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Medical Marijuana: "Truth in Trials" Bill Reintroduced, Would Allow Medical Testimony in Federal Prosecutions

US Rep. Sam Farr (D-CA) and more than 20 congressional cosponsors Tuesday introduced a bill that would allow defendants in federal medical marijuana prosecutions to use medical evidence in their defense -- a right they do not have under current federal law. The Truth in Trials Act, H.R. 3939, would create a level playing field for such defendants.
Sam Farr
"This is a common sense bill that will help stop the waste of law enforcement and judicial resources that have been spent prosecuting individuals who are following state law," Rep. Farr said on Tuesday. "We need strict drug laws, but we also need to apply a little common sense to how they're enforced. This legislation is about treating defendants in cases involving medical marijuana fairly, plain and simple."

More than a hundred medical marijuana providers have been prosecuted for violating federal marijuana laws, and more cases are coming down the pike. More than two dozen cases are currently pending. While the Justice Department last week issued guidelines to federal prosecutors discouraging them from prosecuting providers who comply with state medical marijuana laws, that guidance does not require that courts or prosecutors allow testimony about medical marijuana, nor does it suggest that prosecutors drop those cases.

"The Truth in Trials Act will restore the balance of justice and bring fundamental fairness to federal medical marijuana trials," said Caren Woodson, government affairs director with Americans for Safe Access (ASA), the nation's largest medical marijuana advocacy group. "This legislation complements the recent Justice Department guidelines for federal prosecutors and is now more necessary than ever."

While Farr has introduced the Truth in Trials bill in earlier sessions, supporters hope this time the bill will gain some traction. It has already been endorsed by more than three dozen advocacy, health, and legal groups, including ASA, the ACLU, the National Association of People With AIDS, the National Minority AIDS Council, and the AIDS Action Council.

Justice Department Issues Medical Marijuana Policy Memo; Says No Prosecutions If In Compliance With State Law

Editor's Note: We wanted to get this important story posted today, but we will develop it further for the Drug War Chronicle on Friday. In a new federal medical marijuana policy memo issued this morning to the DEA, FBI, and US Attorneys around the country, the Justice Department told prosecutors that medical marijuana patients and providers in states where it is legal should not be targeted for federal prosecution. The memo formalizes statements made by Attorney General Eric Holder in February and March that going after pot-smoking patients and their suppliers would not be a high Justice Department priority. The memo marks a sharp break with federal policy under the Clinton and Bush administrations, both of which aggressively targeted medical marijuana operations, especially in California, the state that has the broadest law and the highest number of medical marijuana patients. The announcement of the policy shift won kudos from the marijuana and broader drug reform movement. But some reformers questioned what the shift would actually mean on the ground, pointing to DEA raids and federal prosecutions that have occurred since Holder's signal this spring that the feds were to back off, as well as continuing controversies, especially in California, over what exactly is legal under state law. Others noted that for real protection to be in place, federal law—not just prosecutorial policy—needs to change. In the memo, federal prosecutors were told that going after people who use or provide medical marijuana in accordance with state law was not the best use of their time or resources. According to the memo, while the Justice Department continues to make enforcing federal drug laws a key mission:
"As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources."
But the memo also said that federal prosecutors should continue to target marijuana production or sales operations that are illicit but hiding behind state medical marijuana laws. It explicitly singled out cases involving which involve violence, the illegal use of firearms, selling pot to minors, money laundering or involvement in other crimes. "It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," said Attorney General Holder. "This is a huge victory for medical marijuana patients," said Steph Sherer, executive director of Americans for Safe Access, the nationwide medical marijuana advocacy organization, which had been in negotiations with the Justice Department to get written guidelines issued. "This indicates that President Obama intends to keep his promise not to undermine state medical marijuana laws and represents a significant departure from the policies of the Bush Administration," continued Sherer. "We will continue to work with President Obama, the Justice Department, and the US Congress to establish a comprehensive national policy, but it's good to know that in the meantime states can implement medical marijuana laws without interference from the federal government." "This is the most significant, positive policy development on the federal level for medical marijuana since 1978," said the Marijuana Policy Project in a message to its list members today. "It's great to see the Obama administration making good on the promises that candidate Obama made last year. These new guidelines effectively open the door to sensible collaboration between state governments and medical marijuana providers in ensuring that patients have safe and reliable access to their medicine," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "What remains unclear is how the Justice Department will respond to rogue state attorneys, such as San Diego's Bonnie Dumanis, who persist in undermining state medical marijuana laws in their local jurisdictions. Now is the right time for the Obama administration to move forward with federal legislation to end the irrational prohibition of medical marijuana under federal law." While the policy memo was "encouraging," the "proof will be in the pudding," said California NORML head Dale Gieringer, who also cited the recent raids in San Diego, as well as the August federal indictment of two Lake County medical marijuana providers. "Note that the new Obama policy has a glaring loophole, emphasizing that 'prosecutors have wide discretion in choosing which cases to pursue, and ... it is not a good use of federal manpower to prosecute those who are without a doubt in compliance with state law,'" Gieringer said. "The salient question is, who decides what is 'without a doubt' in compliance with state law? As shown by the recent statements of LA's DA and City Attorney, there exist significant doubts about the legality of most dispensaries in California. It remains to be seen how far the administration's new policy guidelines will go to prevent further abuses, when what is really needed is fundamental reform of federal laws and regulations." And so opens the next chapter in America's long, twisted path to the acceptance of medical marijuana.
Washington, DC
United States

