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Sacramento: Please Attend Medical Marijuana Activist Bryan Epis Federal Resentencing Hearing Friday

Bryan Epis, a former medical marijuana provider who was sentenced to 10 years in federal prison, and served two years before being released in the wake of the Raich medical marijuana decision, is returning to court for resentencing pending the filing of his appeal. Bryan asks that reformers in the area attend the hearing as a show of support. It is taking place at 10:00am this Friday morning (9/14) in Sacramento, California -- courtroom of Judge Frank C. Damrell Jr., 501 I Street, 15th floor, courtroom two. Click here to read our 2005 interview with Bryan, and click here to read about possible misconduct committed by the prosecution in his case. We will report in our blog Friday afternoon (or as soon as information becomes available) on what happens.
Location: 
Sacramento, CA
United States

Medical Marijuana: WAMM Lawsuit Hits Bump

A Santa Cruz medical marijuana cooperative that was raided by the DEA in 2002 was dealt a setback August 28 when a federal judge granted a US Justice Department motion to stop them from suing it. The lawsuit, filed on behalf of the Wo/Men's Alliance for Medical Marijuana (WAMM) and the city and county of Santa Cruz sought to sue US Attorney General Alberto Gonzalez to prevent his office from continuing raids on medical marijuana providers in California.

https://stopthedrugwar.org/files/wamm-march.jpg
2005 WAMM march, downtown Santa Cruz (courtesy santacruz.indymedia.org)
The lawsuit cited California's Compassionate Use Act, approved by voters in 1996, which makes the medical use of marijuana legal in the state. But the Justice Department successfully argued that marijuana remains illegal under the federal Controlled Substances Act, and US District Court Judge Jeremy Fogel agreed, granting its motion to block the lawsuit.

"Naturally, we're disappointed. I had hoped for something better," said Mike Corral, who, along with his wife Valerie, were cofounders of WAMM.

WAMM and Santa Cruz may be down, but they're not out just yet. Judge Fogel left two of the county's claims intact: a 10th Amendment argument that the states -- not the federal government -- have say over marijuana, and an argument that medical necessity trumps federal drug laws. The county's legal team says it will continue to argue those claims while trying to build a stronger case that the federal government is improperly intervening in areas that should be the purview of the states.

Asset Forfeiture: ACLU Sues DEA Over Trucker's Seized Cash

A trucker who lost nearly $24,000 in cash after it was seized by a New Mexico police officer and turned over to the DEA is suing the federal drug agency to get his money back. The American Civil Liberties Union (ACLU) New Mexico affiliate is handling the case. It filed the lawsuit on August 23.

On August 8, truck driver Anastasio Prieto of El Paso was stopped at a weigh station on US Highway 54 just north of El Paso. A police officer there asked for permission to search the truck for "needles or cash in excess of $10,000," according to the ACLU. Prieto said he didn't have any needles, but he was carrying $23,700 in cash. Officers seized the money and turned it over to the DEA, while DEA agents photographed and fingerprinted Prieto despite his objections, then released him without charges after he had been detained for six hours. Border Patrol agents sicced drug-sniffing dogs on his truck, but found no evidence of illegal drugs.

In the lawsuit, the ACLU argues that the state police and DEA violated Prieto's Fourth Amendment right to be free from unlawful search and seizure by taking his money without cause and by fingerprinting and photographing him. "Mere possession of approximately $23,700 does not establish probable cause for a search or seizure," the lawsuit said.

DEA agents told Prieto that to get his money back, he would have to prove it was his and not the proceeds of illegal drug sales. That process could take up to a year, the agents said.

But New Mexico ACLU state director Peter Simonson told the Associated Press Prieto needed his money now to pay bills. "The government took Mr. Prieto's money as surely as if he had been robbed on a street corner at night," Simonson said. "In fact, being robbed might have been better. At least then the police would have treated him as the victim of a crime instead of as a perpetrator."

According to the lawsuit, Prieto does not like banks and carries his savings as cash.

That's not a crime. But what the DEA did to him is, or should be.

Drug War Prisoners: 86-Year-Old Alva Mae Groves Dies Behind Bars

Alva Mae "Granny" Groves, the 86-year-old North Carolina grandmother sentenced to 24 years behind bars after refusing to testify against her children, died last week at a federal prison hospital in Texas. Federal prison officials denied her request to die at home, saying her charges were too serious to allow compassionate release.

https://stopthedrugwar.org/files/almamaegroves.jpg
Alva Mae Groves (courtesy november.org)
Groves had already served 13 years in prison after pleading guilty to conspiracy to possess with intent to sell cocaine and aiding and abetting the trading of crack cocaine for food stamps. She was 74 when she went to prison. She always maintained that she had been punished for failing to cooperate with federal prosecutors to lock up her children for life.

