The state government has filed multiple criminal charges against two of its Havre employees based on claims of actions of another business in which they engage — providing medical marijuana.
The state has charged Delaine “Lainey” Fitzpatrick, born in 1977, and her sister, Malisa Fitzpatrick, born in 1982, with selling marijuana to someone not registered as their patient, selling more marijuana than is legally allowed and keeping 10 pounds more marijuana on-hand than the law allows, sometimes selling it to customers on several times on the same day.
The state contends the two violated the law, but the attorney for one of the defendants insists that the state is "overreaching," and trying to overturn the will of the people who passed the law allowing medical marijuana.
Delaine Fitzpatrick faces felony charges of two counts of criminal distribution of dangerous drugs, a count of distribution of drugs by accountability and criminal possession of dangerous drugs with intent to distribute.
Malisa Fitzpatrick is charged with two felony counts of distribution and one of possession with intent to distribute.
Questions to the Fitzpatricks were referred to their attorneys, Jeremy Yellin representing Delaine Fitzpatrick and Marta Farmer representing Malisa Fitzpatrick.
Both Yellin and Farmer said their clients are not guilty.
“We intend to prove that in court the charges themselves are an example of government overreaching,” said Yellin. “The charges represent the government’s effort to overcome the will of the people when they passed the Medical Marijuana Act.”
“It is our opinion that it is retaliatory in nature and a blatant misuse of the law,” Farmer said.
Yellin said he and Farmer will investigate allegations made in the case and “also investigate the government’s conduct in their investigation of this case.”
According to the charging document, filed by state Assistant Attorney General Chad Parker, all of the charges stem from an investigation of the medical marijuana caregiver business operated by the Fitzpatricks, Gonja Gardens.
Delaine Fitzpatrick works for the Child and Family Services division of the state Department of Public Health and Human Services in Havre, and Malisa Fitzpatrick is a deputy juvenile probation officer here.
Beth McLaughlin, Montana court services director, said Malisa Fitzpatrick is still an employee of the court. She said that, because it is a personnel matter, she could not comment further on the issue.
A DPHHS representative said in September that Delaine Fitzpatrick was employed by DPHHS and was approved to use compensation and leave time while she dealt with the matter. An update on her status was not available by deadline today.
According to the charging documents, the local Tri-Agency Safe Trails Task Force began investigating the Fitzpatricks after an agent received information in May, June and July that the Fitzpatricks had been selling marijuana to people who were not their registered patients and selling the marijuana in larger amounts than allowed by the state medical marijuana laws, passed by voter initiative in 2004.
The task force requested the help of the Montana Criminal Investigation Division, and the division assigned undercover agents to aid in the investigation.
According to the document, the task force received warrants allowing agents to record conversations and telephone calls made during the investigation.
An assigned agent possessed a medical marijuana card obtained during a previous investigation. The card did not designate a specific caregiver for the agent. The charging document says the medical marijuana laws require a person must list his or her caregiver from whom he or she is receiving marijuana before obtaining marijuana from that caregiver.
The evening of July 28, the agent called Delaine Fitzpatrick and requested to buy marijuana from her, the document says.
Delaine Fitzpatrick sold the agent a quarter-ounce of marijuana for $80 that evening, after reviewing his medical marijuana card and driver’s license, the document says.
The agent told Delaine Fitzpatrick he would like to purchase marijuana from her in the future, and that he did not want a specific caregiver because he travels between Havre, Glasgow and Kalispell. Delaine Fitzpatrick acknowledged those statements, the document says.
Delaine Fitzpatrick also told the agent he might be able to buy larger quantities of marijuana in the future, it is alleged.
On Aug. 3, Delaine Fitzpatrick sold the agent 4 ounces of marijuana, selected from 6 ounces she had brought to the meeting, for $1,100.
During that transaction, she told the agent that because she was a registered caregiver and he is a legal marijuana patient it should be legal for her to sell the product to him without being his listed caregiver, the document says.
On Aug. 13, the document says, the agent purchased 4 ounces of marijuana from Malisa Fitzpatrick for $1,100. Malisa Fitzpatrick also provided the agent with a coconut-flavored sucker that contained marijuana.
During the conversations setting up the sales, the document says, the agent recorded conversations between the sisters discussing the transactions, including agreeing to give him a discount on one transaction for buying a quarter-pound of marijuana.
On Aug. 19, after obtaining search warrants on Delaine Fitzpatrick’s vehicle and a residence and garage of the Fitzpatricks, the agent arranged to purchase marijuana from Malisa Fitzpatrick with $3,500, saying he would take however much she could bring. While she was en route to meet with the agent, Malisa Fitzpatrick was arrested and her vehicle seized to await the task force obtaining a search warrant.
After the search warrant was served on their residence, Delaine Fitzpatrick also was arrested.
Informants and a neighbor of the Fitzpatricks also informed the agents of the task force that medical marijuana patients were obtaining marijuana from the two, sometimes on multiple occasions in the same day, which they distributed to other people. The agents also were told that the Fitzpatricks were having marijuana from Washington and California delivered to their residence.
The Fitzpatricks’ residence and garage were searched after the two were arrested. According to the charging document, Delaine Fitzpatrick is registered to provide marijuana to 22 people listed as her patients and Malisa Fitzpatrick to 25 patients. Both also are listed as medical marijuana patients.
Under the requirements of the law, Delaine Fitzpatrick could possess 23 ounces of usable marijuana and 138 marijuana plants, while Malisa Fitzpatrick can possess 26 ounces of usable marijuana and 156 marijuana plants.
The search found 211.5 ounces of usable marijuana in the sisters’ possession, about 10.16 pounds more than allowed, the document says.