Professional Documents
Culture Documents
6
IN THE TINITED STATES DISTRICT COURT
1
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
B
10 Plaintiff, CRO5-217RSM
11 V.
DEFENDANT'S SENTENCING
I2
MARC SCOTT EMERY, MEMORANDUM
13
Defendant.
t4
15
I. FACTUAL BAGKGROUND.
16
Marc Scott Emery, a Canadian citizen, has for most of his adult life been a political
I]
activist and proponent of legalizing marijuana. As the president of the BC Marijuana
1B
Party, Marc has run for office several times. In furtherance of his goal of legalizing
19
20 marijuana, Marc was for many years, inter alia, engaged in the sale of marijuana seeds
2I around the world. This was not a business that operated underground, or even in the
22
shadows. On the contrary, Marc openly operated his seed distribution business ("Marc
z5
Emery Direct") from a storefront in Vancouver, British Columbia, Canada, as well as over
24
the internet; through telephone sales; direct mail sales; and though other media outlets.
25
Revenue Canada gladly accepted taxes on all of his sales, which were duly reported to the
26
27 appropriate taxing authorities. Virtually all of the profits from the business went to
2B
DEFENDANT'S SENTENCING MEMORANDUM; RICHARD J. TROBERMAN, P.S
CR05-217RSM - I ATTORNEY AT LAW
I50I FoURTH AVENUE. SUITE 2I50
SEATTLE. WASHINGTON 9A1O1 -3225
(206) 343-1111
1
funding lawful efforts to legalize marijuana in Canada and the United States through the
2
political process.
3
On May 26,2005, Mr. Emery was charged by indictment in this district. The
4
T2 through discussions with both Canadian authorities and the United States Attorneys Office.
13 In September of 2009, a tentative agreement was reached with the United States,
I4 whereupon Marc ceased all efforts to contest his extradition to the United States on this
15
charge. On September 28, 2009, after consenting to extradition, Marc voluntarily entered
L6
pre-trial detention custody in Canada, where he remained until November 18, 2009, at
I7
which time he was temporarily released pending entry of the final extradition order by the
1B
ZU On May 10, 2010, the final order was entered, and Marc voluntarily returned to
2I custody. He remained in custody in B.C. until May 20, 2010, at which time he was
22
transported to the United States, where he had an initial appearance before this court.
23
On May 24,20L0, Mr. Emery was arraigned on the indictment and, pursuant to
24
Fed.R.Crim.Pro. 1l(cXlXC), entered a guilty plea to a lesser included offense charged
25
26 in Count I of the indictment. Sentencing is scheduled before this Court at 1:30 p.m. on
2B
DEFENDANT'S SENTENCING MEMORANDUM: RICHARD J. TROBERMAN, P.S
CR05-217RSM - 2 ATTORNEY AT LAW
1501 FoURTH AVENUE. SUITE 2]50
SEATTLE. WASHINGTON 98101 -3225
(206) 343-ltll
1
II. MAXIMUM STATUTORY PENALTY.
2
The maximum statutory penalty for this offense is a term of imprisonment of not
3
less than five (5) years up to forty (40) years; a fine of up to $2,000,000; a period of
4
5 supervised release of not less than four (4) years; and a mandatory penalty assessment of
6 $100.
1
III. OBJECTIONS TO THE PRESENTENCE REPORT.
8 Mr. Emery has no objections to the Presentence Report that affect the guidelines
9
calculation.
10
IV. GUIDELINES OFFENSE LEVEL AND SENTENCING RANGE.
11
We concur with the Probation Office's calculation of the advisory sentencing
I2
13 guidelines. That calculation includes a base offense level of 28; a two level upward
2I The plea agreement in this case was entered into pursuant to Fed.R.Crim.Pro.
22 11(cX1XC). Pursuant to Paragraph 10 of the plea agreement, the parties agreed that a
23 sentence of sixty (60) months was an appropriate disposition of this case. The Probation
24
Office concurs in that recommendation. We urge the Court to accept the agreement and
25
the sentencins recommendation.
