Pubdate: Tue, 23 Dec 2014
Source: San Francisco Chronicle (CA)
Copyright: 2014 Hearst Communications Inc.
Contact: http://www.sfgate.com/chronicle/submissions/#1
Website: http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko

NEW LAW MAY AFFECT MARIJUANA LEGAL CASES

Judges Seek Clarity Before Sentencing

In a sharp reversal of federal drug policy, Congress has prohibited 
the Justice Department from interfering with laws in California and 
other states that allow the medical use of marijuana. And the 
turnabout caught the immediate attention of federal judges, who want 
to know its impact on some recent criminal convictions under the 
federal law that classifies pot as one of the most dangerous drugs.

A day after President Obama signed the new law last week as part of a 
government spending bill, U.S. District Judge Charles Breyer of San 
Francisco asked a federal prosecutor whether the change would affect 
the sentencing of a Mendocino County pot grower, who pleaded guilty 
to charges requiring at least five years in prison.

Not at all, replied Assistant U.S. Attorney Kevin Barry, because 
defendant Matthew Graves "was not growing (his crop) for patients. .. 
He was growing it for money."

But Breyer wouldn't take Barry's word for it, and rescheduled the 
sentencing for February.

When Graves was charged with illegal cultivation in 2012, the judge 
noted, federal law barred any evidence of medical use, but the new 
law might make that information relevant now. In fact, Graves' lawyer 
has said some of his client's plants were for medical patients. A day 
earlier, another judge in the same courthouse postponed the 
sentencing of a Humboldt County man who claimed his pot crop was all 
for medical use, in compliance with state law.

Not far away, lawyers for Harborside Health Center in Oakland, the 
nation's largest medical marijuana dispensary, were preparing to 
invoke the abrupt change in federal law to fend off U.S. Attorney 
Melinda Haag's two-year effort to shut Harborside down and forfeit 
its property.

The legislation should persuade Haag's office "to lay down its arms 
so as to end the costly and misguided offensive on the rights of 
medical cannabis patients," said Henry Wykowski, a lawyer for the dispensary.

Federal prosecutors aren't prepared to concede anything. While the 
Justice Department hasn't spoken publicly on the meaning of the new 
law, saying only that it's under review, the legislation - an 
amendment to a government spending bill - is loosely worded and 
subject to varying interpretations.

Spending ban

Sponsored by two California congressmen, Republican Dana Rohrabacher 
of Huntington Beach (Orange County) and Democrat Sam Farr of Carmel, 
the amendment prohibits the government from spending money to prevent 
32 states - California and 21 others that allow the medical use of 
marijuana, and 10 more that legalize hemp oils - from "implementing 
their own state laws."

"It's ironic that they don't want any money spent (on federal 
enforcement), because there's going to be a lot of money spent in 
courts," said Marsha Cohen, a UC Hastings law professor in San 
Francisco who specializes in food and drug laws.

Medical marijuana advocates have promoted such legislation for the 
past decade to counteract a system in which state laws that allow 
cultivation, distribution and use of the drug with a doctor's 
approval can't even be mentioned in federal court.

Voters approved the California law in 1996, and since then both 
Democratic and Republican presidential administrations have backed 
raids on pot growers and suppliers, prosecution and imprisonment of 
their leaders, and seizure of their properties, regardless of state 
or local licensing. The four U.S. attorneys in California announced a 
campaign in October 2011 to shut down marijuana dispensaries, which 
they likened to drug trafficking operations, and have closed several hundred.

The forfeitures have slowed since the Justice Department announced in 
August 2013 that dispensaries complying with state laws should not be 
a priority for federal enforcement. But Haag's office and others in 
California contend the outlets they target are violating state law 
because of their inherently commercial nature - or, in Harborside's 
case, its sheer size, with 108,000 customers - even if the state lets 
them operate.

'Political statement'

Because federal prosecutors say they're already abiding by state 
laws, the new legislation is mostly "a political statement that has 
no significant impact" on current cases, said Oakland attorney 
William Taggart, a former Golden Gate University law school dean and 
advocate of marijuana decriminalization.

But medical marijuana advocates say Congress clearly meant to stop 
federal crackdowns on state-licensed operations.

Haag's "lawsuit to forfeit property is contrary to the intent of 
Congress," and so are prosecutions of medical marijuana growers and 
suppliers, said Cedric Chao, a lawyer for the city of Oakland, which 
approved Harborside's operation.

Medical marijuana lawyer Joseph Elford said California courts have 
rejected the federal government's argument that pot dispensaries 
violate state law.

The debate is about to begin in federal court.

Before he pronounces any sentence in the Mendocino case, Breyer said 
at Wednesday's hearing, he needs to know "what does that act mean 
with respect to marijuana prosecutions?"
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MAP posted-by: Jay Bergstrom