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Sentencing: Supreme Court Passes on Chance to End Punishments for Acquitted Crimes

In a March 31 order , the US Supreme Court declined to hear an appeal from a man who was sentenced to 15 years in prison for an offense of which he was acquitted. In refusing to hear the appeal, the high court let stand the federal judicial practice of punishing defendants convicted of one crime by crafting sentences based also on "acquitted conduct" -- in effect punishing them for crimes in which they were found not guilty.

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Supreme Court sanctions supreme injustice
The case was that of Mark Hurn of Madison, Wisconsin, who was charged with possession of crack cocaine and possession of powder cocaine after a 2005 raid of his home in which police seized 450 grams of crack and 50 grams of powder cocaine. At trial, Hurn admitted to dealing drugs, but testified the crack belonged to other people living in the house. The jury convicted him of the powder cocaine offenses, but acquitted him of the crack offenses.

Under federal sentencing guidelines, Hurn should have faced about three years in prison for the powder cocaine conviction. But federal prosecutors argued he should be punished for both offenses with a 20-year sentence, and US District Court Judge John Shabazz agreed. Saying there was good reason to think Hurn was guilty of the crack charges, he sentenced him to nearly 18 years.

"This was an extraordinary increase," said Elizabeth Perkins, a lawyer in Madison who filed his appeal. "Allowing a sentencing judge to disregard the verdict of the jury is very disappointing," she told the Los Angeles Times.

But it's business as usual in the Alice in Wonderland world of the federal courts. Nearly a decade ago, the Supreme Court endorsed sentencing for acquitted conduct in a California case, but only in a short unsigned opinion. Under the court's rule, judges can sentence defendants by "relying on the entire range of conduct" presented by prosecutors, not just the charges that resulted in guilty verdicts. That has given judges the freedom to send people to prison for years for charges of which they were not convicted.

Hurn had appealed to the appeals court in Chicago, which agreed that his sentence was "based almost entirely on acquitted conduct," but upheld it nonetheless, citing the earlier Supreme Court ruling.

Hurn appealed to the Supreme Court last fall, with his lawyers arguing that prosecutors shouldn't be able to "execute an end run" around the jury. They cited a series of Supreme Court rulings in recent years that severely limited judges' ability to sentence defendants based on conduct not proven before a jury, but the Supreme Court didn't want to touch it. Instead, it rejected without comment even hearing the appeal.

"This is very disappointing," Douglas Berman, an Ohio State University law professor who is an expert on sentencing, told the Times. "They have dodged this for now, but eventually the Supreme Court will have to grapple with this again."

Editorial: Justice Unhinged

David Borden, Executive Director

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David Borden
One of the basic elements of the US system of justice, a founding principle in fact, is that of the trial by a jury of one's peers. The jury is seen as a safeguard against tyranny, and has also been a matter of pride representing the strength and quality of our democracy.

No kangaroo courts, we say, no railroading by the system, and above all justice based on facts. If just one of the 12 jurors on a case feels that guilt has not been proven beyond a reasonable doubt, that juror should vote not guilty and then a conviction shall not be obtained -- another trial can be held, if the government thinks it's worth it, but a conviction is not obtained that time. If they all vote not guilty, then not guilty is the verdict, and the matter ends.

It is hoped thereby that the innocent will be protected from the overwhelming power of the state. Because another one of our founding principles is that it is better to let many guilty persons go free rather than convict and even incarcerate one innocent.

Unfortunately, while for many defendants in the courts those principles are still the law, for others they merely describe what once was. The wrench that unhinged justice was the "war on drugs." Within the '80s drug war, perversions were wrought that allowed those whose guilt was unproven to be punished, and in fact those who were acquitted of charges brought against them to also be punished.

One such perversion was civil asset forfeiture. In that corrupt practice, a charge is leveled not at a person, but at a piece of property. If the property is found to have been used in the commission of a drug crime (and some other kinds of crimes), it is "guilty," and the government can take it whether the owner knew about the lawbreaking or not. Some restrictions have been placed on this practice by states and even the feds from time to time, but they have been largely ineffective. The result of forfeiture is the disgusting spectacle of government agents stealing from members of the public -- the thefts ranging from dollars and cents on the street up to cars or even homes and retirement savings -- with the profits going to law enforcement agencies where they are spent on various purposes, many questionable.