26
27
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DEFENDANT'S SENTENCING MEMORANDUM: RICHARD J. TROBERMAN, P.S
CR05-217RSM - 3 ATTORNEY AT LAW
1501 FoURTH AVENUE. SU TE 2150
SEATTLE, WASHINGTON 9A1OI-3225
(206) 343-1111
1
VI. SENTENCING FACTORS.
2
In order to uphold the constitutionality of the Sentencing Reform Act, the remedial
+
decision rnUnited states v. Booker,543 u.S. 220 (2005), severed l8 U.S.C. 93553(bX1)
5 (the provision making application of the guidelines mandatory) from the SRA. Thus, after
6 Booker, a sentence within the guidelines range may not be necessary to achieve the
72 Ritav. United States,551 U.S. 338,127 5.Ct.2456, 168 L.Ed.2d203 (2007). However,
13 the Supreme Court has also rejected the notion that a sentence that amounts to a substantial
I9 In determining the particular sentence to be imposed, the Court shall consider the
20 nature and circumstances of the offense, and the characteristics of the defendant. The
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Court shall also consider the need for the sentence (1) to reflect the seriousness of the
22
offense, to promote respect for the law, and to provide just punishment for the offense;
23
(2) to afford adequate deterrence to criminal conduct; (3) to protect the public from further
24
crimes of the defendant; (4) to provide the defendant with needed educational or vocational
25
26 training, medical care, or other correctional treatment in the most effective manner; and
27 (5) to avoid unwarranted sentence disparities among defendants with similar records who
2B
DEFENDANT'S SENTENCING MEMORANDUM; RICHARD J. TROBERMAN, P.S
CR05-217RSM - 4 ATTORNEY AT LAW
I50I 2150
FOURTH AVENUE. SUITE
SEATTLE, \^'/ASHINGTON 9AI01 3225
(206) 343-r1r1
have been found guilty of similar offenses. Of paramount importance to any sentencing
determination, however, is that all of these factors are subservient to the $3553(a) mandate
to impose a sentence sufficient, but not greater than necessary, to comply with the
statutory purposes of sentencing. And as Rita makes clear, traditional departure analysis
Prior to Booker, many of these factors were largely ignored, because they were
28
DEF.ENDANT,S SENTENCING MEMORANDUM; RIcHARD J. TRoBERMAN, P.s
CR05_217RSM _ 5 ATToRNEY Ar LAW
1501 FoURTH AVENUE. SUITE 2150
SEATTLE. WASHINGTON 981O] -3225
(206) 343-ttll
1
A. Tne NerunE AND ClRcutusraNcEs oF rne OrperusE AND tHe GneRlcrERtsncs
2 oF THE OrrenoeR.
3 1. The Offense.
4 As detailed in the Presentence Report and ParagraphT of the Plea Agreement, from
5
September, 1995, though May, 2005, Marc Emery was engaged in the business of
6
unlawfully selling marijuana seeds. The seeds were sold on a global scale from his
7
business in Vancouver, British Columbia, Canada. As the government observes in its
8
sentencing memorandum, Mr. Emery has admitted that he had sold over 4,000,000 seeds,
9
10 of which approximately 75% were sold to customers in the United States. The
11 government's conclusion, however, that Mr. Emery "literally was responsible for
I2 supplying millions of marijuana plants to grow houses in the United States" is both a gross
13
exaggeration as well as factually and legally inaccurate.l Government Memorandum at
I4
2. U.S.S.G. S2D1.1, Application Note 17, defines a marijuana "plant" as "an organism
15
having leaves and a readily observable root formation (e.g. a marijuana cutting having
T6
L7 roots, a rootball, or root hairs is a marihuana plant)." Mr. Emery sold marijuana seeds,
1B not marijuana plants. This distinction is not splitting hairs. Rather, it has a significant
19 impact on how the advisory sentencing guidelines are calculated in this case.
20
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' It is often said that there are three types of lies: lies, damn lies, and statistics. The
22 government is quick to point out that Mr. Emery admitted to selling over four million marijuana
seeds over the course of his business. However, only 757a (3,000,000) of those seeds were sold
23 to customers in the United States. Mr. Emery "guaranteed" a germination rate of 50%. Thus, it
could be expected that 1,500,000 seeds sold in the United States would germinate. However, of
24 the seeds that did germinate, approximately one half would be expected to be male plants, and one
half would be female plants. Thus, only approximately 750,000 seeds sold in the United States
25 would have germinated as female plants. Male plants are virtually worthless, as they do not flower
and bud, which is the portion of the plant that is typically consumed. Consequently, most male
26 plants are destroyed by the growers. Moreover, a substantial number of the female plants would
never have reached maturity due to pest infestations and other hazards endemic to marijuana
27
cultivation. The point of this explanation is not to get into a "numbers game" with the
government, but merely to show that the figure of 4,000,000 "plants" is a gross exaggeration.
