Narcotics Trafficking—The “Prince of Pot”

At first glance, the arrest, extradition, and prosecution of a narcotics trafficker seem fairly mundane. After all, since Colombian President Uribe took office in 2002, nearly 350 suspected narcotics traffickers have been extradited from Colombia to the United States to face trial.^[1] But the case of marijuana activist Marc Emery^[2] has captured substantial global attention recently, raising questions about national sovereignty, the reach of American prosecutorial powers, and the legalization of certain drugs.

Mr. Emery, who is the head of the British Columbia Marijuana Party, is wanted in the United States for his role in shipping marijuana seeds from his home in Vancouver to places in the US, such as Indiana.^[3] Alternatively dubbed the “Prince of Pot”^[4] or the “King of Pot,” Mr. Emery is challenging his extradition to the US, the hearings for which begin September 16.^[5]

He has become something of a cause celebre in Canada, a symbol of national sovereignty.^[6] Many Canadians resent the fact that the United States is trying to have him extradited when the crime for which he is charged is rarely, if ever, prosecuted in Canada; in fact, a recent newspaper poll found that a majority of Canadians are opposed to his extradition.^[7] Furthermore, at a recent protest in front of the US consulate in Vancouver, Mr. Emery openly smoked a marijuana joint as police officers looked on; one officer commented that it was a nice day and that he was glad it didn’t rain.^[8] As one onlooker said “For me this is more about Canadian sovereignty. I support the legalization of all street drugs, but I’m most against the idea of the U.S. being able to take Canadians down to face their brand of justice, which is different than ours.”^[9]

Mr. Emery has been charged with conspiracy to distribute marijuana, conspiracy to distribute marijuana seeds, and conspiracy to engage in money laundering.

Conspiracy to Distribute Marijuana and Marijuana Seeds
Conspiracy to distribute marijuana is punished by 21 U.S.C. § 846, which states that any person who conspires to commit any offense defined in Title 21 will be punished in the same manner as if the person had actually committed the violation. Furthermore, there is no need for the government to prove an overt act in furtherance of the conspiracy.^[10]

Distribution of marijuana and marijuana seeds is penalized by 21 U.S.C. § 841(a)(1), which states that it is unlawful for a person to distribute a controlled substance. The punishment for distributing less than 50 kilograms of marijuana is a fine of up to $250,000, up to five years in prison, or both.^[11] If the defendant has received a final felony conviction on a drug offense, the punishment will be imprisonment for up to 10 years, a fine of up to $500,000, or both.^[12]

The United States seems to be focusing on the fact that Mr. Emery has been convicted for drug offenses in Canada,^[13] and if he is eventually extradited to the United States, prosecutors may be able to receive enhanced penalties for a previous conviction.^[14] The Supreme Court recently ruled in Small v. United States^[15] that provisions that contain language that makes it “unlawful for any person … who has been convicted in any court of a crime punishable for a term exceeding one year … to … possess … any firearm” applies only to domestic convictions.^[16] The Court ruled this way, however, because there was little evidence that Congress had intended foreign convictions to apply to the firearms statute in question.^[17] In the case of prior drug convictions there is evidence that Congress intended to include foreign convictions when considering enhanced penalties.^[18]

Conspiracy to Engage in Money Laundering
Conspiracy to engage in money laundering is covered by 18 U.S.C. § 1956(h), which, like the drug conspiracy statute, penalizes a conspiracy to launder money as if the act had actually been completed. And like the drug conspiracy statute, there is no need to prove an overt act.^[19]

We have discussed money laundering in greater detail here.

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[1] See our discussion of extradition from Colombia here.
[2] See our discussion of Mr. Emery’s extradition here.
[3] See US Attorney’s Office, Press Release: Federal Grand Jury Indicts Marijuana Seed Distributor, Jul. 29, 2005, available here [hereinafter USAO]
[4] See id.
[5] See Amy Carmichael, Pot Activist Marc Emery Rallies Supporters in Front of U.S. Consulate, Associated Press, Sept. 10, 2005, available here.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] See Whitfield v. United States, 125 S. Ct. 687, 691 (2005) (03-1293; 03-1294) (citing United States v. Shabani, 513 U.S. 10, 13-14 (1994)). See also our discussion of this case here.
[11] 21 U.S.C. § 841(b)(1)(D).
[12] Id.
[13] See USAO.
[14] See United States v. Ortiz, 143 F.3d 728, 730 (2d Cir. 1997) (holding that Congress intended to include foreign convictions in sentence enhancing provisions of 21 U.S.C. § 841).
[15] 125 S. Ct. 1752 (2005) (03-750).
[16] Id. at 1754. See also our post on this case here.
[17] Id. at 1756.
[18] See Ortiz at 730.
[19] See Whitfield, supra note 9.