All posts tagged: Legal Procedures

AG Sessions and the Emerging Cannabis Industry

With today’s bombshell announcement from Attorney General Sessions, what is the future for the medicinal and recreational cannabis industry?

To be candid, we just don’t know.

On January 4, 2018, AG Sessions announced he was rescinding the Cole Memorandum drafted by former Deputy Attorney General James Cole in 2013.  The Cole Memo directed United States Attorneys to weigh a number of factors before exercising federal jurisdiction in states with medicinal or recreational cannabis programs.  The Cole Memo directed federal prosecutors to consider whether there is an increase in overall criminality, cannabis related DUI, increased use by minors and other factors.  In a recent federal prosecution the Court held that the United States must make a prima facie showing that the factors in the Cole Memo justified prosecution.

With the rescission of the Cole Memo, individual United States Attorneys are free to utilize their resources however they see fit without considering whether a state cannabis program was actually harmful.  The Department of Justice does not have unlimited funding, and issues such as the opioid crisis and wire fraud command significant federal law enforcement resources.

In addition to the Cole Memo, Congress attached the Rohrabacher-Farr amendment to the federal budget restricting the Department of Justice from utilizing Congressionally authorized funding to prosecute state cannabis programs.  AG Sessions sought relief from these restrictions in May, 2017, but was rebuffed.  Rohrabacher-Farr’s future is tenuous at best.  If it is not included in the final federal budget then there will be nothing stopping the Department of Justice from using its full weight against the emerging cannabis industry.

With over 60% of Americans polled supporting full legalization, it is difficult to understand why the Administration is on the apparent verge of a crackdown.  The cannabis industry is projected to be a 20 billion dollar industry employing tens of thousands.  Critically needed tax revenue is repairing Colorado’s schools and Washington’s infrastructure.  Countless Americans are no longer faced with arrest and prosecution for possession of a simple non-toxic plant.

What is the path forward?

Federal legalization is the only answer that will solve the push-pull between conflicting state and federal jurisdiction.  Rescheduling cannabis from Schedule I to Schedule II may go far in protecting personal medicinal use, but cultivation facilities and dispensaries could still easily be targeted.  The “hands off” approach of the Obama Administration may not have been perfect, but it allowed the emerging industry to demonstrate it was a net benefit for the communities and state in which it operated.

Here in Pennsylvania we do not believe that the United States Attorney for any of our three federal districts will shift resources from investigating large scale heroin trafficking organizations to focus on our highly regulated medicinal cannabis program.  We expect our United States Representatives and Senators here in Pennsylvania to respect the will of 88% of Pennsylvanians who support medicinal cannabis.

Once, not too long ago, we were assured that the President is “a businessman.”  He had no intention of killing the goose that laid the green egg.  The President respected state’s rights and supported limited government.  Well, with the announcement by AG Sessions, that has apparently been proven false.

Patrick K. Nightingale, Esquire

Partner, Cannabis Legal Solutions

Executive Director, Pennsylvania Medical Cannabis Society.

No comments
Vinni BelfioreAG Sessions and the Emerging Cannabis Industry
read more

Song Lyrics and the First Amendment

Cannabis Legal Solutions founding partner Patrick K. Nightingale, along with Magistrate-elect and attorney Mikhail Pappas, appeared before the Pennsylvania Supreme Court on Tuesday, November 28, 2017.

The case in question involves the lyrics to a rap song.

Jamal Knox, 23, and Rashee Beasley, 26, wrote and performed their song in 2012, and someone — they say it wasn’t them — uploaded it to YouTube in November of that year.

Shortly thereafter, they were charged by Pittsburgh police who construed the song’s lyrics as threats made specifically against Det. Daniel Zeltner and Officer Michael Kosko, both of whom had previously arrested the men.

“The song was artistic in nature. As a gangster rap artist, Knox considered himself a poet, musician, and entertainer,” Mr. Nightingale wrote in his brief, going on to say,   “Rap music served as his vehicle for self-expression, self-realization, economic gain, inspiring pride and respect from their peers, and speaking on public issues including police violence, on behalf of him and others who may lack the courage or ability to speak on such issues. Threatening police was not the intent of Knox’s expression.”

