U.S. Attorney in Colorado Jason Dunn Navigates Federal Drug Policy And States’ Rights

Ryan Warner: This is Colorado Matters from CPR News. I'm Ryan Warner.

Colorado might look like the wild, wild west in the eyes of the federal government. Legal weed is just one example. The drug, of course, is still a no-no federally. Then came the idea to open the country's first safe injection site for IV drug users in Denver. That's been scuttled for now. And, of course, the mile high city recently decriminalized psychedelic mushrooms. The man chosen by President Trump to tame this lawless land is Colorado's US Attorney Jason Dunn. Jason, welcome to the program.

Jason Dunn: Great to be with you, Ryan. Thanks for having me.

RW: How do you walk the line between adhering to federal law, which places marijuana alongside heroin, and Coloradans decision to legalize it? Maybe put another way, what are your enforcement priorities when it comes to marijuana?

JD: Sure. As you know, under federal law, marijuana is a controlled substance and it's illegal period. That said, our job is to figure out what we can do to most impact public safety, so when we prioritize our criminal enforcement efforts, we think about what impacts public safety the most and where we can use our resources. And that's true for the Drug Enforcement Administration as well here in Colorado.

RW: Okay, so where is public safety most affected, do you think?

JD: Our priorities are, and this is true across the country for the entire Department of Justice. Number one is national security and terrorism. That's always job one post 9/11. But second, we are focused on violent crime, and I can go into lengths about some of the things we're doing on that, but then illicit drugs is the second, and that includes going after large drug trafficking organizations that are bringing large quantities of methamphetamine and heroin into Colorado and through Colorado. Opioids, opioids get a lot of attention lately and rightly so. That's a huge problem. And then third really is, as you've seen recently, is black market marijuana. That's a huge problem in Colorado as well, so we're focused on that.

RW: Okay. In April, in an interview with the Colorado Sun, you said the size and scope of the marijuana black market in Colorado was stunning to you. Help us understand what stunned you.

JD: Yeah, well the size, as you said. The retail market in Colorado as I understand it is something like a billion and a half dollars a year. I've been told anecdotally by the DEA that the black market, and that's, just to be clear, that's marijuana that's being produced illegally under federal or state law, and that's being almost exclusively produced for out-of-state shipment. The DEA's finding it virtually in every state in the country, and they think that it may be a larger industry in Colorado than the retail industry. These are almost all primarily home grows. We held a press conference recently where we announced the results of a two year investigation in which we executed search warrants on approximately 250 homes that were being used to grow four, five hundred, all the way up to 1,000 plants in the basement with, in most cases, with nobody living there.

RW: These were homes where in Colorado?

JD: All over, from Colorado Springs, Pueblo, all the way up to Greeley, but primarily concentrated in the metro area, and these are not homes that are run down, abandoned homes. The average value of the homes that we actually filed forfeiture actions on was about $400,000. These are homes that are in suburban, working class neighborhoods. The lawns are maintained. They don't look like drug houses, but they are.

RW: Who's behind these grows?

JD: We're working on that. It's a complex analysis, and it's an investigation that I can't go into a lot of detail on, but we think there may be some connection among them, and I'm talking ... These are hundreds of homes, but we're still working on that and trying to figure out what the connection is. It's a complicated effort. It may involve the dark web and cryptocurrency, so we're investigating all of that.

RW: Do you think that there are foreign actors involved in this?

JD: There are certainly, as our arrests that were disclosed show, there are people who are of foreign nationality. Primarily, in those arrests were primarily Chinese.

RW: Chinese. And what do you think this would be funding?

JD: You know, that's what we're trying to figure out.

RW: Okay.

JD: It's got to be a huge amount of cash. I was trying to crunch the numbers just on what one house can generate in cash, and it could be upwards of a couple million dollars a year. That's a cash business, so that money has to be flowing somewhere.

RW: How do you know that marijuana makes it out of Colorado? You say that this black market is primarily serving other places. How do you know that?

JD: Yeah, that's what the DEA tells us, that when they have seizures in other states and they talk to the people that they're catching, they're asking where they got this 50 or 100 pounds of marijuana, and a lot of reports are coming back that it's coming from Colorado.