"My real crime... was refusing to testify against my sons, children of my womb, that were conceived, birthed and raised with love," Groves wrote in a 2001 letter to November Coalition, an anti-prohibitionist group that concentrates on freeing federal drug war prisoners.

Law enforcement officials continue to maintain that Groves played a key role in a cocaine conspiracy conducted by family members, but family members have always said she did nothing more than look the other way. Five members of her family were imprisoned in the investigation. Her son, Ricky Groves, is doing a life sentence, while Groves, her older daughter, and her granddaughter were all sent to federal prison in Tallahassee, Florida.

Groves became one of the poster children for sentencing reform as reaction grew to the drug war excesses of the 1980s and 1990s. But any reforms will come too late for the grandmother who loved tending her garden.

"It's a relief she's dead, but it's a hurt, a real hurt we weren't with her," daughter Everline told the Charlotte Observer. "What could she have hurt?"

Groves dreamed of getting out of prison, planting new gardens, and seeing grandchildren born while she was behind bars, but never had the chance. Her kidneys began failing early this year, and she was transferred to a federal prison hospital in Fort Worth.

Groves did not want to die in prison, she told the November Coalition in a recent letter. "I realize everyone has a day to die; death is a fate that will not be cheated. But I don't want to die in prison. I want to die at home surrounded by the love of what's left of my family."

Last winter, the Groves family asked for compassionate release so she could die at home. The family wrote to every official they could think of and enlisted the help of groups like the November Coalition, to no avail. As Groves' daughters leaned over her bed on July 19, prison officials handed them a letter denying the request.

Medical Marijuana: Feds Seek Oregon Patient Records in Probe of Growers -- Patients Cry Foul

Oregon medical marijuana patients and their supporters are up in arms after it was revealed that a federal grand jury next door in Yakima, Washington, has issued subpoenas demanding medical records for 17 Oregon patients. The subpoenas were issued in April as part of a federal investigation into a small number of Washington and Oregon marijuana growers.

Subpoenas were served to the Oregon Medical Marijuana Program, the state office that issues permits to patients and growers, as well as The Hemp and Cannabis Foundation, a private Portland clinic where doctors examine patients to see if their conditions can be alleviated by medical marijuana.

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Donald DuPay, official 2006 election photo
As part of the same investigation, DEA agents in June raided the home of medical marijuana patient and caregiver Donald DuPay, seizing 135 plants he was growing for other patients. DuPay, who hosts a local cable TV show about marijuana, was not arrested. He is among the 17 people whose records were subpoenaed.

For Oregon patients, the experience has been frightening and disturbing. "It's crazy. It's really scary. If they can get my records, they can get Gov. Kulongoski's, they can get yours," DuPay, a former Portland police officer and 2006 candidate for Multnomah County sheriff, told The Oregonian on Saturday.

For medical marijuana advocates, it looks like a new tactic deployed by the feds in their ongoing effort to thwart state medical marijuana laws. The grand jury subpoenas are the first ever issued for patient records in a marijuana case, "and of course, it is very worrisome," said Bruce Mirken, communications director for the Marijuana Policy Project. "People have an expectation of medical privacy, and I think they have a right to expect medical privacy," Mirken said. "It's one thing to talk about people selling a product that is in fact not legal under federal law. We may think that's stupid. But that's in a whole different realm than obtaining people's medical records."

"This sends a message to the other states and their programs that they're vulnerable to federal interference," said Kris Hermes of Americans for Safe Access. "It doesn't take a brick to hit you over the head to know that the federal government is trying to undermine California's medical marijuana law, given all the raids and threats to landlords. This is one step further that shows the federal government is very serious about going after patients."

Patients and their advocates are fighting the subpoenas. On August 1, attorneys representing the state of Oregon, and the ACLU representing The Hemp and Cannabis Foundation, went before Chief US District Court Judge Robert Whaley in Yakima to urge him to throw out the subpoenas.

In that hearing, Assistant US Attorney James Hagery, who is leading the federal investigation, admitted that the subpoenas were too broadly written. He told the judge the grand jury is investigating "four or five" Washington and Oregon growers for using the medical marijuana laws to cover up their marijuana sales, that the 17 patients were people who got medical marijuana from the growers in question, and that the grand jury wants only current addresses and phone numbers, not "medical records" for those patients.

Hagerty did not explain why, if he is investigating alleged non-medical marijuana sales, he needs to look at registered medical marijuana patients.

A ruling on the subpoenas will come soon, the judge said.

