On June 7, 2018, a supermajority of the Washington Legislature blessed financial institutions and accountants providing services for the licensed marijuana industry.[1]

The new law is comfort legislation for a special class in Washington. It is also a protest against impressions about the threat of federal prosecution. But what comfort is the legislation for persons falling outside the protected group?

Does it provide any comfort or is it the proverbial cold comfort? The answer may be economics and politics (limited funds to target violent crime, federal/state relations and votes) should reduce the threat of prosecution, regardless of the new legislation.

Discussion

The new state law had broad support; supermajorities passed the law, 81 percent in the senate and 85 percent in the house.[2]

Public safety and other policies. The law targets the public safety problem caused when licensed businesses move cash in 80-pound duffel bags and thieves drill through roofs to steal the stored cash. Overlapping policies support the law:

• The adage (less cash, less crime);
• The elimination of the black market;
• The promotion of transparency and traceability of funds; and
• The promotion of access to banking and regulated financial services.

Public testimony and lawmakers’ statements.[3] Who supports theComfort legislation? The support was wide spread.  The Northwest Credit Union Association supported the law. Three credit unions serve the industry and provide almost $1 billion in safe banking. The testimony emphasized the public policies listed above along with the stringent compliance requirements and due diligence for each transaction, and the risk of prosecution for money laundering. Additional policies were the promotion of small marijuana businesses, health research, the protection of employees of the licensed marijuana businesses to have bank accounts and credit cards rather than cash, especially the young, entry-level workers who may be unfamiliar with the financial services world.

Washington Association of Sheriffs and Police Chiefs supported the law as amended. Their support rested on the “incredible public safety issue” stemming from the amount of cash from the industry that was not safeguarded in a financial institution.

The staff summary of the public testimony was:

Washington needs to shut down the black market for marijuana and get cash out of the marijuana market. Having financial services that are traceable would improve the regulation of the industry. Previously, there was federal guidance for financial institutions interacting with the regulated marijuana industry. However, recent guidance by the federal government has caused uncertainty regarding providing financial services to the marijuana industry.[4]

The sound bites from the hearings included:

• Important first step.
• Step in the right direction.
• Can’t wait for the feds to act.
• Position for time when action is taken by Congress.
• Eliminate some of the uncertainty resulting from the Sessions memo.

Testimony alluded to one bank stopping services to the industry after the Sessions memo.

But why did the lawmakers feel the need to adopt special legislation when the number of financial institutions nationally reporting that they served state licensed marijuana businesses rose from 340 to 400 by September 2017?[5]

The federal priorities of reducing violent crime and promoting federal/local initiatives like adoptive civil forfeiture. In July 2017, U.S. Attorney General Sessions reauthorized adoptive forfeiture two years after it had been halted.[6] The program is “our equitable sharing program” consistent with federal authorities being force-multipliers for local law enforcement.[7] The program allows states and local governments to use federal civil forfeiture law even when state law limits forfeiture. The reauthorized program includes new safeguards and procedures. Sessions emphasized the goals of hitting organized crime in the wallet, reducing violent crime and protecting law-abiding people. In November, press releases touted that the forfeiture program deposited funds to a children’s advocacy center and Madoff victims.

In the fall of 2017, press releases about federal prosecutions involving marijuana featured a U.S. Postal Service manager and letter carriers in the District of Columbia using their positions to distribute drugs,[8] the extradition of a former leader of a Mexican drug cartel,[9] and combatting gangs.

In February 2018, addressing the National Sheriffs Association, Sessions emphasized the rise in drug abuse, violent crime and drug-related homicides.

[D]rug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t file a lawsuit in court. You collect it by the barrel of a gun.[10]

…

It is our goal to bring down violent crime, homicides, opioid prescriptions and overdose deaths. These are the explicit goals we’ve established.[11]

Sessions reminded his audience 85 percent of law enforcement is state, local and tribal.[12]

Sessions emphasizes federal prosecutorial discretion. After U.S. Attorney General Sessions rescinded the Cole Memo on January 4, 2018, Washington State Department of Financial Institutions (DFI) promptly published on its webpageMarijuana in Washington State – Financial Services Issues. The target audience was the state-chartered financial institutions and state-licensed financial services providers.[13] The DFI page attaches federal and state marijuana policy statements covering the past nine years.

