On the morning of May 18, 2016, two Drug Enforcement Agency convoys wound their way through Bozeman's outer suburbs. One drove to the Four Corners industrial park west of town, and the other to a rural northside home at 1340 Hidden Valley Road.
At Four Corners, agents executed a search warrant on the headquarters of Montana Buds, a medical marijuana dispensary network owned by Charlton Campbell with branches in cities across western Montana.
Based on information acquired from confidential informants, the DEA believed that Charlton Campbell, his business partner Michael Mason, his brother Jesse Campbell, and employee David Maples were conspirators in an interstate drug ring, in flagrant violation of state and federal law.
The DEA agents raiding the Four Corners complex, owned by Charlton Campbell and Mason, found about what one would expect at the state's largest medical marijuana dispensary: nearly 400 pounds of processed marijuana, more than 40 pounds of hash oil and edibles, a hash oil laboratory, more than 1,500 live marijuana plants, and tens of thousands of dollars in cash.
At Jesse's Hidden Valley home, agents found more than 100 marijuana plants and clones in an outbuilding, $80,000 in cash in the master bedroom closet, just under 35 pounds of harvested marijuana, 29 hash oil vape cartridges, and a stack of 30 registration cards documenting Jesse Campbell's patients.
As he would later testify in federal court, Special Agent Lee Herd, who executed the search warrant on Hidden Valley Road, didn't know the intricacies of Montana's medical marijuana law, and he didn't have to. The Supremacy Clause of the United States Constitution means that federal law, including the Controlled Substances Act, trumps state law, including the Montana Medical Marijuana Act.
Jesse Campbell's attorneys would claim that Jesse had on hand a legal amount of marijuana per patient, thus he had committed no crime under Montana law. In the past, most attorneys who have tried this tactic in such cases have seen judges shoot it down.
But a new legal precedent, established only a month before the Campbell brothers and their associates were indicted, established that growers and patients who can prove they followed state law can't be federally prosecuted as common drug dealers.
The Bozeman defendants would test that precedent for the first time, only to find the imprecision of Montana's medical marijuana laws to be a devastating liability.
ROHRABACHER, FARR AND MCINTOSH
In 2014, Orange County, California, Republican congressman and pot advocate Dana Rohrabacher got his wish. For more than a decade, Rohrabacher had been trying to pass federal legislation barring the U.S. Department of Justice from spending money to interfere with states' implementation of their medical marijuana programs.
Six previous attempts had died on the House floor or in committee, but in 2014 his Rohrabacher-Farr Amendment was attached without a vote as a last-minute rider to a trillion-dollar spending bill. The bill was signed into law by President Obama that December. The amendment effectively prevents the DOJ from prosecuting medical marijuana providers and patients in states with medical marijuana laws on the books, including Montana.
The amendment was tested and prevailed last August, when 10 federally indicted medical marijuana defendants, in a group appeal of the rulings in U.S. district courts in California and Washington, which had denied the Rohrabacher-Farr argument, came before a Ninth Circuit council of judges. In what became known as the McIntosh ruling, the Ninth Circuit set legal precedent by agreeing that the Rohrabacher-Farr amendment applied, sending the cases back to the lower courts.
Medical marijuana providers facing prosecution under the Controlled Substances Act in states within the Ninth Circuit (including Montana) can now argue that if they aren't breaking state law, the feds are barred from indicting them.
The caveat is that if the feds can prove growers and patients were not in "strict compliance" with state law, they're vulnerable to prosecution. While proving compliance may be easy enough in states with stringent regulations, Montana's vague and poorly written medical marijuana laws have fluctuated wildly since their first introduction, and particularly in the last year. More often than not, what is and isn't legal within the expansive gray areas of Montana's marijuana law is defined in the courts, after a provider or patient is arrested. One of the Bozeman cases would reveal that Montana law doesn't even define what "usable marijuana" is.
MONTANA MEDICAL MARIJUANA HISTORY
Montana voters first legalized medical marijuana in 2004 through a ballot initiative. The law contained few regulations and presented would-be providers and card seekers with minimal barriers to entry. By 2011, with around 30,000 registered cardholders in the state, many legislators agreed that the system was being abused by healthy people looking to get high recreationally.
Instead of building a robust regulatory system, Republican lawmakers pushed through a draconian quasi-repeal restricting providers to three patients each and banning providers from accepting payment for their product—a death knell for any business.
