CANNABIS CULTURE – Sentencing memorandums have been filed in the case of Canada’s ‘Prince of Pot’ Marc Emery, the marijuana activist who will be sentenced on Friday, September 10 in a US Federal courtroom for selling cannabis seeds.
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Following are separate memorandums filed by US prosecutors and counsel for Marc Emery.
United States Sentencing Memorandum filed by the U.S. Justice Department (Jenny A. Durkan and Todd Greenberg) on August 31, 2010
The United States of America, by Jenny A. Durkan, United States Attorney for the Western District of Washington, and Todd Greenberg, Assistant United States Attorney, hereby files this Sentencing Memorandum.
Through the years, and in various contexts, Marc Emery has meant different things to many people. But in the context of this federal criminal prosecution, Emery stands before the Court as many others have before him – as an admitted drug dealer who has entered a plea of guilty to a large scale marijuana trafficking conspiracy. Emery was the largest distributor of marijuana seeds, and thus marijuana, into the United States from approximately 1995 through July 2005, when he was arrested in Canada on an American extradition warrant. The U.S. Department of Justice brought this prosecution because of, and to put an end to, Emery’s unlawful drug trafficking inside the United States. To help accomplish this, we respectfully recommend that the Court sentence Emery to serve a term of five years in prison.
II. SENTENCING GUIDELINES CALCULATIONS
The government concurs with the Sentencing Guidelines calculations set forth in the presentence report. Specifically, the total offense level is 29, Emery falls within criminal history category I, and thus the advisory Sentencing Guidelines range calls for imprisonment for between 87 and 108 months.
III. UNITED STATES’ SENTENCING RECOMMENDATION
The parties entered into a plea agreement pursuant to Fed. Crim. P. Rule 11(c)(1)(C), stipulating to a sentence of incarceration for five years. The government respectfully recommends that the Court accept the plea agreement and impose a five-year sentence, which we submit is the appropriate sentence in this case.
Emery pleaded guilty to a serious federal drug crime that carries a statutory mandatory minimum term of five years in prison. A five-year sentence in this case would represent the longest sentence imposed in this District against a defendant who was convicted for participating in the supply chain to marijuana grow operators. During the
past few years, the U.S. Attorney’s Office has prosecuted several defendants for knowingly supplying large quantities of grow equipment, seeds, plants, and/or other items to marijuana growers. None of those defendants yet have been sentenced to serve as long as five years in prison.
A five-year sentence in this case would appropriately reflect the enormous volume of marijuana seeds Emery shipped into the United States. In his plea agreement, Emery admitted to having sold more than 4,000,000 marijuana seeds for profits as high as $3,000,000 (CDN) annually. Approximately seventy-five percent of his customers were located in the United States. Emery guaranteed at least a fifty percent germination rate for his seeds, and this investigation confirmed that his seeds met or exceeded this mark.
Thus, Emery literally was responsible for supplying millions of marijuana plants to grow houses in the United States.
Emery’s seeds (and plants) were traced to marijuana grow houses in every region of the United States – from the West Coast ( Washington, Oregon and California), to the Mountain West (Montana and North Dakota), to the Midwest (Indiana, Illinois and Michigan), to the South (Virginia and Tennessee), and to the East Coast (New York, New Jersey, and Connecticut). Emery also sold all of the items necessary to grow marijuana, including specialized lights, fans, electric timers, pots, and soil. Emery distributed his marijuana seeds and grow equipment via mail and telephone orders to any and all customers, without regard for their ages or criminal associations. This Court is very familiar with the dangerous collateral criminal activities that too often surround marijuana grow operations, including armed robberies, shootings, and even murders. It is therefore not surprising that some of the grow houses Emery supplied with plants were also associated with firearms and booby traps.
From the Department of Justice’s perspective, the focus of this case always has been, and should remain, on Emery’s long term and repeated violations of the U.S. drug laws. We seek a five-year sentence in this case because of the serious dangers Emery posed to the community through his distribution of large volumes of a harmful controlled substance which, in turn, fueled the potential for marijuana grow related violent crime.
