cannabisnews.com: Makes No Sense At All Makes No Sense At All Posted by CN Staff on October 22, 2003 at 21:09:47 PT By Dean Kuipers Source: Los Angeles City Beat No medical marijuana activist could have foreseen that Proposition 215 – the 1996 ballot measure that gave California residents the right to grow and distribute marijuana for use with a doctor’s prescription – would have led to this moment. Ventura County residents Lynn and Judy Osburn, a married couple who grew pot for AIDS and cancer patients at the Los Angeles Cannabis Resource Center, stood before U.S. 9th Circuit Judge Howard A. Matz on October 7. Their faces were brave, but their voices were barely audible. As Judge Matz led them through a series of questions to determine whether they understood the consequences of their actions, the Osburns each pled guilty to federal felony drug charges. “Do you think the government is taking unfair advantage of you by accepting this plea?” Judge Matz asked, rifling through papers. Taking a long pause, Lynn Osburn, 54, stepped to the microphone, looking like another downtown office denizen with his short gray hair and gray suit, and muttered, “No, sir.” In a long, withering exchange, the Osburns gave up their rights to silence, to vote, to be licensed contractors, to even be teachers, their activist spirits clearly balking with every response. They had little choice. Under 9th Circuit evidentiary rulings, they were almost guaranteed to be convicted and receive 10-year minimum sentences for “Maintaining a Place for the Manufacture of Marijuana.” Plus, there was something greater at stake. Their plea agreement allowed them to appeal not only the evidentiary rulings but also federal standing in medical marijuana cases. A positive ruling on one of these appeals could not only vacate these sentences, but might resolve the complete disconnect between California law under Prop. 215 and federal law, which does not recognize medical use of marijuana. The Bush administration has used this discrepancy to raid and prosecute scores of medical-marijuana patients since 2001. In a related decision, the U.S. Supreme Court refused last week to review a 9th Circuit Court of Appeals ruling that doctors were free to discuss medical marijuana with their patients. Since the Clinton administration, the U.S. Dept. of Justice has threatened to prosecute doctors who issued prescriptions under Prop. 215. Dr. Marcus Conant, a leader in AIDS treatments in San Francisco, led the American Civil Liberties Union to challenge this government strategy in 1997. The U.S. Supreme Court’s refusal to hear Conant vs. Walters effectively restores doctors’ First Amendment right to speak freely with their patients. The Osburns hope their case leads to such a decision, but it will be years from now. “This is one of the hardest things I’ve ever done, giving up my rights to a trial by jury – my attorney and I were both on the verge of tears,” said Judy Osburn, 50. “We both so wholeheartedly believe and are so grateful to live in a country where you have a jury that would interject common-sense judgment of the community into this proceeding. However, under these circumstances, they would have never known the truth.” The Osburns’ remote Ventura County ranch was raided three times by U.S. Drug Enforcement Administration (DEA) agents – in 2000, 2001, and 2002 – allegedly netting a reported 342, 273, and 35 large marijuana plants, respectively. In 2000 and 2001, the Osburns were permitted growers for the Los Angeles Cannabis Resource Center, operating openly with the full cooperation of Ventura and L.A. County Sheriffs, local legislators, and health officials. The plants seized in 2002 were allegedly for personal use. None of this information would have ever reached a jury. As in several high-profile cases already considered by the 9th Circuit, including the case of Oakland city deputy and High Times writer Ed Rosenthal, Matz ruled that no mention of medical marijuana would be allowed in the court. Under the U.S. Controlled Substances Act, marijuana is listed as a Schedule 1 narcotic, a federal category for drugs with no recognized medical use. Marijuana’s medical uses have now been recognized by the legislatures of 26 states and the District of Columbia. Eight of these states have legalized its medical use. This impasse has put both medical-marijuana advocates and the courts in an untenable position. When Rosenthal pled guilty to his charges, 9th Circuit Judge Charles Breyer sentenced him to one day, and let him go for time served. The Osburns won’t get off that easily, as the pleas’ sentencing guidelines suggest a 37-month prison term. Though medical-marijuana advocates celebrated the sentence as a victory, the Rosenthal verdict also did nothing to stall the DEA’s continued raids and prosecutions. In a case similar to the Osburns’, Victorville, California, residents Gary and Anna Barrett were busted by San Bernardino County Sheriffs in June 1999 for possession of marijuana plants, and, because of Prop. 215 and a doctor’s prescription, were placed on probation but allowed to keep the plants as medicine. The DEA however, raided them in May 2003, and U.S. Attorneys are now prosecuting. This is one of many such cases. In