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Crime and Courts

Colorado’s new U.S. attorney agrees with rescinding of Cole Memo, says “jury is still out” on enforcement around marijuana concentrates

Jason Dunn, a President Donald Trump appointee, said his views of cannabis are much like those of his predecessors -- which would mean little impact on the state’s legal marijuana industry

Cannabis plants grow inside RiNo Supply's cultivation facility near Lafayette on Thursday, Dec. 13, 2018. The greenhouse uses automated fans and lights to maintain efficient growing cycles while also reducing energy-consumption costs. (Andy Colwell, Special to The Colorado Sun)
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Jason Dunn, Colorado’s new U.S. attorney, says he agrees with the Trump administration’s decision last year to rescind an Obama-era directive that largely took a hands-off approach to enforcement in states that legalized marijuana.

The President Donald Trump appointee also said he’s also concerned about highly potent cannabis concentrates. “The jury is still out on what kind of enforcement priority that creates.”

Concentrates are one of the fastest-growing markets for legal pot. “I think we don’t really know what the public health effects of such high concentrates are,” Dunn said of marijuana shatter, wax or resin, which are substances users heat to high temperatures and inhale. “We’re starting to see it, and it’s not good. But I wouldn’t say there’s conclusive studies that have been done on it yet.”

Colorado’s marijuana industry has been awaiting word from Dunn on how he will handle legal pot and whether he will break from the mostly passive approach of his predecessors. Dunn outlined his approach to cannabis in an interview with The Colorado Sun, his most extensive remarks to the news media since taking office in October.

Jason Dunn, Colorado’s U.S. attorney, photographed on Friday, April 12, 2019. (Jesse Paul, The Colorado Sun)

Members of Colorado’s legal cannabis industry interviewed by The Sun said they aren’t too concerned by Dunn’s stance and feels confident that as long as they stay within the bounds of state law they won’t see any changes.

“At this point, I’m cautiously optimistic that he doesn’t have an agenda to go after the industry,” said Sean McAllister, a cannabis business attorney in Denver who spoke with Dunn about his take on legal pot. “I don’t see Mr. Dunn as some scary individual. He seems to be very reasonable, and we’re optimistic that he will make good decisions.”

Bob Hoban, founder and president of the Hoban Law Group, a leading national firm in the cannabis space, echoed that sentiment. Hoban has known Dunn for years and thinks Colorado’s new top federal prosecutor isn’t someone the industry should fear.

“I feel really comfortable with a guy like Jason as our U.S. attorney in Colorado, because there’s reason and sensitivity to his policy positions,” Hoban said.

The legal cannabis industry has been keeping close tabs on federal law enforcement since January 2018 when then-U.S. Attorney General Jeff Sessions rescinded the Cole Memo, which instructed federal prosecutors not to go after states’ legal marijuana markets and to focus their priorities on black market sales of the drug.

Dunn says he believes in the tenets of the Cole Memo, but that his concerns are with the state-federal conflict it created.

“I think the problem with the Cole Memo was sort of what was implied,” Dunn said. “It essentially was saying, ‘If you’re not doing one of these things and you’re lawfully operating under state law, the Department of Justice policy is that we will not come after you.’ I think what Attorney General Sessions’ point was, and I agree with, is that we as law enforcement should never be saying, ‘We won’t enforce the law,’ especially when it comes to criminal activity.”

A marijuana dispensary in the Colorado bordertown of Dinosaur. (William Woody, Special to The Colorado Sun)

Dunn, who is on a cannabis working group with other federal prosecutors around the U.S., said in recent months he has spoken with marijuana industry lawyers about his views. He also warned them against marketing to kids.

“I told them that the starting point is that marijuana is illegal under federal law. Period,” he said. “That said, we have to make — as we have to do with any enforcement action or priority — decisions about resources. As does the Drug Enforcement Administration. And we have to decide where we are going to put our resources.”

That means staying focused on Colorado’s black market, Dunn said, which the DEA has told him “may be bigger than the retail market.”

“And this is all marijuana that is being grown for out-of-state shipment,” Dunn said. “It’s not being sold on the streets here. They’re finding Colorado marijuana in just about every state in the union, if not every state.”

Federal agents recently executed search warrants on dozens of Denver-area homes they believe were growing marijuana illegally. In the past several years, hundreds more houses have been targeted by law enforcement across the state for cannabis-related seizures and investigations.

“We’re working to figure out what the connection is, but we believe there are hundreds of homes in Colorado that are being used as grow operations through some sort of network,” Dunn said. “We’re putting significant resources into that and I think you will see — without saying too much — some significant activity on that in the next couple of months. Certainly by midsummer, I’m hopeful.”

Dunn says he recognizes that the relationship between states’ legal marijuana industries and the federal government isn’t sustainable. He declined to comment on legislation from U.S. Sen. Cory Gardner that would keep law enforcement from stepping in. The Colorado Republican has also urged the Trump administration to stay out of legal marijuana.

U.S Sen. Cory Gardner, a Colorado Republican. (Jesse Paul, The Colorado Sun)

Trump’s new U.S. attorney general, William Barr, recently testified before Congress that he supports the bill and that he believes marijuana is a state’s rights issue.

“There is obviously a difficult and somewhat untenable situation right now where marijuana is a Schedule I drug at the federal level,” Dunn said. “We, as law enforcement, need to do our job. We can’t have laws on the books that we are not enforcing. As a general rule, that is not a good place for society to be when some laws are enforced and others are not. I think we need a solution at the national level, I’ll leave it to Congress and the Department of Justice as to what that solution is.”

As for Dunn’s stance on marijuana concentrates, he says, “I don’t think that’s what voters were thinking about when they adopted” recreational cannabis in Colorado. He’s not the first to raise questions about the substances and their effects.

Ricardo Baca, a marijuana industry insider and CEO of Grasslands, a cannabis public relations firm, says opponents of legal pot have recently started raising alarm about high-potency marijuana. He called concentrates a “wildly popular aspect of the market.”

“I think the industry would very much like to figure out the potential impacts of regular consumption of high-potency products on an adult brain,” Baca said. “Right now, the truth is we don’t know.”


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