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Man charged with growing pot loses early court tussles to feds

September 27, 2010

Marijuana
Image by warrantedarrest via Flickr

By John Ingold
The Denver Post

Posted: 09/23/2010 01:00:00 AM MDT

A Highlands Ranch man charged with federal drug crimes for his medical-marijuana-growing operation suffered a major setback Wednesday when a judge said he will not be able to raise a medical defense at trial.

Federal District Judge Philip Brimmer rejected Christopher Bartkowicz’s bid to argue that compliance with state medical-marijuana law negated any violation of federal law.

“Federal law is supreme on this particular point,” Brimmer said.

Brimmer also shot down a series of other arguments Bartkowicz had hoped to pose, including that Colorado’s medical marijuana is fundamentally different from marijuana that is illegal under federal law and that an October 2009 Justice Department memo provides legal shelter for people operating in compliance with state medical-marijuana laws.

The rulings — Brimmer also denied a motion from Bartkowicz to dismiss the case — deal a significant blow to Bartkowicz’s trial hopes. Bartkowicz was arrested in February after talking about his basement medical-marijuana grow to 9News. Bartkowicz has maintained that his operation was compliant with state law, something federal officials have disputed.

But without cover from state medical-marijuana laws, Bartkowicz’s case will be decided purely on federal law, under which all marijuana growing is illegal. Because he has two prior state-level drug convictions, Bartkowicz could face from 10 years to life in prison if convicted.

He declined to comment after Wednesday’s hearing, as did his attorney, Joseph Saint-Veltri.

During the hearing, Saint-Veltri argued Bartkowicz’s case should be dismissed because Bartkowicz believed he was following all the rules, including a Justice Department memo that said federal officials in most cases wouldn’t target people operating in “clear and unambiguous compliance” with state law.

“A lay person would come to the conclusion that the cultivation of medical marijuana is exempt from federal prosecution,” Saint-Veltri said.

Assistant U.S. Attorney M.J. Menendez disputed that reading, saying the memo made clear it could not be used as a defense against federal prosecution. Brimmer agreed.

“To the extent he based his takeaway points on a hopeful interpretation rather than the terms of it is unreasonable,” Brimmer said.

Saint-Veltri argued that Bartkowicz was the victim of selective prosecution by the Drug Enforcement Administration as reprisal for his talking with 9News and noted that almost no other medical-marijuana growers have been federally charged in Colorado. Menendez said DEA agents targeted Bartkowicz because of his prior convictions and his house’s proximity to a school, which, she said, is a “compelling federal interest.”

“If it is,” Bartkowicz responded while testifying Wednesday, “then why am I the only person here?”

Bartkowicz’s trial is scheduled to begin Nov. 1. Brimmer said Bartkowicz will only be able to mention medical marijuana at his trial in describing what he told federal agents about his operation.

Read more: Man charged with growing pot loses early court tussles to feds – The Denver Post http://www.denverpost.com/news/marijuana/ci_16148516#ixzz10mApUbEf

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