Feature: What About the Clinton and Bush Era Medical Marijuana Prisoners and Defendants?

When Attorney General Eric Holder announced back in March that he would not use Justice Department resources to go after medical marijuana patients and providers in states where it is legal unless they were violating both state and federal laws, he ushered in a new era in the battle over medical marijuana. Since then, the number of DEA raids on providers has dwindled -- if not quite down to zero, still a dramatic improvement over the last years of the Bush administration.
Naulls family (courtesy
Still, while the pace of raids and prosecutions has declined, the raids continue. There have been at least a dozen raids where federal law enforcement was present since the Obama administration took power.

But even in this arguably new era, there is left-over business to take care of from the Bush days, and some from the Clinton days. Medical marijuana providers convicted under federal drug laws remain imprisoned. Medical marijuana providers raided, but not yet charged, have the specter of federal prosecution hanging over them. Medical marijuana providers arrested on federal drug charges remain subject to prosecution. And hold-over US Attorneys from the Bush era continue to prosecute them. Another Bush administration hold-over, Michelle Leonhart, remains in charge at DEA.

According to the medical marijuana defense group Americans for Safe Access (ASA), at least 130 medical marijuana patients and providers are being prosecuted, or have been prosecuted or convicted under federal drug laws. ASA also lists 10 medical marijuana providers currently in federal prison. That list does not include an 11th person, Eddy Lepp, who is now serving a mandatory minimum 10-year prison term, because Lepp defended himself with a religious freedom defense, even though he was growing for medicinal reasons.

Some of the victims of the federal campaign are well known, such as "Guru of Ganja" Ed Rosenthal, who was prosecuted over a permitted grow in Oakland; Dr. Mollie Fry and her partner, Dale Shafer, who were sentenced to serve time in federal prison; Eddy Lepp; and Bryan Epis, the first medical marijuana provider prosecuted by the feds, who served two years of a mandatory minimum 10-year prison sentence before being released on appeal. (Epis has created petitions seeking justice for himself and other medical marijuana martyrs; you can view them here.)

Others are lesser known, but equally deserving of justice -- Ronnie Naulls, for example. Naulls operated a permitted dispensary in Corona, California and paid his taxes, but still got raided and arrested under federal law. Authorities turned his three children over to California Child Protection Services, and his wife was forced to plead guilty to a felony child endangerment count or face federal charges because the couple had marijuana in their home. The couple got their kids back, but Naulls faces a preliminary hearing next week.
Eddy Lepp, at event (
Or Dustin Costa. A medical marijuana patient and provider and head of the Merced Patients Groups, Costa was arrested on state charges by Merced County sheriff's deputies in March 2004. After a year and a half of state court proceedings, the Merced District Attorney turned his case over to the feds. Costa was convicted of federal charges of cultivation, possession with intent to distribute, and possession of a firearm. He's now three years into a 13-year sentence, which he is serving at the federal prison in Big Springs, Texas.

