marc emery sentencing memorandum

8/8/2019 Marc Emery Sentencing Memorandum

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JTIDGE RICARDO S. MARTINEZ

IN THE TINITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLEUNITED STATES OF AMERICA,

Plaintiff,V.

MARC SCOTT EMERY,

DEFENDANT'S SENTENCING MEMORANDUM;CR05-217RSM - I

CRO5-217RSM

DEFENDANT'S SENTENCINGMEMORANDUM

Defendant.

I. FACTUAL BAGKGROUND.Marc Scott Emery, a Canadian citizen, has for most of his adult life been a political

activist and proponent of legalizing marijuana. As the president of the BC MarijuanaParty, Marc has run for office several times. In furtherance of his goal of legalizingmarijuana, Marc was for many years, inter alia, engaged in the sale of marijuana seedsaround the world. This was not a business that operated underground, or even in theshadows. On the contrary, Marc openly operated his seed distribution business ("MarcEmery Direct") from a storefront in Vancouver, British Columbia, Canada, as well as overthe internet; through telephone sales; direct mail sales; and though other media outlets.Revenue Canada gladly accepted taxes on all of his sales, which were duly reported to theappropriate taxing authorities. Virtually all of the profits from the business went to

RICHARD J. TROBERMAN, P.SATTORNEY AT LAWI50I FoURTH AVENUE. SUITE 2I50SEATTLE. WASHINGTON 9A1O1 -3225(206) 343-1111


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funding lawful efforts to legalize marijuana in Canada and the United States through thepolitical process.

On May 26,2005, Mr. Emery was charged by indictment in this district. Theprimary offense charged in the indictment was Conspiracy to Manufacture Marijuana inviolationof 21 U.s.c. $$841(aX1),841(bXlXA), and 846. onJuly 25,2005, Marc wasarrested in Halifax, Nova Scotia, Canada on an extradition warrant when the indictmentwas unsealed. Thereafter, he was transported to Vancouver, B.C., where he was held incustody from August 2, 2005, through August 5, 2005, prior to being released on bond.

As the extradition proceeding progressed, Mr. Emery attempted to resolve this casethrough discussions with both Canadian authorities and the United States Attorneys Office.In September of 2009, a tentative agreement was reached with the United States,whereupon Marc ceased all efforts to contest his extradition to the United States on thischarge. On September 28, 2009, after consenting to extradition, Marc voluntarily enteredpre-trial detention custody in Canada, where he remained until November 18, 2009, atwhich time he was temporarily released pending entry of the final extradition order by theCanadian Justice Minister.

On May 10, 2010, the final order was entered, and Marc voluntarily returned tocustody. He remained in custody in B.C. until May 20, 2010, at which time he wastransported to the United States, where he had an initial appearance before this court.

On May 24,20L0, Mr. Emery was arraigned on the indictment and, pursuant toFed.R.Crim.Pro. 1l(cXlXC), entered a guilty plea to a lesser included offense chargedin Count I of the indictment. Sentencing is scheduled before this Court at 1:30 p.m. onSeptember 10, 2010.

DEFENDANT'S SENTENCING MEMORANDUM:CR05-217RSM - 2 RICHARD J. TROBERMAN, P.SATTORNEY AT LAW1501 FoURTH AVENUE. SUITE 2]50SEATTLE. WASHINGTON 98101 -3225(206) 343-ltll


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II. MAXIMUM STATUTORY PENALTY.The maximum statutory penalty for this offense is a term of imprisonment of not

less than five (5) years up to forty (40) years; a fine of up to $2,000,000; a period ofsupervised release of not less than four (4) years; and a mandatory penalty assessment of$100.

III. OBJECTIONS TO THE PRESENTENCE REPORT.Mr. Emery has no objections to the Presentence Report that affect the guidelines

calculation.IV. GUIDELINES OFFENSE LEVEL AND SENTENCING RANGE.

We concur with the Probation Office's calculation of the advisory sentencingguidelines. That calculation includes a base offense level of 28; a two level upwardadjustment pursuant to U.S.S.G. $2D1.1(bX6) (distribution by means of a computerservice); a two level upward adjustment for role pursuant to U.S.S.G. $3B1.1(c); and athree level downward adjustment for acceptance of responsibility pursuant to U.S.S.G.$3E1.1(b). With a Total Offense Level of 29 and Criminal History Category I, theadvisory sentencing guidelines range is 87-108 months.

V. THE PLEA AGREEMENT.The plea agreement in this case was entered into pursuant to Fed.R.Crim.Pro.

11(cX1XC). Pursuant to Paragraph 10 of the plea agreement, the parties agreed that asentence of sixty (60) months was an appropriate disposition of this case. The ProbationOffice concurs in that recommendation. We urge the Court to accept the agreement andthe sentencins recommendation.