The government’s case was investigated and prosecuted without regard for Emery’s personal politics, his political agenda, or the ways in which he chose to spend the proceeds of his drug crimes. We do not view those matters as particularly relevant to the offense to which Emery pleaded guilty, or to the determination of the sentence that this Court will impose.
For all of the foregoing reasons, the government respectfully recommends that the Court impose a sentence of five years in prison, as well as the other sentencing conditions recommended by the U.S. Probation Office.
DATED this 31st day of August, 2010.
JENNY A. DURKAN
United States Attorney
/s Todd Greenberg
Assistant United States Attorney
United States Attorney’s Office
United States Defendant’s Sentencing Memorandum filed by Richard J. Troberman on Sept 4, 2010
I. FACTUAL BAGKGROUND.
Marc Scott Emery, a Canadian citizen, has for most of his adult life been a political activist and proponent of legalizing marijuana. As the president of the BC Marijuana Party, Marc has run for office several times. In furtherance of his goal of legalizing marijuana, Marc was for many years, inter alia, engaged in the sale of marijuana seeds around the world. This was not a business that operated underground, or even in the shadows. On the contrary, Marc openly operated his seed distribution business (“Marc Emery Direct”) from a storefront in Vancouver, British Columbia, Canada, as well as over the internet; through telephone sales; direct mail sales; and though other media outlets. Revenue Canada gladly accepted taxes on all of his sales, which were duly reported to the appropriate taxing authorities. Virtually all of the profits from the business went to funding lawful efforts to legalize marijuana in Canada and the United States through the political process.
On May 26, 2005, Mr. Emery was charged by indictment in this district. The primary offense charged in the indictment was Conspiracy to Manufacture Marijuana in violation of 21 U.s.c. $$841(aX1),841(bXlXA), and 846. On July 25, 2005, Marc was arrested in Halifax, Nova Scotia, Canada on an extradition warrant when the indictment was unsealed. Thereafter, he was transported to Vancouver, B.C., where he was held in custody from August 2, 2005, through August 5, 2005, prior to being released on bond. As the extradition proceeding progressed, Mr. Emery attempted to resolve this case through discussions with both Canadian authorities and the United States Attorneys Office.
In September of 2009, a tentative agreement was reached with the United States, whereupon Marc ceased all efforts to contest his extradition to the United States on this charge. On September 28, 2009, after consenting to extradition, Marc voluntarily entered pre-trial detention custody in Canada, where he remained until November 18, 2009, at which time he was temporarily released pending entry of the final extradition order by the Canadian Justice Minister.
On May 10, 2010, the final order was entered, and Marc voluntarily returned to custody. He remained in custody in B.C. until May 20, 2010, at which time he was transported to the United States, where he had an initial appearance before this court.
On May 24,20L0, Mr. Emery was arraigned on the indictment and, pursuant to Fed.R.Crim.Pro. 1l(cXlXC), entered a guilty plea to a lesser included offense charged in Count I of the indictment. Sentencing is scheduled before this Court at 1:30 p.m. on September 10, 2010.
II. MAXIMUM STATUTORY PENALTY.
The maximum statutory penalty for this offense is a term of imprisonment of not less than five (5) years up to forty (40) years; a fine of up to $2,000,000; a period of supervised release of not less than four (4) years; and a mandatory penalty assessment of $100.
III. OBJECTIONS TO THE PRESENTENCE REPORT.
Mr. Emery has no objections to the Presentence Report that affect the guidelines calculation.
IV. GUIDELINES OFFENSE LEVEL AND SENTENCING RANGE.
We concur with the Probation Office’s calculation of the advisory sentencing guidelines. That calculation includes a base offense level of 28; a two level upward adjustment pursuant to U.S.S.G. $2D1.1(bX6) (distribution by means of a computer service); a two level upward adjustment for role pursuant to U.S.S.G. $3B1.1(c); and a three level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. $3E1.1(b). With a Total Offense Level of 29 and Criminal History Category I, the advisory sentencing guidelines range is 87-108 months.
