Pubdate: Wed, 21 Jan 2004
Source: Anderson Valley Advertiser (CA)
Column: Cannabinotes
Copyright: 2004 Anderson Valley Advertiser
Author: Fred Gardner


On July 29, 2003, Tehama County sheriff's deputies raided the Red Bluff 
residence of a 54-year-old woman named Cynthia Blake, who was cultivating 
29 outdoor cannabis plants. Blake, a graphic artist with no criminal 
record, has been employed for 16 years by the Federal Reserve in San 
Francisco. She is on disability leave, with a well-documented medical 

According to Blake's lawyer, Shari Greenberger, Blake and her "significant 
other," David Davidson  -a retired businessman with a residence of his own 
in Oakland-had trimmed the plants in her Red Bluff garden only a few days 
before the raid and decided to conduct a novice growers' experiment, 
putting all the cuttings in the ground to see how many would root.

Davidson, 53, is also a documented patient. He was arrested with Blake in 
Red Bluff on July 29. Davidson assumed he had nothing to hide and 
acknowledged to Tehama authorities that he was also trying to start some 
plants at his place in Oakland (a project Blake had nothing to do with). 
Davidson says that when he then returned home, "The front door was standing 
open and the place had been ransacked."  The Oakland police claim to have 
confiscated 600 plants, and the Tehama Sheriff puts the number pulled from 
Blake's garden at more than 1,000.

Davidson was initially represented by Omar Figueroa who, like Greenberger, 
works out of Tony Serra's office. Serra has now joined in representing 
Davidson (the tougher case).

An expert witness hired by the defense, Chris Conrad, opined that the 
cuttings seized by the Oakland police were so immature and/or withered that 
few would meet the legal definition of a viable plant. The Alameda County 
DA's office, conceding that at least 300 cutting weren't rooted, and 
fearing a costly fight in front of pro-medical-marijuana jurors, decided 
not to file charges against Davidson.

The Tehama County case against Blake and Davidson remained pending for more 
than five months without a preliminary hearing. Greenberger says that 
Assistant DA Lynn Strom was "stonewalling with regard to reviewing the 
evidence... There had been a break-in to the evidence room and a lot of 
marijuana was taken; we don't know if it involved our case or not. We 
thought maybe this was why she was giving us a hard time. And we thought we 
might have a chain-of-custody issue even if they recovered it."

If the defense could define the amount of viable marijuana as reasonable 
for personal use, they could move at the preliminary hearing to get the 
case dropped, based on the Mower precedent. But Strom would not let Chris 
Conrad examine the evidence  -"for security reasons, because he's a lay 
person," she told the defense lawyers. So they prepared a motion seeking 
permission for Conrad, accompanied by the DA, to inspect the cuttings.

On Tuesday morning, Jan. 13, Greenberger and Figueroa arrived at the Tehama 
County Courthouse in Corning for a hearing before Superior Court Judge 
Richard Schuler on their motion to examine the evidence. "I should have 
known something was up because there was no one else in the courtroom when 
we got there," says Greenberger, "except these two burly guys who had their 
arms crossed and wouldn't talk to Omar when he introduced himself."

Assistant DA Strom surprised them by moving to dismiss the case against 
Blake and Davidson. "Then she asked if we would go into the judge's 
chambers with her to talk about scheduling," says Greenberger. "I figured 
they were going to dismiss and re-file because she needed more time. While 
we were in chambers she said, 'I'm sorry about all the cloak-and-dagger 
stuff, the truth is, a federal indictment, has come down and as I'm 
speaking, your clients are being arrested and transferred to the Eastern 
District [federal jurisdiction]. This is a 10-to-life case under the 
federal guidelines.'"

The federal indictment against Blake and Davidson charges them with 
conspiracy to grow at least 1,000 plants, possessing marijuana with intent 
to distribute, and manufacturing at least 100 plants.

Greenberger was slow to grasp the fact that Blake and Davidson had been 
whisked away from the courtroom. She says she asked the judge, "'Why can't 
we surrender our clients? This has been pending six month and they've made 
every appearance.'  At that point the judge, looking very uncomfortable, 
said, 'You're using my chambers to conference this case. I know nothing 
about what's happening and I'm not part of it.'"

Judge Schuler did not respond to a telephoned inquiry as to his 
foreknowledge of the DA1s plan to physically remove Blake and Davidson from 
his courtroom and have them charged under federal law.

Greenberger believes that Strom called in the feds because she didn't think 
she could win the case. "She [Strom] said that part of the reason this was 
happening was because Oakland was not filing charges and it was going to be 
too hard for her to prove with the evidence she had... She said she'd been 
talking to the feds for six weeks and that they'd been very interested in 
this case all along -which I doubt, because it was Tehama County agents 
that did the arrest."

Greenberger and Figueroa left Corning in haste and drove to Sacramento to 
meet with their clients, who were being held at the county Jail. "We were 
distraught," says Greenberger.  "This was the worst experience of my career 
- -the outrageous deceit... Then for 12 hours they wouldn't let us see our 
clients! They were in 'Booking...'"

