It is no secret that federal drug laws impose severe and Draconian punishments that do not reduce crime or cause people to respect the law. These punishments include significant fines and prolonged periods of incarceration. In most drug cases, the government must prove defendants “willfully” distributed controlled substances, like cocaine, heroin, or marijuana. Where controlled substances may be lawfully distributed, like oxytocin, codeine, or medical marijuana, the government must prove defendants acted “willfully” to distribute those substances outside of the course of professional medical treatment.
“Willfully” is a legal term and courts have said it means someone acted “voluntarily and purposely, with the intent to do something the law forbids; that is, with the bad purpose to disobey or disregard the law.” Medical marijuana dispensaries are, and will continue to be, subjected to significant oversight. To obtain operating licenses, owners, operators, and employees are instructed that it is illegal to willfully provide medical marijuana to those who are not entitled to receive it – that is outside the course of professional medical treatment. As we have seen with the diversion of controlled pharmaceuticals, when medical marijuana ends up in the wrong hands federal prosecutors will bring cases.
It has been widely reported that law enforcement is diligently working to identify marijuana DNA strands, starting with those nurseries licensed to distribute marijuana and related marijuana products to medical marijuana dispensaries. While the current status of the science does not resemble an episode of CSI or Law & Order, law enforcement has made significant strides in the science. But, even without DNA science, law enforcement has decades of experience tracking drugs to the source. With lengthy prison sentences as leverage, drug dealers readily provide information to law enforcement to obtain reduced charges, or no charges at all. To get those sweet deals, drug dealers often offer to make recorded calls or meetings to help law enforcement get the “bigger fish.” In these cases, law enforcement seeks to forfeit money, licenses, and assets. To do that, the government usually tries to convict owners, operators, and top executives.
To prosecute owners, operators, and top executives who don’t illegally distribute marijuana, the government relies on a legal short cut to prove their willful participation in the crime. This short cut is called “willful blindness,” and is sometimes referred to deliberate ignorance. The Supreme Court has said that willful blindness means someone took “deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts.” The government has increasingly used willful blindness to prove criminal liability in prosecutions of other highly regulated industries, like heath care. In those ambiguous situations, where one acts recklessly (when one knows there is a substantial and unjustified risk of misconduct) or negligently (when one should have known about the risk of misconduct but did not), the government may surely attempt to use willful blindness to prove criminal liability. Leveling criminal charges at owners, operators, and top executives ensures the government can seize all of the medical marijuana dispensary’s assets, especially the dispensary’s cash holdings and bank accounts.
Convictions are a far cry from certainty in these situations. For example, in 2015, CVS Health avoided a federal conviction, but paid a $22 million fine after a government investigation concluded that controlled substances were distributed from two pharmacies in violation of CVS’s duty to dispense controlled medicine pursuant to proper professional conduct. While CVS Health may have easily weathered a $22 million fine, it is unlikely that many businesses could.
To avoid risking financial ruin and the loss of your liberty, it is imperative to obtain competent legal counsel if you think you or your medical marijuana dispensary is under investigation.