DEFENDANT'S SENTENCING MEMORANDUM:CR05-217RSM - 3 RICHARD J. TROBERMAN, P.SATTORNEY AT LAW1501 FoURTH AVENUE. SU TE 2150SEATTLE, WASHINGTON 9A1OI-3225(206) 343-1111


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VI. SENTENCING FACTORS.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)(the provision making application of the guidelines mandatory) from the SRA. Thus, afterBooker, a sentence within the guidelines range may not be necessary to achieve theCongressionally defined purposes of sentencing. A district court's job is to impose "asentence sufficient, but not greater than necessary, to comply with the purposes" of section3553(a)(2). The United States Supreme Court has made clear that reasonableness is theappellate standard of review in judging whether a district court has accomplished that task.Ritav. United States,551 U.S. 338,127 5.Ct.2456, 168 L.Ed.2d203 (2007). However,the Supreme Court has also rejected the notion that a sentence that amounts to a substantialvariance from the Guidelines needs to be justified by extraordinary circumstances, holdinginstead that appellate courts must review all sentences, both within and without theGuidelines range, under a differential abuse-of-discretion standard. Gall v. United States.552 U.S. 38, t28 S.Cr. 586, 591, t6g L.Ed.zd 445 (2007).

In determining the particular sentence to be imposed, the Court shall consider thenature and circumstances of the offense, and the characteristics of the defendant. TheCourt shall also consider the need for the sentence (1) to reflect the seriousness of theoffense, to promote respect for the law, and to provide just punishment for the offense;(2) to afford adequate deterrence to criminal conduct; (3) to protect the public from furthercrimes of the defendant; (4) to provide the defendant with needed educational or vocationaltraining, medical care, or other correctional treatment in the most effective manner; and(5) to avoid unwarranted sentence disparities among defendants with similar records whoDEFENDANT'S SENTENCING MEMORANDUM;CR05-217RSM - 4 RICHARD J. TROBERMAN, P.SATTORNEY AT LAWI50I FOURTH AVENUE. SUITE 2150SEATTLE, \^'/ASHINGTON 9AI01 3225(206) 343-r1r1


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have been found guilty of similar offenses. Of paramount importance to any sentencingdetermination, however, is that all of these factors are subservient to the $3553(a) mandateto impose a sentence sufficient, but not greater than necessary, to comply with thestatutory purposes of sentencing. And as Rita makes clear, traditional departure analysisunder the guidelines survives post-Booker.

Prior to Booker, many of these factors were largely ignored, because they wereincompatible with the Guidelines. As one Court observed

For example, under $3553(aX1) a sentencing court mustconsider the "history and characteristics of the defendant. "But under the guidelines, courts are generally forbidden toconsider the defendant's age, U.S.S.G. $5H1.1, hiseducation and vocational skills, $5H1.2, his mental andemotional condition, $5H1.3, his physical conditionincluding alcohol or drug dependence, S5H1.4, hisemployment record, $5H 1.5, his family ties andresponsibilities, $5H1.6, his socio-economic status,$5H1.10, his civic and military contributions, 95H1.11, andhis lack of guidance as a youth, 95H1.12. The guideline'sprohibition of considering these factors cannot be squaredwith the $3553(a)(1) requirement that the court evaluate the"history and characteristics" of the defendant. The onlyaspect of a defendant's history that the guidelines permitcourts to consider is criminal history.united States v. Ranum, 353 F.Supp.Zd 984 (E.D.Wis. 2005). Following Booker,however, courts must once again consider these factors along with the Guidelines and theirpolicy statements.

VII. SENTENCING REGOMMENDATION AND APPLICATIONOF THE $3553(a) FACTORS TO THIS GASE.As set forth in the plea agreement, and for the reasons set forth below, we submitthat a sentence of sixty (60) months would be a sufficient--but not greater than necessary--sentence in this case.

