Pubdate: Thu, 10 Sep 2015
Source: Tucson Weekly (AZ)
Copyright: 2015 Tucson Weekly
Author: Maria Ines Taracena


Kyle Catlin and His Attorney Say He Did Nothing Wrong, and Are 
Counting on Arizona's Medical Marijuana Law's Ambiguity to Prevent 
Him From Life in Prison

The thought of possibly spending close to 100 years in prison 
terrifies Kyle Catlin.

But he's mostly concerned about his mom. She's not in the best of 
health. If something were to happen to her, "I may not even be 
allowed to leave prison to go to my mom's funeral, and that's super 
fucked up," he says. "I'm probably not gonna see her, except for 
behind glass for the rest of my life. It hurts so much to think about 
that I try not to think about it and move on with my day."

The 27-year-old is facing 10-plus felony charges, including marijuana 
possession and sale, attempted production, and possession of drug 
paraphernalia. He has two separate cases with different accusations 
under his name.

Catlin, a medical marijuana patient and certified caregiver, swears 
his actions more than three years ago are protected by the law.

It's ironic, really. Catlin was involved in the movement that pushed 
to pass the Arizona Medical Marijuana Act in 2010. He spent his early 
days of advocacy with the National Organization for the Reform of 
Marijuana Laws, educating cardholders on the statute to ensure they 
were compliant. Now, he's trapped in the law's loopholes and confusing wording.

"I spent a lot of time trying to get this to pass, and I didn't do it 
so I could break the law and go to prison," he says. "It was, 
obviously, never my intention."

His first trial is scheduled for October, and the second begins in 
December. If he's convicted in case one, he'll go into case two with 
convictions on his record, which, if convicted of any charges, would 
only increase his years behind bars. Already on lawyer number five, 
Catlin might be losing faith.

The South Tucson native looks back at all the plans he had for his 
life. After a short stay in military school, Catlin wanted to become 
a firefighter or EMT-anything that involved being helpful to his 
community. He can't do much while on pre-trial, because no one will 
hire him over the pending felony charges.

"I told my new attorney, 'Here's a plea deal I would take: 100,000 
hours of community service as a search and rescue person,' at least I 
would be doing something I am good at, helping people, volunteer 
work," he says. "That is a lifetime sentence of serving. It would be 
a lot more progressive than putting me in prison."

Case One

The MMJ Act was approved by voters in 2010, but it took two years for 
dispensaries to pop up. Qualifying patients were left with the 
options to either cultivate their medicine (the law allows for 12 
plants per patient), or find so-called "compassion clubs" of 
independent medical weed dealers that could provide them with their medicine.

At the time, Catlin knew a few people who needed both help and a 
space to grow. After getting his MMJ card for chronic pain, Catlin 
went through the process of also becoming a medical marijuana 
caregiver. By law, caregivers can purchase, transport and grow 
medical cannabis in limited quantities for up to five patients, as 
long as they are registered with the state, comply with the MMJ law 
and pay taxes, according to the Arizona Medical Cannabis Association.

Catlin got a house near Fourth Avenue, where 15 people began to 
cultivate their 12 plants each (totaling 180 plants). Via 
word-of-mouth, more and more patients got a hold of Catlin, so he 
rented a bigger house on Grant Road to handle the traffic. "I started 
up a little healing center," he says. He'd deliver to those who were 
very ill, and says he even donated weed to some patients.

In April 2012, Catlin was pulled over by Tucson Police officers, 
allegedly for speeding. What really happened, according to Catlin, is 
a young man had gotten in trouble earlier over having some weed, and 
he told the cops he had gotten it from Catlin. The police officers 
interrogated Catlin, and he ended up showing them the two ounces of 
weed he carried in his backpack (law says you can carry up to 2.5 
ounces), and his medical marijuana card. "At some point I asked 'Am I 
under arrest?'" he says.

"I heard a police officer lie and say that I had said that there were 
more (marijuana) jars at my house, when I was never asked anything 
about marijuana at my house," he says. The cops searched his pockets 
and found two cell phones and cash, which they saw as sufficient 
probable cause to search his home.