Law Enforcement: Illegal Search Kills Prosecution in Largest Heroin Bust in California History

Two Mexican brothers arrested in the largest heroin seizure in California history walked free this week after federal prosecutors in San Diego dropped the charges against them. Prosecutors had little choice because a federal judge ruled last month that police had violated the Fourth Amendment's ban on warrantless searches and threw out the evidence against them. Two others arrested in the case have already pleaded guilty and are awaiting sentencing.

At the time of the Valentine's Day bust, Immigration and Customs Enforcement (ICE) nearly dislocated their shoulders patting themselves on the back for uncovering what they described as a major heroin, methamphetamine, and marijuana trafficking operation. But their eagerness to search and make arrests eventually cost them the case.

It all started when ICE agents at the San Ysidro border crossing found a car with nearly 12 kilos of Mexican heroin hidden inside. The driver was allowed to continue to his destination in Anaheim under ICE surveillance. The driver met with another man, then drove to an Anaheim house and pulled into the garage. Without waiting for a search warrant, ICE agents entered and searched the house, arresting six people and seizing 121 pounds of heroin, 34 pounds of marijuana, and 3 pounds of methamphetamine, along with about $3,500 in cash.

Attorneys for the two Mexicans argued in court papers the men had been staying at the Anaheim home and had a "reasonable expectation to privacy" guaranteed by the Fourth Amendment. They also argued that there was no threat to officer safety or that the evidence would be destroyed if ICE waited to get a search warrant.

Federal prosecutors argued that agents had no time to obtain a search warrant and that the drugs and the driver who led agents to the house were at risk, but US District Court Judge James Selna wasn't buying it. He instead ruled for the defense, holding that the search was unconstitutional and that the evidence derived from that search -- the seized drugs -- could not be admitted in court.

"To me, the issue is a rule of law and it won," said attorney Joel Levine, who represented one of the brothers.

Drug Central: Northeast Georgia now a hub for trafficking

Location: 
GA
United States
Publication/Source: 
Gainesville Times (GA)
URL: 
http://www.gainesvilletimes.com/news/stories/20070805/localnews/188836.shtml

New Resource on Judges' Views on Federal Sentencing -- Basically, They Hate It

Law professor David Zlotnick has released a new resource on judicial views on the federal sentencing system, available on his web site at the Roger Williams School of Law (link below). Briefly, judges don't like it. A few of the comments Zlotnick collected -- from the additional comments section -- provide some flavor of what it is to be found there:
Judge Morris S. Arnold Eighth Circuit Court of Appeals Appointed by George H.W. Bush, 1992 "You may say that I said that many of our drug laws are scandalously draconian and the sentences are often savage. You may also quote me as saying the war on drugs has done considerable damage to the Fourth Amendment and that something is very wrong indeed when a person gets a longer sentence for marijuana than for espionage." Senior Judge Andrew W. Bogue District of South Dakota Appointed by Richard Nixon, 1970 Prior Legal Experience: State's Attorney, Turner County, South Dakota, 1952-1954 "I will say this on the sentencing guidelines: I detest them. The sentencing guidelines divest courts of their role in imposing just and appropriate sentences to fit the crime and the defendant, with due consideration to all the attendant circumstances. They deprive judges of their discretion which is the touchstone of justice. Were the sentencing guidelines merely suggestive, they might very well serve as an important and helpful model which could assist judges in a difficult task. However, in their present form, as I said, they are detestable." Judge Richard A. Gadbois, Jr. (deceased) Central District of California Appointed by Ronald Reagan, 1982 "The law stinks. I don’t know a judge that thinks otherwise."
Following are some introductory comments from Zlotnick, via Doug Berman's Sentencing Law and Policy blog:
I am pleased to announce that the website for my federal sentencing project can be now be accessed at this link. The underlying research for this project was funded by a Soros Senior Justice Fellowship grant and was conducted over the past four and a half years. The heart of the work is contained in forty comprehensive case studies of federal cases in which Republican appointees complained that the sentences required by law were excessive. These profiles are the most comprehensively documented cases studies of federal sentencings available on the Internet. The site also includes a draft of my forthcoming article in the Colorado Law Review, "The Future of Federal Sentencing Policy: Learning Lessons from Republican Appointees in the Guidelines Era." This article contains a blueprint for sentencing reform legislation that might resonate with this cohort of federal judges in the post-Booker era. The launch of the website this summer is intended to allow my work to be used by sentencing reformers in the upcoming debate in Congress over the Sentencing Commission's proposed changes to the crack cocaine penalties. By showing that Republican appointees share many of the same concerns as academics and criminal defense attorneys, I hope to explode the myth of the liberal federal judiciary and pave the way for meaningful and bipartisan sentencing reform.
Location: 
United States