28
DEFENDANT'S SENTENCING MEMORANDUM; RICHARD J. TROBERMAN, P.S.
CR05-217RSM - 6 ATTORNEY AT LAW
]50] FOURTH AVENUE. SU TE 2150
SEATTLE, WASHINGTON 981OI-3225
(206) 343 1111
1
2. Historv and Gharacteristics of the Defendant.
2
Marc Emery is 52 years of age. His background is accurately described in the
3
Presentence Report and no useful purpose will be served by repeating that information.
4
5 Suffice it to say here that for the past 30 years, Marc has been an advocate and political
6 activist for reforming what he perceived as unjust laws in Canada and the United States.
1
His past efforts have resulted in the repeal of Sunday business closing laws in Ontario, and
I overturning a Canadian federal ban on marijuana and drug literature. He has also been
9
active (and successful) in promoting reform allowing for the medical use of marijuana in
10
several states in this country. Indeed, as more fully described below, it was largely
11
t2 Marc's political activism that made him a target for law enforcement and that ultimately
I4 Although well intentioned, Marc now realizes that some of the methods he chose
15
to fund his efforts to repeal prohibitions against marijuana use and cultivation were ill-
16
conceived and ultimately destructive. As Marc notes in his attached letter to the Court
I7
(Exhibit A):
18
26 activities. While Marc would be the first to say that this does not excuse his unlawful
27 conduct, it does provide the Court with some insight into his motivation and intentions.
2B
DEF'ENDANT'S SENTENCING MEMORANDUM; RICHARD J. TROBERMAN, P.S.
CR05-217RSM - 7 ATTORNEY AT LAW
I50I FoURTH AVENUE, SUITE 2I5O
SEATTLE, WASHINGTON 9A1O1 -3225
(206) 343-1111
1
B. Tne SenrousNESS oF THE Orreruse; PRomollrc Respect ron rne Lnw;
2 It'to Jusr Purutsnruerut.
J To be sure, the offense to which Mr. Emery has pled guilty is a serious offense.
4 But the advisory sentencing guidelines in this case, like all drug sases, are driven by the
5
type and quantity of drugs involved. Moreover, despite the government's claims to the
6
contrary, the prosecution of Marc Emery was clearly and undeniably selective and
7
politically motivated.
8
I4 Washington, and to AUSA Todd Greenberg, who have handled this case with
15 professionalism and integrity, that claim is absurdly naive. The Attorney General's true
16
motive--which was to silence Mr. Emery's political activity--could not be more clear. We
I]
do not make this claim lightly. One need look no further than the official press release
1B
issued by Drug Enforcement Administrator Karen Tandy following Mr. Emery's arrest in
19
ZU July of 2005:
28
DEF'ENDANT'S SENTENCING MEMORANDUM: RICHARD J. TROBERMAN, P.S
CR05-217RSM - 8 ATTORNEY AT LAW
]5Oi FOURTts AVENUE, SUITE 2I5O
SEATTLE. WASHINGTON 9A1O1.3225
{206) 343-1t1!
Statement from DEA Administrator Karen P. Tandy, luly 29,2005, a copy of which is
2
attached hereto as Exhibit B (emphasis supplied).
3
When Mr. Emery started his marijuana seed distribution business, not a single state
4
5 had enacted a Compassionate Use (medical marijuana) law. By July of 2005, all of
6 Canada and ten states in the United States had passed such laws, either by ballot measures
a
or by legislative enactments. As of today, a total of 14 states, plus the District of
e
Columbia, have enacted medical marijuana laws, and a ballot measure for the complete
9
legalization of marijuana is pending in Catifornia.2 Between 1995 and 2005, Mr. Emery
10
donated several million dollars to various groups to use in their lawful efforts to legalize
11
T2 marijuana through the legitimate political process. Apparently, that was too much for the
13 DEA to tolerate. This is evidenced by the high priority the Attorney General placed on
74 prosecuting Mr. Emery. Quoting again from DEA Administrator Tandy's press release:
15
Emery and his organization had been designated as one of
L6 the Attorney General's most wanted international drug
trafficking organizational targets -- one of onllz 46 in the
I7 world. and the only one from Canada.