The ACLU has also weighed in on the case.

In a friend-of-the-court brief, the American Civil Liberties Union of Pennsylvania wrote that artistic expression is often disturbing, offensive and shocking.

“This is especially true of rap, Knox’s musical genre,” attorneys wrote. “As scholars of the genre have described it, rap is a form of political expression that gives voice to urban poverty, street crime, and limited life options, and a criminal justice system that sweeps up young men of color.”

Read more about the case in the Pittsburgh Post Gazette.

No comments
Vinni BelfioreSong Lyrics and the First Amendment
read more

Cannabis Business and Taxes: Section 280E

One of the greatest challenges facing the emerging Pennsylvania Medicinal Cannabis Industry is addressing taxes and appropriate deductions for operating expenses.

Because Marijuana is classified as a Schedule 1 controlled substance, it falls under Section 280E of the Internal Revenue code, which denies a medical marijuana business from deducting the business operating expenses on their tax return, even in states where the sale of medical marijuana is legal.

The United States Court of Appeals for the Ninth Circuit recently ruled on it’s second tax case involving IRC 280E in Canna Care vs. The Commission.

Canna Care, Inc., of California, appealed a decision by The United States Tax Court that IRC 280E applies to a business engaged in the sale of a substance that, while legal in California, is still illegal under Federal law.

The Tax Court ruled that medical marijuana is a Schedule 1 controlled substance and that the sale of medical marijuana is always considered trafficking under IRC 280E, even when permitted by state law.

The Ninth Circuit ultimately upheld the Tax Court ruling, however, Canna Care attempted to raise new issues on appeal, including a Constitutional challenge of IRC 280E as being a violation of the 8th Amendment protection against imposing excessive fines, however, because the issue was not raised in the original case, the Ninth Circuit did not rule on the Constitutional argument.

Challenging federal statues on constitutional grounds can often be difficult, but the constitutional arguments may have some merit. It is a best practice to raise all arguments before the court so they are not waived on appeal.

Further, all cannabis related businesses should consider filing protective refund claims, which will keep open the statute of limitations in the event IRC 280E is overturned by a court.

It is important for a cannabis business to understand the impact of IRC 280E on it’s tax liability and the potential risks of NOT applying IRC 280E when filing a return. The immediate tax savings may be attractive but in the long run, those savings must be weighed against the potential costs of having to defend their position down the road.

Cannabis Legal Solutions is available to help cannabis businesses develop a plan for dealing with IRC 280E and creating a strategy to negotiate the negative affects of IRC 280E and defend their position if challenged.

 

No comments
Vinni BelfioreCannabis Business and Taxes: Section 280E
read more

The Real Marijuana Problem: The Law. Part 1, “Tom”

The US Stance on Medical Marijuana is Confusing at BestThe legal status of Marijuana does far more harm to citizens than using it ever could.

The following story is true. The names have been changed to protect the innocent.

“Tom” goes boating with friends over the holiday weekend on the river in Middleofnowhere County.  He was excited because he had saved up his money and bought a new boat, which he was taking on it’s maiden voyage.

Pennsylvania Fish and Game officers show up and pull him over — we’re still not clear on what their initial reason was– but they end up searching “Tom” and find a whopping gram of weed and a small pipe.

Fish and Game officers policing marijuana instead of protecting Bambi and Thumper is a mystery to me, but instead of just issuing a citation on what should be a simple matter, they arrest “Tom” and the floodgates of potential life-long repercussions open wide.

Just getting arrested, let alone convicted of a crime, has immediate negative ramifications. Family, friends, and more problematic, employers, are all suddenly sources of stress.

Hiring legal representation, missing time for court dates, which are often rescheduled, further dragging out the process and the emotional stress for the accused and their loved ones.

Employers in particular are not likely to ignore an arrest, especially if there are security and safety issues at play.

