Pubdate: Thu, 05 May 2005
Source: Auburn Journal (CA)
Copyright: 2005 Gold Country Media
Author: Penne Usher, Journal Staff Writer
Referenced: DEA letters and testimony
Bookmark: (Cannabis - Medicinal)
Bookmark: (Kubby, Steve)


After fleeing to Canada in an effort to avoid incarceration, 
medical-marijuana activist Steve Kubby continues his fight with Placer 
County seeking to have the charges against him dismissed.

Kubby's attorney, Bill McPike, and Chris Cattran, deputy district attorney 
for Placer County, faced off in an Auburn courtroom Friday.

McPike filed a petition for writ of error coram nobis, a motion to vacate 
judgement, with the court Friday. Cattran reportedly filed a response, 
whereupon McPike requested additional time to review. The pair will return 
to court May 16 for further proceedings.

Kubby ran as the Libertarian candidate for governor on the 1997/1998 
ballot. He was also one of the authors of Proposition 215, the 
compassionate use act passed by California voters in 1996. He continues his 
fight to change medical marijuana laws in the United States and Canada.

Placer County prosecutors, however, paint a different picture of Kubby.

The Olympic Valley home of Michele and Steve Kubby was searched in 1999.

"Two hundred sixty five marijuana plants in various stages of growth (were 
seized)," said Cattran. "A search on bank records found $105,000 in 
unexplained income during an 18-month period, among other items."

"It was shown during the trial that all that income was accounted for," 
Kubby said from his home Wednesday. "Additionally, that information was not 
listed on the search warrant."

Kubby faced a trial for cultivation charges, but a jury was unable to 
conclude guilt. Kubby was convicted on charges of possession of mescaline 
and psilocybin. Deputies reportedly found a small amount of peyote button 
and magic mushroom.

Kubby was allowed to leave the country with the stipulation that he 
returned for his surrender date.

"The judge was going to allow Kubby alternative sentencing, which would 
include electronic monitoring," Cattran said.

Kubby opted to flee the country. Had he been granted alternative 
sentencing, Kubby could have spent about 120 days under home monitoring, 
Cattran said.

He and his wife, Michele Kubby, now live in British Columbia. Kubby was 
convicted in 2000 for the drug-law violations and has since challenged the 
legitimacy of the search warrant that led to his arrest and prosecution.

Kubby's attorney contends there was not a solid basis for the judge to 
grant a warrant to search the Kubbys' home, citing a missing Drug 
Enforcement Administration report that he said was used as the basis of 
obtaining the search warrant.

"They should have never issued a search warrant," McPike said. "(The 
report) allegedly created their strongest suspicion."

The paperwork in question, reportedly from the DEA, apparently doesn't exist.

An e-mail sent to the Journal Tuesday from Michele Kubby outlined the 
couple's contention with DEA report.

"(The) DEA report allegedly confirmed that a guest at our home, Peter 
Brady, was a Jamaican drug smuggler," the e-mail states. "The evidence will 
show that this non-existent report was used to fraudulently persuade a 
judge into signing a search warrant."

Brady requested a copy of the DEA report. A written response dated March 
24, 1999 from the U.S. Department of Justice's Drug Enforcement 
Administration states: "DEA has located no records, which are responsive to 
your request."

Cattran said it is unclear exactly what Brady requested, or its relevancy.

"Who knows if the information obtained by the police wasn't and isn't a 
matter of public record," Cattran said. "Or that if you're a subject of the 
information, could you obtain it?"

Cattran said as far as he knows a search warrant was executed on the house 
where the Kubbys were living in 1999. A DEA report was in the affidavit for 
the warrant.

He added that there was additional evidence to support the warrant, but 
didn't comment further. McPike said he isn't aware of any other evidence.

"I don't know what that would be," he said. "They may have had other things."

Kubby said from his British Columbia home Tuesday that the fraudulent 
acquisition of the search warrant was the basis for his arrest.

"It all came down to them painting a picture for the judge that I was 
involved with a smuggler," Kubby said. "They sold this to the judge - an 
extremely serious offense."

Kubby, who has testified he relies exclusively on cannabis to control the 
symptoms of adrenal cancer, said he is hoping to clear things up and return 
to the area. Cattran said Kubby's flight to avoid incarceration will have 
serious consequences.

"He's a felony fugitive," Cattran said. "It's up to the court what kind of 
time he'd get. Possibly three to eight years in state prison."

Further court proceedings are scheduled for 8:30 a.m. May 16 in Dept. 4 of 
Placer County Superior Court. 
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