Or the multiple people arrested in the San Francisco Sunset dispensary raids in 2005 and the San Diego dispensary raids in 2006. The former netted 33 people, the latter six. All still face federal prosecution.

"We have seen a continuation of the prosecutions that began under Bush," said ASA spokesman Kris Hermes. "This is unfortunate given that they've signaled a change in federal policy. Nor is there any evidence they will pardon or commute sentences or stop prosecuting those people indicted under Bush but who have not yet completed the prosecutorial process."

"What needs to be done is that the Justice Department should review all those cases in light of current policy and rethink the pending prosecutions of those people who would have been left alone based on the policy now being enforced," said Bruce Mirken, communications director for the Marijuana Policy Project. "I am sure there are at least some whose actions appear legal under state law. It would be nice to see those folks left alone and no further tax dollars wasted persecuting them. It would also be nice to see the use of presidential pardon power in those cases who would not be prosecuted now have already been sentenced and are sitting in federal prison."

But Mirken isn't holding his breath. "I wish I thought that was going to happen immediately, but Obama's saving his political capital for other stuff," he said.

One key to seeing real change from the federal government is getting real change in the federal government. With Bush appointees still in place at DEA and in the US Attorney positions, the Bush era prosecutions continue, and so do the raids.

"Obama is really behind on that," said Dale Gieringer, director of California NORML. "As I recall, Bush appointed Asa Hutchinson DEA director in August 2001, and here we are in October of Obama's first year and there's still a Bush appointee there. I recall very specifically that we saw the first raids orchestrated by US Attorneys within a couple of weeks of 9/11. That's when they went after Dr. Molly Fry and the Los Angeles Cannabis Resource Center. It only took until September of his first year for Bush to have an aggressive new team in place, but so far under Obama, we have nobody new at DEA and no new US Attorneys. In Northern California, the US Attorney is still the same guy who was appointed by Reagan. The rate of change is disappointing," Gieringer said.
July 2005 protest in Washington after suicide of Steve McWilliams, San Diego medical marijuana provider who was facing federal prosecution
"The fact that a new head of DEA and new US Attorneys have not been appointed may present a problem in establishing a new policy on medical marijuana," said Hermes. "In at least a half dozen cases currently being prosecuted, the federal judges have asked for clarification on the administration's new policy before they proceed. That federal judges are balking at these continuing prosecutions in light of the supposed new policy from the Obama administration ought to be a concern to the administration. But what they're getting in response from the administration is not hopeful. The Department of Justice is saying it sees no reason to discontinue these cases or move them to state court."

State court is where these medical marijuana cases belong, said the ASA spokesman. "Our position is that the federal government doesn't need to prosecute any medical marijuana cases in federal court," said Hermes. "If they think there is a violation of state law, they should leave it up to the state courts to adjudicate that. As long as they're in federal court, the government won't be debating whether the defendants were in compliance with state law -- they don't even have to address that, and they won't, because it would hinder their chances of obtaining convictions. There is no role for the Justice Department in prosecuting state law violation medical marijuana cases in federal court," Hermes argued.

For those already convicted, it's too late for state court. The only relief they are even remotely likely to see is a presidential pardon or commutation.

"I have this goal of getting Eddy Lepp out before his sentence expires," said Gieringer. "But to get out prison, you have to apply for a pardon. My understanding is it's sort of up to the prisoners and their attorneys to get that together. I don't know that anyone has started on that project yet."

Not yet, but it looks like one is in the works. "We're looking at mounting a campaign to win pardons for those people currently serving federal sentences," said Hermes, noting that some of them are doing as many as 20 years.

But don't count on the Obama administration to take the initiative, said Gieringer. "We're in a period of benign neglect," he said. "Obama is weaker now and less interested in these issues. He's not inclined to do anything, unlike Bush, who was forceful and assertive in the wrong directions. Now, there's a different dynamic going on. We're going to have to push as hard as we can, and hopefully we can get Obama's attention."

In the meantime, some nonviolent medical marijuana patients and providers rot in federal prison, others are having to continue to fight their federal prosecutions, and even more -- those raided but never (not yet) charged -- possibly face the same fate. We won't be to a new era until we take care of this old business.