DFI’s publication placed the Session Memo in context of the local U.S. Attorneys (USAs)’ prosecutorial discretion. Institutions and providers were directed to review the Sessions Memo “together with relevant pronouncements from the appointed, interim or acting U.S. Attorneys of the Western and Eastern Districts of Washington, if any.”[14] The publication attached the USAs’ statements. The statements had similar titles: “Federal Marijuana Prosecutions” and “Federal Marijuana Enforcement Policy.” The Western District of Washington statement emphasized the discretion to investigate and prosecute “organized crime, violence and gun threats, and financial crimes related to marijuana.”[15] The Eastern District of Washington statement pointed to the “focus on those who pose the greatest public safety risk … by disrupting criminal organizations, tackling the growing drug crisis, thwarting violent crime and corralling white-collar fraudsters …”[16] The Oregon statement emphasized “the overproduction of marijuana and the diversion of marijuana out of state, dismantling criminal organizations and thwarting violent crime in our communities.”[17]

Parsing the USAs’ statements and public appearances to predict probabilities is like sports handicapping. And, California’s four judicial districts affords more handicapping opportunities within a state.[18]

Decentralization (fragmentation) frightens, but it is our federal system. The fragmentation empowers more individuals to affect marijuana policy. With local opt out in some states like Washington,[19] criminal prosecution in districts has the same local options through the exercise of prosecutorial discretion by USAs, absent a mass firing of USAs akin the so-called Pearl Harbor Day Massacre in 2007.[20]

We get back to local control (the laboratories of democracy) versus bigger is better — centralization and uniformity. As one social economist wrote: Individuals “organised in small units will take better care of their bit of land or other … resources than anonymous companies or megalomaniac governments which pretend to themselves that the whole universe is their legitimate quarry.”[21]Geographic markets have always been relevant to risk, and uncertainty generally causes anxiety and discomfort.

Special comfort legislation for the financial industry. Comfort legislation is directed toward producing and maintaining public confidence.[22] Twelve days after the Sessions memo, a bi-partisan group of 19 state attorney generals sent Congress a letter advocating safe-harbor legislation for the banking sector to service state-licensed marijuana businesses.[23] The letter invoked the familiar public safety policy and “bringing grey market activities into the regulated banking sector” and “higher tax revenue.”

While the federal law would grant a safe harbor from federal prosecution, the recent Washington law is simply a message to Congress and comfort legislation to maintain the confidence of the state financial institutions and accountants in the industry. Financial institutions are generally risk adverse. Thus, the comfort legislation may have been a meaningful gesture to those on the front line of the competing state and national laws.

The new Washington law is similar to Oregon law. Initially, Oregon opted for study of financial services to license marijuana businesses.[24] In 2016, Oregon provided a financial institution is exempt from state criminal law for “an element of which may be proven by substantiating that a person provides customarily provided financial services” by state financial institutions.[25] It appears that the other states have not adopted special laws for financial institutions. The new Washington law benefits an additional category of persons.

Special comfort legislation for accountants. A stereotype has been accountants are more risk adverse, which may have caused them to be less integrated into business decision-making.[26] Their regulators include the state boards of accountancy. In the past, accountants have been prosecuted for participation in illegal marijuana operations.[27] By 2014, only the Oregon and Washington accountancy boards had provided guidance that the boards would not take action against a CPA or CPA firm simply for providing services to the state licensed marijuana businesses.[28] The number of state boards providing similar guidance had substantially increased by 2018.[29]

In the spring of 2017 when the original bill was introduced, it did not mention accountants;[30] accountants were added by an amendment introduced in January 2018.[31] Supporters offered no examples of recent prosecutions of accountants. Lessening the risk of prosecution are the policies of bringing the black (or grey) market activities into the transparent market and increasing the tax revenues flowing to the public funds. Accountants are vital “for properly tracking swaths of finances across the nation” and tracking “revenues for tax purposes,” as advocated by the 19 state attorney generals.[32] Financial dependency on the tax revenues is likely a stronger disincentive to misguided white-collar prosecutions.

