Gerald Duval Jr. says he is on the frontline of the war over medical marijuana. He is waiting for a letter telling him to report to federal prison, where he will begin serving a 10-year prison sentence for breaking the U.S. government's marijuana regulations.
"I'm angry … that this could really happen to us and to anybody else when we were 100% in compliance with Michigan law. My son and daughter were both registered caregivers all in compliance with the law. I guess what angers me so much is we had to sell our family farm. We sold our family farm as this was happening, for attorney fees and my son lost his house along with the farm," said Duval.
Michigan legalized medical marijuana in 2008, as have 17 other states in recent years. Colorado and Washington passed measures November 6 legalizing recreational use of the drug for people over 21. Despite these state laws, all marijuana use is illegal under federal law.
In light of the recent ballot results in Washington and Colorado, the Drug Enforcement Administration even issued a statement reaffirming the federal government’s stance that "enforcement of the Controlled Substances Act remains unchanged."
"In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance," the DEA statement said. "The Department of Justice is reviewing the ballot initiatives.”
In early June 2011, a neighbor complained to local law enforcement about the Duvals growing marijuana on their farm. On June 16, 2011, the Monroe County Sherriff’s Department, along with DEA agents, served a Michigan search warrant and raided the Duvals’ farm, uprooting and confiscating 140 plants.
No charges were filed after that raid, so Duval said he and his family thought they were cleared of any wrongdoing because they were following Michigan law. So his son Jeremy began to grow marijuana again. DEA agents, armed with a federal search warrant, raided the Duvals’ property a second time on August 11, 2011 and seized 67 plants.
Federal prosecutors charged the Duvals with multiple charges relating to both raids.
Duval and his son Jeremy were both convicted on multiple federal counts including: conspiracy to manufacture marijuana (over 100 plants), manufacture with intent to distribute marijuana (over 100 plants) and maintaining drug premises.
Jeremy reported to a federal prison in West Virginia on November 6 – the same day citizens in two states hundreds of miles away won the right to use marijuana recreationally -- and was sentenced to five years. For a reason unknown to Duval, he said his daughter Ashley was not prosecuted for growing medical marijuana in his greenhouses.
"Jeremy has called me once so far. He seems to be adjusting. Hoping he's doing OK, but he seems to be adjusting," Duval said.
Duval is facing 10 years, because he has a felony conviction for cocaine conspiracy in 1988, which increases the prison time required for his convictions.
Duval said he started growing medical marijuana in the spring of 2009 on his family farm in Monroe County after Michigan legalized the drug for medical purposes the year before, because he didn't think he was doing anything wrong. He said he thought it would help with his own medical problems and that he consulted with local attorneys to be in compliance with Michigan law.
"I have had diabetes since age 11 and I'm 52 now, for 39 years I have had problems with diabetic neuropathy, pain in my legs and pain in my feet and I also have glaucoma and I heard that medical marijuana would help with my condition,” he said.
“After I spoke to two doctors, I decided to go with medical marijuana to see if that would help. It definitely helped for the pain in my legs," said Duval.
The medical marijuana debate
The website for the National Organization for the Reform of Marijuana Laws (NORML) says marijuana has a wide range of medical uses:
"These include pain relief -- particularly of neuropathic pain (pain from nerve damage) -- nausea, spasticity, glaucoma, and movement disorders. Marijuana is also a powerful appetite stimulant, specifically for patients suffering from HIV, the AIDS wasting syndrome, or dementia."
The White House website disputes the medical benefits of marijuana: "Regardless of state laws to the contrary, there is no such thing as "medical" marijuana under Federal law. Marijuana continues to be a Schedule I substance, meaning that it has no currently accepted medical use and a high potential for abuse."
Duval said he didn't think the federal government would come after him if he was following state law. Duval, along with his son and daughter, began growing and selling weed to other patients with prescriptions. Eventually, their nursery grew until it filled two large greenhouses holding more than a 100 plants.
Did the Duvals break the law?
Michigan law allows licensed caregivers to grow up to 12 marijuana plants for a qualifying patient, and they can assist up to five patients. That means a single caregiver can grow up to 60 plants. If a caregiver has their own prescription for medical marijuana, they can grow 12 plants for themselves raising the total to 72 plants. Both Jeremy and Ashley Duval were licensed caregivers under the state of Michigan, and according to Duval, they could legally grow 144 plants. Duval said he thought their marijuana crops were legal.
U.S. Attorney Barbara McQuade said, "The U.S. Supreme Court ruled that state laws are not relevant to federal narcotics laws. Ignoring this rule and the law, Gerald Duval -- who has a prior conviction for a federal cocaine conspiracy -- and his son, Jeremy Duval, tried to use the Michigan Medical Marijuana law as a front to cover their lucrative narcotics business. Defendants’ real purpose was not giving marijuana to patients; they were selling it for profit to non-patients. The jury even saw [the] defendants’ drug ledger showing defendants had sold about $300,000 worth of marijuana to non-patients in the months before the search warrant. A federal jury rejected their ruse and convicted both defendants of four counts of violating federal narcotics laws."
Kris Hermes, a spokesman for the marijuana advocacy organization Americans for Safe Access, has monitored Duval's legal battle with the federal government. Hermes said Duval and his son were compliant with state law and are the equivalent of "political prisoners."
"We believe he was following Michigan law, but for some reason he was targeted by the federal government," said Hermes.
Hermes said that the Obama administration has prosecuted roughly 100 people in the states that allow medical marijuana.
In Session legal experts agree with the U.S. Attorney that in the Duvals' case, state law is irrelevant because this is a federal law issue. In 2005, the Supreme Court ruled in Gonzales vs. Raich that under the commerce clause of the Constitution, the federal government has the power to criminalize medical marijuana despite state laws legalizing the drug for medical purposes.
Duval said there seems to be no rhyme or reason to why the U.S. government chooses certain people to target for prosecution.
"They pick and choose who they want to go after and in Michigan, there's only us and there's one other case that I know of for medical marijuana," he said.
Duval is still trying to exhaust his legal options, and he hopes he will be successful on appeal.
"Throughout this whole situation, I've been hoping to win the evidentiary hearing, win the jury trial and now I'm hoping to win an appeal, and then if this appeal doesn't work I'm definitely hoping on a pardon from the president. I mean it's just not right that all these states are growing medical marijuana... and they can just pick and choose certain people to prosecute," said Duval.
How will Obama handle pot laws in his second term?
During his second term, President Obama will have to decide whether to enforce the federal prohibition of pot in states that allow medical and recreational use of the drug.
Allen St. Pierre, the executive director for NORML, said he is unsure how Obama will handle the marijuana issue over the next four years.
"Interestingly, a person like Obama, who has an affinity, at least one can think regarding his 'choom gang' days with marijuana, pragmatically speaks about it as a state senator and later as a federal senator. And then becomes president and has to run to the middle on the issue pretty clearly. And now that is the great mystery, going into his second term here," said St. Pierre.
"What, if anything, are they going to do here?" he said.