Judge denies first effort to dismiss pot charge - The Denver Post

Judge denies first effort to dismiss pot charge - The Denver Post

A federal judge has declined to dismiss the case against a Highlands Ranch medical-marijuana grower who argued that medical marijuana is fundamentally different from the marijuana prohibited by federal law.

Federal District Court Judge Philip Brimmer this morning said that granting the dismissal motion would make him, in effect, a "super legislature" deciding the wisdom of Congress's policy decisions.

The motion was the first one heard on what will be a critical day in the federal case against Christopher Bartkowicz, who was arrested and charged with federal drug cultivation crimes after giving an interview to 9News in February in which he described the medical-marijuana-growing operation he ran from his suburban home. If convicted, Bartkowicz could face up to life in prison.

Bartkowicz's lawyer, Joseph Saint-Veltri, has filed a sweeping motion to dismiss the case and arguing, among other things, that federal law should not trump the Colorado Constitutional amendment authorizing medical marijuana. He will also argue that an October 2009 Justice Department memo instructing federal prosecutors not to target people in "clear and unambiguous compliance" with state medical-marijuana laws should have provided Bartkowicz with legal shelter.

Federal courts nationally have taken a dim view of medical defenses to marijuana charges, but the issues have never been argued so robustly in a case in Colorado. While today's hearing will not decide whether Bartkowicz can raise a medical defense at trial, it will provide a glimpse at the extent to which Brimmer will allow such unconventional arguments.

This morning, Saint-Veltri said it would be irrational to put medical-marijuana and criminal marijuana under the same heading. Marijuana is a Schedule I controlled substance, a heading that means the federal government considers it to have no accepted medical benefit.

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