Activists' Cases Riding on Raich and Booker,
Journal of the California Cannabis Research Medical Group
Activists' Cases Riding on Raich and Booker
By Ann Harrison
The U.S. Supreme Court decision in Ashcroft v. Raich will have far-ranging consequences for medical cannabis patients, caregivers, growers and dispensary operators fighting federal marijuana charges.
Directly at stake are the homes, the businesses and the freedom of at least 30 defendants. Their cases were put on hold following a December 2003 ruling by the 9th U.S. Circuit Court of Appeals entitling Diane Monson and Angel Raich and her caregivers to use and cultivate marijuana under California law.
The 9th Circuit injunction —which the Bush Administration challenged in the U.S. Supreme Court— applies in eight western states that have medical marijuana laws.
The injunction has had an indirect effect, too, according to Attorney Omar Figueroa, who says he is seeing different enforcement practices in federal court districts in California. In the Northern District, from Santa Cruz to the Oregon border, says Figueroa, federal prosecutors appear to be taking a wait-and-see approach, holding off on new medical marijuana prosecutions until Raich is decided.
But in the Eastern District, from Yolo County east to Nevada, which includes Sacramento, Figueroa says the attitude is, “if you grow any marijuana we will arrest you and we’ll see what happens with the Raich case. If the Supreme Court puts a stop on it fine, but we’ll still prosecute.”
Recent sentencing decisions from the Supreme Court could also impact many of the federal cases awaiting the Raich decision. The Supreme Court’s decision last June in Blakely v Washington held that federal sentencing guidelines violated a defendant’s right to a jury trial. The court ruled that juries, not judges, should weigh the facts that could increase a defendant’s prison sentence under federal guidelines. The decision struck down a state sentencing system that gave judges too much power in sentencing.
The justices have confirmed this logic in the U.S. v Booker decision and the U.S. v Fanfan decision, which found that federal defendants were also entitled to jury judgments. Justice Stephen Breyer wrote that the federal sentencing system was broken because it forced judges to be driven by sentencing guidelines. The justices retained the guidelines for judges to use as voluntary advisories.
Blakely found that power should be shifted from judges to juries; Booker granted judges more power to act outside the compulsary guidelines.
The Blakely and Booker decisions could change the lives of 64,000 people sentenced in federal court each year. Ninety-seven percent of federal defendants plead guilty to avoid a jury trial that could result in longer sentences. As a result, federal prosecutors often determined the length of the sentence which judges were bound by the guidelines to follow.
The Booker decision could have a significant impact on medical cannabis cases because judges can give reduced sentences to people who are clearly patients.
It is unclear how judges will use their expanded discretion to make
sentencing decisions. Medical marijuana defendants may reap the benefit
of judges’ recognizing their status as patients and caregivers. But most
legal scholars predict that judges will not make dramatic departures
from the guidelines.
Defense specialist Laurence Lichter expects the lasting impact of the decision in the Raich case will be limited to non-commercial medical marijuana transactions. “Most of our clients don’t do it for free,” Lichter observes, “and the feds can draw a line between people who do it for free and those who don’t.”
Several defendants whose cases straddle the line between commercial and non-commercial have been released from prison pending the outcome of the Raich case. Others hope the Raich ruling will uphold their states-rights arguments and help shield them from having to attend a federal sentencing hearing.
The roster of individuals currently in limbo reads like a Who’s Who of activists who made Prop 215 a reality.
A government victory in Raich could send back to prison two California medical cannabis growers, Bryan Epis and Keith Alden, who were released pending the Supreme Court ruling. Bryan Epis was sprung from his 10-year mandatory federal drug sentence in August. He had been arrested in June 1997 for growing medical cannabis for four medical marijuana patients in Chico. It took the government five years to convict him. Epis has completed 30 months of his 53-month sentence.
If the Supreme Court finds in favor of Raich, Epis says he will get a new trial. The facts of his case fit Raich because Epis says he was never compensated for ninety-five percent of his grow, and did not receive payment for the remaining five percent. All of the medical cannabis that he grew was used inside the state of California, says Epis. But the jury in his case was not allowed to hear that he was growing for patients.
Bryan Epis with daughter Ashley after his release from the federal penitentiary at Lompoc in August 2004, pending the outcome of the Raich case.
“If they restated the sentence under the current set of facts with new guidelines, we can go to trial and win,” said Epis. “The 9th Circuit can drop the conspiracy charge to grow 1,000 plants, and I could get nine months at most with a drug treatment program.”
According to Epis, the U.S. Sentencing guidelines before the Booker decision prevented him from receiving a “safety-valve” exception to the mandatory minimum sentences. Now the jury, not the judge, decides what kind of sentencing enhancements apply to his case. “Even if Raich loses,” says Epis, “Under Booker, the jury has to find beyond reasonable doubt that I forced these people to let me grow for them.”
Keith Alden could also be sent back to prison if the Raich injunction gets overturned. Alden, who lives in Windsor in Sonoma County, is fighting three convictions including a 2002 conviction for cultivating 755 marijuana plants for several medical cannabis dispensaries. He served 20 months of his 44-month federal sentence before being released in April 2004. His sentence is currently on appeal in front of the 9th Circuit pending the outcome of Raich.
“The only thing that the government could argue in my appeal is that I was at a distribution level,” said Alden. “I was only convicted of cultivation, the jury would not find any number of plants.”
Alden says the Raich case helped focus public attention on cases like his. But he says supporters of the Raich case should now focus their attention on supporting defendants appearing in local courts to fight federal marijuana charges. “The attorneys are all done now, but we the people are not done and we will always maintain the right to petition and be heard and now is our time to step up,” said Alden. “We the people will put the pressure on, there is very little that the attorneys can do.”
