Pubdate: Thu, 18 Feb 2016
Source: Boston Globe (MA)
Copyright: 2016 Globe Newspaper Company
Contact: http://services.bostonglobe.com/news/opeds/letter.aspx?id=6340
Website: http://bostonglobe.com/
Details: http://www.mapinc.org/media/52
Author: Pat Greenhouse

MARIJUANA ACTIVIST BILL DOWNING FACES CRIMINAL CHARGES

A court clerk magistrate agreed Wednesday to file criminal charges 
against one of the state's leading proponents for the legalization of 
marijuana, for selling a cannabis-based oil product he says was used 
for medicinal purposes.

The decision could test the legality of selling cannabis-based hemp 
products in a state that has approved the use of marijuana for 
medicinal purposes, and where voters could decide in the fall on 
whether to legalize marijuana for recreational use.

A lawyer for marijuana advocate Bill Downing said Wednesday that his 
client has been targeted for his vocal support of legalizing marijuana.

"I'm bemused we're going forward with anything," said attorney John 
Swomley. "It's like we're taking one step forward, but two steps back."

Downing, 57, of Reading, faces nine counts based on his sale of the 
oil to undercover detectives who visited his Allston store, CBD 
Please. Some of the counts are for possession with intent to 
distribute a Class D drug, marijuana, and the rest are for possession 
with intent to distribute a Class C drug, THC. State chemists who 
tested the oil that was sold differed on how to classify the product.

Bill Downing's lawyer says it's retaliation for criticism of the 
state's regulation of the medical marijuana industry.

Downing is scheduled to be arraigned on the charges on March 3.

Stephen Borelli, the clerk magistrate in the case, held a hearing in 
January on the request by Boston police to file criminal charges - a 
request Borelli granted Wednesday.

Legal analysts said that local police may ask a clerk magistrate to 
approve the filing of criminal charges in cases with no immediate 
danger to the public and no need for the defendant to be arrested. 
Borelli was only required to determine whether there was probable 
cause to pursue charges, not the merits of the case.

That determination will be made by a judge or jury and will require 
higher standards of proof, said Robert Sheketoff, a well-known 
criminal defense attorney in Massachusetts.

Swomley had argued during the January hearing that the CBD oil 
products do not contain enough THC - the psychoactive ingredient in 
marijuana - to be classified as an illegal drug.

Downing also testified during the hearing that the product is sold in 
other states, and because it has not been criminalized by the federal 
government, he thought it was legal in Massachusetts. "I [believed] 
it then, and I still do now," he said.

Downing is a member of Bay State Repeal, and has long advocated for 
patients to have better access to medical marijuana, citing its 
effective treatment of a range of illnesses. He has said he uses a 
cannabis-infused cream to treat his gout.

Downing formerly operated Reading-based Yankee Care Givers, which he 
has admitted delivered cannabis products to roughly 1,000 patients. 
State officials forced him to shut down that business in 2014 because 
he was allowed to serve only as a "caregiver" to only one patient 
under regulations that were enacted when medical marijuana laws were 
first approved in 2012.

He then opened CBD Please in Allston in 2014, selling 
non-psychoactive cannabis products - such as sprays, salves, 
capsules, and hair care items derived from hemp oil - that were, in 
his view, intended for medical reasons and legal.

Beginning in 2014, authorities conducted an undercover operation in 
which detectives went into Downing's store and bought cannabis-laced 
oil that he told them could help with sleep or with back pain. The 
criminal charges are based on those sales.

Authorities also seized hundreds of grams of other oils and products 
that were at the store, but no charges were filed related to those products.

According to court records, the investigation was based, in part, on 
Downing's own statements in published news reports and in a press 
release issued by the Massachusetts Cannabis Reform Coalition, 
announcing the opening of the store.
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MAP posted-by: Jay Bergstrom