An even greater perversion is what has happened to federal sentencing. Once upon a time, a conviction by a jury was needed to send a person to prison. That is still the case, if a defendant happens to be acquitted of all charges. But get convicted of just one charge that has been brought against you, if charges are brought together, and now you can be sentenced based on the others, even if there is no verdict or even if you were acquitted of them. In fact it's not even strictly necessary for the charges to be brought at all.

Though the Supreme Court has rendered some decisions in recent years to restrict this practice in certain cases, in others it is apparently wide open. In 2005, Mark Hurn was prosecuted in federal court in Wisconsin for possession of powder cocaine, and a larger amount of crack cocaine, was convicted of the former but acquitted of the latter. Federal guidelines specified about three years for the charge that was the subject of the conviction -- itself a grave injustice. But the prosecutor argued to the judge that Hurn was probably guilty of the crack charges too, the judge bought it, and hiked the sentence up to 18 years instead.

Late last month, the Supreme Court declined to hear Hurn's case. And so Hurn is stuck with 18 years behind bars, but the vast majority of it for conduct of which he was exonerated. Who are the true criminals here? Not Mark Hurn, as far as I am concerned. Justice has been unhinged, courtesy of the drug warriors, the judiciary complicit. What fine service they have rendered to the nation.

Medical Marijuana: California Dr. Molly Fry Sentenced to Five Years

A federal judge in Sacramento sentenced Dr. Marion "Mollie" Fry and her companion, attorney Dale Schafer, to five years in federal prison for conspiring to grow and distribute marijuana on March 19. Fry, who used marijuana herself in connection with radical breast cancer surgery, and Schafer, who used it for back pain and a dangerous form of hemophilia, also provided marijuana to patients under California's Compassionate Use Act.

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Fry, Schafer and family at August 2007 demonstration (courtesy indybay.org)
But the Justice Department prosecuted the couple under the federal marijuana laws, leaving US District Judge Frank Damrell Jr. no choice but to impose the mandatory minimum five-year prison sentenced required under the law because they had more than 100 plants.

"It is a sad day, a terrible day," Damrell said during sentencing, adding that if it were up to him, the punishment would have been less. But he also criticized Fry and Schafer for refusing to accept a plea bargain that could have left them free. "You had the opportunity to resolve this case, but you wanted to soldier on, knowing that your kid would be left behind," he told the couple.

In a departure from normal practice on the federal bench and to the delight of supporters who packed the courtroom, Judge Damrell granted the pair bail, so they will remain free while their case is appealed. Damrell, who is also presiding over the Bryan Epis case and has granted him bail too, said the exceptional circumstances of the case create "serious issues that need to be decided by an appellate court." Among those, he noted, are Fry and Schafer's claim they were entrapped.

Search and Seizure: US Supreme Court to Decide Warrantless Search Case

The US Supreme Court agreed Monday to hear a case that could clarify limits on when police using an informant may enter a residence. The case is Pearson v. Callahan (07-751), in which five members of the Central Utah Narcotics Task Force are being sued by a man whose home was searched without a warrant after an informant bought methamphetamine inside.

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US Supreme Court
In 2002, a snitch working with the task force bought $100 worth of meth from Afton Callahan inside Callahan's trailer in Fillmore, Utah. Once the officers waiting outside received the snitch's signal via wire that the deal had gone down, they entered and searched the trailer and arrested Callahan for sale and possession of meth.

Callahan moved to have the evidence suppressed because a warrantless search is unconstitutional, but a state court trial judge rejected that motion. Callahan then agreed to a conditional guilty plea while appealing the Fourth Amendment issue. A state appeals court later agreed with him and overturned his conviction.

Callahan then turned around and sued the task force members for violating his Fourth Amendment rights. The officers then argued that they were immune under the doctrine of "qualified immunity," which holds that government officials cannot be held liable for violating a law that was not clear at the time. A federal district judge, Paul Cassell, ruled in 2006 that the police were entitled to immunity, even if the search was unconstitutional, but the US 10th Circuit Court of Appeals in Denver overruled Cassell, holding that the Constitution was so clear on the need for a warrant that no reasonable police officer would have proceeded without one.