They found roughly 150 marijuana plants, weed in jars and a gun in 
Catlin's safe. Overnight, he was charged with four felonies: 
possession of weed for sale, attempt production, possession of drug 
paraphernalia and possession of a deadly weapon during the 
"commission of a drug offense."

According to the indictment document, law enforcement found more than 
two pounds, but less than four pounds of weed for each cultivation, 
production and possession, roughly adding up to 15 years if given the 
maximum sentence. Marijuana paraphernalia would be at least four 
months but no more than two years. A grand total of close to 20 years 
in prison if given the max, according to the marijuana advocacy group NORML.

In this case, Catlin doesn't have any prior convictions, but that 
still means he could face the minimum sentence for each felony if 
convicted, because in the 1980's Congress made such sentencing for 
drug offenses mandatory.

"It was one of the very popular 'tough on crime' measures," says 
Caroline Isaacs, program director of the American Friends Service 
Committee, a Tucson-based advocacy group for incarcerated people. 
"Primarily because the federal government offered money to the states 
that would enact that. Most states do some fort of minimum 
sentencing, but primarily they apply it to only serious and violent 
crimes, whereas in Arizona, we apply it across the board."

In Arizona, according to 2010 figures by the Arizona Prosecuting 
Attorney's Advisory Council, 2,343 of the state's inmates are 
nonviolent, first offenders. Of that number, more than half in prison 
are labeled "drug traffickers." In recent years, the Obama 
administration has expressed willingness to reform sentencing 
policies, especially when it comes to nonviolent drug crimes. In 
July, President Barack Obama commuted sentences for 46 nonviolent 
drug offenders, many whom could have spent the rest of their lives in prison.

"Marijuana has always been a huge job for law enforcement. They have 
made a lot of money from it. ..." Catlin says.

Case Two

A few months into pre-trial for case one, Catlin's home was searched again.

The investigators overseeing the case found recent information about 
his healing center- Arizona Medical Marijuana Caregivers-online, and 
that's how they justified another search warrant. (It was a site with 
tons of reviews about the weed Catlin sold and his services, as well 
as customer testimonials. They were all good reviews, he says.)

"They destroyed my house, ripping posters down, and breaking glass 
water pipes all over the house," he says. Catlin was pinned with 10 
felonies. (At least three were dropped, according to his attorney, 
Brick Storts.)

Among them, "illegally conducting an enterprise that sold and/or 
possessed for sale amounts of marijuana and cannabis ... to 
customers," the indictment says. It lists Catlin as the boss, who 
employed an "associate" to deliver marijuana, and "arranged 
appointments between the runner and customer for the purpose of 
selling marijuana." There was also another charge for possession of 
marijuana for sale, possession of drug paraphernalia, and conspiracy 
to possess and sell.

"Here I am trying to prove that what I am doing is legal, and I'm 
getting in trouble. I'm not doing anything illegal, but it appears to 
(the judge) that I am," he says.

The trial for case one begins on Oct. 13. If he's found guilty of all 
or any charge, he'll face trial two with previous convictions.

"The problem with some law enforcement is that they don't really know 
the (medical marijuana) law," Catlin says. "People get arrested and 
they leave it up for the courts to figure out. The law was made so 
that no more people got arrested. (The state) is trying to undermine 
the medical marijuana system."

The Defense

The medical marijuana law has a section called Affirmative Defense, 
which pretty much means that if you prove the marijuana possession, 
use, cultivation etc., falls within medical boundaries-and as long as 
you follow other guidelines, such as being in possession of the legal 
amount of weed, or growing marijuana in a "contained, enclosed 
facility"-all or some charges can be dropped.

That's what Catlin is trying to prove.

A paragraph of the medical marijuana law reads, "The qualifying 
patient and the qualifying patient's designated caregiver were 
engaged in the acquisition, possession, cultivation, manufacture, use 
or transportation of marijuana, paraphernalia or both, relating to 
the administration of marijuana solely to treat or alleviate the 
qualifying patient's medical debilitating condition ... or (its) symptoms ..."