Is the special legislation cold comfort for others? A problem with the special legislation is the possible collateral impact on other persons not mentioned in the law (the so-called express mention, implied exclusion rule). Was the law necessary? Does the law imply the need for broader comfort laws protecting others?

Washington Initiative 502 decriminalized the purchase, possession and delivery of qualified recreational products from a licensed marijuana retailer and specified conduct by licensed retailers, processors and producers with sales starting in July 2014. RCW 69.50.360 (retailers), .363 (processors), .366 (producers).

Yet, years later, a supermajority of the Legislature felt the need to grant an imprimatur to some service providers in the industry. The new law provides comfort for armored cars, escrow agents, money transmitters and currency exchanges, escrow agents and mortgage brokers regulated under RCW chapters 30A.22.040, 18.44, 19.230 and 31.04. The new law provides comfort for “financial institutions”— a bank, trust company, mutual savings bank, savings and loan association, or credit union authorized to do business and accept deposits in this state under state or federal law. RCW 30A.22.040. But what are the safeguards protecting other persons providing direct and ancillary services to the industry?

The bill analysis pointed to the threat of criminal offenses including money laundering, conspiracy to commit certain drug-related offenses, criminal solicitation and certain criminal profiteering.[33]  Yet, no one offered examples of actual recent prosecutions against financial institutions serving the state-licensed industry.

The likelihood of state prosecution against someone providing services to a state-decriminalized and now regulated industry may be theoretically possible. But practically? For example, an element of criminal money laundering requires one knows the proceeds are from a specified unlawful activity or acts recklessly as to whether proceeds are from a specified unlawful activity and knows the transaction is designed to conceal or disguise plus concealing or disguising the nature, location, source, ownership or control of the proceeds.[34] An alternative element is to avoid a transaction reporting requirement under federal law.[35] In view of the fact that the licensed businesses generate lawful proceeds, the likelihood of state prosecution for money laundering calls to mind the metaphor of sports handicapping.

Final thoughts: the renewal Rohrabacher-Blumenauer Amendment and opiates. The recent renewal of the Rohrabacher-Blumenauer Amendment through September 2018 is a strong message from Congress. Since December 2014, the amendment has prohibited federal prosecution using federal funds against state-licensed medical marijuana strictly complying with state law.[36] In reported cases, few have established the strict compliance with state law standard.[37] But that’s because the USAs exercise prosecutorial discretion in selecting cases to avoid jury nullification. Or that’s one theory.

In contrast to the Congressional exercise of the power of the purse strings, the recent Washington comfort legislation is the opiate of the industry, to paraphrase a philosopher.[38] It provides solace to a few. It is a protest against the actual distress — impressions about the threat of federal prosecution. But, law enforcement priorities targeting violent crimes and federal/state relations undercut the risk of federal criminal prosecution in states like Washington. Or, at least, one hopes.

 

Appendix

CHAPTER 68

S.S.B. No. 5928

BANKS AND BANKING — MARIJUANA

AN ACT Relating to making financial services available to marijuana producers, processors, retailers, qualifying patients, health care professionals, and designated providers as authorized under chapters 69.50 and 69.51A RCW; and adding a new section to chapter 9.01 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON

NEW SECTION. Sec. 1. A new section is added to chapter 9.01 RCW to read as follows:

(1) A person or entity that receives deposits, extends credit, conducts funds transfers, transports cash or financial instruments on behalf of a financial institution, or provides other financial services for a marijuana producer, marijuana processor, or marijuana retailer authorized under chapter 69.50 RCW or for a qualifying patient, health care professional, or designated provider authorized under chapter 69.51A RCW, does not commit a crime under any Washington law solely by virtue of receiving deposits, extending credit, conducting funds transfers, transporting cash or other financial instruments, or providing other financial services for the person.

(2) For the purposes of this section, “person or entity” means a financial institution as defined in RCW 30A.22.040, an armored car service operating under a permit issued by the utilities and transportation commission that has been contracted by a financial institution, or a person providing financial services pursuant to a license issued under chapter 18.44, 19.230, or 31.04 RCW.