For Medical Marijuana
The decision in the Raich case will also affect three California medical cannabis dispensaries with cases in the 9th Circuit: the Oakland Cannabis Buyers’ Cooperative, the Marin Alliance for Medical Marijuana, and the Ukiah Cannabis Buyers Club. The three cases have been bundled together as a single case, but they have different implications for the dispensaries involved.
The Marin Alliance For Medical Marijuana in Fairfax was slapped with a federal injunction in 1998 prohibiting founder Lynnette Shaw from distributing marijuana. The injunction arose from a civil lawsuit in which the government sued six medical marijuana dispensaries, three of which have since closed.
Shaw disputed the government’s claim that it had jurisdiction over her dispensary based on the Interstate Commerce Clause. She ignored the injunction and continued to defiantly distribute medical cannabis. “We have nothing to do with interstate commerce,” says Shaw. “Our business reduces interstate commerce because we use locally grown medical marijuana for local patients and reduce demand for the commercial market.”
Shaw says her dispensary is supported by the town, the county and the local DA. But if the government wins the Raich case, the dispensary has a sudden death provision in their agreement with Fairfax. This allows the town to immediately close the dispensary due to an indemnity clause in the permit that removes them from liability. “They can and will yank the permit and close the club immediately which would be a medical disaster,” says Shaw who notes that the dispensary serves 900 patients a month and has registered over 2,700 members.
Shaw says she has an emergency contingency plan, but she would not be able to distribute medical marijuana for the rest of her life.
“If they decide that the drug war is more important than state’s rights and close the clubs, it will be a human disaster that will empower the gangsters, the thieves and the illegal drug market which is guaranteed employment for the narcs,” says Shaw. “They are all for it.”
The Oakland Cannabis Buyers’ Cooperative has the longest and most tangled legal history of any dispensary in the nation —and is the only one to have taken its case to the Supreme Court. In January 1998, the U.S. government sued the OCBC charging that their cultivation and distribution of medical cannabis was illegal under the Controlled Substances Act. The government charged OCBC with dispensing marijuana without a federal permit, possession and distribution of marijuana, and furnishing an address for these activities.
Federal prosecutors asked the District Court for a preliminary injunction against the cooperative and in May 1998, the court complied. OCBC was found in contempt of the injunction and the court granted the government’s motion to exclude the medical necessity defense from contempt proceedings.
In October 1998, the court denied OCBC’s request to modify the injunction to allow them to continue distributing cannabis.
But the 9th Circuit found that the District Court had the power to modify the injunction. In July 2000, the District Court finally granted the revision allowing OCBC to distribute to patients whose use of cannabis was a matter of medical necessity.
Then the government filed a stay of this order with the 9th Circuit, and appealed the decision to the Supreme Court.
In May 2001, the Supreme Court ruled that medical necessity was not a defense for the cultivation and distribution of cannabis, but it did not tackle the constitutional issues of due process or the federal government’s ability to regulated the in-state use of cannabis under the Commerce Clause.
In 2002, the OCBC was handed a summary judgment by District Court Judge Charles Breyer in which the case was closed and the Cooperative permanently enjoined from distributing medical cannabis. This decision was appealed back up to the 9th Circuit, which remanded it back down to the District Court, where it is now on hold pending the Raich decision.
“If it’s an open-ended decision, we have two to five years in federal court to struggle for collectively changing the law,” said Jeff Jones, executive director of the OCBC and main defendant in the case. “They’ve been getting away with being an ostrich with their head in the sand, saying it doesn’t exist.”
Jones believes that any marijuana case, medical or not, will be impacted by Raich. He notes that in the OCBC Supreme Court case, the judges found that marijuana had no accepted medical value —limiting their ability to side with a medical defense in other cases. This will change if the court finds that marijuana medically benefits the Raich defendants, allowing patients to bring this defense into their cases, says Jones. He adds that a positive ruling could create an avenue for state-sponsored distribution agencies to support patients.
“The Supreme Court is not going to give the government what they want,” predicts Jones. “We will get a ruling that doesn’t go as far as we want, but hopefully will protect patients and caregivers’ rights. But it may not protect dispensaries or collectives, which will be our next struggle.”
Jones believes that if Raich-Monson lose, the DEA will begin targeting dispensaries outside of the Bay Area. “They’ll pick off the loners and try to scare the Bay Area into obedience,” he thinks.
For people not using cannabis for medical purposes, Jones predicts that a win in the Raich case would at least, “take the wind out of the sails of prosecutors and what they see as their moral right to go after these cases.”
Ukiah Cannabis Buyers Club
The federal government’s civil action against the Ukiah Cannabis Buyers Club took place in 1997 six months after the passage of Prop. 215. Federal agents showed up at the club with a temporary injunction for the three directors, Marvin Lehrman, Millie Lehrman and Cherrie Lovett who has since passed away.
According to Millie Lehrman, the injunction was appealed and San Francisco Federal District Court Judge Charles Breyer granted the government a permanent injunction.
The case was sent back to the 9th Circuit where a decision has been delayed pending the Raich case. Like the Oakland Cannabis Buyers’ Cooperative, the Ukiah dispensary has stopped distributing medical cannabis. It serves as an information center, sells cannabis related products, and issues patient ID cards for the County of Mendocino. Millie Lehrman also consults with medical marijuana patients in her capacity as a pharmacist at the Willits hospital.
“If Raich wins it would be favorable to our case because we could get the injunction removed and we could start distributing medical cannabis again. It has given a lot of people hope” said Lehrman, whose dispensary serves around 400 patients.
Lehrman said a favorable ruling might also help dispensaries ease fears of forfeiture which prevents many landlords from renting to them. She noted that the Ukiah dispensary is located in the Unity of Ukiah Church and her local sheriff,Tony Craver, doubts that federal agents will raid a church.