The bill was immediately challenged in court by the Montana Cannabis Industry Association, and some provisions, like the prohibition on payment, were eventually dropped. During the next five years there was little legislative action on the state's still-dysfunctional medical marijuana system, even as other states moved further toward decriminalization, some even legalizing recreational sales.
In the spring of 2016 the Montana Supreme Court decided there were no legal grounds for preventing the three-patient limit from going into effect, and that restriction was enacted on June 30, cutting off 93 percent of the state's roughly 13,000 patients from providers, who were forced to drop them overnight.
The MTCIA led the charge to pass a citizen's initiative repealing the patient limit on the November 2016 ballot, but the law's drafters defined its implementation date as July 1, 2017, leaving patients in the the lurch for another eight months.
The MTCIA then sued the state to modify its own bill, claiming the delayed implementation date was a "scrivener's error." A Montana district court judge sided with the organization and brought the law into effect in December. The Montana Medical Marijuana Act saw further regulatory amendments during the 2017 legislative session.
Because medical marijuana advocates have spent years securing basic patient access, there's been little effort devoted to developing regulation, which the Republican-controlled legislature is unlikely to pursue independently, fearing it would legitimize medical marijuana. So the law has remained vague. The Bozeman cases exposed blind spots that allow drug dealers to masquerade as medical providers and expose legal providers to prosecution.
CHARGES AND EVIDENCE
Few federal drug cases make it all the way to trial because prosecutors typically have overwhelming evidence and defendants know they're better off pleading guilty for a lighter sentence. Without trials, many of the details of such cases remain hidden from public view.
Charlton Campbell pleaded guilty in March to conspiracy to manufacture and distribute marijuana—part of a plea deal with prosecutors, who dropped three additional felony charges—and was sentenced in June to 18 months in federal prison.
It was initially unclear to observers why Charlton Campbell would accept a plea deal instead of mounting a McIntosh defense, as his brother and Michael Mason eventually would. It became clear when the DOJ filed an "offer of proof" outlining the evidence prosecutors would use to prove their case should it go to trial.
According to the DOJ, a confidential DEA source, over the course of three visits between March and May of 2016, bought a pound of marijuana from the Montana Buds storefront in Bozeman in increments illegal under state law and without a medical marijuana card.
Such a sale obviously violates Montana's medical marijuana laws, rendering a McIntosh defense impossible. The prosecution also said they could corroborate claims by confidential sources that Charlton Campbell was involved in interstate drug trafficking.
Of the four men indicted, David Maples' case finished first. Maples was indicted on two federal drug charges after DEA agents found an edibles production lab, more than 100 pounds of marijuana, and $20,000 in cash during a June raid of an apartment rented to him by Charlton Campbell. Maples also took a plea deal. Arguing for a light sentence, Maples' attorney said that his client, a chef who created edibles for Charlton Campbell, simply filled orders and developed new products for his employer, playing no role in distribution. Maples claimed that the hundreds of pounds of marijuana products found in his apartment were Charlton's to distribute.
"Most indicative of David's role is the fact that he earned $20 per hour for his work while the owners of the business earned millions," Maples' attorney wrote.
As requested by his attorney, Maples was sentenced to three years probation.
Jesse Campbell and Michael Mason initially pleaded not guilty to drug charges and filed motions in December and January asking presiding judge Dana Christensen to dismiss their cases or prevent the DOJ from prosecuting them, citing the McIntosh precedent.
Evidentiary hearings on the motions were held on Feb. 17 and continued on March 20.
MCINTOSH DEFENSE FAILS
The purpose of the evidentiary hearings was to determine if Jesse Campbell and Michael Mason, in the language of the McIntosh precedent, "strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana." If they did, the DOJ couldn't prosecute, and the case would be dismissed.
Judge Christensen put the burden of proving noncompliance on the federal prosecutor. The defense was tasked with disproving any allegation that Campbell and Mason had broken state law.
During examination, DEA Special Agent Bryan Fillinger said the investigation into Montana Buds began in March of 2016, but it led to Jesse Campbell only after a Bozeman police officer tipped the agent off to a former dispensary employee and Gallatin County jail inmate who might have some "interesting information" about his former workplace.
