barack Obama's America, "justice" is more subjective than ever. Being connected to Democrat institutions most certainly tips the scales.

My conspiracy generator just spit out this: Obama is enforcing the marijuana laws robustly so campaign contributions from the benefactors of illegal distribuiton will not be affected.

It's just more capitalistic cronyism from its master.

gerry said...

This didn't start yesterday.

Non sequitur.

david7134 said...

Many of you think that those in favor of drug regulation are conservative. That is not entirely true. Progressives (Woodrow Wilson) started this crap. Thus both parties want to restrict our freedom for their selective reasons.

I had a friend who just returned from India. They picked up a bug there, but did not have to see the doctor. They just went to the drug stores and bought the medications they needed. That same process happens in many places on this globe, but not here. Here we have really little freedom, but are told we are the freest. It is time to get rid of our restrictive drug laws. It is past time to get the government out of our lives.

gerry said...
This comment has been removed by the author.
gerry said...

Progressives (Woodrow Wilson) started this crap.

That's very true, but it was part of measures taken after use of propylene glucol as a solvent in patent cough medicine that killed people, if I remember correctly.

And why can't we have the little nip of cocaine back in Coca-Cola, that used to really make it the refresh you need at any time?

Crimso said...

"Sounds like your operation was a little bit bigger than mine, Hugh."

Sounds like Drew Thornton. But he's dead.

chuck said...

You seem to argue that federal law is legitimate. Given the widespread efforts of lawyers and lawmakers to work around the constitution and the ominous signals from the elites that perhaps it should be discarded outright, I find it hard to regard federal law as sacred. It looks more and more like a scam and imposition carried out by the self interested. The curious thing is that liberals have been in the forefront in both ignoring federal law and using it as a tool to enforce their will. I think the long term consequences of this process will be tyranny or anarchy followed by tyranny.

gerry said...

I think the long term consequences of this process will be tyranny or anarchy followed by tyranny.

And dammit, I just sent in the last house payment.

TMink said...

Well written Althouse, we agree. Federalism is enticing when we hope it will lead to governmental decisions we applaud but dreadful when we think of the freedoms it would give the states to do things their own way.

Trey

mccullough said...

The N.Y. Times could not bring itself to write: "Under Clarence Thomas' view of the Constitution, the federal government has no authority to regulate the state-approved use of medical marijuana."

I don't know who Davies' lawyers are, but he has a slam dunk malpractice case against them, if what he says is true.

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Bruce Hayden said...

Many of you think that those in favor of drug regulation are conservative.

Many in my family claim that I am to the right of Attila the Hun. Yet, I voted for the legalization of marijuana this year in Colo (and, point out that Attila was probably more progressive than conservative, with his apparent view that might made right, etc.)

Point is that a lot of libertarian type conservatives are even more opposed to the War on Drugs than the average liberal/progressive is. After all, it involves a communitarian response to a societal problem. The libertarian response is that drugs are primarily a problem for those who do them and their families, and so why burden the rest of us trying to protect them from themselves.

Plus, you can't really talk about the cost of the War on Drugs without reference to the corresponding loss of civil rights curtailed in its name.

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