With three active lawsuits and a standing injunction against the U.S. Government, the Wo/Men’s Alliance for Medical Marijuana (WAMM) has a high stakes interest in the outcome of the Raich case. The Santa Cruz-based collective has had more than its share of attention from the DEA.
On September 5, 2002, 30 armed DEA agents raided WAMM’s Davenport marijuana garden and the home of its founders, Valerie and Michael Corral. Agents chainsawed 167 marijuana plants while holding the Corrals and a patient at gunpoint. But the DEA’s exit was blocked by patients who successfully negotiated for the Corral’s release. No charges were ever filed.
The collective lodged a civil suit against the government demanding the return of of items seized in the raid. That case was dismissed by Judge Fogel in December 2002 and is on appeal.
Undeterred, the collective and Santa Cruz city and county officials sued in April of 2002. County of Santa Cruz et al. v. Ashcroft challenged the federal government’s authority to conduct medical marijuana raids and focused on the constitutional rights of patients to control the circumstances of their own pain relief, and ultimately their deaths. The collective also has a due process case against the government.
In August 2003, Judge Jeremy Fogel denied WAMM’s motion for preliminary injunction. When ask to reconsider in light of the 9th Circuit’s decision in the Raich case, Fogel reversed himself. In April 2004, Fogel issued a landmark ruling granting WAMM’s request for a preliminary injunction allowing the collective to resume cultivation and distribution of medical cannabis. This marked the first time a federal trial court judge had enjoined law enforcement from enforcing federal laws against marijuana cultivation, possession and use.
The Raich case will have a strong influence on the WAMM injunction because it is based on almost the exact same arguments. Santa Clara University law Professor Gerald Uelmen, who represented WAMM, noted that their injunction took the Raich case a step forward establishing that there was no difference between a single patient growing their own medicine and a collective group assisting each other to achieve the same purpose.
If the Raich defendants win, Mike Corral says WAMM’s attorneys will move to secure a permanent injunction with the district court and the return of property case will go forward.
“If Raich loses, the Supreme Court will announce the decision and 60 days later record it in the Federal Register,” says Corral. “Then the feds can petition the court to lift the injunctions and I expect that they will do that.” He adds that a negative decision would also put WAMM’s return of property case on hold depending on the timing of the due-process case.
Corral says a negative decision would also force the collective to stop cultivating medical cannabis. Since the WAMM bylaws prevent any member of the cooperative or its representatives from buying or selling marijuana, it will depend on cannabis freely distributed by its members or acquired by donation.
“If we don’t have an injunction, we will likely be targets because we’ve been fairly high profile, sued the government and garnered extra attention from the DEA,” said Corral. He also fears the government may launch asset forfeiture proceedings against them. “We think that there will be federal criminal charges against Val and me for conspiracy to cultivate and distribute marijuana or keeping a place to manufacture and distribute, like the charges against Ed Rosenthal.”
David Davidson/Cynthia Blake
According to Attorney Omar Figueroa, Raich will help determine the fate of medical marijuana patients David Davidson and Cynthia Blake. (Figueroa and Tony Serra are representing Davidson, Shari Greenberger is representing Blake.) Like the WAMM collective, Davidson and Blake are well acquainted with the commando tactics of the DEA. Davidson was growing cannabis in a greenhouse on the banks of the Sacramento River in Tehama County when contractors working on a neighbor’s property saw the plants and called Tehama County Sheriff’s Department. The deputies raided the greenhouse in the fall of 2003, arresting both Davidson and Blake on state charges.
Assuming he was protected under state law, Davidson told police about his second grow in Oakland which was subsequently raided. Figueroa says at least 1,000 plants were seized in the raids, all of which were clones or cuttings with no rootballs.
Lured into the judge’s chambers to discuss motions for return of property and expected dismissal of the charges, Figueroa and Greenberger were informed by D.A. Lynne Strom that their clients had just been re-arrested by federal agents in the courtroom. Taken into custody by local law enforcement cross-designated by the DEA, Davidson asked to see his lawyer and was told by sheriff Eric Clay that he no longer had one.
In January 2004, Davidson and Blake were slapped with federal charges of conspiring to manufacture over 1,000 marijuana plants and conspiring to possess with intent to distribute. They were both released on signature bond secured by Davidson’s property.
Figueroa says he has filed motions to dismiss the charges based on 9th and 10th Amendment arguments, on a patient’s constitutional right to alleviate suffering, and on a Commerce Clause argument. All motions were denied without an evidentiary hearing.
“We’ve been putting off the case to see what the Supreme Court will do in Raich and have not entered a plea,” said Figueroa who says he asked the judge to allow the jury to question whether defendants were involved in interstate commerce. “If Raich wins it may be such a narrow victory we may not be able to take advantage of it. If Raich loses they may take a plea and could be facing stiff sentences.”
Davidson and Blake have a hearing on March 1 before Judge Morrison England in U.S. District Court in Sacramento for a motion to allow pre-trial jury instruction based on Raich. While the Blakely and Booker decisions will likely not affect his clients, Figueroa says it could impact other cases. “It is just applied to the guidelines, not the statutory mandatory minimum,” says Figueroa. “But a jury has to find the amount [of marijuana plants] beyond a reasonable doubt.”
Until Raich, the highest-profile medical marijuana case undoubtedly belonged to Ed Rosenthal. The author and cannabis advice columnist was arrested in February 2002 and convicted in January 2003 on federal marijuana cultivation and conspiracy charges after a high profile trial. Sentenced in June of 2003 to one day (time served), Rosenthal has appealed his conviction to the Ninth U.S. Court of Appeals.
