Marijuana growers face hard time under Federal law November 1, 2010 - projo.com
The magic number
PROVIDENCE — Judges, prosecutors, police officers, drug traffickers and those who grow cannabis are well aware of the federal penalty for surpassing the magic number of 100 marijuana plants: nearly five years behind bars.
If someone is caught cultivating 99 plants, chances are that the case will be prosecuted in state court where jail time for marijuana growing is rarely imposed, say veteran drug and police investigators.
Federal authorities can, under the law, prosecute suspects for growing or having in their possession fewer than 100 plants, but they rarely do.
But, once 100 plants sprout, a minimum mandatory sentence of five years in prison applies. Federal corrections rules require an inmate to complete at least 85 percent of the prison term before he or she is eligible for parole.
A Providence man will be learning about that the hard way, and a Tiverton man is headed to federal court over what authorities say is the size of his marijuana farm.
“Criminals know the law off the top of their head,” said Gerald J. Coyne, state deputy attorney general. “They try to take a look at what their exposure could be.”
Coyne added that someone convicted in state court would have to receive a 15-year sentence to serve five years. State inmates are eligible for parole after serving one-third of their sentence. Another difference is that a state judge can impose a suspended sentence where no such option exists in the federal system.
Another difference: Federal law sets penalties based on the number of marijuana plants in a defendant’s possession, as well as the volume of marijuana. State penalties are based only on marijuana volume.
Coyne, a veteran prosecutor, said that his office has prosecuted few large-scale marijuana growing cases over the past 20 years, and he was hard-pressed to think of any that resulted in a lengthy prison term.
The issue of large-scale marijuana growing operations has moved to the forefront over the past year. There have been multiple arrests in Providence and other communities and the cultivators have been charged with growing dozens of marijuana plants in grow rooms or greenhouses.
In several of the cases, those arrested were in the state’s medical-marijuana program, which has more than 2,150 patients and more than 1,750 caregivers or people authorized only to grow and not use marijuana for medical reasons sanctioned by the state Department of Health.
Under the terms of the program, a patient is allowed to grow up to 12 marijuana plants to produce the drug to cope with pain or other medical conditions. A licensed caregiver can grow up to 24 plants to supply up to five patients registered with the program. Having more than the allotted number of plants under the program is a crime.
The possession and use of any quantity of marijuana outside of the medical-marijuana program remains against state law, and the federal government does not consider medical-marijuana legal in any state. The federal Drug Enforcement Administration puts it in the same category of controlled drugs such as heroin and cocaine.
The police say that the marijuana they are finding is much more potent than the marijuana seized 15 years ago, and growers are much more skilled in cultivating the drug. The explosion in marijuana growing has become mainstream, in some circles, as evidenced by a “Medical Marijuana Grow Clinic,” that was held on Saturday at the Crowne Plaza hotel in Warwick. Admission was $199.
The majority of marijuana cases are prosecuted in state court, but those involving the cultivation of 100 plants or more are often sent to the office of U.S. Attorney Peter F. Neronha for review and prosecution.
“It’s not a significant number of our cases,” said Jim Martin, Neronha’s spokesman. “But the cases we do take are significant cases.”
Neronha said the cases come to his office in a variety of ways. Sometimes, they are the product of federal Drug Enforcement Administration investigations, while others are turned over to his office after discussions with state prosecutors. Other times, local police departments come directly to his office with cases that they know are good candidates for federal prosecution.
Federal prosecutors are looking for cases with large amounts of marijuana — usually a minimum of 100 plants — and a defendant with past convictions for drug trafficking or other serious felonies.
“We’re looking for a bad guy engaged in bad conduct who has been doing it for a long time,” Neronha said.
Neronha said that he finds other cases after reading in the Providence Journal about arrests. He said that he has been meeting with police chiefs across the state to tell them about his interest in prosecuting certain cases such as high-volume drug or illegal gun possession. He said that he recently met with West Warwick Police Chief Paul A. Villa and learned that Villa’s department had arrested a couple in September for growing more than 180 marijuana plants.
“We would like to take a look at that case,” Neronha said.
Still, Neronha said that his office does not prosecute every case with 100 or more marijuana plants. He said that he would not be looking to jail a terminally-ill cancer patient with a robust grow room. He also said that a suspect may cooperate with the authorities and avoid prosecution.
On Oct. 7, Chief U.S. District Court Judge Mary M. Lisi sentenced Mark McNaught, of Providence, to five years in prison for growing 125 marijuana plants in two grow rooms in his apartment. At the sentencing, Lisi said that McNaught had hit “the magic number,” more than 100 plants.
Providence police Lt. Michael E. Correia, who heads the narcotics and organized crime unit, said that he brought the case directly to Neronha’s office after McNaught was arrested on July 31, 2009. McNaught, who had 10 prior arrests for breaking and entering, resisting arrest and possession of a weapon, had heroin in his possession.
Correia knew that the McNaught case was a strong candidate for federal prosecution.
“First of all, it met the threshold, of 100 plants,” he said. “It was a good case. I haven’t decriminalized marijuana in my mind. It’s still an illegal drug.” He also said that the case was put together well and there were “no search and seizure or probable cause issues.”
After his conviction, McNaught sent a lengthy letter to the Journal from the Donald W. Wyatt Detention Facility in Central Falls. He was highly critical of the federal court system and its failure to give judges discretion in imposing sentences.
“Mandatory-minimum sentences are wrong,” he wrote. “Each case deserves individual consideration of its own unique factors. It’s far too easy for over-eager police and overzealous U.S. Attorneys to abuse every facet of the drug culture.”
McNaught also boasted about his talents in marijuana cultivation.
“I am a marijuana grower, and I’m proud to be a grower,” he wrote. “I’ve worked hard at it and perfected the craft.”
In another marijuana case, a federal grand jury indicted a Tiverton man, Shayne R. Costa, last week for growing 113 marijuana plants in his condominium and in an adjacent greenhouse on his property. Costa, a patient in the medical-marijuana program, had received a 10-year suspended sentence in 2006 in state court for growing 28 marijuana plants.
The Tiverton police arrested Costa over Labor Day weekend and he was arraigned in District Court, Newport. But, after discussions with prosecutors in Neronha’s office, a decision was made to prosecute Costa in federal court.
Now, he faces at least five years in prison and the government, if convicted, will move to seize his condominium because prosecutors are alleging that proceeds from the marijuana sales paid for the property. Meanwhile, Costa faces up to 10 years in state court for violating the terms of his 2006 suspended sentence.
Nationwide, federal prosecutors are selective about the marijuana cases that they prosecute. Statistics show that there were 847,000 marijuana arrests in 2008, with just over 6,300 suspects, or less than 1 percent, prosecuted on federal charges.
Neronha’s office did not have figures for how many marijuana cases the staff has prosecuted over the past three years, but Correia, the Providence police lieutenant, said that he cannot remember sending over a case prior to McNaught.
KEY POINTS Penalties: Sale or cultivation of marijuana
FEDERAL LAWS:
100 mature plants or 100 kilograms: mandatory minimum sentence of five years in prison.
1,000 mature plants or 1,000 kilograms: mandatory minimum sentence of 10 years in prison.
STATE LAWS:
Less than 1 kilogram: no mandatory minimum, but a penalty of up to 30 years in prison.
1 kilogram to 5 kilograms: a mandatory minimum of 10 years in prison, but a suspended sentence can be imposed.
Greater than 5 kilograms: mandatory minimum of 20 years, but a suspended sentence can be imposed.
Sale or cultivation within 300 yards of a school, playground or park: double the penalty of 10 or 20 years.
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