RW: Okay. If marijuana business people, legit ones, are listening, from dispensary owners to ... There are payroll firms that work with the cannabis industry, and frankly, if marijuana users are listening, how do they stay right by your office?

JD: There is no right by our office. Marijuana is illegal under federal law, but as I said, we have to make enforcement decisions and make priorities, and so we monitor closely what the state is doing through the Marijuana Enforcement Division to ensure they're doing what they're required to do under state law from an enforcement perspective. That helps us be more comfortable that there's a robust regulatory scheme and that the state is a good partner in enforcing marijuana laws under state law.

RW: Is the state a good partner? Is the state doing a good job policing this?

JD: I think Colorado, because it was such an early actor in adopting legalization, has a more robust system than many states, and I know the folks over at the Marijuana Enforcement Division, they're working very hard, and I know under some current legislation, I think they're going to expand the number of people they have. I think they could always be doing more.

RW: It occurs to me that, if you think the black market is as you have said, "stunning," that Colorado, in your mind, is falling short to some degree.

JD: Yeah. I think the Marijuana Enforcement Division has its hands full with regulating the regulated market. I certainly would like to see the state do more to go after the black market. I know I've talked to local law enforcement, sheriffs, police chiefs who have said, "We know where lots of illegal grows are. We just can't get to them all."

RW: A little background: You've been in this job for about eight months. That is, the job of US Attorney in Colorado. You're a native who attended CU, worked at the big Denver law firm Brownstein Hyatt, at the State Attorney General's office. Jason Dunn, have you always been a law and order guy? What did the younger Jason Dunn make of things like the push to legalize marijuana?

JD: You know, I don't know. I was probably a typical teenager. I'm not sure I would've thought at that time I would've wound up in law enforcement, but I have a real love for Colorado. I left the state twice when my dad became a school superintendent in Montana, and came right back for undergrad. And then after college, I lived on the East Coast for three years, and quickly came back to Colorado. I'm just most interested in making sure that Colorado's a great place for people to live and raise a family.

RW: Do you respect its decision to legalize marijuana?

JD: I'm a states' rights guy, and I think we have an intractable problem between federal law and state law that has to be resolved.

RW: You put that onus on Congress, I gather?

JD: I do. I think we've got to resolve it. We cannot have a situation where the federal government is saying, "We won't enforce federal law," for one reason or another, so we need resolution.

RW: Okay. I'm Ryan Warner, and our guest is US Attorney for Colorado Jason Dunn. He was nominated by President Trump, confirmed by the Senate less than a year ago. In May, Jason, Denver voters decriminalized so-called magic mushrooms, making psychedelic 'shrooms a low law enforcement priority for people 21 and over. Proponents say they can relieve depression and anxiety. Again, the clash here of local and federal law. Is this on your office's radar? When the vote came through, did it ...

JD: Not really. One correction, it wasn't decriminalized. It was more what you said, which is they instructed Denver police to make it a low priority, so it's still illegal, even under state or city law, but from our perspective, it is ... I'm not sure in recent, we have a mushroom case in recent memory. I'd have to ask at the office, but it's certainly not something that has been a high drug.

RW: Instead of heavily trafficked [crosstalk 00:09:04].

Correct.

RW: Okay. Helpful to understand. Let's talk about the possibility of a supervised injection site. This is where IV drug users could inject in private booths, but near trained professionals that could help if there's an overdose or refer people to treatments. A bill paving the way for such a site in Denver was ejected in the state legislature. You wrote a letter to the city warning about opening such a location. What was your motivation?

JD: I went into that issue ... It was sprung on us when city council did what it did, and I went into it with a fairly open mind, to look at that and think, "Is this something that actually could have a positive impact?"

RW: Right. This is often referred to as harm reduction.

JD: Right. They cited, and people cite frequently to a cite in Vancouver. So we did, I can't say we spent weeks looking at it, but we spent a couple days digging into the issue and looking at it. My view on it was, if we were going to normalize or authorize conduct that is otherwise illegal, we should have a really good reason to do that. We should have demonstrable proof that it works and has a dramatic impact on a problem, and I couldn't find that.

