Marc Emery’s Sentencing: The Court Transcript

CANNABIS CULTURE – Canadian marijuana activist Marc Emery was sentenced to five years in prison by a US judge on September 10. Cannabis Culture presents the court transcript of United States of America vs. Mark [sic]Scott Emery in its entirety.



NO. CR05-217RSM



September 10, 2010

Todd Greenberg
Assistant United States Attorney
Representing the Plaintiff
Richard Troberman
Attorney at Law
Representing the Defendant

THE CLERK: This is the sentencing hearing in the Mark Scott Emery case, cause number C05-214, assigned to this court. Will counsel please rise and make their appearances?

MR. GREENBERG: Your Honor, Todd Greenberg for the United States.

THE COURT: Mr. Greenberg.

MR. TROBERMAN: Good afternoon, our Honor.

Richard Troberman, appearing on behalf of Mark Scott Emery, who is present and seated to my left for sentencing today.

THE COURT: Gentlemen, thank you. Counsel, we are here scheduled for sentencing today. Let me indicate to you and for the record exactly what the court has received and fully reviewed prior to our hearing: The court has reviewed the plea agreement of the parties, the government’s sentencing memorandum, the defendant’s sentencing memorandum, as well as all the exhibits and attachments. And, of course, the court has reviewed the presentence report prepared by U.S. Probation Officer Loraine Bolle, present here in court this afternoon.

Trusting that the parties have had that same opportunity to fully review all of these materials, if I could have the government’s recommendation for sentencing, first of all.

MR. GREENBERG: Yes. Thank you, your Honor. Your Honor, the government recommends, consistent with the plea agreement that was entered into in this matter, a five-year term of incarceration for Mr. Emery. That is a very serious sentence for a very serious crime.

At the time of this investigation Mr. Emery was the largest distributor of marijuana seeds in North America, and certainly into the United States. In fact, on his own admission, at least 75 percent of his customers were here in the United States. There is no doubt that he sold millions of marijuana seeds, and that those seeds led to the creation of millions of marijuana plants here in the United States, and, in turn, millions of dollars of profits flowing to Mr. Emery.

In his sentencing memorandum to the court, I think Mr. Emery was trying to distract this court from the issue at hand, which is his conduct, by attaching a printout from Google that deals with marijuana seed distributors that are currently selling marijuana seeds, and implying somehow that mitigates his conduct in some way.

Let me state, your Honor, there is no question that Mr. Emery was the largest marijuana seed distributor into the United States. That is the reason that he was prosecuted in this matter.

Lest anyone write this off as an offense not quite so serious, let me call this court’s attention to two aggravating factors particular to this case. First, Mr. Emery sold his seeds into our country by mail order and telephone order. He had a store that was in Canada. Mostly Canadian customers would go in person and buy seeds. But the seeds got here into the United States through the mails, were ordered by mail or over the telephone. He sold those seeds to anyone who placed an order, regardless of their age, he wouldn’t know, regardless of their criminal associations, their criminal past.

Secondly, and I know this court is very familiar with the violence that has unfortunately surrounded, especially in recent years, marijuana grow operations. This has been well documented before this court and other courts. In the past few years we read about constantly arm robberies, shootings, and there have even been murders at marijuana grow operations, in particular in British Columbia, where Mr. Emery lives, and here in western Washington.

The seeds that Mr. Emery sold have been traced — or were traced to grow houses literally throughout the United States, in every region of this country, the west coast, east coast, south, Midwest, you name it, he supplied the grow houses with his seeds.

He also sold all the equipment you need to grow seeds into plants. He was essentially a one-stop shop for a marijuana grower.

It is not a surprise that some of the grows that he supplied had firearms, had booby-traps awaiting law enforcement officers and the like. He essentially was adding fuel to this fire, to the fire of the growing problem of violence surrounding marijuana grows.