A marijuana possession conviction automatically results in suspension of driving privileges and can carry substantial fines, as well as a period of probation. Worst of all, it stays on your record.  This can adversely affect employment options and even restrict one’s ability to travel abroad.

Suddenly “Tom” goes from enjoying a holiday on his new boat to facing a complete disruption of his life. All over a gram of weed.

All because of the law.

Does that sound like Justice to you?

In Part 2, we’ll talk about a young lady who could — with the help of the police– graduate from marijuana to heroin in a most unexpected way.

 

 

No comments
Patrick NightingaleThe Real Marijuana Problem: The Law. Part 1, “Tom”
read more

Flag on the Play: Illegal Procedure

The legal system– justice– is built on the twin pillars of precedent and procedure.

This is why attorneys look to ‘preserve the record’ by filing various motions, even when they know they will likely be ruled against in the current trial. They are preserving points on the record that may in fact be incredibly important in any appeals that may be filed.

Procedure and Precedent.

The procedure part can often be frustrating for everyone involved, but the truth is, what you say in court proceedings is only as relevant as how–and when– you say it.

Court scheduling can often be a source of frustration for client and attorney alike. The courts in various counties throughout the Commonwealth of Pennsylvania do not all operate on the same schedule, and the procedures can vary from county to county.

Courts schedule hearings without reference to each other, or attorney schedules, and they certainly don’t recognize the convenience of the accused. This is why there are often delays, motions for a continuance, etc.

This can be very frustrating for someone with a court date hanging over their heads. We hear it again and again: “I just want to get it over with.”

The wheels of justice often turn slow, but that is far better than hastily running over the innocent in the name of efficiency.

Of course there are always extenuating circumstances that the court will recognize– a death in the family, severe illness, scheduling conflicts for the defense or prosecution– and the courts are usually pretty accommodating with a reasonable excuse.

Recently, I was scheduled to appear in court at 9:00 am and later that day in a different court at 1:30 pm. Normally, that would not be an issue, but on this day, morning court was running way behind schedule, and it became obvious I would not be able to make my 1:30 appearance. This is where good relations with various courts can be a big help. The Judge in my early case had his clerk contact the Judge in the afternoon case to resolve the issue successfully (much appreciated, btw).

However, this left my client in the second hearing in the unhappy position of having to appear on a later date.

At times like that, I feel awful knowing my client is frustrated, but it was truly a situation completely out of my control.  The courts reign supreme when it comes to scheduling. In this instance, the early case was time sensitive. Our backs were against the wall, therefor the afternoon case would have been delayed regardless.

Procedure.

“The Cop Didn’t Show”.

Television shows have absolutely no bearing on the reality of the legal process. On TV, if the arresting officer doesn’t show up for court, the accused goes free. Not so in real life. (The same is true of, “They didn’t read me my rights”.)

Judges are extremely reluctant to rule against police officers in general, and an officer who calls in sick on court day is hardly thwarting justice. The presumption of the court is the officer is too ill to come to work. Period. They are extremely unlikely to throw out the charges, at least on the first occurrence. A subsequent failure to appear is a different matter. The Judge has a responsibility to maintain a fair process for the accused, and a second incident undermines the authority of the court to do that.

This is one of those times when a good attorney makes ‘procedure’ work in their client’s favor, citing for example an individual’s right to a speedy trial and moving to dismiss the charges.

Asset seizure and forfeiture is probably the single most frustrating part of a criminal investigation for everyone involved.

Authorities have the right to seize assets even without a guilty verdict. In cases involving illegal gambling, drug dealing, etc., the authorities will freeze bank accounts and seize property that they deem was either used in the commission of a crime, or was purchased or obtained as a result of criminal activity. Cars, boats, computers and of course cash can be seized with little or no recourse for the accused.

Even in the event of a Not Guilty verdict, the procedures for getting property back are extremely limited in scope and are often not worth the effort and cost. For example, a seized car was stored by the authorities for a year, and they charge storage fees that are often so high, it’s cheaper to just buy a new car.