(3) A certified public accountant or certified public accounting firm, which practices public accounting as defined in RCW 18.04.025, does not commit a crime solely for providing professional accounting services as specified in RCW 18.04.025 for a marijuana producer, marijuana processor, or marijuana retailer authorized under chapter 69.50 RCW.

 

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[1] David Spellman, Shareholder at Lane Powell PC.  His views are not those of Lane Powell.  He reserves the right to modify his opinions. He does not intend for his views and statements to be legal advice or to be relied upon in the conduct of business or otherwise.

[2] 2018 Wash. Legis. Serv. Ch. 69 (S.S.B. 5928 (West) (Engrossed Substitute Senate Bill ESSB 5928).

http://apps2.leg.wa.gov/billsummary?BillNumber=5928&Year=2017&BillNumber=5928&Year=2017.

[3] See, e.g., Senate Bill Report, ESSB 5928.

[4] See, e.g., Senate Bill Report, ESSB 5928.

[5] Financial Crimes Enforcement Network (FinCen), Marijuana Banking Update, Depository Institutions Providing Banking Services to Marijuana Related Businesses (Data ending 30 September 2017).

https://www.fincen.gov/sites/default/files/shared/273281%20EA%204th%20Q%20MJ%20Stats_Public_Web.pdf.

[6] See generally Dep’t of Justice, Attorney General Sessions Issues Policy and Guidelines on Federal Adoptions of Assets Seized by State or Local Law Enforcement, Press Release No. 17-795, Jul. 19, 2017.

[7] Attorney General Sessions Delivers Remarks to National Sheriffs’ Association, Feb. 12, 2018,

https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-national-sheriffs-association.

[8] Dep’t of Justice Press Release No. 117-812 (Jul. 24, 2017).

[9] Dep’t of Justice Press Release No. 117-1452 (Dec. 19, 2017).

[10] Attorney General Sessions Delivers Remarks to National Sheriffs’ Association, Feb. 12, 2018.

[11] Id.

[12] Id.

[13] Wash. Dep’t of Fin. Institutions, Marijuana in Washington State – Financial Services Issues

https://dfi.wa.gov/banks/marijuana.

[14] Id.

[15] U.S. Attorney Annette L. Hayes, Statement on Federal Marijuana Prosecutions in the Western District of Washington, Jan. 4, 2018.

[16] U.S. Attorney Joseph Harrington, Statement of Federal Marijuana Enforcement Policy in the Eastern District of Washington, Jan. 5, 2018.

[17] U.S. Attorney Billy J. Williams, Statement of Federal Marijuana Enforcement Policy in the District of Oregon, Jan. 4, 2018.

https://www.justice.gov/usao-or/pr/us-attorney-statement-marijuana-enforcement-district-oregon.

[18] https://www.thecannabist.co/2018/02/05/sessions-marijuana-cole-memo-us-attorney/97703/.

[19] Emerald Enters., LLC v. Clark Cty., 413 P.3d 92 (Wash. Ct. App. Mar. 13, 2018) (upholding county’s ordinance banning retail sale of marijuana within its unincorporated areas; state law does not occupy the entire field of marijuana regulation in Washington; county retains its zoning authority).

[20] Adam Zagorin, Why Were These U.S. Attorneys Fired, Time, Mar. 7, 2007 at

http://content.time.com/time/nation/article/0,8599,1597085,00.html.

[21] Ernst F. Schumacher, Small is Beautiful; A Study of Economics as if People Mattered 36 (1973).

[22] Philip A. Thomas, 9/11: USA and UK, 26 Fordham Int’l L.J. 1193, 1198–99 (2003) (discussing whether anti-terrorist legislation deterred criminals, was comfort legislation, or was counter-productive through the alienation of innocent victims and ethnic, religious and immigrant groups).

[23] Letter to Congress, Jan. 16, 2018.

https://oag.ca.gov/system/files/attachments/press_releases/Final%20Banking%20Letter%20to%20Congress.pdf.