Lawyers for the police officers then appealed to the US Supreme Court, which will have to decide both the search and the immunity questions. But despite what the 10th Circuit held, the federal courts are divided on whether a warrant is necessary in those circumstances. Some federal circuits -- but not the 10th -- have created the strange notion of a "consent-once-removed" exception to the Fourth Amendment. Under that theory, someone who consents to the entry of an undercover police informant is also consenting to the entry of police as well -- even if he doesn't know it. Because the resident gives permission to the snitch to enter, he has also given permission for the police to enter, this novel doctrine holds.

Now, the US Supreme Court will decide if there will be yet one more addition to the holes in the Fourth Amendment created by the drug war. And whether police who conduct unconstitutional searches will have to pay for them.

Fry & Schafer Released on Bail Pending Appeal

[Courtesy of California NORML] SACRAMENTO, Mar. 19th - Dr. Mollie Fry and Dale Schafer walked out of US Court free on bail pending appeal after being sentenced to a five-year mandatory minimum by a US District Judge Frank Damrell, who deplored the sentence as a "tragedy" that should "never have happened." Supporters were elated by Damrell's decision to grant release on bail, which capped a tense and dramatic day that began with a succession of adverse rulings for the defense. Defense attorney Tony Serra called it "one of the saddest days I've confronted in a long career" after Damrell turned down all the defense's motions to avoid the mandatory minimums. Mollie Fry stirred the courtroom to tears as she related the story of her cancer and subsequent desire to help people with medical marijuana. "We caused no harm to anyone," she said, "There were no victims." Judge Damrell acknowledged the legitimacy of Fry's medical use of marijuana, but said that the couple had "spiraled out of control.' He concluded that he had "no choice" but to impose the mandatory minimum of 5 years, a sentence dictated by the jury's finding that the couple had grown a total of slightly more than 100 plants over a period of three years. On the final and crucial issue of the day, however, Damrell agreed that the couple had "substantial" grounds for appeal so as to justify their release on bail. Following expert testimony by attorneys J David Nick and Ephraim Margolin, Damrell found substantial appeals issues relating to entrapment, the defendants' state of mind, and the conflict between state and federal laws. He added that the couple's precarious state of health was further extraordinary grounds for keeping them out of prison. He reprimanded Dr.Fry for her loose standards in recommending marijuana, and stipulated as a strict condition for her release that she desist from further recommendations, to which she assented. To this observer, today's events felt like a momentous step forward towards the inevitable changing of federal marijuana laws. Judge Damrell effectively declared the bankruptcy of US laws regarding mandatory sentencing and medical marijuana, and rightly referred the matter to higher authorities to decide. There are good grounds to hope that Dale and Mollie will be vindicated by the Ninth Circuit and/or a change in administration. More later.... Dale Gieringer, Cal NORML -- California NORML, 2215-R Market St. #278, San Francisco CA 94114 -(415) 563- 5858 - www.canorml.org
Location: 
Sacramento, CA
United States