Rosenthal contends that the conviction was unfair because Judge Charles Breyer prevented the jury from hearing evidence related to medical marijuana. Rosenthal maintained that he had been deputized by the City of Oakland to grow medical cannabis. Breyer barred this evidence, prompting a majority of jurors in the case to disavow their verdict.
Breyer handed Rosenthal the lightest possible sentence saying Rosenthal believed erroneously —but reasonably— that he was engaging in legal acts. The judge concluded that the “extraordinary, unique circumstances of the case” justified Rosenthal’s exemption from a five year mandatory minimum term. In July 2003, federal prosecutors, who had asked for six years, signaled that they would appeal the sentence. They did, and it is stayed, pending Raich.
If the Raich outcome is favorable, Rosenthal says charges against him for possession and maintaining a place for cultivation would not be crimes because he was never charged with sales. If Raich loses, it might restrict his options for appeal. But Rosenthal notes that it might also change the mood at the 9th Circuit, which could reject the investigator’s warrant and throw the case out. Rosenthal says the lower court judge rejected all the evidence gathered in the warrant but the electricity bill. According to the 9th Circuit, prosecutors didn’t compare the information to that from comparable buildings.
The Booker decision could benefit Rosenthal whose one-day sentence was appealed by government prosecutors as outside the accepted guidelines. Since the Booker ruling, the government no longer has the grounds for this objection.
No medical marijuana defendant can match the theatrical flair of Charles Eddy Lepp, 57, a Vietnam vet who was first acquitted on cultivation charges by a Lake County jury in 1998. Lepp took his acquittal as validation and resumed growing on a larger scale.
In 2001 the DEA, assisted by Lake County Sheriff’s deputies, destroyed 40 acres of cannabis —some viewable from Highway 20— grown by Lepp.
The DEA placed the value of the 20,000 plants at a conservative $80 million dollars. Lepp claims that the federal government does not have the authority to enforce federal law inside any of the sovereign states and demanded the immediate closure of the DEA as an illegal organization. He filed a $68 million civil lawsuit against the DEA, and also filed a case against Lake County.
According to Lepp, he and his wife Linda Senti were growing medical cannabis for about 4,000 patients. Each had contributed $500 to a ministry organized by Lepp to cover labor, fertilizer, water and security. The Lepps cultivated up to six plants for each documented patient. No sales were involved, Lepp says. He was never charged by the feds for the 2001 bust, but they confiscated the records he needed to defend himself.
In August 2004, the DEA raided Lepp’s 25 acre farm in Upper Lake. They carted off 32,000 plants with an estimated value of $120 million. Lepp and 13 other people were arrested. When the DEA drove off, local teenagers showed up at Lepp’s farm with armfulls of marijuana that had dropped off the DEA’s trucks. Lepp was charged with possession of a controlled substance with intent to distribute and maintaining a residence for the manufacture of a controlled substance. Last October, Judge Marilyn Patel released Lepp on bond and allowed him to travel to Amsterdam to receive the Freedom Fighter of the Year award at the Cannabis Cup.
Lepp’s criminal case was merged with his civil case against the government. Attorney Dennis Roberts filed a motion on the legitimacy of raising a medical marijuana defense and a return -of-property motion. “We want them to rule now whether we can legitimately raise a medical marijuana defense,” he says. Roberts claims the prosecution has delayed turning over discovery in the case.
If Raich-Monson win a ruling that says non-commercial, intrastate, medical-marijuana transactions are not subject to federal law, it will clearly benefit Lepp. (He will still have to establish that state law entitled him to grow 32,000 plants, given the six-plant limit established by SB 420.)
“Even if Raich loses then we will still have no federal guidelines,” says Roberts. “It is unclear whether mandatory sentencing would apply, but a judge at that point can essentially do what they want to do.”
Lepp’s troubles compounded when the DEA raided his Lake County home for a third time on Feb. 16, 2005. Lepp and one of his employees, Daniel Barnes, were arrested. They appeared the next day before U.S. Magistrate Maria Elena James and were charged with distribution of marijuana, conspiracy to distribute marijuana, and maintaining a premise for the purpose of cultivating marijuana.
According to the criminal complaint, an undercover DEA Task Force officer met with Lepp on January 19, 2005 and negotiated the purchase of one pound of dried and processed marijuana. The officer was wearing a concealed transmitter that was monitored and recorded by other DEA agents observing the meeting.
The DEA alleges that Lepp told the undercover officer that he “possessed a strain of cannabis that would make White Widow pale in comparison.” The criminal complaint states that Lepp agreed to sell “the one pound of high-THC marijuana” for $2,500. Barnes allegedly acted as a go-between, delivering the pound to the undercover officer and taking receipt of the $2,500. “At no point during the negotiations was the subject of ‘medical’ marijuana raised by either party,” reads the DEA statement.
According to the DEA, search warrants served at Lepp’s properties during the latest raid uncovered approximately 6,300 marijuana plants —including approximately 1,600 unrooted clone plants —10 pounds of processed marijuana, 16 pounds of partially processed marijuana, and a small amount of hashish. During the search, the DEA claims that Lepp received telephone calls from at least one person who wanted to purchase clones from Lepp.
On March 3 Lepp was indicted on six federal charges, including possession with intent to distribute, manufacturing a controlled substance with intent to distribute, distribution of one pound or more of marijuana, cultivating 6,000 or more marijuana plants, and maintaining a place to manufacture and distribute marijuana. The first four counts carry potential life sentences with a 10-year mandatory minimum sentence and a four million dollar fine. The fifth and six counts carry possible 20-year-to-life sentences.