Law Enforcement: Drug Court Program Needs Serious Reforms, Defense Attorneys Say

Drug courts have spread all across the country since the first one was instituted in Miami 20 years ago by then local prosecutor Janet Reno, but now, the nation's largest group of criminal defense attorneys says they have become an obstacle to cost-effective drug treatment and a burden on the criminal justice system. In a report released Tuesday, America's Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform, the National Association of Criminal Defense Attorneys (NACDL) argued that drug addiction should be considered a public health problem, outside the criminal justice arena.
drug court
More than 2,100 drug courts are now in operation in the US, the group noted, but they have had no noticeable impact on drug use rates or arrests. Furthermore, the courts, which empower judges and prosecutors at the expense of defendants and their attorneys, too often limit treatment to "easy" offenders while forcing "hard cases" into the jails or prisons.

Minorities, immigrants, and poor people are often underrepresented in drug court programs, leaving them to rot behind bars at taxpayer expense. Drug courts also mean that access to drug treatment comes at the cost of a guilty plea, the group said.

"Today's drug courts have been operating for over 20 years yet have not stymied the rise in both drug abuse or exponentially increasing prison costs to taxpayers," said NACDL president Cynthia Orr. "It is time for both an extensive review of these courts and for the average American to ask themselves: Is our national drug policy working, and perhaps it is a public health concern rather than a criminal justice one?"

In the report, NACDL recommended the following reforms:

  • Treating substance abuse as a public health issue rather than a criminal justice one;
  • Opening admission criteria to all those who need, want and request treatment;
  • Enforcing greater transparency in admission practices and relying on expert assessments, not merely the judgment of prosecutors;
  • Prohibiting the requirement of guilty pleas as the price of admission;
  • Urging greater involvement of the defense bar to create programs that preserve the rights of the accused;
  • Considering the ethical obligations of defense lawyers to their client even if they choose court-directed treatment; and
  • Opening a serious national discussion on decriminalizing low-level drug use.

Feature: What's the Matter With San Diego? Another Round of Medical Marijuana Raids and Arrests Hit "America's Finest City"

San Diego County District Attorney Bonnie Dumanis claims to be a friend of medical marijuana, but one would be hard-pressed to find anyone in the local medical marijuana community who would agree with her. This "friend" coordinated mass raids against medical marijuana dispensaries there in 2006, again in February of this year, and yet again just last week.
courthouse demonstration (courtesy William West,
It is part and parcel of a pattern of bitter, recalcitrant refusal on the part of San Diego county officials to abide by the will of the voters and accept the state's medical marijuana law. The conservative county Board of Commissioners is notorious for its opposition to medical marijuana, going so far as pursuing a quixotic and costly legal challenge to state laws, which it lost in every court that heard it.

On Tuesday, the Board unanimously extended for 10 months a moratorium on new dispensaries in unincorporated areas of the county. After its court challenge to the state law was defeated, the Board is now grudgingly allowing staff to develop regulations for dispensaries, but in the meantime, DA Dumanis is picking them off in batches.

The city of San Diego has been a bit more friendly. Last week, just one day before Dumanis' raiders struck, the City Council voted to implement a task force to create recommendations for regulating collectives and co-ops in accordance with guidelines issued earlier this year by the state attorney general. But if the City Council is working with the medical marijuana community, the San Diego Police Department is not. Instead, it has joined forces with Dumanis and her conservative cronies to attack the dispensaries.

Last week's raids shuttered 14 dispensaries in San Diego, the North County, and South Bay, and resulted in 33 arrests -- 31 under state charges and two under federal charges -- including wheelchair-bound patients hauled away by armed and uniformed law enforcement agents. Dumanis assembled squads of San Diego Police, San Diego County Sheriff's officers, DEA agents, and IRS agents to swoop down on the dispensaries, make arrests, seize cash and medicine, and disrupt the local medical marijuana distribution system.

While the DEA was present, last week's raids were Dumanis's baby. Only two of those arrested face federal charges.