March 19, 2008: Dr. Mollie Fry to be Sentenced for Medical Marijuana

FOR IMMEDIATE RELEASE: March 17, 2008 CONTACT: Bobby Eisenberg, FRY/SCHAFER Defense Committee at [email protected] or 530-823-9963 California Dr. Mollie Fry to be Sentenced for Medical Marijuana Sentencing scheduled for Wednesday, March 19th at 2pm in Sacramento Federal Court. The federal sentencing of medical marijuana defendants Dr. Mollie Fry and her husband, Attorney Dale Schafer will take place on Wednesday, March 19th at the US courthouse in Sacramento (5th and I St.). The sentencing is at 2 PM. There will be a press conference before the hearing at 1PM in front of the Court House. The couple was denied the right to defend their actions that were protected under the Laws of the State of California. WHO: Sentencing in Federal Court of Dr. Mollie Fry and her husband, Attorney Dale Schafer for cultivation and dispensing medical marijuana under the Laws of California. WHAT: Press Conference prior to sentencing at 1 PM WHEN: Sentencing is Wednesday, March 19th, 2008 at 2 PM WHERE: Federal Court House, 501 "I " St., Sacramento, CA "We never would have grown marijuana had it not been sanctioned by the Laws of the State of California, the Attorney General of California and the District Attorney and Sheriffs’ of El Dorado County. Why aren’t they being charged with conspiracy to violate Federal Law?" asks Dr. Fry. Dr. Fry and her husband face a likely 5-year mandatory minimum sentence for conspiracy to cultivate and dispense medical marijuana for a small number of Dr. Fry’s patients. They ran (and continue to run) a popular medical marijuana clinic in El Dorado County that provides recommendations for many needy patients in the Sierra Foothills: http://www.docfry.com. Go to articles link for background. Like other federal defendants, they were denied the right to mention medical marijuana or Prop 215 in their trial. Both are in fragile health - Dale has hemophilia and suffers from chronic back pain, and Mollie is a breast cancer survivor. They are currently caring for three beautiful children and two grandchildren in their home. They were among the first medical marijuana providers raided by the Bush Administration, just a couple of weeks after 9/11 (9/28/01), but were not successfully indicted until June 22nd, 2005 after the Raich decision was overturned by the Supreme Court. Dale Schafer had also run for District Attorney in 2001. The sentence they face is particularly egregious compared to other defendants who have grown far more marijuana. They are liable to a five-year mandatory minimum because they were convicted of growing 100 plants over a period of three years, a number far smaller than is usually prosecuted by federal authorities. The jury was forced to add three different years worth of gardens to come up with the 100-plant count. They were not allowed to mention at their trial that local law enforcement had (deliberately) entrapped them by telling them it was OK to grow their relatively modest garden or that they had received advice of counsel supporting their right to grow and care for others under the Law in California. The Attorney General, Bill Lockyer, the District Attorney and the Sheriff in El Dorado County were all aware of and supportive of Dr. Fry and Schafer’s activities, but the jury was also denied these truths. Fry and Schafer’s case aptly exemplifies the kind of DEA enforcement abuses bill SJR 20 condemns. Patients and medical marijuana rights supporters are welcome to attend.
Location: 
Sacramento, CA
United States

Press Release: Dr. Mollie Fry to be Sentenced for Medical Marijuana - March 6th

FOR IMMEDIATE RELEASE: March 3rd, 2008 Contact: Nathan Sands, t: (916) 709-2483, e: [email protected] California Dr. Mollie Fry to be Sentenced for Medical Marijuana Sentencing scheduled for March 6th at 10am in Sacramento Federal Court The federal sentencing of medical marijuana defendants Dr. Mollie Fry and her husband, Attorney Dale Schafer will take place on Thursday, March 6th at the US courthouse in Sacramento (5th and I St.). The sentencing is at 10 AM. There will be a press conference afterwards at Noon in front of the Court House. The couple was denied the right to defend their actions that were protected under the Laws of the State of California. WHO: Sentencing in Federal Court of Dr. Mollie Fry and her husband, Attorney Dale Schafer for cultivation and dispensing medical marijuana under the Laws of California. WHAT: Press Conference to follow at NOON WHEN: Sentencing is Thursday, March 6th, 2008 at 10am WHERE: Federal Court House, 501 I St., Sacramento, CA “We never would have grown marijuana had it not been sanctioned by the Laws of the State of California, the Attorney General of California and the District Attorney and Sheriffs’ of El Dorado County. Why aren’t they being charged with conspiracy to violate Federal Law?” Dr. Fry asks a group of patients who are waiting to see her at her clinic. Dr. Fry and her husband face a likely 5-year mandatory minimum sentence for conspiracy to cultivate and dispense medical marijuana for a small number of Dr. Fry’s patients. They ran (and continue to run) a popular medical marijuana clinic in El Dorado County that provides recommendations for many needy patients in the Sierra Foothills: http://www.docfry.com. Go to articles link for background. Like other federal defendants, they were denied the right to mention medical marijuana or Prop 215 in their trial. Both are in fragile health - Dale has hemophilia and suffers from chronic back pain, and Mollie is a breast cancer survivor. They are currently caring for three beautiful children and two grandchildren in their home. They were among the first medical marijuana providers raided by the Bush Administration, just a couple of weeks after 9/11 (9/28/01), but were not successfully indicted until June 22nd, 2005 after the Raich decision was overturned by the Supreme Court. Dale Schafer had also run for District Attorney in 2001. The sentence they face is particularly egregious compared to other defendants who have grown far more marijuana. They are liable to a five-year mandatory minimum because they were convicted of growing (not a lot more than) 100 plants over a period of three years, a number far smaller than is usually prosecuted by federal authorities. The jury was forced to add three different years worth of gardens to come up with the 100-plant count. They were not allowed to mention at their trial that local law enforcement had (deliberately) entrapped them by telling them it was OK to grow their relatively modest garden or that they had received advice of counsel supporting their right to grow and care for others under the Law in California. The Attorney General, Bill Lockyer, the District Attorney and the Sheriff in El Dorado County were all aware of and supportive of Dr. Fry and Schafer’s activities, but the jury was also denied these truths. Dale Schafer is still meeting with the local Task Force (2/29/08) made up of local law enforcement and medical marijuana advocates to further implement the State and County guidelines regarding medical marijuana. Fry and Schafer’s case aptly exemplifies the kind of DEA enforcement abuses bill SJR 20 condemns. Patients and medical marijuana rights supporters are welcome to attend. Bobby Eisenberg-FRY/SCHAFER Defense Committee • [email protected] • 530-823-9963
Location: 
Sacramento, CA
United States