Daniel Barnes, who was arrested with Lepp, was also indicted on charges of possession with intent to distribute, distribution of one pound or more and manufacturing with intent to distribute 6,000 marijuana plants. He is also facing potential life sentences. Both Lepp and Barnes plead not guilty. “When they throw that much time at you, that would scare the strongest person,” said Barnes.
According to Barnes, he was hanging insulation at Lepp’s house one day when Lepp asked him to drive a man named Ken to the nearby town of Upper Lake. The government alleges that “Ken” was transporting one pound of marijuana given to him by Lepp which was intended for a third man revealed to be an undercover DEA agent.
Lepp denies the government’s charge that he sold the man a pound of cannabis without mentioning any medical or religious concerns.
Lepp says he plans to mount a religious defense and is eager to present his case to Judge Marilyn Patel who released him on bond after his last DEA bust in August. Lepp was represented March 3 by his federal defender David Fermino. But Tony Serra, Omar Figueroa and Shari Greenberger have agreed to represent Lepp on the charges pro bono. Lepp and his supporters are trying to raise $10,000 for legal research expenses.
Lepp is in custody at Santa Rita as this issue goes to press.
Judy Osburn and Lynn Osburn
The criminal appeals of Judy and Lynn Osburn —and the related civil forfeiture action against their Ventura County ranch home of 28 years— turns on the disposition of the Raich case. Judy Osburn is the former director of the Los Angeles Cannabis Resource Center, which was raided and shut down by the DEA in October 2001. Three of the dispensary officers were indicted on charges of maintaining an establishment for the purpose of possessing, distributing and manufacturing illegal drugs.
The Osburns pled guilty in October 2004 after U.S. District Judge A. Howard Matz ruled that they could not tell a jury why they were growing marijuana or that they were doing so with the support of West Hollywood city officials and the Los Angeles County Sheriff’s Department.
Judy was sentenced in April 2004 to to one year of probation and Lynn was sentenced to one year in prison because he kept weapons on their ranch despite a previous conviction that barred him from possessing guns.
Matz justified the sentence under the U.S. Sentencing Guidelines by citing the rarely used “lesser harms” doctrine in which defendants can commit a crime in order to avoid a perceived greater harm. “My federal sentence of one year probation will be completely served before our case gets going again,” writes Judy Osburn.
Both prosecutors and defendants plan to appeal the cases to the 9th Circuit and Lynn Osburn’s sentence was stayed by mutual agreement pending the outcome.
Stephanie Landa, Kevin Gage
and Tom Kikuchi
In February 2002, Stephanie Landa, and Kevin Gage attended a San Francisco Medical Marijuana Task Force Meeting to get information about the city’s medical cannabis policies. They claim they were told by SFPD Capt. Kevin Cashman that if they kept their proposed medical cannabis grow within city limits and sold only to dispensaries, they would have no trouble. According to Landa, Cashman, who attended the meeting with Sgt. Marty Halloran, also told them that the SFPD would not cooperate with federal law enforcement.
Landa, Gage, and Tom Kikuchi moved from Los Angeles, rented a warehouse for an indoor garden, and began growing 40 strains of cannabis three blocks from police headquarters. Four months later, they were raided by San Francisco police, led by Sgt. Halloran. Two weeks later they were indicted on federal charges of growing more than 1,000 plants with intent to distribute. In their plea agreement, Landa and her partners were not allowed to mention the roles of Halloran and Cashman and were forced to sign away their right to an appeal.
Kikuchi was sentenced to 37 mnths, Gage and Landa to 41 months. The two men have been serving time in Oregon. Landa, who two prior convictions —one for transporting 29 grams of marijuana and another for smuggling heroin 30 years ago— could begin serving her entence sometime next year. Landa and Kikuchi are now appealing their convictions on the grounds of ineffective counsel.
According to attorney Allison Margolin, who now represents Landa, the U.S. Attorney’s office has been deposing the allegedly ineffective attorneys who represented the three, David Nick, Bill Panzer and Zenia Gilg. Margolin says her clients want to withdraw their plea and ask for a new trial. Landa charges that Nick did not call crucial witness Rose Galati (whom Nick was representing in an Oregon state cannabis case) because he falsely claimed he could not locate her. Nick denies the claim and says Gilg, Landa’s attorney of record, was free to subpoena Galati if she wished.
Margolin said that the Booker decision could impact the case because if Landa gets a new trial, Judge William Alsup has wider opportunities for sentencing, even though he has rejected Landa’s jurisdictional arguments from the Raich case.
“If he wanted to sentence her under the new guidelines, he could allow her to withdraw the plea, reopen the case, and just grant her probation,” said Margolin. “He’s not bound by sentencing guidelines, so it’s a big deal. He could do a lot.”
Landa and Kikuchi are continuing to appeal their convictions on grounds of ineffective counsel. At a hearing on February 15, Judge Alsop admonished prosecutor George Bevan for failing to depose attorneys David Nick, Bill Panzer and Zenia Gilg. Alsop demanded that Bevan depose them and Rose Galati, who allegedly held medical cannabis recommendations that Landa and company needed to prove that their grow was medical.
Prosecutor Bevan replied that he was considering transferring the case to another attorney. “You’re Mr. Marijuana for the U.S. government,” said the judge to the prosecutor. “Can you retract that,” asked Bevan. “I don’t want to be known as that.” Alsup retract the statement for the record.
Landa says that Gilg and Panzer were both paid $25,000 up front to defend Kikuchi, and Nick was paid $50,000 up front to represent Gage and be lead attorney in the case. In a deposition for the case, medical cannabis expert Chris Conrad said he had been hired by Panzer to count the seized plants and found 880 “rootballs.” But when Landa and her partners were charged, Bevan and the attorneys settled on 1,245 plants, well above the 1,000 plants needed for a 10-year mandatory minimum sentence. Landa says she and her fellow defendants were never told about the discrepancy in the count and Conrad was not asked to give a declaration. “That plant count was purely a compromise, it was not ineffective counsel,” Bevan told the judge.
