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Medical Marijuana: NJ Patient John Wilson Freed on Appeal Bond, Lawmakers Call for Pardon

by Phillip Smith, April 30, 2010, 12:00am, (Issue #630)

New Jersey medical marijuana patient John Wilson walked out of Southern State Prison Thursday, freed on bond while he appeals his five-year prison sentence for growing his own medicine. Wilson was convicted in December of manufacturing marijuana for growing 17 plants and possession of hallucinogenic mushrooms. The following month, New Jersey became the 14th state to approve medical marijuana. That law will go into effect August 1.

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CMMNJ Wilson pardon campaign poster
Wilson, a 37-year-old with multiple sclerosis, had served five weeks of his prison sentence in a succession of local and state jails and prison when a court ruled Monday he could be freed on bond pending appeal. It took until Thursday for his family to come up with the $15,000 cash bail.

During his trial, Wilson was blocked from entering evidence about his medical condition or telling jurors he was growing marijuana to treat it. That is the issue that will be heard on appeal.

Wilson's case garnered media attention, thanks in part to its curious juxtaposition with the Garden State's move toward medical marijuana and thanks in part to supporters organized by the Coalition for Medical Marijuana-New Jersey, which organized demonstrations at the Somerset County Courthouse. "People with MS who seek cannabis therapy should not be in prison," said the group's Chris Goldstein.

Medical marijuana supporters Sens. Raymond Lesniak and Nicholas Scutaria have called for Gov. Chris Christie to pardon Wilson.

Until then, Wilson finds himself in something of a medical predicament. He told the Associated Press upon his release that he was not going to use medical marijuana until it becomes legal this summer. "Whenever they open the program, I would register and abide by the law," Wilson said. "You know what I mean." But in the meantime, he can't afford his $3,000 a month MS medicine.

Europe: Dutch Coffee Shop Owner Fined $10 Million Euros for Having Too Big a Stash

by Phillip Smith, March 26, 2010, 12:00am, (Issue #625)

A Dutch court Thursday fined a Terneuzen cannabis coffee shop owner $10 million Euros (more than $13 million US dollars), after convicting him and 15 others, including former employees, of drug trafficking and involvement in a criminal organization because the coffee shop's stash exceeded what is allowed by Dutch law.

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downstairs of a coffee shop (courtesy Wikimedia)
Coffee shop owner Meddy Willemsen took the financial hit after police found more than 440 pounds of marijuana at his Checkpoint coffee shop in raids in 2007 and 2008. Dutch law allows coffee shops to have no more than 500 grams (slightly more than one pound) on hand at any given time.

But Checkpoint, near the Belgian border, was reportedly serving up to 3,000 customers a day at its peak. If each customer bought the allowed five grams, that would add up to 15,000 grams. If Checkpoint were to have complied with Dutch law, it would have had to have had someone bringing it a fresh pound of pot every few minutes.

The case is illustrative of the "backdoor problem," where, while Holland allows for the sale of marijuana at coffee shops, it has not adequately allowed for them to be supplied. As a result, supplying the coffee houses has become part of a $3 billion a year illicit cannabis cultivation industry that is increasingly infested by organized crime elements.

Still, the court said Willemsen got off lucky. He would have had to pay an even larger fine if Middelburg municipal authorities had not turned a blind eye to his activities."Checkpoint could not have expanded as much as it did without collaboration from the municipality of Middelburg," it said. "Also, the police never warned that the coffee shop had to scale down."

The Checkpoint case is being widely viewed as a test case for cracking down on large-scale border coffee shops that cater to a largely foreign clientele. The verdict is undoubtedly sending chills down the spines of other large border town coffee shop owners.

Willemsen better have sold a whole bunch of pot while his shop was open. He certainly has a huge fine to pay now.

Medical Marijuana: Bryan Epis Returned to Federal Prison, Must Serve Out 10-Year Sentence for Growing Pot for the Sick

by Phillip Smith, February 26, 2010, 12:00am, (Issue #622)

Bryan Epis, the first California medical marijuana provider to be prosecuted and convicted for growing marijuana for patients, was sent back to federal prison Monday by a federal judge in Sacramento. Epis had served two years of his sentence before he was released in 2004 by an order of the 9th US Circuit Court of Appeals.

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Bryan Epis
The now more than 12-year-old case began in 1997, when Epis was arrested for growing at least 100 marijuana plants in the basement of his Chico home. During his trial, Epis testified that he was growing for himself and four other medical marijuana patients, with any excess marijuana going to a medical cannabis buyers' club.

But based on business plans Epis had sketched out to expand on his garden and prosecutors' allegations he was only in it for the money, a jury in Sacramento found him guilty in July 2002 of growing more than 100 plants and conspiracy to grow more than 1,000 plants. He received a 10-year mandatory minimum sentence, in part because his house was within 1,000 feet of a local high school.