V. THE PLEA AGREEMENT.
The plea agreement in this case was entered into pursuant to Fed.R.Crim.Pro. 11(cX1XC). Pursuant to Paragraph 10 of the plea agreement, the parties agreed that a sentence of sixty (60) months was an appropriate disposition of this case. The Probation Office concurs in that recommendation. We urge the Court to accept the agreement and the sentencins recommendation.
VI. SENTENCING FACTORS.
In order to uphold the constitutionality of the Sentencing Reform Act, the remedial decision rnUnited states v. Booker,543 u.S. 220 (2005), severed l8 U.S.C. 93553(bX1) (the provision making application of the guidelines mandatory) from the SRA. Thus, after Booker, a sentence within the guidelines range may not be necessary to achieve the Congressionally defined purposes of sentencing. A district court’s job is to impose “a sentence sufficient, but not greater than necessary, to comply with the purposes” of section 3553(a)(2). The United States Supreme Court has made clear that reasonableness is the appellate standard of review in judging whether a district court has accomplished that task. Ritav. United States,551 U.S. 338,127 5.Ct.2456, 168 L.Ed.2d203 (2007). However, the Supreme Court has also rejected the notion that a sentence that amounts to a substantial variance from the Guidelines needs to be justified by extraordinary circumstances, holding instead that appellate courts must review all sentences, both within and without the Guidelines range, under a differential abuse-of-discretion standard. Gall v. United States.
552 U.S. 38, t28 S.Cr. 586, 591, t6g L.Ed.zd 445 (2007).
In determining the particular sentence to be imposed, the Court shall consider the nature and circumstances of the offense, and the characteristics of the defendant. The Court shall also consider the need for the sentence (1) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (2) to afford adequate deterrence to criminal conduct; (3) to protect the public from further crimes of the defendant; (4) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (5) to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar offenses. Of paramount importance to any sentencing determination, however, is that all of these factors are subservient to the $3553(a) mandate to impose a sentence sufficient, but not greater than necessary, to comply with the statutory purposes of sentencing. And as Rita makes clear, traditional departure analysis under the guidelines survives post-Booker. Prior to Booker, many of these factors were largely ignored, because they were incompatible with the Guidelines. As one Court observed
“For example, under $3553(aX1) a sentencing court must consider the “history and characteristics of the defendant. ”
But under the guidelines, courts are generally forbidden to consider the defendant’s age, U.S.S.G. $5H1.1, his education and vocational skills, $5H1.2, his mental and emotional condition, $5H1.3, his physical condition including alcohol or drug dependence, S5H1.4, his employment record, $5H 1.5, his family ties and responsibilities, $5H1.6, his socio-economic status, $5H1.10, his civic and military contributions, 95H1.11, and his lack of guidance as a youth, 95H1.12. The guideline’s prohibition of considering these factors cannot be squared with the $3553(a)(1) requirement that the court evaluate the “history and characteristics” of the defendant. The only aspect of a defendant’s history that the guidelines permit courts to consider is criminal history.”
united States v. Ranum, 353 F.Supp.Zd 984 (E.D.Wis. 2005). Following Booker, however, courts must once again consider these factors along with the Guidelines and their policy statements.
VII. SENTENCING REGOMMENDATION AND APPLICATION OF THE $3553(a) FACTORS TO THIS GASE.
As set forth in the plea agreement, and for the reasons set forth below, we submit that a sentence of sixty (60) months would be a sufficient–but not greater than necessary–sentence in this case.