“Kevin and Tom have been doing prison time they didn’t need to do based on that plant count,” counters Landa.
Landa’s attempts to depose Sgt. Marty Halloran and Lt. Kevin Cashman has been met with resistance by Bevan, who filed a motion to dismiss the request for abuse of process and quash the subpoenas. Bevan argues that the depositions violate Landa’s plea agreement in which she promised not to mention the role of the police in the case. Landa argues that the depositions are essential to her ineffective-counsel case. If her lawyers had deposed the police, it would have established that the growers had inquired about medical cannabis guidelines and might have helped convince the judge who rejected the argument that they were growing for patients. Alsop said he would consider allowing Landa to depose the police based on the information that she gathers in her depositions of the attorneys.
Panzer acknowledges that Conrad counted fewer than 1,000 plants. But Panzer said the police claimed that there were more than1,000 plants in the count. (Conrad noticed that branches had been hacked off some larger plants, which could account for the inflated number.)
In any event, observes Panzer, the count was well over 100 plants, which triggers a five-year mandatory minimum sentence —which would have been doubled since all the defendants had prior convictions. Instead of triggering the mandatory minimums with a cultivation charge, Panzer said the prosecution agreed to charge the group only with maintaining a place to cultivate, which carries no mandatory minimum sentence and gives the judge a chance to do a downward departure on the sentences.
“The tradeoff was to plead to a different charge without the mandatory minimum. We would concede to how many plants the police counted and they would dismiss the cultivation charge which does carry the mandatory minimum trigger,” says Panzer.
Panzer disputed Landa’s claim that the defendants were kept in the dark over the deal. “They knew exactly what was going on,” said Panzer, “My client Kikuchi knew it and they knew it too.”
Panzer says he has not received notice that he is to be deposed in the ineffective counsel case, but he did give Landa’s attorney a declaration saying that he had not investigated Rose Galati. Panzer is worried that if Landa gets a new trial, a jury could still find her guilty of cultivating over 1,000 plants and sentence her to life in prison based on her prior convictions, or impose a mandatory minimum sentence of 10 or 20 years. “If there is any way that I could fall on my sword and get those people out of jail, I would do it,” Panzer says. “But I worry that they would win the battle and lose the war. The worst thing that could happen for Tom and Stephanie is to win this case. Then they are really in a bad situation.”
Anna Barrett and Gary Barrett
In March 2004, Anna and Gary Barrett became the first federal defendants permitted to tell a jury that the marijuana they grew was for medical purposes. If a jury finds that the Barretts were in compliance with California’s medical marijuana laws, U.S. District Judge Nora M. Manella said she would direct jurors to acquit the couple.
Before the ruling, patients who went to trial could either offer no defense or plead and depend on the judge’s discretion in sentencing.
In 2000 the Barretts pleaded guilty to a marijuana cultivation charge, but under a state court plea agreement, were allowed to grow 34 plants and keep 7.1 pounds of marijuana. But the Barretts were charged on a five-count federal indictment after their home was raided by DEA agents in May 2003. Several hundred clones were reportedly seized. The Barretts also have pending state marijuana charges against them in Oregon.
Americans for Safe Access attorney Joe Elford argued that the 9th Circuit’s injunction in the Raich case should prevent the prosecution of the Barretts.
Judge Manella declined to dismiss the charges and said a jury must decide whether the Barretts met the appellate court’s standard for exemption from federal marijuana laws. Can the Barretts prove that their marijuana was never for sale and used only in California as in the Raich case? “If the jury finds that the quantities in the case were consistent with personal medical use, then the case would be dismissed,” says Elford. “But if Raich is overturned, the judge won’t let the jury hear all the medical stuff, it won’t be a defense.”
Genesis 1:29 (“And God said, ‘Behold, I have given you every plant yielding seed...’” ) is the name of a Petaluma non-profit established in 1998 by Robert “Duke” Schmidt to grow and distribute medical cannabis. By the time Schmidt was arrested by federal agents in September 2002, his dispensary had more than 1,300 members.
Schmidt tried to work with authorities. He met with Attorney General Bill Lockyer’s staff to keep them abreast of his activities and filed federal patents for an extraction process to evaluate the THC content of standard marijuana strains. He even filed applications with the DEA declaring his goal of developing standardized plant strains with known cannabinoid contents. But alas, neither God nor country could protect Schmidt from the DEA.
Schmidt was arrested by federal agents in Sonoma County and pled guilty in exchange for a superceding indictment charging him with maintaining a place for the manufacture of marijuana. Schmidt had been looking at a mandatory sentence of 20-to-life, but the new charge carries a 0-5 sentence with no mandatory minimum sentence.
Schmidt, who suffers from post-traumatic stress disorder, disarmed the rifle belonging to the DEA agent who woke him up that morning and was charged with assaulting an officer in the line of duty. The DEA confiscated over 3,000 plants from his grow in Sebastopol but Schmidt says there were 5,000 plants on the property at the time of the raid. “Where are the rest of them?” he asks. “They came and took them, they’re gone.”
Schmidt has a prior conviction for smuggling 2,780,000 pounds of marijuana from Columbia to Florida and Louisiana between 1973 and 1978. He did only two years at the penitentiary partly because it was before the RICO laws were in place and partly because he gave the government information on how he avoided their patrols.
Schmidt’s sentencing has been postponed 14 times, four by the judge and 10 by the prosecutors. The last postponement was due to Breyer’s request that Schmidt’s new public defender, Josh Cohn, file a memorandum regarding Schmidt’s poor health and refile the sentencing petition based on the impact of the Booker decision on his case.