Search and Seizure: US Supreme Court to Hear Case on Warrantless Vehicle Searches

The US Supreme Court agreed Monday to rule on whether police may search a parked vehicle whenever they arrest a driver or passenger. Since a 1981 Supreme Court decision that held that police may search a vehicle for weapons when they arrest an occupant, most courts have held that police have ample authority to search vehicles after an arrest.

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police searching accused drug traffickers' car
But in a case from Tucson, the Arizona Supreme Court disagreed in the case of Rodney Gant. Police surveilling a suspected drug house arrested him on an outstanding warrant for driving without a license after he pulled up in his car. Gant was handcuffed and placed in the back of a police car. Officers then searched his vehicle and found a gun and a bag of cocaine.

In a 3-2 decision, the Arizona Supreme Court threw out the evidence, saying that the post-arrest search of his car violated the Fourth Amendment's ban on unreasonable searches and seizures. With Gant handcuffed in the back of a squad car, police faced no danger from any weapons hidden in the vehicle, the majority said. Because police did not initiate contact with Gant before he got out of his vehicle, the search of his vehicle was not incidental arrest and thus unconstitutional. Police could have obtained a search warrant if they could convince a magistrate they had probable cause, the court noted.

Arizona Attorney General Terry Goddard appealed to the US Supreme Court last fall, arguing that the Arizona Supreme Court decision sets "an unworkable and dangerous test" that would confuse police, prosecutors, and judges. He was backed by other law enforcement agencies and associations, including the Los Angeles district attorney's office and the National Association of Police Organizations.

The case, Arizona v. Gant, will be argued this fall.

Money Laundering: US Supreme Court Skeptical of Government's Broad Interpretation

In oral arguments Monday, the US Supreme Court displayed considerable skepticism about the Justice Department's broad interpretation of federal money laundering laws. The arguments came in Cuellar v. US, in which Mexican national Humberto Cuellar was convicted of money laundering for concealing some $83,000 under the floorboards of his car as he headed for Mexico.

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Cuellar was stopped on a Texas highway about a hundred miles north of the border for driving too slowly and veering onto the shoulder. Officers smelled marijuana on a roll of bills in his pocket, then sought and received Cuellar's permission to search his vehicle. During the search, they found the cash hidden away.

Cuellar was subsequently convicted of money laundering, but appealed, arguing that the simple act of concealing money did not constitute money laundering under the 1986 federal money laundering law. Under that law, it is a crime to take the profits from "some form of unlawful activity" out of the country while hiding or disguising its nature, location, source, ownership, or control. The question the court must decide is whether merely hiding the money is sufficient to support a money laundering conviction.

While the Justice Department argued that concealing money as part of a plan to illegally take it out of the country indeed constitutes money laundering under the 1986 law, several justices suggested that it was simply going too far.

"I don't know why they call this statute 'Laundering of Monetary Instruments,'" Justice Stephen Breyer commented, wondering aloud if it would make it a crime to walk across the border with a few dollars hidden in a shoe. "Why didn't they call it 'shoe hiding'?"

"On the government's theory, anyone who transports hidden money to get it out of the country, who drives the car, just the driver, is a money launderer," noted Justice Ruth Bader Ginsberg.

"No matter how you see it, this was precisely the conduct that Congress was getting at," assistant solicitor general Lisha Schertler told the court.