I don't think it's been successful in Vancouver. I don't think it's a good idea for Denver. In fact, in Vancouver, it arguably increased usage rates around the facility, crime rates around the facility. Obviously heroin is a serious narcotic, an illegal drug under any law, and in our view, it would only exacerbate the problem and my view is that, if we're going to do something that arguably normalizes otherwise harmful conduct, we ought to have a really good reason to do it.

RW: But if someone is injecting in an alleyway with no supervision versus in a facility that has a nurse, isn't there an inherent benefit in the latter?

JD: There's no question that if somebody overdoses in a facility and is hit with Narcan and is saved, that that person has been saved. The problem is that people don't just shoot up once a day, and they don't do it just in those facilities. They will do it four or five times a day, and they'll do it many times outside that facility, so I'm not sure it even has a measurable impact on the death rate. Moreover, I don't think people, people who live in an apartment or are doing heroin other places or prescription opioids are not going to be driving down to this facility to do it, so you're really just facilitating one population. And second, you're not even ... The antidote, the Narcan, only works on heroin. It doesn't work on meth or cocaine or anything else, and all of those drugs would arguably be allowable in the facility.

RW: In our first half, you brought up opioids. What exactly is your office's role as US Attorney in fighting the opioid epidemic? Who are the bad actors that you're looking at?

JD: We're addressing that in two ways. One is, of course, we're going after large drug trafficking organizations that are bringing heroin in to the state, and-

RW: There's obviously a very strong link between heroin use and opioid use.

JD: Absolutely.

RW: Prescription opioids.

JD: That's right. The estimates I've heard is 70-80 percent of heroin users started by abusing prescription pills, so we have a focus on that as well. I'm really proud of one of the things we're doing in our office is actually on the civil side, not on the criminal side, but we have really smart lawyers in our office who are taking federal data, federal Medicare, Medicaid, TRICARE, which is the military insurance, and we're mining that data to figure out how the statistical outliers are in terms of prescribers, doctors, pharmacists, nurse practitioners, and figure out who are the statistical outliers so we can figure out who to target as who are distributing opioids.

JD: You might see, for example, a pharmacy where they have a really high incident rate of distributing or supplying a three drug cocktail that has no purpose other than to give a high of an opioid, an anti-depressant, and a muscle relaxant. Or you might have a pharmacy where the average patient is traveling an inordinate distance to pick up their prescription. Why would that be? We're trying to use the complex analysis to target and then conduct further investigations.

RW: And has that yielded anything yet?

JD: It's starting to. We have some ongoing investigations that I can't talk about, but it is actually, and we've targeted a number of pharmacies and prescribers who we think are violating, so what that allows us to do from the civil side is we can either file False Claims Act, the DEA can suspend their license, Health and Human Services can suspend their ability to seek Medicaid, Medicare reimbursement. While it's not a criminal penalty, it can be referred for criminal prosecution, but that's a higher standard. We can put them out of business.

RW: Presumably a doctor could lose his or her license under this.

JD: Yep.

RW: Okay.

JD: Absolutely.

RW: Before we go, and we have about a minute, you were nominated, as I said, by President Trump, who has arguably made immigration the key issue of his presidency. Denver, the largest city in your region, has declared itself to be a sanctuary city for immigrants. What's your approach in regards to immigration?

JD: I think ... People asked me a lot about that during the confirmation process. Probably that and marijuana were the things I was asked most about. I think there's a misperception though about our role in the immigration process. It's actually fairly small. People may not know, when somebody enters the country illegally and they're caught, that typically is a deportation proceeding conducted by ICE as an administrative matter, and they're deported. If they reenter the country, then it becomes a felony under federal law.

We can certainly prosecute that case, but typically we only take those kinds of cases if the person has a prior felony conviction in the United States of a violent nature. If it's somebody who, while they're here the first time, was prosecuted for domestic violence or dealing drugs or gang activity, then we will go after those people and charge them with illegal reentry.

RW: So this, again, goes back to the priorities of terrorism and of violent crime. Jason Dunn, thanks for being with us. He's US Attorney in Colorado, taking the job about eight months ago. He also works closely in this region with the FBI, Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

This is Colorado Matters from CPR News.