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ACKRELL
CAPITAL
CHAPTER IV U.S. Legal Landscape

U.S. Department of Justice: The Cole Memo
A memorandum published by the DOJ in August 2013 (Cole Memo) provides guidance to DOJ attor-
neys and federal law enforcement about prosecuting cannabis-related federal offenses. The Cole Memo
asserts that marijuana is a dangerous drug, that illegal distribution of marijuana is a serious crime which
provides revenue to criminal enterprises and that the DOJ is committed to enforcing marijuana-related
violations of federal law. The Cole Memo also notes, however, that the DOJ is committed to using
its limited investigative and prosecutorial resources to address the most significant threats in the most
effective, consistent and rational way.

The Cole Memo guides DOJ attorneys and federal law enforcement to focus on the following
eight enforcement priorities when considering prosecutions for marijuana-related CSA violations (and
also, according to a Cole Memo update issued in February 2014, when considering prosecutions for
marijuana-related violations of the federal money laundering statute, the unlicensed money transmitter
statute and the Bank Secrecy Act):

1. Preventing distribution of marijuana to minors.
2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and
cartels.
3. Preventing the diversion of marijuana from states where it is legal under state law in some
form to other states.
4. Preventing state-authorized marijuana activity from being used as a cover or pretext for the
trafficking of other illegal drugs or other illegal activity.
5. Preventing violence and the use of firearms in the cultivation and distribution of marijuana.
6. Preventing drugged driving and the exacerbation of other adverse public health consequences
associated with marijuana use.
7. Preventing the growing of marijuana on public lands and the attendant public safety and
environmental dangers posed by marijuana production on public lands.
8. Preventing marijuana possession or use on federal property.

The Cole Memo notes that whether marijuana-related conduct implicates any of these enforce-
ment priorities should be a primary question in considering prosecution and that in states with legal-
ized marijuana and effective regulatory systems, conduct in compliance with state law is less likely to
threaten these priorities.

The Cole Memo has provided some comfort to those operating state-legal cannabis businesses that
do not interfere with the enumerated enforcement priorities. However, the Cole Memo merely reflects
internal guidance within the DOJ and does not create a legal defense for any violation of federal law.

During the January 2017 Senate confirmation hearings for current U.S. Attorney General Jeff
Sessions, in a discussion about the enforcement priorities outlined in the Cole Memo, Mr. Sessions
acknowledged the "problem of resources for the federal government" and stated that he thought some
of the enforcement priorities were "truly valuable in evaluating cases," but he also stated that he would
not commit to never enforcing federal law.

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