On July 29, 2005, Canadian police, acting on a request from the United States Drug Enforcement Administration (DEA), simultaneously raided the BC Marijuana Party Bookstore and Headquarters in Vancouver and arrested Emery for extradition to the United States outside a local storefront in the community of Lawrencetown, Nova Scotia where he was attending a HempFest.
American authorities charged Emery and co-defendants Gregory Keith Williams, 50, of Vancouver, BC and Michelle Rainey-Fenkarek, 34, of Vancouver, BC with "'Conspiracy to Distribute Marijuana", "Conspiracy to Distribute Marijuana Seeds" and "Conspiracy to Engage in Money Laundering". Even though all the alleged offenses occurred in Canada, Canadian police did not lay any charges.
The day of Emery's arrest, American DEA Administrator Karen Tandy admitted reasons behind the arrest were politically motivated by releasing the following statement, which praised blows dealt to the legalization movement: Today's DEA arrest of Marc Scott Emery, publisher of Cannabis Culture Magazine, and the founder of a marijuana legalization group -- is a significant blow not only to the marijuana trafficking trade in the U.S. and Canada, but also to the marijuana legalization movement. His marijuana trade and propagandist marijuana magazine have generated nearly $5 million a year in profits that bolstered his trafficking efforts, but those have gone up in smoke today. Emery and his organization had been designated as one of the Attorney General's most wanted international drug trafficking organizational targets -- one of only 46 in the world and the only one from Canada. Hundreds of thousands of dollars of Emery's illicit profits are known to have been channeled to marijuana legalization groups active in the United States and Canada. Drug legalization lobbyists now have one less pot of money to rely on.
Emery was freed on a $50,000 bail and prepared to fight extradition in the courts.
Emery and his two associates, all charged in the United States with drug and money laundering offences, each faced a minimum 10-year sentence and the possibility of life imprisonment if convicted there.
On January 14, 2008, Emery had agreed to a tentative plea-bargain with U.S. authorities. The terms of the agreement were a 5-year prison term to be served in both Canadian and U.S. prisons. In return, he demanded the charges against his friends Michelle Rainey and Greg Williams be dropped.
(An appeal court judge ruled on March 7, 2008 in a similar case that a one-month jail sentence and probation constituted an adequate sentence for the crime of marijuana seed selling in Canada. This could possibly have been used to Emery's advantage in his fight against extradition.
On March 27, 2008 the plea-bargain deal collapsed because of the refusal of the Canadian Conservative government to approve its side of the arrangement.
In late 2008, an extradition hearing was scheduled for June, 2009. However, before those hearings Emery agreed to plead guilty to one charge of drug distribution and accept a five-year sentence in the USA.
On September 21, 2009, Emery entered his guilty plea, and on September 28, he was incarcerated in a British Columbia prison awaiting extradition to a US federal prison to serve the five year sentence. There is a 30 day appeal period before extradition.
Emery was granted bail on November 18, after seven weeks in the pre-trial centre, to await the Justice Minister's decision on the extradition order.
While Emery was imprisoned, his supporters held a permanent vigil outside the prison with tents and banners for 45 days, ending when Emery was released on bail.
On September 10, 2010, Emery was sentenced to 5 years in prison minus time served.
Until April 2011 Emery was held by the Federal Bureau of Prisons at the D. Ray James Correctional Institution in Folkston, Georgia.
On April 20, 2011, Emery was transferred to Yazoo City Prison in Mississippi.