1B
Tandy Statement, July 29,2005.
19
Ms. Tandy's statement is either gross hyperbole, or reflects a shocking
20
acknowledgement of totally misplaced priorities within the Drug Enforcement
2L
Administration. Marc Emery and his two employees--both of whom are co-defendants in
22
z5 this case, and each of whom received sentences of probation--were, according to the
24 Attorney General of the United States, one of the 46 most wanted "international drug
25
26 2Alaska (1998), California (1996), Colorado (2000), Hawaii (2000), Maine (l9gg),
Michigan (2008), Montana (2004), Nevada (2000), New Jersey (2010), New Mexico (2007),
27
Oregon (1998), Rhode Island (2006), Vermont (2004), Washington (1998), Districr of Columbia
(2010).
28
DEFENDANT'S SENTENCING MEMORANDUM: RICHARD J, TROBERMAN, P.S
CR05-217RSM - 9 ATTORNEY AT LAW
I501 FoURTH AVENUE. SUITE 2150
SEATTLE, WASHINGTON 9EIO] 3225
(206) 343-tlll
l_
trafficking organizations" on the planet, and the only such wanted organization in
2
Canada!3 How can this claim make sense? It is well documented that numerous Canadian
3
drug trafficking organizations are responsible for importing tons of marijuana, hundreds
4
exporting from the United States into Canada hundreds of kilograms of cocaine per month.
B
Certainly, this court has seen its share of defendants who are members of such
9
organizations. Yet, according to the then head of the Drug Enforcement Administration,
10
only Marc Emery was on the list of most wanted drug trafficking organizations in Canada.
11
T2 And he was also part of one of only 45 such wanted organizations in the entire rest of the
13 world. If placement on that list was truly based on Mr. Emery's unlawful seed
74 distribution business rather than his political activities, what does that say about our
15
nation's law enforcement priorities in the "war on drugs"?
I6
Even a dispassionate comparison of Mr. Emery's conduct with comparable
I7
businesses operating at the time belies the government's assertions about the scope of
18
19 Marc's business. When Marc Emery was charged in this case, there were dozens, if not
20 hundreds, of others selling marijuana seeds on the internet into the United States, many
2L with equal or greater sales volume. Even today, there are hundreds of people openly
22
selling marijuana seeds over the internet. See Google Search, September 2,2010, attached
23
hereto as Exhibit C.
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25
5 take the government seriously when it claims that this case was not politically motivated.
6 Of course, none of this excuses Mr. Emery's unlawful conduct, nor does Marc offer it as
a
an excuse. It does, however, help to put both the offense and the prosecution of this case
U
in proper perspective.
9
C. Tne Neeo FoR THE Serureuce ro ArroRo Aoeeunre DereRReruce ro
10 GRttrrttunl Gottoucr.
11 We submit that a five year prison sentence will serve as an adequate deterrent. It
t2 is unlikely that others will be inclined to engage in this type of conduct if they realize that
t<
the consequences for such conduct will include such a lengthy prison term.
T4
D. Tne Neeo ro Pnorecr rHE Pueltc Fnou FuRrneR Gntues ey Mn. EueRv.
15
16
Mr. Emery has learned a costly lesson as a result of his involvement in this
L7 offense. He has never before been incarcerated for a substantial period of time. Based
1B on the responsible way he has responded to these charges, there is no reason to believe
25 employees of Mr. Emery, each received sentences of two years probation. We recognize,
26 however, that their mitigating roles justify a reduced sentence in this case.
27
z6
DEFENDANT'S SENTENCING MEMORANDUM: RICHARD J. TROBERMAN, P.5
CR05-217RSM - 11 ATTORNEY AT LAW
]50] FoURTH AVENUE. S! TE 2150
SEATTLE. WASHINGTON 98]01-3225
(206) 343-1111
1
vill. coNcLustoN.
2
We respectfully submit that under all of the facts and circumstances of this case,
3
and for all of the reasons hereinabove set forth, a sentence of sixty (60) months is a
4
5 sufficient, but not greater than necessary, sentence. We ask the Court to recommend
6 placement at FCI Lompoc, California in order to facilitate continued visitation with his
wife.
d
DATED this -ir: day of September, 2010.