“I have complete confidence in Charles Breyer, the man has shown nothing but integrity and if he wanted me done and tried he would have sentenced me long ago,” said Schmidt who notes that Breyer was once concert promoter Bill Graham’s attorney. “My fate couldn’t be in better hands. Breyer is not the enemy, the Department of Injustice is the enemy.”
Leroy Stubblefield, a quadriplegic Vietnam veteran from Portland Oregon, was outraged when DEA agent Michael Spasaro siezed 12 marijuana plants from his home in September 2002. Eight of the plants belonged to his two caregiver patients and fellow veterans, Scott Russell and Clarence Vandehay.
Stubblefield said the federal agent came onto his property without his knowledge in the company of the Valley Interagency Narcotics Team (VALIANT) who were performing a search under state law for an allegedly excessive number of plants.
Stubblefield’s attorney Anne Witte filed a claims notice of his intention to sue and a restraining order against state and federal agents. But the state narcotics officers claimed they did not assist the DEA, and a federal judge denied a request for an injunction against future federal raids saying the defendant had not shown a likelihood that he would be raided again. Stubblefield’s suit against the DEA is in the 9th Circuit pending the outcome of the Raich decision. Witte says she based the action on the lawsuit the State of Oregon filed against the DEA for its attacks on doctors and a Commerce Clause argument. Attempting to sidestep a constitutional crisis, Witte is interpreting the Controlled Substances Act as exempting the ultimate user of the substance who is shielded under state law —a tactic that was used in the Death With Dignity Act that left these matters to the states.
A non-profit pro-marijuana group, THC, gave Stubblefield, Russell and Vandehay seven new plants total and an ounce of marijuana each after the raid allowing them to continue to medicate.
Whereas Keith Alden and Bryan Epis were released pending the outcome of the Raich case, Michael Teague remained in prison even though he had cultivated much less marijuana. Having served 16 months of his 18-month sentence, Teague had no appeal filed and the transcripts of his case were still not ready.
Teague stipulated that he was cultivating between 102 and 108 plants when arrested in April 2003 by deputies from the Orange County Sheriff’s Office. He was indicted by a federal grand jury in December 2002 and waived a jury trial in favor of a bench trial to avoid a higher sentence and preserve his right to appeal. The district court found him guilty of manufacturing more than 100 plants.
Joe Elford said Teague’s attorney, David Nick, filed notice of appeal in August 2003, but after a series of delays, no work on his appeal was done. Nick says that the court reporter in the case failed to submit transcripts of proceedings, preventing the appeal from moving forward. In the meantime, Elford said Teague tested positive for marijuana while in prison and was placed in solitary confinement for months with no phone privileges. He also lost visitation rights for six months during which time he was under the impression that Nick had filed an appeal.
Americans for Safe Access filed a motion for a bail hearing in Teague’s case in October 2004, but Teague was finally released to a halfway house after serving 16 months. ASA’s bail motion contests Teague’s imprisonment, which it says was a violation of his right to due process. Teague should have been afforded the same consideration as other medical marijuana defendants awaiting resolution of their constitutional claims under Raich, says Elford.
Elford says Teague’s imprisonment could be contested based on lack of subject matter jurisdiction under the Commerce Clause and due process violations that Teague endured during his prison odyssey. While Teague is out of prison, this strategy might reduce Teague’s four years of supervised release.
Marian Fry, MD, and Dale Schafer
When the home and offices of Marian “Mollie” Fry, MD, and her husband, attorney Dale Schafer, were raided in 2001, the DEA took some 6,000 patient files. Fry has not yet been indicted. “It’s hanging over her head,” says attorney Laurence Lichter. “Maybe they are waiting for the Raich decision.”
Fry had been investigated by the Medical Board of California and charged with violating the standard of care in her treatment of several patients. The case was settled when Fry agreed to take a records-keeping class. According to Lichter, the U.S. Attorney in the Eastern District threatened to indict Fry, Schafer and one of Schafer’s grown children if Fry didn’t make a deal with prosecutors and admit that they conspired to grow marijuana. Lichter says Schafer could still face prison time because he was cultivating medical cannabis for Fry as her caregiver.
“I can report that I am not in Canada any more,” writes Ken Hayes via e-mail. “I cannot tell you where I am.”
Ken Hayes in 1999 (auditing a meeting of the task force set up by Attorney General Lockyer to "clarify" Prop 215). The group ultimately helped produce SB-420.
Hayes was charged in February 2002 with conspiring to grow more than
1,000 marijuana plants with Ed Rosenthal and Rick Watts at the Harm Reduction
Center, a San Francisco medical marijuana dispensary. Prosecutors claim
that Hayes fled to Canada in a chartered plane with $13,000 hidden in
While seeking asylum in Canada, Hayes grew a small personal-use garden and was arrested on marijuana cultivation charges.
Hayes’ quest for political asylum was summarily discharged. It is unclear whether or not his Canadian cultivation charges have been dropped.
“The U.S. Government has made a point of telling me that they want me and are unwilling to negotiate,” writes Hayes. “I find this a pitiful waste of taxpayer resources.”
Hayes recently placed an ad in the San Francisco Bay Guardian seeking to raise money for his bond so that he can return and fight the charges still pending against him. Hayes says he’s “broke and eating potatoes.” But George Bevan of the San Francisco U.S. Attorney’s office has taken a particular interest in building a case against him. Hayes said Bevan called him after the ad was placed.
“We got the feeling that he was annoyed by this act of strength,” wrote Hayes, who says Bevan was contacting people connected to his case as recently as last May. “He does not want to do the courtroom drama again. I think he is trying to drum up something so that I am compelled to accept a plea bargain and do some time.”
