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Che Larracuente stays high. He has to. Since he was a kid, the now 28-year-old has suffered from debilitating seizures.
They started in kindergarten, he says, with what are known as absence seizures, or staring spells, and escalated throughout his childhood and high school into grand mal seizures.
While he attended Howard University, Larracuente says, his condition worsened—likely a symptom of his sporadic sleep schedule, poor diet, and drinking. At the peak, Larracuente says he suffered between 20 and 50 seizures a year. In 2014, he had six seizures in one week and missed his final exams.
Doctors prescribed at least 12 different medications, he recalls. If one pill didn’t work, they’d try another.
Tired of taking pharmaceutical drugs that he says made him depressed, Larracuente began experimenting with marijuana. After several years, he seems to have found a regimen that works. In addition to an improved diet and sleep schedule, Larracuente smokes about an eighth of an ounce of weed per day, which he grows himself.
But in 2013, before Larracuente got his seizures under control, and before D.C. voters passed Initiative 71, which legalized marijuana possession of up to two ounces and home-grow operations, he picked up three marijuana-related convictions. Larracuente has successfully sealed two of those cases and has been fighting to wipe the third for the past three years.
Last week, the D.C. Court of Appeals ruled that that conviction, originally filed as felony-level possession with the intent to sell, will stick.
Larracuente ultimately pleaded guilty to a misdemeanor in that case, but he says the original felony charge still shows up on background checks and in D.C. Superior Court’s online database. And even though a police report indicates that officers found about two and a half pounds of weed in his apartment, Larracuente says he wasn’t planning to sell it.
“At that point in my life, man, I really did buy a bunch of weed to experiment and to cook with,” he says. “I was trying to figure out how the heck do I stop having seizures?”
Studies have shown that a non-psychoactive compound in marijuana called cannabidiol, or CBD, can be effective at treating epilepsy. In D.C., individuals with medical marijuana cards, like Larracuente, can possess up to four ounces of weed.
Now, as the District considers building a regulatory system for recreational weed, Larracuente worries his past will bar him from participating.
His assessment of Mayor Muriel Bowser’s vision to tax and regulate marijuana is concise. “There’s no way you can think that that bill is gonna help the people of color in the District of Columbia.”
In the summer of 2013, police officers showed up at Larracuente’s apartment twice in the span of about a week. The first time, Larracuente believes, his neighbors called to complain about the skunky smell. Officers found only the small amount of weed he was preparing to roll into a joint, he says, and charged him with a misdemeanor.
Officers came back a few days later with a warrant and found pipes, a bong, a digital scale, a book on marijuana, a vacuum sealer, a “black ledger,” and about two and a half pounds of marijuana, according to the police report.
Larracuente lived with a roommate at the time, who had an outstanding misdemeanor warrant. Thinking he was protecting his friend, Larracuente told officers, “Everything in the apartment is mine.”
Prosecutors charged Larracuente with felony-level possession with the intent to sell. (He’d also been arrested once before, when an officer found a blunt in his car.)
In exchange for a guilty plea, prosecutors agreed to reduce the felony charge to a misdemeanor. At his sentencing in 2014, his former lawyer, David Richter, told the judge about Larracuente’s seizure disorder and pointed out that “the one thing that has ever helped him has been marijuana,” according to a transcript of the hearing.
In response to Judge Ronna Beck’s concerns about the quantity of weed, Richter said Larracuente cooked with marijuana and told her “it would have been difficult, frankly … for him to take the stand and say that he had no intention to share any of it with any friends. [But] he would have adamantly denied selling any of … what was there.”
By that time, he had obtained a medical marijuana card for his seizures, Larracuente told the judge, and said he intended to go to school to learn about weed cultivation. (He later graduated from Oaksterdam University, a cannabis college in Oakland, California.) The judge gave him a 30-day suspended sentence, meaning as long as he stayed out of trouble, he wouldn’t serve any jail time.
D.C. law allows record-sealing for crimes that have subsequently been decriminalized or legalized. In D.C., it is currently legal for any adult to possess up to two ounces of marijuana, and people who grow their own weed can keep as much as they can produce, but selling it is still illegal.