Fillinger said he spoke with the man, Nicholas Sommerville, only once, and that the man told him that at Montana Buds he had witnessed provider-to-provider transactions, interstate cannabis sales and a Christmas party fueled by cocaine, LSD and prescription pills. Sommerville also told the agent that he had purchased half a pound of marijuana two or three times a week from Jesse Campbell at his Hidden Valley home over the course of six months.
With this information, Fillinger requested that a judge subpoena NorthWestern Energy, which reported that the Hidden Valley home's electricity bill was $1,500 to $2,200 a month, suggesting a grow operation.
During cross-examination, Fillinger would admit that he never corroborated Sommerville's claims. He also said he chose not to subpoena Jesse Campbell's provider records from the state Department of Public Health and Human Services until after raiding the house, for fear that someone in the department might tip off the Campbells, a scenario he said has played out in other investigations.
Though listed by the prosecution as a witness, Sommerville was not present for the hearing. He was still in jail and facing 10 felony and four misdemeanor charges with a maximum penalty of 127 years in jail. Based on Sommerville's history of criminal dishonesty in Montana, Tennessee, Pennsylvania, Florida and Idaho, the defense argued that his word wasn't reliable enough to have justified Fillinger's search warrant.
Christensen ruled there was enough evidence for probable cause.
While the prosecution never proved Sommerville's allegations, before or after the raid, the allegations did get them into his Jesse Campbell's home. They still suspected him of something.
"We're not just raiding dispensaries every week or month. We look at dispensaries that we believe are not following state law," Fillinger said at the hearing.
The defense argued that under the Montana Marijuana Act, Campbell had possessed a legal quantity of plants and "usable, salable" marijuana to serve his 30 patients, and that another 33 pounds of marijuana seized by the DEA was still curing and therefore unusable.
Judge Christensen said in his decision that Campbell's testimony differentiating between dried and cured amounted to a distinction not found in the Montana Marijuana Act. Christensen acknowledged that the law's reference to "usable" marijuana implies that providers may possess additional marijuana beyond one ounce per patient on hand a common provider practice but the law's language doesn't explicitly say so.
"The Montana Marijuana Act does not recognize this reality and the statute is clear. Campbell's arguments reveal a failure in Montana's legislative scheme. But, as far as this case is concerned, the Court's hands are tied," Christensen wrote in the order denying Jesse Campbell's McIntosh-based request to stop the prosecution.
Christensen ruled that Jesse Campbell was out of compliance for having more harvested marijuana in his possession than state law allowed. And even if he had not exceeded the possession limit, Christensen said, he would still be out of compliance because he had not filed with the health department a landlord permission form, which is required to grow medical marijuana on property owned by another person. Campbell's mother owned the Hidden Valley home, and she had signed permission slips in 2014 and 2015, but Jesse did not file one in 2016, when he was in the process of buying the property from his mother.
After Christensen denied Campbell's McIntosh defense motions in May, he and Mason accepted plea deals. In the denial order, Christensen bemoaned the collision between state and federal drug policies.
"These prosecutions are expensive, time-consuming, and as the instant motions demonstrate, challenging for the Court. Other than the acts of noncompliance identified in this order, Campbell appears to have generally acted consistent with the Montana Marijuana Act, counting his plants and patients to ensure that he did not run afoul of Montana law," Christensen wrote.
Jesse Campbell got caught in the Montana medical marijuana law's "gray area"—a term that was used 11 times during the McIntosh defense hearings. But the fact that defendants can even argue adherence to state law in federal court is a milestone. The last time Christensen presided over a federal indictment of Montana marijuana growers, the deck was stacked completely in the prosecution's favor.
In 2011 Chris Lindsey was federally indicted as a co-conspirator in an allegedly illegal Helena medical marijuana dispensary after a string of high-profile DEA raids on dozens of other Montana providers' businesses. Since nothing like the Rohrabacher-Farr amendment or McIntosh defense existed at the time, Lindsey and his three co-defendants were barred from arguing during their trials that they were following state law.
With no other defense available, Lindsey and two other defendants took plea deals for lesser sentences. Dispensary owner Chris Williams made a stand, fought the charges, and avoided an 85-year mandatory minimum federal prison sentence only due to the grace of the prosecutors, who, in an unheard-of move, dropped most of the charges after the jury convicted him.