"It was a joint investigation with the sheriff's department and the police department," said San Diego DEA spokeswoman Amy Roderick. "We were asked for our assistance. We were not at every location."

Roderick declined to spell out how DEA San Diego is interpreting the current Justice Department position on not pursuing medical marijuana providers in states where it is legal unless they are in violation of state law. "I can't comment on policy," she said. "It's not made by the DEA."

"Like most San Diegans, I support the use of legitimate and legal medical marijuana use," Dumanis said at a press conference touting the busts. "However, it appears these so-called 'marijuana dispensaries' are nothing more than for-profit storefront drug dealing operations run by drug dealers hiding behind the state's medical marijuana law."
Donna Lambert (courtesy William West,
"We're not surprised at all, but very disappointed," said Margaret Dooley-Sammuli, deputy state director for the Drug Policy Alliance. "What Dumanis is doing is simply unacceptable. If she has legitimate concerns about how dispensaries are operating, whether they're operating as collectives, she could use civil actions, she could use letters and accountants. There is no call for bringing in the DEA, arresting people in wheelchairs, scaring the hell out of patients, and shutting off medical marijuana access for very sick people. It's her tactics that we're really concerned with," she said.

"But also her misrepresentations to the public of what she's doing and her unproductive strategy of pointing out what she says is illegal, but not saying what is legal," Dooley-Sammuli continued. "Collective operators are doing their best to comply with the law, but she doesn't have answers for them. People have gone out of their way to follow the guidelines, but got raided anyway."

I don't think Bonnie Dumanis has ever seen a legal dispensary in 13 years," said Dion Markgraff, San Diego coordinator for Americans for Safe Access "She can't follow the plain language of the law, but instead she holds some impossible standard that no one else knows about," he said.

"We're on the front lines of the most terrorist county in the whole state," Markgraff continued. "The DA is sending in cops who lied to doctors to get valid recommendations, and then busting dispensaries that are operating according to the law. At worst, maybe somebody didn't file this or that piece of paper or had a zoning issue, but there was certainly nothing criminal."

Markgraff himself has had a taste of the DA's bitter medicine. "I was raided two months ago for 32 immature plants," he related. "My girlfriend and I both have medical marijuana recommendations, and I had a state caregiver card. The cops laughed at my card, then stole it. They took everything, they arrested me and my girlfriend, they took my kid, they gave us both $130,000 bail. Now we're fighting this Kafkaesque, Orwellian system where the prosecutors and the judges don't give a shit about legality."

There was nothing unique about police seizing his daughter, Markgraff said. "They do it all the time. The first thing they say is 'we're going to take your kids if you don't plead.' When they're using your kids as leverage, that's really ugly," he said.

"We have not, and will not prosecute people who are legitimately and legally using medical marijuana," Dumanis said at the press conference. "It's a shame that a few illegal drug dealers are trampling on the compassion shown by voters in passing California's medical marijuana law."

Medical marijuana patient and now criminal defendant Donna Lambert begs to differ. She joined a 10-person medical marijuana collective after the 2006 raids that disrupted supplies. "I provided medical marijuana to a valid qualified patient who was an undercover cop who lied to a doctor to get a doctor's recommendation," said Lambert, who was one of 14 people arrested in the Operation Green RX raids conducted in February. "There was no dispute about my patient status or his patient status."

In Operation Green RX, as many as ten detectives spent six months becoming qualified medical marijuana patients on fraudulent grounds and then joining medical marijuana collectives. Undercover San Diego Police Detective Scott Henderson lied to a doctor to obtain a valid medical marijuana recommendation and then reached out to Ms. Lambert for help. When, believing she was lawfully helping another patient, she supplied him with medical marijuana, Lambert became yet another of Dumanis' victims.
San Diego demonstration against 'Operation Green RX' (courtesy William West,
Lambert, a 47-year-old San Diego resident, began relying on marijuana to cope with chemotherapy. She struggles with a number of serious illnesses, including hepatitis C, cirrhosis, cancer and Sjoegrens Disease. She was bound over for December trial during a preliminary hearing last week, despite the judge in that hearing noting that she was clearly not in it for profit. "My attorney says they've never dismissed a medical marijuana sales case in San Diego," she said.