allowing the Osburns to keep their constitutional and evidentiary appeals, both Judge Matz and the U.S. Attorney’s office seem to have helped move these decisions to a higher court. “It is fairly unusual,” says William Panzer, a well-known trial attorney who represents medical-marijuana defendants and is representing Lynn Osburn. “In most federal cases, it’s more common that the plea agreement includes a waiver of the appellate rights. We’re maintaining all appellate rights. “We filed motions challenging the constitutionality of the Controlled Substances Act, as applied to this case, under the Commerce Clause,” he explains. The federal government routinely assumes the right to prosecute drug cases as part of its mandate to regulate interstate commerce. “We also filed motions based on Due Process, the Fifth Amendment, no rational basis for the scheduling of cannabis as Schedule 1, and some other constitutional arguments. And we’re going to be able to argue all of those upstairs at the court of appeals.” “It’s actually not that unusual,” says Thom Mrozek, spokesperson for the U.S. Attorney’s office in Los Angeles. “In some cases, we structure plea agreements conditional on them exhausting their appeals. It’s not common, but it certainly does happen in areas where you have new laws, some novel factual status, or in this case, people who are challenging whether or not the federal government has the ability and right to prosecute these types of cases under Prop. 215.” “People on both sides like to see clear rules,” counters Panzer. “I respect the U.S. Attorneys in this case, that they were willing to work together to fashion a plea that basically gets their job done and leaves those issues that weren’t really their issues, allows them to proceed to the court of appeal.” Mrozek says, however, that the U.S. Supreme Court has ruled that Prop. 215 cannot supersede federal law. “The federal government doesn’t view this as a conflict,” he says. “I have no idea what they are claiming, but if they think there is a new legal challenge in this case, then we’re letting them present that appeal to the higher court.” Standing at the bar just after the hearing, Lynn Osburn was somewhat less than thrilled. “Judge Matz, he’s not a bad guy; I think he’s feeling constrained by 9th Circuit precedent, too,” Osburn said. “But this is very frustrating, to stand there taking the plea, agreeing to give up my rights to a trial when they know damn well – the prosecutor and the judge are sitting right there looking at me knowing that they are the same people who barred me from having any defense.” Judy Osburn is taking the long view. “This is a very important policy-setting ruling, as far as what we’ve been doing to make it safe for other Californians who are complying with the state law to avoid prosecution. Whereas an acquittal for ourselves wouldn’t have changed that.” Source: Los Angeles City Beat (CA)Author: Dean Kuipers Published: October 23, 2003 - Issue No. 20 Copyright: 2003 Southland PublishingContact: deank lacitybeat.comWebsite: http://www.lacitybeat.com/Related Articles & Web Sites:LACRChttp://www.lacbc.org/Ed Rosenthal's Pictures & Articleshttp://freedomtoexhale.com/trialpics.htmPot Advocates Face Up to 40 Yearshttp://cannabisnews.com/news/thread14175.shtmlLockwood Valley Couple Arrested for Growing Pothttp://cannabisnews.com/news/thread13758.shtml Home Comment Email Register Recent Comments Help Comment #2 posted by Sam Adams on October 23, 2003 at 06:44:35 PT Disgraceful These people should be on the front page of every newspaper in the US. The media is selling us into slavery. [ Post Comment ] Comment #1 posted by Roger Christie on October 23, 2003 at 04:14:26 PT: 'Good Samaritans' have a federal defense Aloha. In my opinion, the religious 'defense to prosecution' is alive and well in federal courts. The medical defense is a sure loser. Guaranteed to fail.'Good Samaritans' who grow cannabis for others are entitled to the best legal protections available, the religious 'defense to prosecution'. I think it's about the highest moral and legal ground on Earth to stand on. You might enjoy it, too.Why not take advantage of the legal protections available to those who are sincere, legitimate and who have a mandate to use the holy herb for prayer and healing and unity? We 'win' every case and had two wins yesterday for the first time in one day. Charges dropped - every time. How many times do good people need to face the wrath and fury and certain outcome of federal prosecution with the 'failed medical marijuana defense' to learn that it does not work? Federal courts do not respect the medical marijuana defense. End of story. Go through the door that's open, the religious use of cannabis sacrament, that's where Good Samaritans are empowered and respected, not convicted. Lynn and Judy, I send my love and respect to you both. I trust that you know what you're doing. You guys wrote the book on this! Literally.If anyone is a Good Samaritan, providing aid and comfort to the sick and dying, it's you two. Year after year... Just tighten this up. It's the truth, too.You both deserve a victory, sooner than later. Save yourselves! Aloha.Roger * The Hawai'i Cannabis Ministry * [ Post Comment ] Post Comment