A. The Nature and Circumstances of the Offense and the Characteristics of the Offender.
1. The Offense.
As detailed in the Presentence Report and ParagraphT of the Plea Agreement, from September, 1995, though May, 2005, Marc Emery was engaged in the business of unlawfully selling marijuana seeds. The seeds were sold on a global scale from his business in Vancouver, British Columbia, Canada. As the government observes in its sentencing memorandum, Mr. Emery has admitted that he had sold over 4,000,000 seeds, of which approximately 75% were sold to customers in the United States. The government’s conclusion, however, that Mr. Emery “literally was responsible for supplying millions of marijuana plants to grow houses in the United States” is both a gross exaggeration as well as factually and legally inaccurate.l Government Memorandum at 2. U.S.S.G. S2D1.1, Application Note 17, defines a marijuana “plant” as “an organism having leaves and a readily observable root formation (e.g. a marijuana cutting having roots, a rootball, or root hairs is a marihuana plant).” Mr. Emery sold marijuana seeds, not marijuana plants. This distinction is not splitting hairs. Rather, it has a significant impact on how the advisory sentencing guidelines are calculated in this case.
2. Historv and Characteristics of the Defendant.
Marc Emery is 52 years of age. His background is accurately described in the Presentence Report and no useful purpose will be served by repeating that information. Suffice it to say here that for the past 30 years, Marc has been an advocate and political activist for reforming what he perceived as unjust laws in Canada and the United States.
His past efforts have resulted in the repeal of Sunday business closing laws in Ontario, and overturning a Canadian federal ban on marijuana and drug literature. He has also been active (and successful) in promoting reform allowing for the medical use of marijuana in several states in this country. Indeed, as more fully described below, it was largely
Marc’s political activism that made him a target for law enforcement and that ultimately brings him before this Court for sentencing in this case.
Although well intentioned, Marc now realizes that some of the methods he chose to fund his efforts to repeal prohibitions against marijuana use and cultivation were illconceived and ultimately destructive. As Marc notes in his attached letter to the Court
It was my sincere belief that the prohibitions on cannabis are hurtful to U.S. and Canadian citizens and are contrary to the U.S. and Canadian constitutions. I was, however, overzealous and reckless in pursuing this belief, and acted
arrogantly in violation of U.S. federal law. I regret not choosing other methods–legal ones–to achieve my goals of
peaceful political reform. Marc was never involved the unlawful distribution of marijuana seeds for personal
gain. He funneled virtually all of the profits from the seed business into his political activities. While Marc would be the first to say that this does not excuse his unlawful conduct, it does provide the Court with some insight into his motivation and intentions.
B. The Seriousness of the Offense; Promoting Respect for the Law; and Just Punishment.
To be sure, the offense to which Mr. Emery has pled guilty is a serious offense. But the advisory sentencing guidelines in this case, like all drug sases, are driven by the type and quantity of drugs involved. Moreover, despite the government’s claims to the contrary, the prosecution of Marc Emery was clearly and undeniably selective and
The government alleges at page 3 of its sentencing memorandum:
The government’s case was investigated and prosecuted without regard for Emery’s personal politics, his political agenda, or the ways in which he chose to spend the proceeds of his drug crimes. With all due respect to the United States Attorney’s Office for the Western District of Washington, and to AUSA Todd Greenberg, who have handled this case with professionalism and integrity, that claim is absurdly naive. The Attorney General’s true motive–which was to silence Mr. Emery’s political activity–could not be more clear. We do not make this claim lightly. One need look no further than the official press release issued by Drug Enforcement Administrator Karen Tandy following Mr. Emery’s arrest in July of 2005:
Today’s arrest of Marc Scott Emery, publisher of Cannabis Culture Magazine, and founder of a marijuana legalization
group, is a significant blow not only to the marijuana trafficking trade in the U.S. and Canada, but also to the marijuana legalization movement.
* * *
Hundreds of thousands of dollars of Emery’s illicit profits are known to have been channeled to marijuana legalization
groups active in the United States and Canada. Drug legalization lobbyists have one less pot of money to rely on.
Statement from DEA Administrator Karen P. Tandy, July 29, 2005, a copy of which is attached hereto as Exhibit B (emphasis supplied).