"They are a little more conservative down there than the other coastal cities," said San Francisco-based Marijuana Policy Project spokesman Bruce Mirken when asked what was the matter with San Diego. "It seems like the county is more a problem than the city, and some of their officials, including the DA, are particularly bad."

California's confused medical marijuana law is part of the problem, said Mirken. "It doesn't specify with absolute clarity what is legal and what isn't when it comes to medical marijuana distribution. Everyone is operating on the attorney general's guidelines, which haven't been tested in court, and that leaves room for interpretation, so you have fertile ground for officials who choose to be jerks to wreak a great deal of havoc. That's what's happening in San Diego County."

"People got up in arms at the DEA, but in this case, they were playing a supporting role," said Mirken. "The real problem is local officials who think medical marijuana is okay as long as you don't actually get it from anyone. The law says patients can have marijuana, so it makes sense to have an aboveground, organized distribution system. We have working models for that in places like San Francisco and Oakland. It's not that hard to do if you have the political will to do it," Mirken said.

"It's just been an ongoing battle for lo these many years," said Dale Gieringer, head of California NORML in San Francisco. "The city of San Diego isn't so bad, but the county is more conservative. The county board of commissioners is the one that filed the lawsuit trying to overturn the state medical marijuana law. And the DA is just bad. We initially approved of her election; she is gay, and was viewed as progressive, but she's been really tough on medical cannabis. Still, I see a glimmer of hope here. In half of her statements, Dumanis seems to be saying that there might be some legal dispensaries around, but nobody's clear on who they are."

San Diego medical marijuana patients and activists aren't seeing glimmers of hope; they're seeing red. "We need to replace the DA, most of the county board, and the county sheriff," said Lambert. "They are all working together to subvert the state law. It doesn't matter to them if people are following the law or not, she just lies through her teeth about it. I am the perfect example of her lies."

"Dumanis has made a political calculation that this will appeal to her conservative base," said Markgraff. "There is no one currently running against her, but we are trying to get someone to do that. There are plenty of people upset with her, and now just in the medical marijuana community. She's ripe for being thrown out," he said.

"We are mobilizing in San Diego," said Dooley-Sammuli. "Patients and medical marijuana supporters are working to put pressure on her to stop these tactics, and we're working with the newly created city task force to craft regulations, but this is really all about Bonnie Dumanis and the upcoming election. She is hoping this will work for her politically, and we're working to see that it doesn't."

San Diego activists told the Chronicle of many more horror stories about medical marijuana persecution under DA Dumanis. While they are working to get rid of Dumanis and bring a measure of real justice to the DA's office, the Chronicle will be digging a little deeper into the alleged abuses.

Pain Activist Facing Fines in Free Speech Case

The government's war against pain doctors hit a new low last spring, when federal prosecutor Tanya Treadway, busy prosecuting Kansans Steve and Linda Schneider, subpoenaed pain control advocate Siobhan Reynolds for information on the Pain Relief Network's (PRN) public advocacy in support of the Schneiders. Despite ACLU efforts to quash the subpoena as an attempt to shut down free speech, judge US District Judge Julie Robinson allowed it. Friday, according an update from Jacob Sullum on Reason, Robinson imposed a $200/day civil contempt fine on both Reynolds and PRN, to begin in 10 days if she does not comply with the subpoena. An appeal is planned -- stay tuned. Earlier in the week, Boston-based civil liberties attorney Harvey Silverglate criticized Treadway in a column in Forbes magazine. We reprint a few paragraphs, also via Sullum:
When Reynolds wrote op-eds in local newspapers and granted interviews to other media outlets, Assistant U.S. Attorney Tanya Treadway attempted to impose a gag order on her public advocacy. The district judge correctly denied this extraordinary request. Undeterred, Treadway filed on March 27 a subpoena demanding a broad range of documents and records, obviously hoping to deter the peripatetic pain relief advocate, or even target her for a criminal trial of her own. Just what was Reynolds' suspected criminal activity? "Obstruction of justice" is the subpoena's listed offense being investigated, but some of the requested records could, in no possible way, prove such a crime. The prosecutor has demanded copies of an ominous-sounding "movie," which, in reality, is a PRN-produced documentary showing the plight of pain physicians. Also requested were records relating to a billboard Reynolds paid to have erected over a busy Wichita highway. It read: "Dr. Schneider never killed anyone." Suddenly, a rather ordinary exercise in free speech and political activism became evidence of an obstruction of justice.
Wichita, KS
United States