In 2016, Larracuente filed to have all three of his marijuana-related cases sealed. A judge granted his request in two cases, but refused to seal the third involving the two and a half pounds of weed.
He appealed the judge’s denial to the D.C. Court of Appeals in March 2018. His current lawyer, Paul Zukerberg, argues that federal prosecutors have cited several different quantities. Throughout their opposition to his motion to seal the case, prosecutors claimed the amount found in Larracuente’s apartment was about one ounce, then 42 ounces, and then cited a DEA report showing 23 ounces, Zukerberg writes in court documents.
“Based on the government’s own evidence, the amount of marijuana is somewhere between one ounce and 42 ounces,” Zukerberg writes. “But no one knows where.”
The appeals court rejected Zukerberg’s argument, noting in its decision that despite the discrepancy, Larracuente admitted to possessing two and a half pounds at the time he pleaded guilty.
Zukerberg says Larracuente’s only remaining options are an appeal to the U.S. Supreme Court or for the D.C. Council to change the record-sealing law.
In May, Bowser stood behind a lectern at Anacostia Organics, a new Ward 8 medical marijuana dispensary owned by the politically connected Linda Mercado Greene, and announced her bill to tax and regulate recreational marijuana.
For years, the District has been prohibited from establishing a regulatory scheme due to a Congressional appropriations rider introduced by Maryland Rep. Andy Harris that prevented D.C. from using local funds to set it up. But this year, with Democrats in control of the House of Representatives, Harris did not introduce his rider.
Some individuals are optimistic that the Senate will pass an appropriations bill without a similar provision, but Larracuente and other pro-marijuana advocates have concerns with Bower’s vision. Under the mayor’s bill, people convicted of felonies would be prohibited from obtaining licenses to grow, manufacture, distribute, or sell marijuana.
“People who were affected by prohibition should be first in line,” Larracuente says. Bowser’s bill limits the amount of weed a person can possess to 10 ounces. For Larracuente, who produces about a pound of weed per plant, and who, to manage his seizures, smokes more in a single day than some people smoke in a month, that rule seems overly restrictive.
Nikolas Schiller, the co-founder of DC Marijuana Justice, echoes Larracuente’s concern, and points out a few more. Under Bower’s bill, a cultivation license would cost $10,000 per year, which Schiller says is “geared toward people who are well capitalized.” (The annual fee for a liquor manufacturer license in D.C. is $2,000.) The bill also requires marijuana be stored in an “enclosed area or room equipped with locks” and eliminates D.C.’s so-called “gray market” where people gift marijuana with the purchase of another item.
A positive in the mayor’s bill, as Schiller sees it, is the requirement that 60 percent of the business’ owners and employees be District residents.
Representatives from Bowser’s office were unwilling to speak on the record about the bill and did not provide comment by press time.
In January, At-Large Councilmember David Grosso introduced a tax-and-regulate bill that Schiller calls less prohibitive. Where Bowser’s bill requires automatic record-sealing for misdemeanor marijuana possession only, Grosso’s bill requires automatic expungement for all marijuana-related crimes.
Bowser’s bill taxes marijuana at 17 percent; Grosso proposes a rate of 10 percent.
“Ultimately it’s about holding a public hearing,” Schiller says.
The irony of publicizing his efforts to seal his criminal record is not lost on Larracuente. From his apartment in Northeast, surrounded by DJ equipment, a makeshift photo studio, and the distinct dank smell of his plants, he says he intends to continue his appeal to the Supreme Court.
He hopes that some attention will help his cause or push the Council to change the record-sealing statute.
In the meantime, he’ll keep tending to his plants (he and a roommate have 12 total, and he says he gifts what he doesn’t smoke) and working part time at a hydroponic store. He also dabbles in photo and video production and, along with a partner, consults for people looking to start their own home-grow operations.
“I don’t want to break the law and be a criminal and just sell weed,” Larracuente says. “I want to own my own business. I want to pay taxes. I want to have a family and do normal things. But I’ve been labeled on paper as a criminal. And on top of that I have to deal with the whole medical issue.”