But Cuellar's attorney, Jerry Beard, told the court it should interpret the law to mean something more than merely hiding cash. "The statute does not criminalize concealing money's existence," Beard said. Instead, he argued, it requires that someone must seek to minimize the criminal nature of the funds. While Cuellar "may have in fact concealed money itself, he did not conceal the 'nature, source, location, ownership or control' of the unlawful proceeds," Beard argued.

Chief Justice John Roberts Jr. challenged Beard on whether Cuellar was attempting to conceal the money, but later seemed to be equally skeptical of the government's position. When Schertler suggested that putting money in a suitcase in the trunk of car could be evidence of a "design to conceal," Roberts retorted: "When I use a suitcase, I'm using it to carry my clothes, not to conceal them."

Justice John Paul Stevens added that the government's broad position seemed to make the whole concept of money laundering irrelevant. "Is this just a total wild goose chase?" he asked.

The federal money laundering statute, most often used against presumed drug traffickers, carries a maximum 20 year sentence and fines of up to $500,000. Nearly a thousand people were convicted under the statute in 2006. But if Monday's oral arguments are any guide, the Justice Department may soon have to actually prove money laundering to gain a money laundering conviction, not just that someone was hiding cash.

North Dakota’s Licensed Hemp Farmers File Appeal in Eighth Circuit

FOR IMMEDIATE RELEASE: Tuesday, February 19, 2007 CONTACTS: Tom Murphy 207-542-4998 or [email protected], Adam Eidinger 202-744-2671 or [email protected] North Dakota’s Licensed Hemp Farmers File Appeal in Eighth Circuit BISMARCK, ND – Two North Dakota farmers, whose federal lawsuit to end the U.S. Drug Enforcement Administration’s (DEA) ban on state-licensed and regulated commercial hemp farming in the United States was dismissed on November 28, 2007, filed their appeal today in the U.S. Court of Appeals for the Eighth Circuit. A copy of the appeal will be available later this evening at: http://www.VoteHemp.com/legal_cases_ND.html. Lawyers working on behalf of the farmers, State Representative David Monson and Wayne Hauge, are appealing the district court’s inexplicable ruling that said hemp and marijuana are the “same,” as the DEA has contended. The ruling failed to properly consider the Commerce Clause argument that the plaintiffs raised — that Congress cannot interfere with North Dakota’s state-regulated hemp program. Indeed, the lower court itself recognized in the decision under appeal that “the stalk, fiber, sterilized seed, and oil of the industrial hemp plant, and their derivatives, are legal under federal law, and those parts of the plant are expressly excluded from the definition of ‘marijuana’ under the CSA [Controlled Substances Act].” “This appeal is basically saying why can Canadian farmers grow non-drug industrial hemp plants to produce perfectly legal hemp fiber and seed commodities for the interstate US market, but North Dakota farmers cannot under North Dakota’s state-regulated industrial hemp program,” says Vote Hemp President Eric Steenstra. “The DEA has banned hemp farming for 50 years by conflating hemp and marijuana on very shaky legal ground while at the same time imports of hemp fiber, seed and oil are allowed. With North Dakota regulating industrial hemp, there is no reasonable threat farmers would be able to grow marijuana without being caught,” says Steenstra. Scientific evidence clearly shows that industrial hemp, which includes the oilseed and fiber varieties of Cannabis that would be grown pursuant to North Dakota law, is genetically distinct from the drug varieties of Cannabis and has absolutely no use as a recreational drug. Vote Hemp, the nation's leading industrial hemp advocacy group, and its supporters are providing financial assistance for the lawsuit. If the suit is ultimately successful, states across the nation will be free to implement their own regulated hemp farming programs without fear of federal interference. More information about the case can be found at: http://www.VoteHemp.com/legal_cases_ND.html. # # # Vote Hemp is a national, single-issue, non-profit organization dedicated to the acceptance of and a free market for low-THC industrial hemp and to changes in current law to allow U.S. farmers to once again grow this agricultural crop. More information about hemp legislation and the crop's many uses may be found at www.VoteHemp.com and www.HempIndustries.org. BETA SP or DVD Video News Releases featuring footage of hemp farming in other countries are available upon request by contacting Adam Eidinger at 202-744-2671.
Location: 
Bismarck, ND
United States

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