9 January 2018
On January 4, 2018, Attorney General Jeff Sessions issued a memorandum to United States Attorneys rescinding several Obama-era directives that discouraged enforcement of the federal Controlled Substances Act of 1970 in relation to state-legal and regulated marijuana activities. One of the repealed guidance memoranda, Guidance Regarding Marijuana Related Financial Crimes from then Deputy Attorney General James Cole from February 14, 2014, recognized that prosecution may not be appropriate for money laundering offenses related to providing financial services to a marijuana-related business legally operating under state law. Indeed, the Sessions Memo takes aim at the 2014 Cole Guidance, stating that marijuana-related crimes "may serve as the basis for the prosecution of other crimes, such as those prohibited by the money laundering statutes, the unlicensed money transmitter statute, and the Bank Secrecy Act." By calling out these anti-money laundering laws, the Sessions Memo can be viewed as putting the financial industry on notice that its business involving the cannabis industry may once again be subject to federal enforcement efforts. To date, federal banking regulators and the Financial Crimes Enforcement Network have not reacted to this change in federal criminal enforcement policy, but the risk clearly exists for higher regulatory scrutiny of business deemed illegal under federal law even if it is not prohibited by state law.