Epis served two years in federal prison before winning a ruling from the 9th Circuit that he should be freed pending the resolution of the landmark Raich v. Gonzalez case. Unfortunately for Epis, the US Supreme Court ruled in that case that federal drug laws trump state medical marijuana laws.

Epis was resentenced to 10 years in 2007, but had been free on $500,000 bail pending appeal. But the 9th Circuit decided against him in August, the US Supreme Court declined to review that ruling, and the end came Monday.

Federal prosecutor Samuel Wong, who has been Epis' bête noir since the beginning of the case, didn't let up Monday. He continued to insist that the case had nothing to do with medical marijuana. "As the court knows, this is not a medical marijuana case. That term doesn't ever apply to cases of this scope," Wong charged. "Mr. Bryan Epis grew and distributed large amounts of marijuana even before the law changed in California," he added, although Epis was never charged with that.

Attorney John Balazs, who represented Epis, asked that he be given a surrender date so that he could explore other means of overturning the conviction and sentence. But US District Court Judge Frank Damrell was having none of it. "It's over, Mr. Epis."

Epis was then taken to a holding cell as his girlfriend and daughter wept. If nothing happens to change things, he won't be free again until around 2017.

Last year, the US Justice Department made it department policy not to persecute medical marijuana providers in compliance with state law. But it has yet to stop the prosecutions of medical marijuana providers arrested before then or move to provide relief for those imprisoned after being convicted under Clinton and Bush-era policies.

Europe: Belgian Trekt Uw Plant (Grow Your Plant) Activists Win Collective Garden Case

by Phillip Smith, February 26, 2010, 12:00am, (Issue #622)
2008 Trekt Uw Plant action

The Belgian Court of Appeal in Antwerp Thursday acquitted a group of activists who had publicly planted marijuana seeds of "incitement to drug use." Board members of the group, calling itself "Trekt Uw Plant" (Grow Your Plant), had each planted one seed in a container in a May 2008 action in a bid to win the right to create a collective marijuana garden.

Instead they were arrested. They were convicted of "incitement to drug use" by the Antwerp Correctional Court in 2009, but the appeals court decision has now reversed that ruling.

In so doing, the appeals court accepted the group's argument that it was attempting to create legal space for the collective cultivation of marijuana for personal use. The group also argued before the court that accepting collective cultivation could reduce illegal cultivation and resort to the black market or Dutch coffee shops just across the border.

Under Belgian ministerial guidelines in effect since January 2005, authorities will not prosecute people possessing three grams of marijuana or less or one plant. Trekt Uw Plant used the action as a test case to push for collective gardens, as are allowed in Spain.

Thursday's ruling marks the second time Trekt Uw Plant has been acquitted of a crime for its action. "This second acquittal encourages us to continue in the fight for a coherent and effective cannabis policy in Belgium," the group said.

Medical Marijuana: Colorado Judge Rules Users Have Right to Buy It

by Phillip Smith, January 08, 2010, 12:00am, (Issue #615)

Colorado medical marijuana patients have a constitutional right to buy it, not just use it, a district judge ruled December 29. The ruling came in a lawsuit by the CannaMart dispensary, which sued the city of Centennial after it banned dispensaries, forcing the dispensary to move to a neighboring community.

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Colorado state medical marijuana application
In banning dispensaries, Centennial had argued that it could ban them because they violated federal drug laws. Using the same argument, other towns in Colorado have banned or are considering banning dispensaries, which have mushroomed in the past year in the wake of state health department administrative rulings and the Obama administration's vow to not harass medical marijuana providers acting within state laws.

But in granting CannaMart's request for an injunction blocking the city from keeping the dispensary closed while it challenges the city's federal argument, Arapahoe County District Court Judge Christopher Cross had some harsh words for cities making that argument. Centennial violated the rights of three medical marijuana patients who joined the lawsuit, he said. "These are people who have a right to medical marijuana, the right to the caregiver of their choice. That has been taken away from them," Cross said.

CannaMart attorney Lauren Davis echoed Judge Cross's words, telling the Associated Press the ruling "should be a warning to towns across this state" that are considering whether to ban dispensaries. "They are violating the rights of sick patients and caregivers," Davis said.

The CannaMart lawsuit against the city of Centennial will continue later this year. But Judge Cross warned that cities trying to ban dispensaries could find themselves in violation of the state constitution. "The voters have spoken. It is not a criminal act in the state of Colorado."