9
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12 ARDIJ. TROBERMAN
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DEFENDANT'S SENTENCING MEMORANDUM; RICHARD J. TRABERMAN, P.S
CR05-217RSM - 12 ATTORNEY AT LAW
150I FOURTH AVENUE, SUITE 2I50
SEATTLE. WASHINGTON 9A]O1 -3225
(206) 343-rr11
1
CERTIFICATE OF SERVICE
2
I hereby certify that on September t ,20I0,I electronically filed the foregoing
3
4
"Defendant's Sentencing Memorandum" with the Clerk of Court, using the CM/ECF
5 system which will send notification of such fili to the attorneys of record in this case.
a TROBERMAN
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DEFENDANT'S SENTENCING MEMORANDUM; RICHARD J. TROBERMAN, P.S.
CR05-217RSM - 13 ATTORNEY AT LAW
1501 FOURTH AVENUE. 5U TE 2150
SEATTLE, WASHINGTON 9A]01.3225
(206) 343-111I
EXHIBIT A
September 1, 2010
Let me begin by apologizing to the Court and again stating that I accept full
responsibility for my conduct and blame no one other than myself for my current
situation.
I have been an advocate and activist for peaceful civil disobedience to change
what I perceived as unjust laws in Canada, where I have lived and done these things,
for thirty years. My activities in Canada were successful in repealing the Sunday
Closing laws in Ontario (1988) and overturning a Canadian federal ban on marijuana
and drug literature (1994).
It was in this spirit that I sold cannabis seeds as a way of raising funds to pay
for a wide arrcy of political activity over a ten year period, from 1995 to 2005. During
this time, I distributed the profits from the marijuana seed business to hundreds of
groups, lobbyists, political parties, court actions, and other legal challenges to existing
cannabis prohibitions in the United States and Canada. Some of these actions led to
successful outcomes, others did not. I also financed a pioneering drug addiction
rehabilitation clinic with proceeds from the seed sales.
Of all the revenue generated by the seed business, I never used any of it to
provide me with personal wealth. I never owned vehicles or real property, nor did I
travel for leisure. I also paid all relevant taxes to all levels of government based on the
income from the business.. Since 1995, most all of my time has been spent in an effort
to repeal marijuana prohibitions.
lhave run foroffice twelve times since 1980. My most recent candidacy was in
2008. I also published the magazine Cannabis Culture for fifteen years with the money
it generated. Publication was suspended in 2009 due to my imminent incarceration.
My activities have always been transparent and honest, however misguided insofar as
flouting the laws of the United States.
It has always been my sincere belief that the prohibitions on cannabis are hurtful
to U.S. and Canadian citizens and are contrary to the constitutions of both countries.
lwas, however, overzealous and reckless in pursuing this belief, and I acted arrogantly
The Honorable Ricardo S. Martinez
United States District Court Judge
September 1, 2010
Page Two
in violation of U.S. federal law. I regret not choosing other methods--legal ones--to
achieve my goals of peaceful political reform. I have no one to blame but myself. ln
fact, one of my heroes, Mahannes Gandhi, often said that an important principle of civil
disobedience is acceptance of punishment by the state without complaint. l, too,
accept my punishment without complaint.
ln my zeal I had believed that my actions were wholesome, but my behavior was
in fact illegal and set a bad example for others. I have abandoned this method and
ideology of disobedience as a necessary part of my rehabilitation. I will not again
disobey or recommend that others disobey the laws of the United States. My method
and manner of selling marijuana seeds to provide capital for political change was
foolish and an affront to the people of the United States, For that I am truly sorry. I
accept full responsibility for my actions and am honor bound before this Court to never
repeat this mistake again.
Sincerely,
Marc S. Entery
EXHIBIT B
Page 1 of 1
"Today's DBA ancst of Marc Scott Emery, publisher of Cannabis Culnre Magaeine, and the founder
of a marijuana Iegalization gmup- is a significant blow not only to the manluina tafiicking
trade in
the u.s. and canada, but also to the marijfana legalizatton movement.
His marijuana tade and propagsndist marijuana magaziue have genorated nearly
$s rnitlion a yoar in
profits that bolstsrud his taJfickiug efforts, but those hsvc gona up in srnoke today.;'
Ths miasioa of trc Drug Enforcsrtnt Adminicmtion (DEA) is to srforoc &e oonnolled
substrnccr hwr snd rcgulations of rhc united
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. We will not accept responslbilily for other intended
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