cannabisnews.com: Medical Pot Growers Find No Refuge from Feds 





Medical Pot Growers Find No Refuge from Feds 
Posted by CN Staff on February 16, 2003 at 09:51:15 PT
By Michael Coit, Staff Writer
Source: Press Democrat 
Marijuana growers who believed they were protected by the movement in Sonoma County and across California to sanction medicinal marijuana have been targeted by federal agents in a stepped up battle against pot.The crackdown in the wake of a key U.S. Supreme Court ruling almost two years ago has swept up seven Sonoma County medical marijuana growers. A Windsor man has been sent to federal prison. Santa Rosa and Jenner men face sentencing in San Francisco federal court. Two Santa Rosa men await federal charges. And one Petaluma man is preparing for trial while another has fled to Canada.
Medical marijuana advocates say they are casualties of the federal government's campaign against people who grow and use marijuana for cancer, chronic pain, AIDS and other illnesses allowed under the ballot measure California voters approved seven years ago.Federal authorities counter they are enforcing federal laws to protect communities from illegal drugs and traffickers.The deep legal divide between local authorities who accept medical marijuana cultivation and federal authorities who consider it a major felony was dramatized two weeks ago with the conviction of Oakland marijuana advocate Ed Rosenthal, who now faces up to 40 years in prison.Despite following local guidelines, growers increasingly question whether there is any safe ground given the recent push by federal agents."We were trying to help sick little old ladies and people with cancer. Here I had faith in my government," said Dan Nelson, who was arrested with Ed Bierling following a DEA raid that shut down the Aiko Compassion Center, a Santa Rosa medical marijuana dispensary."The government seems to be on a perverse mission to destroy families," Bierling said. "You lay at night thinking, am I going to be taken away from my children and the stigma they will have to live with. It's a horrible situation."A Drug Enforcement Administration spokesman wouldn't comment on Aiko or any other case. But he said agents are going after large-scale growers of a drug the federal government considers as dangerous as heroin.The law is on their side, based on the U.S. Supreme Court ruling in May 2001 that medical need is not a defense to federal laws prohibiting growing or distributing marijuana."If we find out that somebody is illegally distributing drugs, we will do something about it. Nothing is off limits," said Richard Meyer, spokesman for the agency's San Francisco office, which oversees federal drug operations from Bakersfield to Oregon. "Anyone who is growing marijuana and is vocal shouldn't be surprised if we pay them a visit."The issue appeared settled in Sonoma County two years ago when guidelines were established to regulate medical marijuana because state law did not. Advocates and law enforcement found a middle ground in the wake of two Sonoma County medical marijuana trials that ended in acquittals.The federal push has not altered the approach of the Sonoma County Narcotics Task Force and officers continue to follow the guidelines, said Kent Shaw, the state Bureau of Narcotic Enforcement official who leads the team."It was made very clear really from the inception that we would follow the county guidelines and not use any tactics to circumvent that," Shaw said.He explained, however, that county and federal agents will share some limited information. "We would be aware of the type of case they're doing and the area they're working in."Since the guidelines were established, the Sonoma County District Attorney's Office has filed or reviewed about 20 cases that involved defendants using a medical marijuana defense. No one who has adhered to the guidelines has been prosecuted, District Attorney Stephan Passalacqua said."What we're doing here in Sonoma seems to be working well," he said.Leaders of the Sonoma Alliance for Medical Marijuana said they are not aware of anyone who followed the guidelines and was arrested or charged by local authorities."A lot of this stuff is on faith. It's hard for us to trust law enforcement, but really, that's where it's at," said Ernest "Doc" Knapp, spokesman for the alliance. "They claimed all along, 'You can trust us and we're not going to bust you,' and nobody has."The guidelines allow each medical marijuana user with physician approval to grow up to 100 square feet with a limit of 99 plants and produce three usable pounds per year. They are considered among the most liberal in the state.More than 100 people seek doctor approvals annually in the county, according to the Sonoma County Medical Association.The region's burgeoning medical marijuana movement is tracked by two drug task forces formed about a year ago after local and federal agents decided to break up a DEA-led team. Both the county and federal task forces work out of the same Santa Rosa office.While the DEA task force investigates larger, more serious drug cases, Meyer said the agency would take on marijuana cases involving fewer than the 800- to 1,000-plant range the DEA has used as a threshold. The DEA has a policy of not going after drug users, he said."There's no one determinant factor. We have an advantage in that we don't have to worry about" the state law, he said.Federal agents and attorneys won't discuss specific policies that trigger investigations or charges in a medical marijuana case, but some trends can be spotted in the Sonoma County cases, according to advocates and attorneys.The DEA appears to go after marijuana dispensaries, where members with physician approvals can obtain plants or marijuana, and cooperatives, where individuals grow marijuana for their use and others as caregivers. Those who grow only for personal use or a family member or have fewer than 100 plants are generally left alone.The 100-plant threshold is significant because federal guidelines mandate a five-year minimum sentence on convictions with at least that amount.Mike Foley, however, suspects he was targeted despite growing 95 plants because he is a medical marijuana advocate. The Jenner resident believes the federal government also doesn't like him because a Sonoma County jury acquitted both Foley and Ken Hayes, a former Petaluma resident now seeking asylum in Canada, in a medical marijuana case nearly two years ago."I thought I'd already gone through the fire," said Foley, now facing sentencing in federal court in March after pleading guilty to growing marijuana. "Where does the federal government get off enforcing unjust, unpopular laws. The patients are going to get their medicine."Another grower, Alan MacFarlane, was acquitted two years ago in the county's first medical marijuana case