This is an area that needs some reform. The authorities should bear the cost of storing a vehicle when the verdict is Not Guilty. An innocent person should not be penalized any more than the trauma of facing criminal charges and the costs of defending themselves.

These are just some instances of the preceedural part of the court system and are examples of why an experienced attorney who maintains good relations with the court system can be invaluable to someone facing criminal charges.

PKN Law pride ourselves on our knowledge of the court system from both sides of the aisle, as well as our good working relationships with court staff from counties across the Commonwealth.

 

 

No comments
Patrick NightingaleFlag on the Play: Illegal Procedure
read more

Medical Cannabis Convention and Expo 2017 Wrap Up

The first ever Pennsylvania Medical Cannabis Convention and Expo was held April 21 & 22 at David L. Lawrence Convention Center in Pittsburgh. The event was a tremendous success with over 2500 tickets sold.

Many visitors from Pennsylvania and across the nation gathered to explore the rapidly growing medical cannabis business landscape including growers and providers as well as support services representatives.

Pennsylvania Medical Cannabis Society was one of the sponsors and they had KDKA 1020 AM on hand for the first day of the conference with radio personality Mike Pintek doing his show live with special guest co-host, attorney and well-know cannabis activist Patrick K. Nightingale.

This was a great opportunity for those interested in becoming active in the medical cannabis business to meet with and learn from industry professionals.

Attorney Andrew Gross, of Nightingale, Gross & Patterson, LLC, said he is very pleased to be a part of this growing industry. “It’s very exciting to be on the ground floor in a business that can help so many people in need of medicine” said Mr. Gross, adding, “There are many legal and business aspects which need to be addressed by those intending to start a medical cannabis business. Our firm is providing those support services. Everything from entity formation and real estate acquisition/development to licensing and regulatory issues.”

Those who are seriously considering a medical cannabis venture can contact Andrew Gross at 412-553-0140 to schedule a consultation with Nightingale, Gross & Patterson, LLC.

We would like to thank everyone involved in this year’s conference and look forward to working with you in the future to bring this much needed medicine and economic development to Pennsylvania.

 

No comments
Patrick NightingaleMedical Cannabis Convention and Expo 2017 Wrap Up
read more

Civil Asset Forfeiture: No Conviction Required

President Trump has apparently come out in support of what has become one the most unfair and controversial practices of law enforcement agencies: Civil seizure and forfeiture of assets.

The original intent of seizure and forfeiture laws when first established was creating a tool for law enforcement to punish big time drug cartels and organized crime by taking assets gained through their illegal activities.

The original intent of seizure and forfeiture laws when first established was creating a a tool for law enforcement to punish big time drug cartels and organized crime by taking assets gained through their illegal activities.

On it’s face, the original intent makes sense. Take away the ill-gotten gains of professional criminals.

Civil Asset Forfeiture has since become a veritable smorgasbord of gluttony used by law enforcement agencies– especially those in budget conscious small communities– to finance their own departments at the expense of average citizens who may or may not be guilty of a crime.

Yes, you read that correctly.

Civil Asset Forfeiture is not the same as assets seized as a part of a criminal investigation, and has absolutely nothing to do with being convicted of anything.

Cars, boats, computers and of course cash, can be seized based on connections to criminal activity. But these seizures typically occur when someone is actually charged with criminal activity, and forfeiture comes only after a conviction.

Even if someone is found not guilty, the return of seized property can often be problematic when considering storage fees and the simple passage of time.

Of more concern are situations involving no criminal charges at all, ie: Civil Asset Forfeiture.

Example:

Your band is returning home after a big money gig. You are holding $5000 cash and get pulled over on the way home. The officer performs a search, finds the cash and asks where you got it. You explain that you were just paid for a show, but the officer decides he doesn’t believe you and confiscates the cash. Now, you must go to court to prove the money was legally obtained.

Or maybe you’re a young hip hop artist who has been saving up $10,000 from your job for the past 3 years so you can drive to Los Angeles and record in your buddy’s fancy studio. You get pulled over somewhere along the way, the cash is discovered and is subsequently confiscated, leaving you broke in the middle of nowhere and having to prove that the money was legally obtained. Not as easy as it sounds, either.