Hurwitz Receives Lesser Sentence Second Time Around, Could Be Free in 17 Months

Via John Tierney at the New York Times, posted late last night... Judge Leonie Brinkema sentenced pain physician Dr. William Hurwitz to 57 months, more than pain treatment advocates were hoping for but considerably less than the 25 years handed down in the first trial by Judge Wexler. With time served, he could be out in 17 months. One paragraph in particular from Tierney's blog post encapsulates much of the backwardness inherent in the federal sentencing system, backwardness that affects many much more run-of-the-mill cases as well:
While there was no evidence that Dr. Hurwitz was profiting from the resale of his prescriptions -- and the jurors I interviewed said they didn’t think he intended the drugs to be resold -- he will still spend more time in prison than almost all the patients who admitting lying to him and reselling the drugs. Thanks to the deals they made to cooperate with prosecutors, seven of the nine patients got sentences ranging from 10 to 39 months. Only two got longer sentences than 57 months -- and one of them, who got 72 months, was also guilty of armed robbery and arson.
The other thing that is really troubling about this case is that jurors admitted to Tierney (previously) that they were not clear on what the law says about whether a doctor who screws up and prescribes to the wrong people, but isn't intentionally diverting drugs to the black market, should be held criminally responsible. But that is precisely the point of law on which the verdicts turned. If jurors don't understand the law they are judging, what is the justification for keeping the conviction and imprisoning someone for it? Despite the praise that has been given to Brinkema by Tierney and others for her handling of this case -- which admittedly was far better than other judges have done -- at the end of the day I have to say that I think she failed to do proper justice. I repeat, if the jurors admit that they did not understand the key point of law before them, I see no reasonable way for the verdicts to be considered legitimate, because the process itself is simply unsound. I could see an argument (theoretically) for having a third trial, but Dr. Hurwitz should be at home tonight with his family, and it's a crime that he's not -- not only for his sake, but for all the pain patients who effectively are being tortured by denial of pain medication because doctors don't want to take the risk of getting sent to prison. Lastly on this theme, think about the fact that the first set of convictions were invalidated, and this second set for the aforementioned reasons clearly should have been. That's an extraordinarily poor track record. A criminal justice system that imprisons people even when jurors admit they didn't know what they were doing is a system that is fundamentally corroded and has lost its way. Don't be proud of yourselves, feds! Despite all of the foregoing, I also have to say that I am relieved. 17 months is a long time to spend in prison, even if one hasn't already spent some years there already, but it could be much, much worse. Judge Brinkema could have given him the same 25 years, or life -- or 10 years, or 12 or 15. The trial also had a bright spot in that Brinkema saw through the misrepresentation about dosages that prosecutors had attempted:
Brinkema said she had read news accounts of the first trial and had seen some of the massive prescriptions Hurwitz had given out, including one patient who was given 1,600 pills a day. "The amount of drugs Dr. Hurwitz prescribed struck me as absolutely crazy," the judge said. But after hearing testimony from both sides, "I totally turned around on that issue," Brinkema said. "The mere prescription of huge quantities of opioids doesn’t mean anything."
In fact, there are known pain treatment cases in which the dosages were literally four times greater than the largest dosage prescribed by Hurwitz in the cases at stake (as I pointed out in a letter to Judge Wexler before the first sentencing, though obviously to no avail). Now lawyers in other pain cases (current and future) can read Judge Brinkema's comments to judges and jurors to explain why the apparently large doses may have been appropriate. The problem hasn't been a lack of experts willing to say that in trials; the problem has been that for some reason it just seems to wash over people in the face of the large number of pills. I think that having a quote like that from a federal judge will help to break through. I'm not a physician, and I'm not in a position to judge whether or not Dr. Hurwitz practiced good medicine in every case. But I'm completely confident that he did not engage any drug-dealing conspiracy. Perhaps the fact that I've met him several times in the past biases my view. But I've also met many of his former patients -- some of them I know well -- and it's a provable fact that he helped many people whom others doctors wouldn't help and who desperately needed the help, and that he gave them the benefit of thoughtful attention. A lot of these people were left in the lurch when the authorities moved against him, causing at least one suicide and arguably a few of them. Hopefully this outcome, while highly imperfect, has enough good points in it to help move things in the right direction; time will tell. You can keep with all of our pain reporting in our topical archive -- RSS is available here -- email us if you'd like to run our pain feed (or any other feed we offer) on your web site.
Location: 
United States

Judge keeps door open for WAMM's medical marijuana case

Location: 
San Jose, CA
United States
Publication/Source: 
Santa Cruz Sentinel (CA)
URL: 
http://www.santacruzsentinel.com/archive/2007/July/14/local/stories/02local.htm

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