Catlin says the weed, the cultivation, the paraphernalia were all for 
his and the other patients' medicinal purposes.

In a defense letter he wrote to the court, Catlin says that his 
acquisition, possession, cultivation, manufacturing, transportation 
and marijuana paraphernalia were there to treat, alleviate "mine and 
other qualifying patient's debilitating medical conditions or 
symptoms associated ..." Also, he had a system where everyone got 
carded, and he made sure no one got more than 2.5 ounces of weed every 14 days.

He argues, as a patient he has the right to grow 12 plants, so he 
did. The rest belonged to the other 15 patients. He says that several 
of his lawyers have asked him to hand over the names of those 15 
people, so that at least the 180 marijuana plants aren't all tagged 
with his name. But Catlin isn't willing, unless he's promised those 
people won't get charged with anything. But, he says, if the 
prosecutors wanted to get a hold of them that bad, their names and 
contact information are in his computer, which they confiscated at 
the time of his arrest.

Then there's the amount of weed he's being charged with, which he 
says is inaccurate because prosecutors are counting stems, leaves, 
and other un-useable parts of the plant. Useable marijuana is the 
flower that's been dried out.

Arizona v. Matlock

In May of this year, the Arizona Court of Appeals Division Two 
overturned a ruling from July 2014 by Pima County Superior Court 
Judge Richard Fields, which stated that medical marijuana patients 
are allowed to provide each other with weed, per the state's medical 
marijuana law.

Back when he issued the ruling, Fields said a section of the 
marijuana law says patients can't be prosecuted for providing each 
other with weed, as long as "nothing of value" is exchanged in 
return. Another section says that a patient's card can be revoked if 
the patient gives a non-cardholder weed, which he interpreted as, 
cardholders can provide marijuana to other cardholders. He also 
argued that the 59-word provision contained no commas, so under state 
law that meant the section was ambiguous, and could be interpreted in 
several ways. When a law, or portion of a law, is ambiguous, the 
court must be lenient with the defendant. Basically, the wording was 
so confusing, a person couldn't know if he or she was breaking the 
law, if he indeed broke it.

The Fields ruling helped dismiss a case against Tucson resident 
Jeremy Allen Matlock, who was caught placing ads on Craigslist 
offering medical marijuana in exchange for a small donation of $25 per plant.

The Court of Appeals said allowing patient-to-patient transactions 
would green light sale enterprises. Their decision also came down to 
a different interpretation of the wording (and the grammar), similar 
to what Fields cited in his ruling.

With the Fields case overturned, Matlock is facing prosecution again. 
An appeal to the Arizona Supreme Court is pending.

Storts says that if the Arizona Supreme Court overturns the Appeals 
Court's decision, then Catlin has "a really good chance." Ideally, 
Storts would like Catlin's trials to be rescheduled, while the 
Matlock case plays out in the Supreme Court.

"Kyle is in a difficult position," Storts says. "If (the Appeals 
Court ruling) stands, you have to trial this as 'jury nullification,' 
in other words saying 'OK folks, he did it but this law is ridiculous 
and you don't want to sentence anybody to prison for a long time.'"

Killing Time click to enlarge Kyle with his grandfather.

Catlin's been spending his days renovating his grandparents' home in 
South Tucson. "That's where I lived after I was born," he says.

The other half of his time is spent writing document after document 
detailing his defense. He even has a white board filled up with legal 
definitions, state statutes-he's ready to fight hard, even though at 
times he isn't too hopeful about the outcome.

When trial begins, his only request is to have a jury that's well 
educated on the medical marijuana law. He says his previous attorneys 
were careless, and screwed a lot of things up throughout the process 
because of their unfamiliarity with the statute, and he doesn't want 
to keep risking it.

"My emotions are a roller coaster, I feel really good sometimes, 
because I figured some more things out that I want to bring to my 
lawyer that will help my case," he says. "I know I didn't break the 
law, so I am always really positive and hopeful, but I get 
disgruntled when I go into court and the judge doesn't want to hear 
anything. It all makes me think a lot about my family. I have always 
been around my family. They are an awesome support structure."
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MAP posted-by: Jay Bergstrom