Validity of Bartkowicz pot bust to undergo first review

Colorado’s medical marijuana chronicles went federal this weekend when the state’s top drug cop, DEA special agent Jeff Sweetin, seemed to directly defy the Attorney General and the Obama administration by raiding a Highlands Ranch home a day after owner Chris Bartkowicz spoke to KUSA-TV 9News about his major basement marijuana grow operation. Bartkowicz showed 9News his medical-marijuana license and the documentation for the people to whom he serves as a caregiver. He said he was “living the dream.”

DEA

Sweetin and his agents were apparently embarrassed. They bombed into the Bartkowicz basement the next day, confiscated 120 marijuana plants and took Barkowicz into custody. Sweetin admitted that the “tip” came from 9News, that he became suspicious mainly because Bartkowicz said he aimed to earn around $400,000 a year growing pot.

“Four-hundred-thousand dollars a year goes beyond ‘I’m just a caregiver for sick people,'” Sweetin told the AP.

Does it? Under Colorado law, if all 120 plants were flowering, Bartkowicz would need to be a licensed caregiver for 20 patients. If only half the plants were flowering, he would need to be designated caregiver for 10 patients.

It’s not clear yet how many patients Bartkowicz was serving or how many of his plants were flowering at the time of the arrest.

Colorado’s voter-approved Constitutional amendment allows patients to possess up to 2 ounces of marijuana or for them or their caregivers to grow up to six marijuana plants for each patient– but the law also allows people to assert in court that they need more marijuana to treat patient ailments. Robert Corry, the state’s most prominent medical marijuana attorney, who has not spoken to Bartkowicz and is not representing him at the time, told the Colorado Independent Monday, that this could well be the situation with Bartkowicz.

“I doubt he would go so public if he didn’t think he was acting within the law,” Corry said.

Corry said that, regardless, the decision to raid Bartkowicz’s residence violated not only the Obama administration’s directive against enforcing federal marijuana laws in the 14 states that have legalized medical marijuana but also disregarded the Colorado constitution.

On Saturday Corry filed a complaint against the Justice Department and the DEA, calling Sweetin a “rogue agent” and alleging waste, fraud and abuse and misconduct of powers. He asked the department’s inspector general to discipline Sweetin and the other agents involved.

“The Department of Justice formal guidelines instruct federal agents to refrain from using federal resources for the investigation and prosecution of individuals who are in compliance with state laws governing the medical use of marijuana,” Corry wrote in the letter. “The guidelines evidence an appropriate respect for the voters’ will in states that have legalized medical marijuana.”

The policy in question, laid out in a three-page memo in October, states that authorities shouldn’t target people in clear compliance with state laws on medical marijuana. It also stated that agents should still be on the lookout for those posing as medical marijuana operators but marketing pot illegally. Indicators that people aren’t in compliance with the law, according to the memo, include amounts of marijuana and financial gains inconsistent with business approved by state law.

The October memo follows up on a March promise made during a press conference by Attorney General Eric Holder that the Justice Department would no longer raid medical marijuana dispensaries and grow operations established legally under state law. The announcement was hailed by medical marijuana advocates as signaling a major policy shift.

“What the president said during the campaign, you’ll be surprised to know, will be consistent with what we’ll be doing in law enforcement. He was my boss during the campaign. He is formally and technically and by law my boss now. What he said during the campaign is now American policy,” Holder said during the press conference.

Watch the exchange beginning at about the 25:00 mark.

After Holder’s announcement, Colorado’s medical marijuana industry bloomed. Less than a year after dispensaries started opening their doors, there are more than 400 in the Denver/Boulder Metro area alone. The number of people on the medical marijuana registry has also expanded, so quickly in fact that the state had to ask for more funds to process applications. There is now a three-month processing backlog. In July 2009 there were around 15,000 people on the registry. By December that number had grown to more than 28,000.

Still, Sweetin claims Bartkowicz was violating state law because he wasn’t taking care of enough patients to warrant growing more than 120 plants.

On Tuesday, the U.S. attorney’s office will review the evidence collected in the raid and decide whether to file charges. Bartkowicz is scheduled to make his first appearance in federal court that day.

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