Williams was released from federal prison in January to home confinement in Bozeman, and left Federal Bureau of Prisons custody on June 23. He'll spend the next five years on probation.
"I feel like anyone who is willing to risk time in federal prison to stand up for states' rights should be applauded. It is a near-impossible battle to win, but one that should continue to be fought," Williams says.
Judge Christensen presided over that case as well, calling the mandatory minimum sentence he was forced to give Williams "unfair and absurd."
Lindsey, who lives in Missoula, recently finished his own five-year probationary sentence. As a legislative analyst for the Marijuana Policy Project, he has an encyclopedic knowledge of the history of medical marijuana laws in various states.
He says the McIntosh ruling is a bellwether for members of the medical marijuana community facing federal charges, but that its requirement of "strict compliance" with state law makes it almost useless in Montana.
"You can't strictly comply with Montana's bullshit law," Lindsey says. "We've been telling lawmakers that for years."
According to Lindsey, the McIntosh ruling set an all-or-nothing precedent in following state medical marijuana laws for defendants looking to escape federal prosecution. While Montana law authorizes certain conduct, providers "have to show they were completely compliant with all of the 't's and the 'i's or you fall in the shark tank with the federal government, and it's all over at that point because there are no defenses, there is no such thing as medical marijuana in the federal dictionary," he says.
"It's unfortunate that it comes down to a motion in a pretrial hearing," he said.
Of the 29 states that have passed medical marijuana laws, Lindsey says, Montana has the most unregulated system. He says there's a pattern that distinguishes what he calls the Eastern and Western models of state regulation.
In the Western model, which includes states like Montana and California, anyone minimally qualified can easily get a permit to grow medical marijuana. While there are some standards (such as no previous felony or drug convictions), there are no caps on the number of grow licenses, which cost as little as $1,000. Washington and Oregon had similarly low barriers to entry before those state's legislatures, prompted by ballot-initiative legalization of recreational marijuana, enacted regulatory overhauls.
Western states, which were the first to legalize medical marijuana, did so through ballot initiatives, not state legislation. Citizen initiatives are commonly used to pass agendas popular with citizens but not with elected officials, and legislators are often reluctant to improve such laws once they're passed.
In 2013 Montana House Human Services Committee chairman David Howard, R-Park City, killed an attempt to remove the three-patient limit that was eventually removed by voters last fall. Now a state senator, Howard told the Montana Standard after I-182's passage in November that "In Montana, we can bypass the legislative process and pass things that are extremely bad for Montanans." Howard's attempts to repeal medical marijuana in the 2017 session failed.
Lindsey says that by the time eastern states got on board with medical marijuana, they were crafting regulatory systems legislatively, rather than by initiatives. Under the eastern model, only a limited number of grow licenses are available, and only at extreme cost. Lindsey says it takes about $10 million to get a grow operation running in Illinois.
"You compare Illinois system to Montana's and you almost couldn't recognize that they're talking about the same substance," Lindsey says. "It's a completely different universe."
The "strict compliance" with state law required by the McIntosh defense is easier in eastern states, where regulations and state inspectors abound, than in Montana, where the legislature has failed to reform medical marijuana law into coherence.
"We don't even know what 'usable marijuana' is," Lindsey says.
Where Helena has failed, Sacramento, Lansing, Salem and Olympia have not, with each legislature updating their under-regulated systems to follow federal guidelines set down by the DOJ, which basically just told states to get a handle on things.
In 13 years of medical marijuana legislation, Montana has accomplished staggeringly little, with basic patient access and tracking systems surpassed by other states a decade ago. Even setting systems in place to tax medical marijuana revenue has been difficult, as opponents fear that such a setup will establish it in the state budget—a scenario that approving Michiganders call "pot for potholes."
The 2017 session showed the Legislature is finally willing to work on the law.
"We're getting there, but very slowly," Lindsey says.
FIXING MONTANA'S LAW
The Montana Cannabis Industry Association the lobby group for medical marijuana growers that got I-182 on the ballot last year is trying to reform the broken system one gray area at a time.
Senate Bill 333 was a bipartisan medical marijuana reform bill that passed both houses with large majorities and was signed into law by Gov. Steve Bullock on May 19. According to MTCIA government-relations spokesperson Kate Cholewa, SB 333 solves some of the most glaring puzzles in the pockmarked Montana Medical Marijuana Act.