The lawyers met with the federal prosecutor and pre-trial services, set up 
interviews for the next morning, got the matter put on the calendar, and 
were able to get their clients released on $50,000 bail by the afternoon of 
the 14th.

Blake and Davis were arraigned in Sacramento on Jan. 17 before U.S. 
Magistrate Geoffrey Hollows. At a press conference that day Tony Serra 
summarized the situation: "Strom had concocted this terrible, illegal, 
underhanded scheme to separate David and Cindy from their attorneys and 
transition them into federal jurisdiction, where she knows that medical 
necessity is not a defense...  The U.S. attorney's office should never have 
taken this case. David and Cindy have never sold marijuana. They grow it 
strictly for their own medical use."

The defense will now prepare a motion to dismiss, arguing that the 
Blake-Davidson grow(s) did not constitute interstate commerce as defined by 
the 9th Circuit Court of Appeals in the Raich v. Ashcroft case, and 
therefore the feds don't have jurisdiction. The prosecution will argue that 
Blake and Davidson's plants could have yielded so much marijuana that the 
price outside California would have been affected. Tehama County Assistant 
DA Jonathan Skillman, seeking to justify the hand-off of the prosecution to 
the feds, told the Sacramento Bee that "1,803 plants seized at the two 
locations... could have supplied the entire West Coast."

Lawyers for Ed Rosenthal and Bryan Epis -both convicted of federal charges 
similar to those filed against Blake and Davidson- already have filed 
appeals based on the Raich  decision. Tony Serra hopes to get the 
prosecution of Blake and Davidson put off until the 9th Circuit rules on 
those appeals.

The defense also plans to file a "selective and vindictive prosecution" 
motion, based on the fact that that turning Blake and Davidson over to the 
feds denies them the right to mount a medical-marijuana defense.

Blake and Davidson might be eligible for the "safety valve" (an exception 
to mandatory minimums available to some non-violent first offenders) in 
which case they could be facing 18- to 24-month sentences. But, as federal 
prisoners, they would not be eligible for probation, and would have to 
serve at least 85% of their sentences in custody.

El Dorado Gold

Phil Denney, MD, has issued more approvals for cannabis use than any other 
California physician (9,800, including renewals) and has never run afoul of 
the Medical Board. Since deciding in 1999 to make cannabis the focus of his 
practice, Denney has become increasingly interested in the political and 
legal aspects of the situation. He closely followed State Sen. John 
Vasconcellos's efforts to pass a bill that would encourage implementation 
of the medical-marijuana law in rural counties. When it passed as SB 420, 
Denney promptly moved to take advantage of the provision that recognizes 
patients' rights to cultivate cannabis "collectively or cooperatively."

On Jan. 1 Denney sent the following letter to the El Dorado County Board of 

"As you may know, California Senate Bill 420 introduced by Senator 
Vasconcellos was passed by the Legislature and signed into law by Governor 
Davis. The Act becomes state law as of today. Specifically the Act adds 
Article 2.5 (commencing with section 11362.7) to Chapter 6 of Division 10 
of the Health and Safety Code. The Act, among other provisions, establishes 
a voluntary program to issue identification cards to qualified medicinal 
marijuana (cannabis) patients. One of the specified intentions of the Act 
is to "enhance the access of patients and caregivers to medical marijuana 
through collective cooperative cultivation projects" (Section 1, Subsection 
b, number 3).

"I represent a group of El Dorado County citizens who are qualified 
patients and caregivers as defined in the Act and we intend to establish a 
collective cooperative cultivation project in El Dorado County. It is our 
intention to provide safe access to affordable, high quality medicinal 
cannabis for qualified patients and caregivers who reside in El Dorado 
County. It is our goal that it no longer be necessary for any qualified 
patient or caregiver to be forced to support the criminal marijuana 'black 

"Our plan is to cultivate medicinal cannabis at a single outdoor site with 
strict controls to prevent theft or diversion. We do not intend to 
cultivate or distribute cannabis for profit and will be open and 
transparent in all our activities. In addition we will avoid any and all 
activities which could be construed as interstate commerce in accordance 
with the recent U.S. 9th Circuit Court ruling in Raich v. Ashcroft. We plan 
to choose and prepare a site immediately and anticipate a planting date 
between May 15 and June 1 of this year. We anticipate a harvest in early 
October. We are committed to the principles of sustained organic 
agriculture and have no plans to use agricultural chemicals or pesticides 
of any kind.

"We believe that as qualified medicinal cannabis patients and caregivers we 
have a right to cultivate cannabis as medicine for our own use. While we do 
not believe we need your permission or your approval for our project, we 
would hope to gain your support and to proceed in a spirit of cooperation 
and mutual respect.  We look forward to opening a constructive dialog with 
you and to developing an exemplary project which can be emulated throughout 

"Democracy is a wonderful thing!


"Philip A. Denney, M.D."

The Chairman of the Board of Supervisors has indicated that the proposal 
will be referred to the District Attorney and the Sheriff.
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MAP posted-by: Jay Bergstrom