Sentencing: California Appeals Court Upholds Ban on Probationer's Medical Marijuana Use

by Phillip Smith, January 08, 2010, 12:00am, (Issue #615)

A California appeals court has ruled that a judge who forbade a defendant from using medical marijuana as a condition of probation acted within his powers. The 2-1 decision was harshly criticized by the dissenting justice, who said it undermines California's voter-approved medical marijuana law.

The ruling by the First District Court of Appeal in San Francisco came in People v. Moret, in which Fairfield resident Daryl Moret, then 19, was arrested in 2008 for carrying a loaded handgun he said he had found in the bushes. Moret pleaded no contest to illegal gun possession, and in an interview with a court probation officer indicated he had obtained a medical marijuana card to treat migraine headaches he had suffered since childhood.

At Moret's December 2008 sentencing hearing, Superior Court Judge Peter Foor said he didn't believe Moret's statements about how he obtained the gun or about medical marijuana. "Smoking dope isn't going to help any of this," the judge said, ordering Moret to surrender his medical marijuana ID card and abstain from marijuana if he wanted to be granted probation. Moret agreed to those terms, but appealed, saying the probation condition violated the medical marijuana law.

In rejecting Moret's appeal, the majority held since a defendant can choose to reject probation conditions and accept a prison sentence, California medical marijuana laws did not limit a judge's ability to forbid drug use as a condition of probation. Justice Paul Haerle wrot that Moret accepted probation voluntarily and offered no evidence to support his need for medical marijuana.

But in a lengthy and harsh dissent, Justice J. Anthony Kline said that a judge's demand that Moret forego medical marijuana or face prison for a non-drug-related offense violated the law's ban on criminal punishments for medical marijuana users. A judge "may disagree with the aims and directives of [the medical marijuana law], but... cannot defy them," Kline said.

A medical marijuana ID card is all the proof a patient needs under state law, said Kline. The sentencing judge could have held a hearing if he questioned the medical marijuana card's legitimacy. Merely because the defendant agreed under coercion to the restriction does not make the restriction legal, Kline added.

Moret and his attorney are considering whether to appeal to the state Supreme Court.

Hemp: North Dakota Farmers Lose Appeal in 8th US Circuit

by Phillip Smith, December 29, 2009, 02:00am, (Issue #614)

The 8th US Circuit Court of Appeals in St. Louis last Tuesday upheld a lower court's decision to dismiss a lawsuit by a pair of North Dakota hemp farmers who argued they should be able to grow hemp crops without fear of federal prosecution.

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first North Dakota hemp license signing (agdepartment.com )
Farmers Wayne Hauge and David Monson, who is also a Republican state representative, were awarded licenses from the state department of agriculture to grow hemp three years ago. They sought approval from the Drug Enforcement Administration (DEA), and after the DEA failed to respond, they filed suit in US District Court in Bismarck. There, US District Judge Daniel Hovland dismissed their suit.

The DEA considers hemp to be marijuana. It took a successful federal court challenge to force the DEA to continue to allow for hemp food products to be imported, but American farmers are still forced to stand on the sidelines and watch as their Canadian, Chinese, and European counterparts fill their wallets with profit from hemp sales.

"I guess the next step is we'll have to take it to Congress," Hauge told the Associated Press. "The fastest and easiest way to handle this would be for the president to order the Department of Justice to stand down on all actions against industrial hemp," he added, alluding wistfully to the department's announced policy shift on medical marijuana.

But Congress has other things on its plate, Monson told the AP. "With all the other things, hemp is not high on their priority list, and I can understand that," Monson said. "Somehow, we need to get enough states involved so Congress can take action on it," Monson said.

Adam Eidinger, a spokesman for the industry association VoteHemp, said he was disappointed, but not surprised, by the decision."The 8th Circuit is kind of conservative, so I can't say I'm totally surprised," he said.

No word yet on whether VoteHemp and the farmers will pursue the case any further.

Search and Seizure: Ohio Supreme Court Rules Police Need Warrant to Search Cell Phones