I do want to respond to one claim that the defendant makes in his sentencing memorandum, and that is that this is somehow an unfair, selective or political prosecution. The only person in this courtroom that has inserted Mr. Emery’s politics into this particular criminal case is Mr. Emery himself. The government has not done so, the agents who investigated this case have not done so, and certainly I would not expect this court to do so.

From the government’s perspective, this case has been about and remains Mr. Emery’s long-term and repeated violations of our United States drug laws. I can assure this court, and Mr. Emery, that this particular case was investigated and prosecuted without any regard for his politics, his causes or even how he spent the proceeds of his criminal activity.

Now, as he is fond to do, Mr. Emery has dragged out a five-year old statement that was issued by the former head of the DEA in Washington, D.C. He attempts to use that statement to portray this as some sort of political persecution. I can only say, your Honor, that that statement does not speak for the United States Attorney’s Office or for the agents and other prosecutors who have handled this case.

If Mr. Emery is looking for a reason that he was targeted for prosecution, he should look only to himself. He himself in his letter to the court admitted that he was arrogant, and he was. He openly flaunted the United States drug laws and disobeyed them. He admits that now. That is why he was prosecuted in this case, and for no other reason.

This was a serious offense. We are asking this court to impose a serious sentence of five years. That would in fact be the longest sentence imposed in this district for any defendant who is prosecuted for being a part of the supply chain to marijuana grow operations. And I think it is an appropriate sentence to impose in this case. Therefore, we recommend a five-year term of imprisonment.

THE COURT: Thank you very much, Mr. Greenberg. Mr. Troberman.

MR. TROBERMAN: Good afternoon again, your Honor. Before I begin, I would just like to make at least one
introduction. Mr. Emery’s wife Jodie is here present in the courtroom. As the court can see, Mark has a number of friends and supporters here, and there are many others outside. Everyone has indicated before they came in they would be respectful to this court, as they have been, I think, throughout the proceedings.

As the court knows, this was an 11(c)(1)(c) plea, and so we are bound, as is the government, to a five-year recommendation. We think that is an appropriate recommendation in this case, and certainly we are going to ask the court to follow that recommendation.

Because it is a 11(c)(1)(c) plea, I do intend to limit my remarks, much as I limited the content of my sentencing memorandum. Most of the information about this case has been adequately addressed in the presentence report, in the plea agreement, and in the respective sentencing memorandum. While I am on the subject of the PSR, a second revised report was filed this afternoon. It effects only two paragraphs, which updated some information. I want to make sure the court has that most revised document.

THE COURT: Yes, I received it from Probation.

MR. TROBERMAN: And I have reviewed that with Mr. Emery as well.

Your Honor, I don’t think — Despite the fact this is a 11(c)(1)(c) plea, there are a few things I do want to address. It is not my intent to use this podium as a soapbox, but there are a few things I think that need to be said, especially in light of what Mr. Greenberg has just said to the court.

We have never argued that somehow this was a selective prosecution justifying the case being dismissed. We never said it was an unfair prosecution. We have never argued to the court that Mr. Emery somehow is being treated unfairly by the government or by the court.

What we are saying is that this prosecution was, in my opinion, in large part, the result of Mr. Emery’s political activity. Now, Mr. Greenberg disputes that. But the record is clear, much as he would like to shove the press release of Ms. Tandy under the rug, the fact is it exists. And Ms. Tandy was not the former head of the DEA when that press release was issued, she was the head of the DEA. She was the DEA administrator. And that was her press release — the official press release of the drug enforcement administration on the arrest of Mark Emery. You can’t make that go away. No matter what Mr. Greenberg would like to think, the fact is those statements were made, and those statements obviously reflect the information that was known to the government at the time Mr. Emery was charged in this case.

Very briefly from that press release. Ms. Tandy stated, “Today’s arrest of Mark 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 United States 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.”