According to Hayes, prosecutors are also charging him with money laundering, plus ongoing cultivation in the U.S. He believes both the Raich and Brooker cases will influence his battle with the feds.
According to Laurence Lichter, Steve Tuck, a medical marijuana activist from Humbolt County, could also be affected by the Raich case. The last Lichter heard, Tuck was in Canada with Ken Hayes avoiding pending federal charges. He had already managed to duck state charges involving 800 plants.
Tuck, a Gulf War veteran who suffers from spinal injuries, was arrested again with Steve Kubby in Canada in April 2002 on a marijuana cultivation offense. He was released on bail. While Hayes’ asylum request was denied, Tuck was granted a stay of his asylum request pending a hearing by the Canadian federal court.
Rick Watts was one of several defendants charged in association with a DEA raid on San Francisco’s Harm Reduction Center. Some 714 plants were confiscated during the February 2002 operation. Watts was charged with maintaining a place to manufacture marijuana and jailed for three months.
Released on a $500,000 bond, Watts lost his truck, his tools and his equity in a San Francisco property he was renting to own. After learning that he was facing 20 years in prison, Watts crashed his car and broke his back. He’s currently on pre-trial parole with no trial date.
“They are waiting to extradite Ken Hayes from Canada,” says Watts. “I think they want me to testify against him. They asked me in jail if I had anything to say and I said, ‘Yeah, I’d like to go back to bed.’”
Watts believes that the Raich decision will help defendants such as himself who are involved in cases which involved commerce. “I think it will impact my case because it will uphold states rights,” says Watts, whose attorney Tony Serra advises him not to test the theory. “Tony says ‘Don’t kick a sleeping dog.’”
Jacek Mroz, Jessie Nieblas,
Indicted in July 2004 by a federal grand jury in Oakland, Jacek Mroz, Jessie Nieblas, Mario Pacetti pleaded not guilty to a series of charges involving a raid on a West Oakland warehouse containing 4,000 plants. The three were charged with manufacturing marijuana, possession of marijuana with intent to sell, aiding and abetting, and using a place for manufacturing marijuana. Supporters say it was a legitimate medical cannabis grow.
California Highway Patrol Officers discovered the marijuana June 30, 2004, after pulling over a truck transporting clones. The CHP turned the case over to the DEA. Two other suspects, Celeste Angello and Heleno Dearaujo entered guilty pleas of misdemeanor possession. The government’s case is relying on the alleged odor as the basis for the search and seizure.
On February 11, a federal grand jury indicted two more suspects in the case. Thomas Grossi, Sr. 60, of Lafayette, the owner of the West Oakland warehouse on Market Street where the plants were discovered —as well as a previously undisclosed building in East Oakland— was indicted for providing property for marijuana cultivation. Federal prosecutors are seeking the forfeiture of money or property from both sites. Grossi was released on $250,000 bond.
Roy Lewis, 52, of Walnut Creek, was named in a superseding indictment and indicted on charges of conspiracy and three counts of growing marijuana at both sites. The DEA alleges that he helped set up the alarm system on Market Street and rented $7,000 in equipment from his construction company for the site. Lewis was sought on a no-bail warrant.
On February 16, Pacetti pleaded guilty to his role in the Oakland grow.
On February 16, Pacetti pleaded guilty to his role in the Oakland grow. He will be sentenced on June 3 on a charge of using the warehouse as a place for the manufacture of marijuana. Pacetti was indicted by a federal grand jury on Feb.17 on another charge of making the second location, 2653 East 11St. in East Oakland, available for marijuana growing.
San Diego activist Steve McWilliams was arrested in October 2002 on cultivation charges after he displayed sample plants and bagged marijuana outside City Hall (“as a political and educational act,” says McWilliams).
McWilliams thinks he was arrested in retaliation for presenting medical marijuana guidelines to the San Diego City Council.
McWilliams thinks he was arrested in retaliation for presenting medical
marijuana guidelines to the San Diego City Council.
Sentenced in April 2004 to six months in prison and three years probation, McWilliams could get a lighter sentence if Raich prevails. Under his plea bargain agreement, McWilliams was ordered by the judge to seek drug-abuse counseling and register as a convicted drug offender.
“When I was sentenced it was a conditional plea. And while I was waiting, a panel of three judges from the 9th Circuit sent my attorney a letter wanting to know how my case was similar to Angel’s,” says McWilliams. “They had an emergency hearing because the court was unclear about caregivers, and it had never been discussed whether Angel’s John Doe caregivers were growing for other patients.”
McWilliams pled guilty to a single felony charge of cultivating two dozen plants on the condition that he receive no more than six months of time. He was originally facing a 40-year sentence. The court decided to put his case on hold while the Raich case was heard. McWilliams said it was disappointing because he is banned from using medical marijuana and is being drug tested. McWilliams and Barbara MacKenzie run Shelter From the Storm, a patient resource center. Since neither one is allowed to smoke marijuana, McWilliams says they are using morphine and methadone to treat their medical conditions. “We can take these highly potent, highly addictive opiates but we can’t use pot,” he pointed out.
McWilliams is permitted to use Marinol. His urine is tested at the University of Mississippi by a lab that can distinguish between metabolites of Marinol and possible smoked marijuana. (Cost to taxpayers: $300/month.) “They are trying to get me on a probation violation to accept a worse plea,” he fears.
According to McWilliams, his lawyer is arguing that the states have a right to regulate medicine and are challenging the Attorney General’s stance that marijuana has no accepted medical use.
“If we lose Raich and our own private acts are interstate commerce and the states don’t have the right to define medical practice,” said McWilliams, “then states don’t have much value for what they can do for citizens. The feds have taken over.”