If the money was saved in a coffee can on the nightstand, and not withdrawn from a savings account, there is no way to prove where that money came from, even with payroll records. Just saying you saved it up is not enough to convince a judge the money was not ill-gotten.

So they keep the money.

These situations are far more common than most people realize, and are a gross perversion of a law that was originally intended to punish actual big-time criminals like drug cartels, not the general public. (The average civil forfeiture amount is $8000– hardly an amount one would associate with a drug cartel.)

President Trump is wrong to suggest these laws do not need to be reformed.

 

 

No comments
Patrick NightingaleCivil Asset Forfeiture: No Conviction Required
read more

Police Encounters Are Not A Courtroom– Even When You’re A Pittsburgh Steeler

There is a show on Netflix, “House of Cards”.  It follows a congressman and his wife on their rise to power and the Presidency.

One of the characters, Remy Danton,  is African American and the Presidents Chief of Staff.  There is a scene where he gets pulled over by the DC police for speeding, and he doesn’t have his wallet, which is where his license, registration and insurance card are.  At this point, the police officer is OBLIGATED to investigate further and search the subject for weapons.

No identification, no proof the car is his– he could claim he was the Pope and it wouldn’t matter.  This is standard procedure and within the confines of the law.

Operating a motor vehicle without a license is illegal, and it’s perfectly reasonable for the officer to follow established procedure to investigate further.

As much as I hate to say it, this is one of those times when, if you have nothing to hide, you shouldn’t be worried or react with undue emotionalism.

It is ALWAYS desirable from a legal view to cooperate with police during a traffic stop, but in the scene, Danton overreacts and in the process, elevates the nature of the encounter, which in turn escalates the police response.

“I have a right to know why you pulled me over!” he shouts while disobeying the order to keep his hands on the car in plain sight.

This type of adversarial behavior constitutes a legitimate safety concern for the police.

In this instance, the responding officer is also African American, so when Danton makes a snide remark about impressing his fellow white officers, it just adds fuel to the fire.

Danton ends up in cuffs in the back of a patrol car, until a Lieutenant shows up and having ascertained Danton’s identity,  apologizes for the inconvenience and takes off the cuffs.

There is an implication in the way the scene is presented that since Danton is a well known political figure, the policeman’s response must be because he is African American, but this is simply not the case when applied to real life.  The fact is, Danton overplayed his hand. He could claim to be anyone, but the police don’t know that.

Under these circumstances, anyone without a license, registration, etc., regardless of race or status, would be subject to standard police procedure if pulled over.   The police had probable cause and followed the rules.

Which brings us to Pittsburgh Steelers Linebacker Coach, Joey Porter.

Porter was arrested Sunday night at a nightclub, and although we don’t know all the details, we do know that the police were called after Porter’s behavior towards the officer working security at the club became threatening.   It’s been reported that Porter may have put his hands on the officer– a major no no.  NEVER initiate any kind of physical contact with the police, especially when you’re a physically imposing presence like, say, a former NFL linebacker.

Don’t say things like, “I know my rights” or “Don’t you know who I am?”

If you are pulled over or otherwise have a police encounter, remain calm and speak in even, measured tones.  Keep your hands in plain sight and make no sudden movements.

If you have to reach into your jacket for your wallet, or the glove compartment for paperwork, ask the officer first.  “Officer, my wallet is in my jacket, is it okay for me to get it?”

Don’t tell them how to do their job.  No one likes that.  Cooperate with their instructions.  YOU know you don’t have a gun in your jacket, but they don’t.

If they ask you to get out of the car, move slowly and deliberately.  When they say, “Place your hands on the car and spread your legs” so they can search you, cooperate.  Even if the search turns out to be something that can later be suppressed in court, this is not a courtroom.

Police have a very dangerous job where any encounter can, in the blink of an eye, go from routine traffic stop to life threatening situation.  Of course they are going to be hyper-sensitive to anything suspicious, or worse, aggressive behavior.