DEF.ENDANT,S SENTENCING MEMORANDUM; RIcHARD J. TRoBERMAN, P.sCR05_217RSM _ 5 ATToRNEY Ar LAW1501 FoURTH AVENUE. SUITE 2150SEATTLE. WASHINGTON 981O] -3225(206) 343-ttll


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A. Tne NerunE AND ClRcutusraNcEs oF rne OrperusE AND tHe GneRlcrERtsncsoF THE OrrenoeR.1. The Offense.As detailed in the Presentence Report and ParagraphT of the Plea Agreement, from

September, 1995, though May, 2005, Marc Emery was engaged in the business ofunlawfully selling marijuana seeds. The seeds were sold on a global scale from hisbusiness in Vancouver, British Columbia, Canada. As the government observes in itssentencing memorandum, Mr. Emery has admitted that he had sold over 4,000,000 seeds,of which approximately 75% were sold to customers in the United States. Thegovernment's conclusion, however, that Mr. Emery "literally was responsible forsupplying millions of marijuana plants to grow houses in the United States" is both a grossexaggeration as well as factually and legally inaccurate.l Government Memorandum at2. U.S.S.G. S2D1.1, Application Note 17, defines a marijuana "plant" as "an organismhaving leaves and a readily observable root formation (e.g. a marijuana cutting havingroots, a rootball, or root hairs is a marihuana plant)." Mr. Emery sold marijuana seeds,not marijuana plants. This distinction is not splitting hairs. Rather, it has a significantimpact on how the advisory sentencing guidelines are calculated in this case.

' It is often said that there are three types of lies: lies, damn lies, and statistics. Thegovernment is quick to point out that Mr. Emery admitted to selling over four million marijuanaseeds over the course of his business. However, only 757a (3,000,000) of those seeds were soldto customers in the United States. Mr. Emery "guaranteed" a germination rate of 50%. Thus, itcould be expected that 1,500,000 seeds sold in the United States would germinate. However, ofthe seeds that did germinate, approximately one half would be expected to be male plants, and onehalf would be female plants. Thus, only approximately 750,000 seeds sold in the United Stateswould have germinated as female plants. Male plants are virtually worthless, as they do not flowerand bud, which is the portion of the plant that is typically consumed. Consequently, most maleplants are destroyed by the growers. Moreover, a substantial number of the female plants wouldnever have reached maturity due to pest infestations and other hazards endemic to marijuanacultivation. The point of this explanation is not to get into a "numbers game" with thegovernment, but merely to show that the figure of 4,000,000 "plants" is a gross exaggeration.DEFENDANT'S SENTENCING MEMORANDUM;CR05-217RSM - 6 RICHARD J. TROBERMAN, P.S.ATTORNEY AT LAW]50] FOURTH AVENUE. SU TE 2150SEATTLE, WASHINGTON 981OI-3225

(206) 343 1111


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2. Historv and Gharacteristics of the Defendant.Marc Emery is 52 years of age. His background is accurately described in the

Presentence Report and no useful purpose will be served by repeating that information.Suffice it to say here that for the past 30 years, Marc has been an advocate and politicalactivist for reforming what he perceived as unjust laws in Canada and the United States.His past efforts have resulted in the repeal of Sunday business closing laws in Ontario, andoverturning a Canadian federal ban on marijuana and drug literature. He has also beenactive (and successful) in promoting reform allowing for the medical use of marijuana inseveral states in this country. Indeed, as more fully described below, it was largelyMarc's political activism that made him a target for law enforcement and that ultimatelybrings him before this Court for sentencing in this case.

Although well intentioned, Marc now realizes that some of the methods he choseto fund his efforts to repeal prohibitions against marijuana use and cultivation were ill-conceived and ultimately destructive. As Marc notes in his attached letter to the Court(Exhibit A):

It was my sincere belief that the prohibitions on cannabis arehurtful to U.S. and Canadian citizens and are contrary to theU.S. and Canadian constitutions. I was, however, over-zealous and reckless in pursuing this belief, and actedarrogantly in violation of U.S. federal law. I regret notchoosing other methods--legal ones--to achieve my goals ofpeaceful political reform.Marc was never involved the unlawful distribution of marijuana seeds for personal

gain. He funneled virtually all of the profits from the seed business into his politicalactivities. While Marc would be the first to say that this does not excuse his unlawfulconduct, it does provide the Court with some insight into his motivation and intentions.DEF'ENDANT'S SENTENCING MEMORANDUM;CR05-217RSM - 7 RICHARD J. TROBERMAN, P.S.ATTORNEY AT LAWI50I FoURTH AVENUE, SUITE 2I5OSEATTLE, WASHINGTON 9A1O1 -3225

(206) 343-1111


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B. Tne SenrousNESS oF THE Orreruse; PRomollrc Respect ron rne Lnw;It'to Jusr Purutsnruerut.To be sure, the offense to which Mr. Emery has pled guilty is a serious offense.

But the advisory sentencing guidelines in this case, like all drug sases, are driven by thetype and quantity of drugs involved. Moreover, despite the government's claims to thecontrary, the prosecution of Marc Emery was clearly and undeniably selective andpolitically motivated.

The government alleges at page 3 of its sentencing memorandum:The government's case was investigated and prosecutedwithout regard for Emery's personal politics, his politicalagenda, or the ways in which he chose to spend the proceedsof his drug crimes.

