When Robert Duncan was laid off from his job in the television industry, he got a call from some family friends offering him a job. He was hesitant of their offer: they were starting a medical marijuana dispensary. He consulted a lawyer at a fee of $800 to advise him on whether to even accept the job. At the time, the wisdom was that prosecutors would not target state-compliant dispensaries, and that they certainly wouldn’t target employees.
So he moved from Los Angeles to the Bay Area and started working an estimated 80 hours a week in what he called a challenging and rewarding job managing grow houses.
“I honestly had some stereotypes of what I expected to see when I got into the business — people who probably really didn’t need marijuana for medicinal purposes,” he said in a Huffington Post synposis of his story. “But I was actually quite surprised to see people who were battling cancer, in wheelchairs, suffering from chronic pain from car accidents. It was quite justified. We had thousands and thousands of members of our cooperatives.”
He said he was particularly gratified that some of the strains he grew were able to help his own family members suffering from cancer. By all accounts, the business was operating in compliance with state law. The dispensary had interacted with state police when reporting robberies to the facility without consequence. Owner Matthew Davies showed a New York Times reporter a “sheaf” of legal documents demonstrating he had complied with California law.
But in October 2011, the grow house where Duncan worked in Stockton, Calif., was raided by the federal government while Duncan was working at the facility. For reasons that have not been disclosed to Duncan, federal prosecutors ultimately indicted Davies, his co-owner, and Duncan — an hourly employee. There were an estimated 50 employees.
Duncan was lobbed with marijuana manufacture charges that carried up to ten years in jail. He will serve two, plus several more on probation. On Monday, HuffPost Live will broadcast Duncan’s entry to prison. Davies and co-owner Lynn Smith will also begin their five-year sentences Monday.
The raid of the Stockton grow house and the subsequent arrests came during a period when the federal government had rolled back its pot prosecution policy, and then ramped it up again again. When he joined the dispensary as an employee, the Justice Department had advised prosecutors in what is known as the “Ogden Memo” not to target dispensaries complying with state law. Less than two years later, the feds backtracked in a second 2011 “Cole memo” that instead advised prosecutors not to target “users” complying with state law, and left growers and sellers more susceptible.
“None of us would have taken this risk if we thought we were at any serious legal risk,” Duncan said Monday, hours before he was scheduled to report to prison. “Basically we just wanted to be compliant and kinda set an example of kind of a model business in this line of work and obviously it didn’t pan out that way.”
The Stockton grow house is one of several businesses that aimed to become models for state compliance, and in doing so, became federal targets. A raid of a Montana marijuana dispensary run by a state lobbyist who helped design the laws also saw several prosecutions, and one defendant died in jail.
The start of these prison sentences comes in the months after Attorney General Eric Holder once again directed prosecutors to roll back crackdowns on state-compliant pot businesses. This time, he has issued several subsequent memos as part of a “Smart on Crime” initiative that aims to focus resources on serious, violent offenders. He added another piece of guidance that could have helped the Stockton grow house: the mere size or commercial nature of a business is not sufficient grounds for prosecution.
Duncan called it “frustrating” to watch President Obama dismiss marijuana as nothing more than a “vice” and less dangerous than alcohol, as his Justice Department is sending him to jail for helping sick patients. “You don’t really know what to believe,” he said.
This is in part because U.S. attorneys retain their prosecutorial discretion, and nothing short of a change in the law can fully insulate anyone from a legal action. In fact, even after Holder’s directive, U.S. Attorney Melinda Haag, in the Northern District of California, has made good on her pledge to continue her targeting of large medical marijuana dispensaries.
Watch Duncan’s entry to federal prison here.