Conversely, someone who is being stopped by the police– even if they have nothing to hide– is going to be nervous and anxious.  This can be a volatile mix that often results in misunderstanding that can escalate the situation far beyond the original offense.

The worst thing anyone can do in a police encounter is to become combative and or verbally abusive when addressing the police.

Even if they’re a Pittsburgh Steeler.

 

 

 

No comments
Patrick NightingalePolice Encounters Are Not A Courtroom– Even When You’re A Pittsburgh Steeler
read more

The Trials and Tribulations of a Legal Assistant.

Pennsylvania criminal justiceHello.

I am the legal assistant at PKN Law.

Translation: I’m a glorified gopher with some limited knowledge of the law who acts as a cushion between the ,legal system and real people, but I am not a Lawyer.

The legal assistant is there to take up the slack, and fill in the gaps, so the Lawyers can do their job.

Lawyers are like surgeons. They won’t raise expectations or coddle you. They won’t commit to an answer they are not 100% certain of, and that is rare.

(If your attorney says they are 100% certain, then for Gods sake, listen to them!)

Lawyers are there to deal with a legal system that is incredibly complex and represent their clients in such a way as to produce the best possible outcome. Period.

Having spent over a year as the legal assistant at PKN Law, I can honestly say they actually care about clients. The fact that I’m there proves it.

It is important to keep an open line of communications, and that is where I come in. I bridge that gap. It’s not easy, but I am proud to do it, because I recognize the importance of what we do as a team. We are the last stand between justice and injustice. We are the defense, relied on by people in very serious trouble.

I often have to communicate with family members of clients. They can be emotional, to say the least. They are scared. They are looking for reassurance that their loved one is going to be okay.

I wish I could tell everyone that, but I can’t.

What I can promise is, PKN Law will explore and utilize every possible way to defend their  clients in order to produce an overall defense strategy that results in the best possible outcome.

This is an unsolicited testimonial. No one asked me to write this.

The truth is, I had a rough week, and it occurred to me that we actually care about our clients, which is why I had a rough week.  We are fighting every single day, even though it seems like things are moving slow. The system is slow. It is frustrating, to say the least.

I’m here to make sure the Lawyers can do their job while maintaining communications with not just those we represent (our legal obligation), but also their family members (our commitment to service), who have very real concerns for the welfare of our  respective clients.

PKN Law is committed to providing the best legal defense and best service to every single client, every day. We’ll fight through the paperwork and legal jargon to provide the best defense possible.

I know because I’m in the trenches every day. I wish it was all smooth sailing, but it’s not, and I can promise you that we will be there to weather it all with our clients. That’s what I do.

Legal Assistant, PKN Law.

 

 

 

No comments
Patrick NightingaleThe Trials and Tribulations of a Legal Assistant.
read more

Motion to Declare Pennsylvania’s Schedule 1 Classification Unconstitutional Motion Presented

marijuana law reformToday, I presented a Motion in the Court of Common Pleas of Allegheny County seeking to have PA’s Schedule I classification of cannabis deemed unconstitutional in light of PA’s medical cannabis law.

This is a clear conflict between the Constitution and State — as well as Federal– law.

The medical efficacy of marijuana has been established in Pennsylvania with the passage of our Medicinal Marijuana legislation, hence the Schedule 1 classification is in direct conflict. We are contending that this is a violation of citizens constitutional right to equal protection under the law.

A major element of the Schedule 1 classification is that in order to be so classified, a drug has no medicinal value at all.

Pennsylvania’s new Medicinal Marijuana legislation flies in the face of Schedule 1, as it lists seventeen qualifying medical conditions for which marijuana is an effective treatment option.

I will be briefing the issue to the Court. If anyone is interested in submitting an Amicus — attorneys, advocacy groups, etc.– please feel free to message me at pknlaw@mac.com.

I would also like to express gratitude to Allegheny County Judge Borkowski for taking this issue seriously and allowing this Motion to be read into the record.

No comments
Patrick NightingaleMotion to Declare Pennsylvania’s Schedule 1 Classification Unconstitutional Motion Presented
read more