Federal law still considers marijuana as a dangerous drug, so prosecutors could easily bring drug-trafficking charges against anyone whose salary is paid by taxes collected on legal marijuana sales.
DENVER-- Every time he goes to work, Harvard-trained lawyer Andrew Freedman faces federal prosecution thanks to the source of his paycheck: Colorado's burgeoning marijuana industry.
Freedman, the governor's chief marijuana adviser, faces prison time if federal prosecutors decide to step in. That's because federal law still considers marijuana as dangerous as heroin or cocaine, and prosecutors could easily bring drug-trafficking charges if they choose. Freedman's salary is paid by the taxes collected on legal marijuana sales.
"I'm in murky territory every day," Freedman said.
He's not alone.
Tens of thousands of marijuana growers, bud tenders, edibles makers, store owners and couriers working in Colorado and Washington and any of the other 21 states and the District of Columbia that have legalized recreational or medical marijuana face the same penalties.
The risk is even greater for dozens of former cops and soldiers working as armed guards in the marijuana industry because federal drug-trafficking laws prescribe far stiffer penalties for anyone using a firearm while handling drugs and money. Several of the guards interviewed by USA TODAY say they chose to work for Blue Line acknowledged the legal risks they're taking, but said it was safer than being shot at by insurgents or dealing with violent criminals daily.
So far federal prosecutors have held off bringing charges against security firms protecting and servicing the marijuana industry, even though they're aware of the flagrant violations. USA TODAY in July published numerous photos of a Colorado-based security-firm workers carrying pot, cash and weapons -- photos federal agents and prosecutors confirm they saw.
The situation highlights the tenuous balance federal prosecutors strike as they monitor the sale of legalized marijuana. Marijuana remains illegal at the federal level, even though voters in Colorado and Washington have allowed adults to possess and consume it for fun. Federal officials say they're trying to balance state law while keeping pot out of the hands of kids and profits away from drug cartels.
Marijuana-industry workers acknowledge the risks they're taking, but say they're assuming federal prosecutors will leave them alone as long as they keep to the strictest interpretation of the state law.
"If you touch the product, then you're at risk for federal prosecution," said Michael Jerome, a spokesman for Blue Line Protection Group, which provides armed guards to transport marijuana and cash for pot-shop owners. "That's why we're trying to make it safe and legitimate and responsible, so we can respect the wishes of the voters of the state of Colorado and keep the federal government out of it."
Blue Line, like many of the approximately 100 other security firms, explains the situation to new hires in the several states it operates. Pay for a Blue Line store guard starts at $13 an hour, but can go up rapidly based on assignments, like cash transport and management, that only workers with extensive prior experience can snag. For former soldiers, in particular, working for Blue Line is a way to acclimate to civilian life and build a resume.
"We don't keep any secrets from prospective employees, because we don't want them to get into a situation they'll regret in the future or that will get them into potential legal problems," Jerome said. "But if enough states come online, then the hope is that the feds will finally change the legal standards related to marijuana; or, at the very least, there will be so many people operating in the lawful state industries that any federal enforcement action would be met with huge public backlash and potential legal action from the states."
The federal government's actions are guided generally by what's known as the Cole Memo, issued in 2013 by Deputy U.S. Attorney General James Cole. The memo notes that while Congress has decreed that marijuana is a "dangerous drug," the federal Department of Justice has limited resources and would prioritize enforcement efforts away from states that have created frameworks for legal marijuana.
In Colorado, U.S. Attorney John Walsh's office has generally avoided wading into the state's legalized marijuana marketplace, even though every grower, store owner, store clerk and purchaser is violating federal marijuana laws. Walsh did not respond to a request for an interview on the topic, and his staff in a statement said they are "constantly assessing where our limited federal law enforcement resources are best used…"
Arguing that paying pot taxes is tantamount to self-incrimination, one Colorado attorney and marijuana advocate has sued the state over tax payments he says are illegal. Rob Corry, a longtime pro-marijuana crusader, acknowledges that his lawsuit has the potential to force the collapse of Colorado's legal marijuana industry if a judge strikes down the taxation system. The lawsuit is ongoing.
"There can be no possible scenario where a person paying said marijuana-specific taxes can also be in full compliance with federal law, related to the activities upon which the taxes are paid," the suit argues.
Other federal officials say the recognize the conundrum created by the conflict between state and federal laws, but say the fact marijuana remains federally illegal is no surprise to anyone.
"When you go into the business, and you know it's federally illegal, you're taking your chances," said Tom Gorman, who runs the federally funded Rocky Mountain High Intensity Drug Trafficking Area task force. "That's the problem when the state legalizes something that remains illegal at the federal level."