Now, it is obvious from that statement that the government knew about Mark’s connection to Cannabis Culture Magazine, they knew he was the founder of a legalization group, and they felt that his arrest would be a significant blow to others’ efforts to change the marijuana laws, not only in the United States but also in Canada. And they were blatant about it. But even worse than that, from my perspective, is what Ms. Tandy said about Mr. Emery being such a high value target of the Drug Enforcement Administration. She went on to say in that press release, “Emery and his organization –” His organization consisted of Mark and his two clerks who filled the orders and who received probation from this court. “Emery and his organization had been designated as one of the Attorney General’s most wanted international drug trafficking organizational targets, one of only 46 in the world, and the only one from Canada.

Now, I have been appearing before you, your Honor, since you have been on the bench in this district. I know you are very familiar with the scope of drug organizations operating in Canada. Those drug organizations deal in tons of marijuana, in hundreds of kilograms of cocaine, hundreds of kilograms of methamphetamine, and hundreds of kilograms of MDMA, often on a weekly or monthly basis. And yet despite that, Mark Emery was the only drug trafficking organization on the DEA’s most wanted list in Canada.

What does that say about our priorities on the war on drugs? No one is trying to suggest that Mr. Emery’s offense was not a serious offense, or that he sold a lot of marijuana seeds into this country, but it pales in comparison to some of those other organizations, and the types and quantities of drugs they were
involved with.

Now, I also understand, and Mark above all understands, that this is largely academic, because the fact is he did commit the charged offense. But I think that the court should be aware of the government’s motives in this case, despite their protestations to the contrary.

I think it is also important for the court to note that when Mark started his marijuana seed distribution business not a single state had enacted a compassionate use law in the United States, nor in Canada. But by July of 2005 when Mark was indicted in this case, all of Canada and ten states in the United States passed such laws. And now 14 states, plus the District of Columbia, have passed such laws. Many of those measures were funded, at least in part, by the efforts of Mr. Emery.

Just this past week, former United States Attorney John McKay, who was the United States Attorney when Mark was indicted in this district, wrote a scathing editorial in the Seattle Times criticizing this nation’s failed approach to marijuana prohibition.

While some have called Mark’s efforts to reform the system ineffective or self-serving, the fact is, as a result of the grass roots efforts that he in part sponsored, draconian marijuana prohibition laws are being reformed through the legitimate political process. To some extent, I think his efforts have proved beneficial. His methods were not. No one, least of all Mark, has ever stood in front of this court or submitted a document to this court somehow justifying his unlawful activity. He accepts full responsibility for that. But I just want the court to know about some of the effects that have flowed from that on the positive side of things.

I do have two recommendations to request to the court. The first is that the court recommend placement at FCI Lompoc. He is not eligible for the camp at Lompoc, but there is low security facility there. That is the closest facility on the west coast that would enable his wife Jodie to continue her regular visits to him. And I believe that he will be eligible for that facility.

The other request I would make, your Honor, is that you recommend to the Office of Enforcement Operations in the Department of Justice that any application for a treaty transfer submitted by Mr. Emery be approved. My understanding is the government has indicated they will take no position on that request.

Unless the court has any questions from me, that’s all I have.

THE COURT: No. Thank you, Mr. Troberman.

Mr. Troberman, I received the letter from Mr. Emery, and had a chance to fully review that as well, and also received a letter from Jodie that came in just recently. There is no requirement that you make a statement today, but if you would like to make a statement prior to the imposition of sentence, Mr. Emery, this would be your opportunity.

MR. TROBERMAN: Thank you, your Honor.

THE DEFENDANT: Thank you, your Honor. Your Honor, I realize our democracy is bound together by respect for a rule of law, and if we went an anarchically broke the rule of law whenever we felt like it, we wouldn’t have the civilized society we appreciate and enjoy in this country. To that degree, I regret the example I have set of advocating that we use civil disobedience, and that I as an example of that go about picketing and demonstrating. I won’t be doing that again. When I get out I hope to mentor my wife, who is a very successful politician and lobbyist back in Canada. I am looking forward to mentoring her in communicating to others the conventional, legitimate methods of change. And I hope I can continue to see change happen. I would like to point out, though, it made it sound like I was a bad guy. And maybe to this court I am a person deserving of five years incarceration. I would like you to know, sir, in the 20 years I have been pursuing this with a burning passion, this campaign, this crusade, I have seen 12 million Americans get charged and convicted of marijuana offenses in the last 20 years, and hundreds of thousands of those people have gone to jail. In my own country a million and a half Canadians have been charged, and hundreds of thousands of people there have gone to jail for these marijuana offenses.