When Mr. Emery started his marijuana seed distribution business, not a single state had enacted a Compassionate Use (medical marijuana) law. By July of 2005, all of Canada and ten states in the United States had passed such laws, either by ballot measures or by legislative enactments. As of today, a total of 14 states, plus the District of Columbia, have enacted medical marijuana laws, and a ballot measure for the complete legalization of marijuana is pending in Catifornia.2 Between 1995 and 2005, Mr. Emery donated several million dollars to various groups to use in their lawful efforts to legalize marijuana through the legitimate political process. Apparently, that was too much for the DEA to tolerate. This is evidenced by the high priority the Attorney General placed on prosecuting Mr. Emery. Quoting again from DEA Administrator Tandy’s press release:
Emery and his organization had been designated as one of the Attorney General’s most wanted international drug
trafficking organizational targets — one of onllz 46 in the world. and the only one from Canada. Tandy Statement, July 29,2005. Ms. Tandy’s statement is either gross hyperbole, or reflects a shocking acknowledgement of totally misplaced priorities within the Drug Enforcement Administration. Marc Emery and his two employees–both of whom are co-defendants in this case, and each of whom received sentences of probation–were, according to the Attorney General of the United States, one of the 46 most wanted “international drug trafficking organizations” on the planet, and the only such wanted organization in Canada!3 How can this claim make sense? It is well documented that numerous Canadian drug trafficking organizations are responsible for importing tons of marijuana, hundreds of thousands of ecstasy tablets, and multiple kilograms of methamphetamine into the United States on a weekly basis. Likewise, these organizations are responsible for exporting from the United States into Canada hundreds of kilograms of cocaine per month.
Certainly, this court has seen its share of defendants who are members of such organizations. Yet, according to the then head of the Drug Enforcement Administration, only Marc Emery was on the list of most wanted drug trafficking organizations in Canada.
And he was also part of one of only 45 such wanted organizations in the entire rest of the world. If placement on that list was truly based on Mr. Emery’s unlawful seed distribution business rather than his political activities, what does that say about our nation’s law enforcement priorities in the “war on drugs”? Even a dispassionate comparison of Mr. Emery’s conduct with comparable businesses operating at the time belies the government’s assertions about the scope of Marc’s business. When Marc Emery was charged in this case, there were dozens, if not hundreds, of others selling marijuana seeds on the internet into the United States, many with equal or greater sales volume. Even today, there are hundreds of people openly selling marijuana seeds over the internet. See Google Search, September 2,2010, attached hereto as Exhibit C.
The only thing that makes Mr. Emery unique or different from most of these other seed sellers is that Marc donated his proceeds to help fund lawful marijuana legalization efforts throughout the United States and Canada. On this record, no one can (or should) take the government seriously when it claims that this case was not politically motivated.
Of course, none of this excuses Mr. Emery’s unlawful conduct, nor does Marc offer it as an excuse. It does, however, help to put both the offense and the prosecution of this case in proper perspective.
C. The Need for the Sentence to Afford Adequate Deterrence to Criminal Conduct.
We submit that a five year prison sentence will serve as an adequate deterrent. It is unlikely that others will be inclined to engage in this type of conduct if they realize that the consequences for such conduct will include such a lengthy prison term.
D. The Need to Protect the Public From Further Crimes by Mr. Emery.
Mr. Emery has learned a costly lesson as a result of his involvement in this offense. He has never before been incarcerated for a substantial period of time. Based on the responsible way he has responded to these charges, there is no reason to believe that he will again engage in illegal conduct.
E. The Need to Provide the Defendant with Required Medical Care.
There are no significant medical issues in this case.
F. The Need to Avoid Unwarranted Sentencing Disparity.
As previously discussed, Michelle Rainey and Gregory Williams, who were employees of Mr. Emery, each received sentences of two years probation. We recognize, however, that their mitigating roles justify a reduced sentence in this case.
We respectfully submit that under all of the facts and circumstances of this case, and for all of the reasons hereinabove set forth, a sentence of sixty (60) months is a sufficient, but not greater than necessary, sentence. We ask the Court to recommend placement at FCI Lompoc, California in order to facilitate continued visitation with his wife.
DATED this 4th day of September, 2010.