by Phillip Smith, December 15, 2009, 05:04pm
The Ohio Supreme Court ruled Tuesday that police officers must obtain a search warrant before reviewing the contents of a suspect’s cell phone unless their safety is in danger. The ruling came on a narrow 5-4 vote of the justices. The ruling came in State v. Smith, in which Antwaun Smith was arrested on drug charges after answering a cell phone call from a crack cocaine user acting as a police informant. When Smith was arrested, officers took his cell phone and searched it without his consent or a search warrant. Smith was charged with cocaine possession, cocaine trafficking, tampering with evidence and two counts of possession of criminal tools. At trial, Smith argued that evidence derived through the cell phone search should be thrown out because the search violated the Fourth Amendment ban on unreasonable searches and seizures. But the trial judge, citing a 2007 federal court ruling that found a cell phone is similar to a closed container found on a defendant and thus subject to warrantless search, admitted the evidence. Smith was subsequently convicted on all charges and sentenced to 12 years in prison. Smith appealed, but lost on a 2-1 vote in the appeals court. In that decision, the dissenting judge cited a different federal court case that found that a cell phone is not a container. In the majority opinion Tuesday, state Supreme Court Justice Judith Ann Lanzinger wrote that the court did not agree with the appeals court and trial judge that a cell phone was a closed container. "We do not agree with this comparison, which ignores the unique nature of cell phones," Lanzinger wrote. "Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects. ... Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container." "People keep their e-mail, text messages, personal and work schedules, pictures, and so much more on their cell phones," Craig Jaquith, Smith's attorney, said in a statement. "I can't imagine that any cell phone user in Ohio would want the police to have access to that sort of personal information without a warrant. Today, the Ohio Supreme Court properly brought the Fourth Amendment into the 21st century." But Greene County prosecutor Stephen Haller complained to the Associated Press that the high court had gone too far. "I'm disappointed with this razor-thin decision," Haller said. "The majority here has announced this broad, sweeping new Fourth Amendment rule that basically is at odds with decisions of other courts."
Location: 
Columbus, OH
United States
See map: Google Maps

Law Enforcement: Federal Judge Slams NYPD for Widespread Lying in Drug Cases

by Phillip Smith, December 04, 2009, 12:00am, (Issue #611)

The federal judge hearing a multi-million dollar lawsuit against the NYPD by two men who claim they were busted on bogus drug charges has blasted the department as plagued by "widespread falsification by arresting officers."

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Judge Weinstein
The comments from Brooklyn Federal Judge Jack Weinstein came in his decision refusing to throw out the lawsuit by Maximo and Jose Colon, who claim that Queens narcs arrested them last year on false cocaine sales charges. A surveillance tape of the bust exonerated the brothers and led to the charges against them being dropped and the indictment of arresting Detectives Henry Tavarez and Stephen Anderson.

"Informal inquiry by [myself] and among the judges of this court, as well as knowledge of cases in other federal and state courts... has revealed anecdotal evidence of repeated, widespread falsification by arresting officers of the New York City Police Department," Weinstein wrote. "There is some evidence of an attitude among officers that is sufficiently widespread to constitute a custom or policy by the city approving illegal conduct."

Weinstein's attack came after he gave Afsaan Saleem, the attorney representing the city, a chance to document steps the department and prosecutors have taken to address false testimony -- often called "testilying" -- and fabrication of criminal charges by NYPD officers. Saleem couldn't come up with enough to satisfy the judge.

The Colon case is only the most recent of a number of scandals that have left the department's credibility tattered. This year alone, hundreds of drug cases have been dismissed because of corruption in the Brooklyn South narc squad, three officers have been arresting for covering up the sodomizing of a pot smoker in a Brooklyn subway station, and a Bronx detective was convicted of perjury.

As New York Civil Liberties Union president Donna Lieberman told the New York Daily News: "The NYPD has a serious credibility issue if federal judges are convinced the department puts officers on the stand who lie."

North Africa: Moroccan Human Rights and Drug Policy Activist to Remain Behind Bars

by Phillip Smith, November 27, 2009, 12:00am, (Issue #610)

A Morrocan appeals court Tuesday rejected the appeal of a human rights activist who had publicly criticized the country's drug policy and was subsequently jailed for offending the authorities and alleged currency violations. That means Chakib El Khayari will continue to serve a three-year sentence handed down in June.

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Chakib El Khayari
El Khayari heads a human rights group in the Rif Mountains, where marijuana growing has been a way of life for centuries. He had criticized inequities in the Moroccan government's crackdown on the cannabis industry there. El Khayari repeatedly told international conferences and foreign media outlets that he questioned the government's record on marijuana eradication and interdiction. He accused authorities of turning a blind eye to hashish smuggling to Europe while focusing their repressive efforts on poor farmers.

Prosecutors accused him of taking a bribe to focus a media campaign on some traffickers and not others. They also accused him of depositing money in foreign banks without approval from the country's Exchange Office. That charge was based on a payment he accepted for writing an article for a Spanish magazine. He was convicted in a court in Casablanca in June.

Even before his conviction, human rights and drug reform groups were calling his prosecution unjust. "It's pretty clear that the new charges against el-Khayari appear to be one more attempt to silence a critic on politically sensitive issues, and to intimidate other activists," said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. "El-Khayari's prosecution shows that despite Morocco's reputation for open debate and a thriving civil society, the authorities are still ready to imprison activists who cross certain red lines."

The European Coalition for Just and Effective Drug Policies (ENCOD) has organized a campaign to seek his release. Click on the ENCOD link here to see how you can help.

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