[24] Or. Law 2016 Ch. 97, § 7.)

[25] Marijuana — Financing Agreements — Disclosure, 2016 Oregon Laws Ch. 97 (H.B. 4094)

[26] W. Timothy Mitchell, Sean A. Peffer Beliefs About Accountants’ Risk Tendencies and Their Effect on the Integration of Accountants’ Advice Regarding Expenditure Decisions, July 2007.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1003395.

[27] United States v. Washington, 887 F. Supp. 2d 1077, 1085 (D. Mont. 2012),adhered to on reconsideration, CR 11-61-M-DLC, 2012 WL 4602838 (D. Mont. Oct. 2, 2012) (prosecution of person who served as accountant for medical marijuana enterprise, laundered money, falsified records).  See 2012 WL 6704404 (D. Mont.) (government’s opposition to dismissal motion describing Flemings alleged conduct)

[28] Colorado Soc’y of Certified Accountants, AICPA, Wash. Soc’y of Certified Public Accountants, An Issue Brief on State Marijuana Laws the CPA profession, June 11, 2015.

[29] AICPA NASBA Providing services to businesses in the marijuana industry A sample of current board positions, Jan. 2018.

https://www.aicpa.org/advocacy/state/downloadabledocuments/marijuana-state-board-positions.pdf.

[30] 2017 Wash. Senate Bill No. 5928 (Apr. 23, 2017), Wash. Sixty-Fifth Legislature – 2017.

[31] Amended/Substituted Jan. 11, 2018.

[32] Letter to Congress, Jan. 16, 2018.

[33] Bill Analysis ESSB 5928, Judiciary Committee.

[34] RCW 9A.83.020(1).  See State v. Jain, 151 Wn. App. 117, 124, 210 P.3d 1061, 1064 (2009) (reversing conviction for money laundering when instructions permitted conviction on evidence not named in information, five unimproved properties which state asserted had been purchased with proceeds from illegal marijuana sales); Snohomish Reg’l Drug Task Force v. Real Prop. Known as 20803 Poplar Way, 150 Wn. App. 387, 208 P.3d 1189 (2009) (related case reversing summary judgment in civil forfeiture action; claimants notices and discovery requests triggered hearing requirement).

[35] RCW 9A.83.020(1)(c).

[36] H.R. 1625 § 538–115 Congress: Consolidated Appropriations Act, 2018 (Mar. 23, 2018).  See United States v. McIntosh, 833 F.3d 1163, 1176 (9th Cir. 2016) (holding defendants may seek to enjoin the expenditure of such funds in prosecutions of persons in compliance with state law). United States v. Kleinman, 859 F.3d 825, 834 (9th Cir. 2017), opinion withdrawn and superseded on reh’g, 880 F.3d 1020 (9th Cir. 2017).

[37] Compare United States v. Pisarski, 274 F. Supp. 3d 1032, 1040 (N.D. Cal. 2017) (“Defendants Pisarski and Moore have proven, by a preponderance of the evidence, their strict compliance ‘with all relevant conditions imposed by [California] law on the use, distribution, possession and cultivation of medical marijuana.’ Accordingly, their motion to have this prosecution enjoined is granted.”) with United States v. Gilmore, 17-10142, 2018 WL 1631680 (9th Cir. Apr. 5, 2018) (affirming denial of injunction where defendants cultivated on federal land; state law defenses are irrelevant).  United States v. Gloor, No. 16-30142, 2018 WL 946244 (9th Cir. Feb. 20, 2018) (affirming conviction where defendant failed to strictly comply with Washington’s medical marijuana law for offenses ending in 2013); United States v. Gentile, No. 112CR00360DADBAM, 2017 WL 1437532, at *6 ((E.D. Cal., Apr. 24, 2017)(finding defendant failed to strictly comply; selling marijuana for profit, not a qualified patient or caregiver).

[38] See Karl Marx Critique of Hegel’s ‘Philosophy of Right’ (Joseph O’Malley ed., Annette Jolin & Joseph O’Malley trans., Cambridge: Cambridge University Press, 1970) (1843-44).