to go to a jury trial.Then in August, DEA agents raided the cooperative MacFarlane operates at his Santa Rosa home and seized the 128 plants he was growing. He wasn't arrested."Everything was transparent, everything was right and correct. It's very stressful," he said.MacFarlane said that marijuana eases spasms and side effects from his chemotherapy treatments for thyroid cancer. While he continues to grow for himself, MacFarlane said now he can grow for only two or three others with physician approvals to keep his plant total under 100."I think they're going to target and harass and try and scare people into stopping. It won't work. This is a pain reliever and people want it," he said. "Hopefully they will leave me alone and they will leave these patients alone."One case in particular concerns the medical marijuana community because it appears from an official report that county task force officers started an investigation and handed it off to DEA agents."That one made us really angry. That's not supposed to happen," said Mary Pat Jacobs, of the alliance.Mark Whitney was the medical marijuana grower arrested by DEA agents. He faces sentencing in March after pleading guilty in federal court to cultivating 420 marijuana plants.Whitney used marijuana for phantom pain after losing his left leg in a motorcycle accident. He thought he would stay off the DEA's radar screen by forming a small cooperative with 10 others to grow medical marijuana in a Santa Rosa home he rented.A neighbor reported him and officers with the county task force raided the home."I knew what I was doing. I just didn't think I was going to run into the DEA. Within 30 minutes the DEA was there," Whitney said. "If local officials had told me I was doing too much I would have immediately changed and done what they said. But I never had the opportunity."Shaw said the local officers called DEA agents after Whitney told them he had provided starter plants to the Aiko club. The officers, Shaw said, had been aware the DEA was investigating Aiko."There have been a few cases where the DEA has been part of our investigations," Shaw said. "We've never had one instance where we went out and somebody met the county guidelines and we called the DEA to take over the investigation."The Whitney case has undermined some trust medical marijuana advocates had developed in law enforcement. Some medical marijuana growers are considering keeping all physician approvals and caregiver forms with their attorneys.Another example of lingering mistrust is participation in the medical marijuana review process.The medical association review confirms that a physician has recommended the use of marijuana to someone and that the physician has a bona fide relationship with the individual.A total of 460 of 515 reviews have been granted during the four years since the process began. Only 50 have been shared with the district attorney.Although voluntary, the goal was to help law enforcement verify legitimate medical marijuana users and avoid hassles in the field.Still, advocates and law enforcement authorities agreed they have come a long way from the years of confusion and conflict following the approval of Proposition 215 in 1996.While the specter of federal enforcement never went away, efforts targeting medical marijuana growers have been made only since 2001.In May of that year, the U.S. Supreme Court issued its ruling eliminating medical necessity as a defense to federal laws prohibiting growing and distributing marijuana. The decision overturned a federal appeals court ruling in a civil case the federal government brought against the Oakland Cannabis Buyers' Cooperative.Keith Alden of Windsor was the first defendant in federal court in San Francisco to use medical marijuana as a defense following the ruling.Alden was charged with growing and maintaining a place for growing marijuana. He represented himself before Federal District Judge Martin Jenkins with assistance from Barry Portman, U.S. Federal Public Defender for the Northern District of California.Portman argued that Alden could tell the jury why he was growing marijuana."I argued long and hard for a way of getting it in under maintaining a place, that he did so with the intention of cultivating marijuana to offer medical relief to others who otherwise could not relieve their symptoms," Portman explained.Assistant U.S. Attorney George Bevan, citing the Supreme Court ruling, argued Alden's purpose for growing marijuana was not relevant under federal law and is not a legal defense.The judge ruled for the prosecution.The jury never heard a medical marijuana defense and Alden was convicted last February of growing more than 700 plants. Alden faced a five-year minimum prison sentence, but the judge granted probation.During the first trial Alden resumed growing marijuana. He was arrested while on probation and a jury found him guilty in November after Alden and Portman, once again, were blocked from presenting a medical marijuana defense.This time, Jenkins sentenced Alden to more than 40 months in prison. He is housed at the federal detention center in Dublin."Having now sat through two of these, it was pretty clear to me that the jury in both cases got the drift. The circumstances usually emerge," Portman said.Juries in medical marijuana trials are selected after answering questions about their views on medical marijuana, the state's law, and the U.S. Constitution's supremacy clause giving federal drug laws precedence over state laws."And basically what you get is a jury that agrees they will follow the law even though they may disagree with it," Portman said.Jurors were outraged following Rosenthal's federal trial in San Francisco, in which he was denied a medical marijuana defense.After the jurors convicted Rosenthal of being a drug supplier, they learned he had been growing marijuana for dispensaries and clubs serving seriously ill people in an official capacity for Oakland under the city's medical marijuana ordinance.Five of the jurors, including three from the North Bay, issued a public apology to Rosenthal.Some said they might have voted for acquittal and perhaps forced a mistrial had they known medical marijuana is not allowed as a defense in federal court.Source: Press Democrat, The (CA)Author: Michael Coit, Staff WriterPublished: February 16, 2003Copyright: 2003 The Press DemocratContact: letters pressdemo.comWebsite: http://www.pressdemo.com/Related Articles & Web Site:Ed Rosenthal's Pictures & Articleshttp://freedomtoexhale.com/trialpics.htmFederal, State Laws Duel Over Pot http://cannabisnews.com/news/thread15489.shtmlSeparate Drug Agencies Work Together http://cannabisnews.com/news/thread15488.shtmlCounty Pot Growers Nailed by DEA http://cannabisnews.com/news/thread15487.shtml
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