MAY 2025 | 27 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. THE LANDSCAPE OF FEDERAL MARIJUANA PROSECUTION Among the many risks associated with business operations in the medical marijuana industry is the threat of federal civil asset forfeiture and the possibility of seizure by the U.S. Department of Justice for violation of the Controlled Substances Act (CSA).1 In each fiscal year since 2015, Congress has included provisions in its appropriations acts that prohibit the Department of Justice and the Drug Enforcement Administration from using federal funds with respect to states that have legalized medical marijuana, including Oklahoma, “to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”2 While such activity remains criminal under federal law, many federal courts have interpreted the appropriations rider, often referred to as the “Rohrabacher-Farr amendment,” to prohibit investigation and prosecution of the CSA in relation to the use, possession and distribution of medicinal cannabis that is in compliance with state law. Alternatively, where the activity is not authorized under state medical marijuana law, there are no barriers to the expenditure of federal funds in the investigation and prosecution of CSA violations or in bringing civil asset forfeiture actions. Nothing prohibits the DOJ and the DEA from prosecuting recreational marijuana activities, even in states where recreational marijuana is legal; however, there are political barriers to such prosecutions that the executive branch has presumably been largely unwilling to cross. In 2013, U.S. Deputy Attorney General James M. Cole issued a memorandum directing the DOJ to limit its priorities to, inter alia, “[p]reventing the diversion of marijuana from states where it is legal under state law in some form to other states” and “[p]reventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity.”3 While the Cole Memorandum was rescinded in 2018 by U.S. Attorney General Jeff Sessions, political backlash to that move has largely resulted in a de facto policy of the DOJ to limit its prosecutorial discretion to respect state marijuana laws, both medical and recreational.4 Thus, the focus of federal enforcement of the CSA is on activities that are not compliant with state marijuana laws. Where courts have diverged is the level of state compliance that must be shown. In United States v. McIntosh, the 9th Circuit Court of Appeals found that five co-defendants accused of CSA violations in its operations of four marijuana dispensaries in Los Angeles had standing to enjoin the DOJ from expending federal funds in their prosecution in violation of the medical marijuana appropriations rider. The defendants
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