To me, I don’t think any society that is a democracy should be punishing peaceful, honest behavior. That is all I’d tried to do. I gave money to things that were transparent, honest, peaceful and democratic. I ended up sponsoring Supreme Court challenges in Canada, a class action against the Unite States federal government to restore the Compassionate Use Program, political parties, an endless number of things, ballot initiatives in Colorado, Alaska, Arizona, Washington, D.C., many of which have born fruits and now hundreds of thousands of people are forwarded protection under these state laws, that I in some great parts financed. So, yes, I did flout the law. And I am sorry about that, believe me. I have been at FTC SeaTac, and it is a very sobering place to consider what I have done. I miss being with my people and my wife every day I am there. I am sure I have many months and years to regret my actions.

I just wanted to say that I had very good intentions, and I wanted to be considered a proper participant in our society. I have run for office twelve times. I never kept any of this money. I paid all my taxes with it. I tried to honor the proper spirit of participation in a modern democratic society and doing the right thing.

I do believe that these prohibition laws create a lot of problems. They create organized crime. Mr. Greenberg insinuated that I was responsible for these kinds of things. I have to tell you, it has always been my belief that these laws, the rich cartels, they create chaos in the streets, they undermine our respect for privacy, the U.S. Constitution, the rule of law. I believe it destabilizes countries like Mexico and Columbia.

What I was seeking, which is a peaceful, just world, without this prohibition, is a much better world than the one that we have under prohibition that Mr. Greenberg tends to defend — or is defending.

I just want to say thank you for your consideration, your Honor. I hope I can prove to you when I get out that I will pursue legitimate means. I won’t ever advocate or counsel or behave in manner civilly disobedient again.

THE COURT: Thank you, Mr. Emery. Counsel, as both sides have pointed out, this is an 11(c)(1)(c) plea, really very little choice for the court. The court can refuse to accept the agreement, thereby allowing both sides to withdraw from it. That exposes Mr. Emery is a ten-year sentence under our current law. Or the court can accept it, not change it, go along with it. As both counsel have indicated, this court, unfortunately, like every trial court, is all too aware of the extensive damage and misery to real people that results from the powerful black market that exists to fuel our citizens’ desire for drugs. Mr. Emery himself just pointed out both of our borders have become battle grounds. Thousands of people, real people, ending up as collateral damage.

Believe me, while there may be an appropriate time and place to debate the wisdom of our current drug control policy in America, especially in regards to this drug, marijuana, this is neither the time nor the place. The fact of the matter is, under current law, no question, your actions were illegal and criminal. Moreover, your actions, regardless of whatever motivation you had, helped insure that many other people also broke the law, and there by suffered consequences as well.

You indicated in your letter to me that you have seen the error in your ways. I will quote what you said. “In my zeal I believed that my actions were wholesome, but my behavior was in fact illegal and set a bad example for others. I have now abandoned this method and ideology of disobedience as a necessary part of me rehabilitation. I will not recommend that others disobey the laws of the United States.”

If you want to change the law, by all means, be my guest. Do everything within your power to do so. But when you cross that line and you do it illegally, you are right, the rule of law mandates we have to respond.

I grew up along the Canadian border as a kid. I remember how peaceful British Columbia always was, and appeared, compared to the State of Washington. And over the last few years it has been terrible to me to see what has happened in British Columbia, again, because of what is going on down here in terms of the demand for drugs.