With all due respect to the United States Attorney's Office for the Western District ofWashington, and to AUSA Todd Greenberg, who have handled this case withprofessionalism and integrity, that claim is absurdly naive. The Attorney General's truemotive--which was to silence Mr. Emery's political activity--could not be more clear. Wedo not make this claim lightly. One need look no further than the official press releaseissued by Drug Enforcement Administrator Karen Tandy following Mr. Emery's arrest inJuly of 2005:

Today's.arrest of Marc Scott Emery, publisher of CannabisCulture Magazine, and founder of a marijuana legalizationgroup, is a significant blow not only to the marijuanatrafficking trade in the U.S. and Canada, but also to themarijuana legalization movement.*{


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Statement from DEA Administrator Karen P. Tandy, luly 29,2005, a copy of which isattached hereto as Exhibit B (emphasis supplied).

When Mr. Emery started his marijuana seed distribution business, not a single statehad enacted a Compassionate Use (medical marijuana) law. By July of 2005, all ofCanada and ten states in the United States had passed such laws, either by ballot measuresor by legislative enactments. As of today, a total of 14 states, plus the District ofColumbia, have enacted medical marijuana laws, and a ballot measure for the completelegalization of marijuana is pending in Catifornia.2 Between 1995 and 2005, Mr. Emerydonated several million dollars to various groups to use in their lawful efforts to legalizemarijuana through the legitimate political process. Apparently, that was too much for theDEA to tolerate. This is evidenced by the high priority the Attorney General placed onprosecuting Mr. Emery. Quoting again from DEA Administrator Tandy's press release:

Emery and his organization had been designated as one ofthe Attorney General's most wanted international drugtrafficking organizational targets -- one of onllz 46 in theworld. and the only one from Canada.Tandy Statement, July 29,2005.

Ms. Tandy's statement is either gross hyperbole, or reflects a shockingacknowledgement of totally misplaced priorities within the Drug EnforcementAdministration. Marc Emery and his two employees--both of whom are co-defendants inthis case, and each of whom received sentences of probation--were, according to theAttorney General of the United States, one of the 46 most wanted "international drug

2 Alaska (1998), California (1996), Colorado (2000), Hawaii (2000), Maine (l9gg),Michigan (2008), Montana (2004), Nevada (2000), New Jersey (2010), New Mexico (2007),Oregon (1998), Rhode Island (2006), Vermont (2004), Washington (1998), Districr of Columbia(2010).DEFENDANT'S SENTENCING MEMORANDUM:CR05-217RSM - 9 RICHARD J, TROBERMAN, P.SATTORNEY AT LAWI501 FoURTH AVENUE. SUITE 2150SEATTLE, WASHINGTON 9EIO] 3225(206) 343-tlll


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trafficking organizations" on the planet, and the only such wanted organization inCanada!3 How can this claim make sense? It is well documented that numerous Canadiandrug trafficking organizations are responsible for importing tons of marijuana, hundredsof thousands of ecstasy tablets, and multiple kilograms of methamphetamine into theUnited States on a weekly basis. Likewise, these organizations are responsible forexporting from the United States into Canada hundreds of kilograms of cocaine per month.Certainly, this court has seen its share of defendants who are members of suchorganizations. Yet, according to the then head of the Drug Enforcement Administration,only Marc Emery was on the list of most wanted drug trafficking organizations in Canada.And he was also part of one of only 45 such wanted organizations in the entire rest of theworld. If placement on that list was truly based on Mr. Emery's unlawful seeddistribution business rather than his political activities, what does that say about ournation's law enforcement priorities in the "war on drugs"?

Even a dispassionate comparison of Mr. Emery's conduct with comparablebusinesses operating at the time belies the government's assertions about the scope ofMarc's business. When Marc Emery was charged in this case, there were dozens, if nothundreds, of others selling marijuana seeds on the internet into the United States, manywith equal or greater sales volume. Even today, there are hundreds of people openlyselling marijuana seeds over the internet. See Google Search, September 2,2010, attachedhereto as Exhibit C.

3 Each of the co-defendants received sentences of 24 months probation. Thegovernment's sentencing memorandum recommending probation for each included the followingjustification: "Fourth, a probationary sentence is appropriate in light of the nature andcircumstances of the offense." Government's Sentencing Memorandum at 3 (emphasis supplied).DEF'ENDANT'S SENTENCING MEMORANDUM;CR05-217RSM - 10 RICHARD J. TROBERMAN, P.5ATTORNEY AT LAW150] FOURTH AVENUE. 5U TE 2]50SEATTLE, WASHINGTON 9A]O] -3225

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marc emery sentencing memorandum

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