Law Enforcement: Supreme Court Holds Drug Purchasers Can't Be Charged With "Facilitation" Felonies for Calling Drug Dealers

The US Supreme Court Tuesday ruled that a law making it a felony to use a communication device in "committing or in causing or in facilitating" a drug deal cannot be used against drug purchasers who use their phones to calls their dealers. The unanimous ruling came in Abuelhawa v. US.
US Supreme Court
In that case, federal agents had wiretapped a drug dealer's phone. Among the calls they intercepted were six calls between Abuelhawa and the dealer in which Abuelhawa twice arranged to purchase single grams of cocaine, a misdemeanor offense under federal law. But federal prosecutors in the case charged Abuelhawa with six felony counts of using a communications device to facilitate a drug deal, one for each phone call.

Abuelhawa was convicted at trial. He appealed to the 4th US Circuit Court of Appeals, which upheld the conviction, and then to the US Supreme Court, which has now overruled it and sent the case back to district court.

"The Controlled Substances Act (CSA) makes it a felony 'to use any communication facility in committing or in causing or facilitating' certain felonies prohibited by the statute," wrote Justice David Souter in the opinion. "The question here is whether someone violates §843(b) in making a misdemeanor drug purchase because his phone call to the dealer can be said to facilitate the felony of drug distribution. The answer is no," he wrote.

"Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other," Souter elaborated. "A buyer does not just make a sale easier; he makes the sale possible. No buyer, no sale; the buyer's part is already implied by the term 'sale,' and the word 'facilitate' adds nothing."

Souter noted that Congress had amended the CSA in 1970 to make simple cocaine possession a misdemeanor, not a felony, and limited the communications offense by changing the words "drug offense" to "drug felony." "Congress meant to treat purchasing drugs for personal use more leniently than felony distribution, and to narrow the scope of the communications provision to cover only those who facilitate a felony," he wrote.

Drug Legalization: Conservative Colorado Republican Tom Tancredo Joins the Chorus

Former Colorado Congressman Tom Tancredo, a rock-ribbed conservative who made his national name as an opponent of illegal immigration and "open borders," said Wednesday it is time to consider legalizing drugs. The remarks came as he spoke to the Lincoln Club of Colorado in Denver.
Tom Tancredo
Tancredo has a 99% favorable rating from the American Conservative Union and has typically voted in favor of drug war spending, especially as it relates to border security. As a states' rights advocate, however, he has voted in favor of congressional amendments that would have barred the Justice Department from prosecuting medical marijuana patients and providers in states where it is legal.

Tancredo ran unsuccessfully for the Republican presidential nomination in 2008, largely on his anti-illegal immigration platform. Tancredo served four terms in the US House of Representatives before retiring in 2008. He is considering running for statewide elected office in Colorado.

While admitting it may be "political suicide," Tancredo told his GOP audience it is time to consider legalizing drugs. The country has spent billions of dollars arresting, trying, and imprisoning drug users and sellers, with little to show for it, he said.

"I am convinced that what we are doing is not working," he said. "It is now easier for a kid to get drugs at most schools in America than it is booze," he said.

Tancredo also cited the ongoing prohibition-related violence in Mexico, which has claimed nearly 11,000 lives in the past three years. The violence is moving north, he warned.

Free Speech: ACLU Backs Pain Activist's Effort to Quash Subpoena Issued in Kansas Case

The American Civil Liberties Union (ACLU) has joined pain activist Siobhan Reynolds and the Pain Relief Network (PRN) in her effort to block a bare-knuckled federal prosecutor from compelling her to produce documents about her contacts with Kansas pain doctor Steven Schneider and his wife, as well as friends, relatives, employees and attorneys.
Siobhan Reynolds at 2004 Congressional briefing
The federal grand jury subpoena marks the second time US Assistant Attorney Tanya Treadway has gone after Reynolds for her advocacy for the Schneiders as they face federal charges they unlawfully prescribed pain medications.