"It draws clear lines between the state's legal medical market and the black market, and really the key to that is transparency," Cholewa says.
The primary elements of the new and improved Montana act are seed-to-sale tracking, a square-footage-based, or "canopy," quota system for how much marijuana a provider is allowed to have on hand per patient, and mandatory unannounced inspections and testing.
Cholewa has compared seed-to-sale tracking of medical marijuana to the Department of Livestock's tracking of cows and milk. Provider supplies will be tracked by the health department from the seed or seedling phase through production until it is ultimately sold to patients as buds or marijuana-infused products.
In the bill's language, this is "to ensure that the marijuana or marijuana-infused product cultivated, manufactured, possessed, and sold under this part is not sold or otherwise provided to an individual who is not authorized under this part to possess the item."
Cholewa and Lindsey say that Montana Buds' sale of a pound of marijuana to a DEA source without a medical card is a textbook example of the scenario that seed-to-sale tracking is designed to prevent.
Cholewa says that without a tracking system and precise definitions of usable and salable marijuana, the state has been in the dark about how much cannabis providers do, or should, have on hand, despite the health department tracking how many patients they provide to.
While that isn't to say all providers are taking advantage of the gray area to sell on the black market—a lack of DEA raids means they likely aren't—the lack of precise oversight does create a space in which providers can find themselves unintentionally in violation of the law. How exactly the canopy system will work has yet to be determined, and the health department has nine months to figure out how to measure the marijuana that providers are allowed to have on hand and in what forms. Cholewa says the department isn't close to defining those parameters yet, but an MTCIA white paper published in January spells out the group's suggestions.
According to the white paper, harvest yield, patient demand, and other variables mean that providers operating under the current law may find themselves with too little marijuana on hand to serve their patients, or with too much, exposing them to federal prosecution.
As Lindsey puts it, "If you have seven plants instead of six, you're done."
For instance, when 93 percent of patients were briefly cut off from providers last fall, some of those providers may have been left hanging with stock that exceeded legal state limits. "That provider may have been over his or her allowable product-on-hand and plant limits unknowingly for weeks. ... This lack of 'agricultural logic' in regards to allowable product on-hand per patient in the statute is one of the primary concerns of providers aimed at acting within the state law," the paper reads.
And since different size plants can produce drastically different yields, the MTCIA claims that "leaf area per unit ground area" (canopy) is a more accurate measure than number of plants per patient, helping ensure against accidental or intentional overproduction.
"There's actually a science, there's actually a formula, there's math that can tell us how much cannabis is being produced per square foot. Knowing plants per patient tells us nothing about how much is being produced," Cholewa says.
The new seed-to-sale tracking and canopy allotments won't go into effect until April 2018, giving providers time to adjust to the new rules as the old provisions sunset. That transition could be the grayest area of all, but Cholewa says the state understands that it's at a crossroads.
Health department spokesman Jon Ebelt says draft rules should be ready for public comment by November, and they should be finalized by March to give providers a couple of months to make the switch.
Cholewa says that phasing in substantial regulatory mechanisms will likely take decades, but that starting with safety and transparency is better than overregulating all at once and spooking anti-marijuana legislators with an elaborate system.
She says that while the bill was still being considered during the session, some legislators not typically interested in medical marijuana became attentive once they understood that regulation involves a policy they specialize in, such as agricultural compliance testing. With new laboratory testing requirements and taxation of marijuana sales in the mix, the Departments of Agriculture and Revenue joined, for the first time, the Department of Public Health and Human Services in the act's language.
And with the legislature finally addressing the gray areas in Montana's vague laws, there's anticipation that DEA raids on the state's medical dispensaries may be coming to an end.
"Hopefully the feds will be less interested in interfering now that we have a regulatory system that better meets the federal guidelines," Cholewa says.
President Trump's first official comments on medical marijuana, which came in May after the Rohrabacher-Farr Amendment was reauthorized in conjunction with the annual spending bill, were vague. Attorney General Jeff Sessions urged legislators to oppose the amendment, but otherwise his position seems to be one of noninterference at least as regards medical marijuana.
If the DOJ does decide to again start prosecuting providers en masse, the McIntosh defense, in combination with Montana's soon-to-be-transparent medical marijuana system, will make it harder than ever to unintentionally run afoul of the law. Just don't sell a pound of weed over the counter to a DEA mole.