I believe what you indicated in your letter, and I am willing to accept it. And so, therefore, the court will accept the plea agreement of the parties. That means the court must impose five years in this particular case, credit for all time served on this cause number. Technically I should state for the record, that the total offense level is 29, he falls in criminal history category of 1. That calls for an advisory range of 87 months to 108 months, up to five years of supervised release, and potentially up to a $2 million fine.

Because of the nature of the 11(c)(1)(c) plea, the court must impose 60 months. The court will impose four years of supervised release. There is no restitution. There is no fine. Only the mandatory $100 special assessment will be imposed. That is the only monetary penalty imposed.

Everyone believes that he will probably be deported once he finishes his time, or if he is taking under the Treaty Transfer Act. But if, for whatever reason, he is not, the court is also imposing, as I indicated, four years of supervised release.

Probation recommends eight special conditions of supervised release. Each of those appears appropriate in light of the offense of conviction and the history and characteristics and background of Mr. Emery. Those conditions will be imposed exactly as set out in the presentence report. Let me just briefly summarize them. Mr. Emery is to cooperate in the collection of DNA. He is, of course, prohibited from possessing any firearms or destructive devices. He will submit to one drug and alcohol test within 15 days of placement on supervised release, at least two thereafter, never to exceed eight valid tests per month. He will participate, if so instructed by U.S. Probation, in any program approved by them for treatment of addiction, dependency or substance abuse. He will submit to reasonable searches conducted at a reasonable time in a reasonable manner based upon reasonable suspicion. At all times he will provide Probation with access to any and all requested financial information, including authorization to conduct credit checks and obtain copies of any income tax returns filed. He is prohibited from incurring any new credit charges, opening additional lines of credit, or obtaining any loans without the prior approval of U.S. Probation.

If he is deported back to Canada, he is not to reenter the United States unless given the specific permission of the Bureau of Immigration and Customs Enforcement. If granted permission to reenter, he must contact the nearest probation office within 72 hours of reentry.

I have no objection to recommending placement at FCI Lompoc.

Mr. Greenberg, let me ask about the recommendation for treaty transfer consideration as recommended by Mr. Troberman. Does the government take any position?

MR. GREENBERG: Your Honor, we are not authorized at the U.S. Attorney’s Office level to take a position that would one way or another have an effect on a treaty transfer. So, no, we don’t take a position. I might hand up for the court the language that Mr. Troberman proposes. He typed it into one alternative page. The court can consider if it is an appropriate recommendation for it to make or not. If I could approach?

MR. TROBERMAN: For the court’s edification, that is language I have used before other judges in this district that
has been approved.

THE COURT: Mr. Emery, do you understand it is a different department that makes the ultimate determination
whether a defendant qualifies for a treaty transfer. As always, and I’m sure Mr. Troberman has explained this to you as well, any recommendations made by the court, either for placement at any facility or any other recommendations, are simply that, recommendations. The department, whatever department is receiving them, whether it is BOP, Department of Justice, the State Department, are certainly free to disregard anything the court indicates. But I am willing to go ahead and make this recommendation, that they consider allowing you to serve your sentence in Canada.

THE DEFENDANT: Thank you, your Honor.

THE COURT: Mr. Greenberg, do you have the judgment form?

MR. GREENBERG: I do, your Honor. It will be without that second page. If I could show the rest to Mr. Troberman, and
we will bring that up.

MR. TROBERMAN: I have reviewed the judgment. It appears to be consistent with the court’s oral pronouncement.

MR. GREENBERG: May I approach, your Honor?

THE COURT: Please. Counsel, I have placed page 2 back into its proper position. The court has reviewed the proposed judgment form. It has been signed and dated.

Mr. Emery, I have received hundreds of letters and e-mails, most of them favorable to you, a handful perhaps not. Some of them rambling, ranting, almost incoherent.

THE DEFENDANT: They say that five percent of all people are crazy.

THE COURT: One in crayon, others well written, thoughtful, making some very interesting points. I know five
years is a long time, but I wish you the best once you get out.