The Schneiders were arrested and their pain clinic and home raided by federal agents in December 2007. Reynolds, a tireless advocate for chronic pain patients and the doctors who prescribe for, went to Kansas to support the couple, whom she sees as being hounded by overzealous federal drug warriors. There, with her criticism of the prosecution's case, she became a thorn in Treadway's side.

Last July, Treadway sought a gag order barring Reynolds and the Schneiders from talking to the press and another order barring Reynolds from talking to "victims" and witnesses in the case. The judge hearing the case, US District Court Judge Monti Belot, denied that motion to stifle dissent.

At the time, Treadway said in court documents that Reynolds had a "sycophantic or parasitic relationship" with the Schneiders and alleged that she was using the case to further the Pain Relief Network's political agenda and her own personal interests.

Then, in March, Treadway hit Reynolds with the subpoena, which demands that Reynolds turn over all correspondence with attorneys, patients, Schneider family members, doctors, and others related to the Schneider case. Treadway's subpoena is supposedly part of an obstruction of justice investigation aimed at Reynolds. She also demands that Reynolds turn over bank and credit card statements showing payments to or from clinic employees, patients, potential witnesses and others, including virtually every attorney Reynolds knows.

That meant that in order to defend herself, Reynolds had to write and submit her own motion to quash the subpoena, which she filed on April 9. Now, the ACLU has ridden to the rescue, filing an amended motion to quash the subpoena that strongly argues the subpoena should be withdrawn because it threatens Reynolds' First Amendment rights and amounts to little more than a "fishing expedition" aimed at finding out information about the Schneiders' defense.

"These subpoenas constitute an abuse of the grand jury process," the ACLU argued. They would have "a chilling effect" on Reynolds' constitutionally protected speech. The subpoena directed at Reynolds is also "a misuse of the grand jury process because it is aimed at invading the defense camp of the Schneiders. On its face, AUSA Treadway's fishing expedition appears to have the impermissible purpose of obtaining information about the Schneider's defense. Therefore the subpoenas should be quashed as an abuse of the grand jury process."

The motion was heard on Tuesday (5/12), but there is no word back from the judge yet, who took it under advisement. Proceedings were conducted "under seal," at Treadway's behest, prohibiting the involved parties from publicly discussing it.

Marijuana: Marc Emery Associates Plead Guilty in Seattle, Face Canadian Probation

After striking a deal with federal prosecutors, two employees of erstwhile Vancouver pot seed entrepreneur, continuing marijuana legalization activist and Cannabis Culture magazine publisher Marc Emery pleaded guilty in federal court in Seattle last Friday to conspiracy to manufacture marijuana. They will be formally sentenced June 17, according to a press release from the US Attorney's Office for Western Washington in Seattle.
Marc and Jodie Emery (from
Along with Emery, employees Michelle Rainey and Gregory Williams became known as the BC 3 after they were indicted by a federal grand jury in Seattle on marijuana distribution charges because of Emery's seed sales enterprise. Authorities in Canada, where marijuana seed distribution is of ambiguous legal status, knew of Emery's business for years, but failed to act harshly against him or his employees.

Rainey and Williams accepted the guilty pleas on the condition that they be sentenced to two years probation to be served in Canada. Both defense attorneys and prosecutors will recommend that sentence. The judge is not bound to agree to that sentence, but the plea agreement stipulates that either party can call off the deal if the judge does not agree to that sentence.

According to court documents, Rainey filled mail orders for seeds, 75% of which were destined for customers in the US. Williams handled phone orders and walk-in customers. He confirmed Emery's claims that the company was grossing more than $3 million a year in seed sales.

Emery ploughed much of his profits back into the marijuana legalization movement and is known as the Prince of Pot for his loudly held positions. US DEA administrator Karen Tandy crowed at the time of his 2005 indictment that his arrest had dealt a blow to legalization forces, but prosecutors later claimed no political motivation for the bust of one of the drug war's loudest critics.

Rainey and Williams will be formally sentenced June 17. Emery's fate remains unclear. He continues to fight extradition from Canada, and a hearing in the British Columbia Supreme Court is set for the first week of June.

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