|
SAN FRANCISCO, CA -- Disputes about the Obama Administration’s policy on medical marijuana were not enough to get a care provider off the hook in federal court Wednesday.
While representing accused dispensary operator Ken Hayes, attorney Bill Panzer directed the court’s attention to a news article regarding another medical marijuana case currently in federal court.
The article described events that unfolded in Los Angeles last week during a hearing for convicted dispensary operator Charles C. Lynch. According to the news report, Lynch’s sentencing was delayed so that the judge could research whether the proceedings would be impacted by federal policy changes regarding medical marijuana cases.
Hayes’s judge was not so easily convinced.
“There may be a change in policy,” Judge Charles Breyer commented Wednesday. “If there is, then that’s a conversation between the U.S. Attorney of the Northern District and the Attorney General. I am not an enforcer of Justice Department policy.”
Panzer’s argument is a response to comments made by newly-appointed U.S. Attorney General Eric Holder, who said during a recent press conference that the Justice Department would target “those people who violate both federal and state law" regarding medical marijuana.
In 1996, California voters passed a landmark initiative that legalized the physician-approved possession and cultivation of marijuana.
Twelve other states have since enacted medical marijuana laws, in spite of the fact that marijuana remains a schedule I controlled substance under federal law. This legal conflict underlies the federal prosecution of many patients and care providers in medical marijuana states, a phenomenon that occurred frequently during the past eight years under President George W. Bush.
Medical marijuana advocates hoped for a policy change after President Barack Obama took office, but the inauguration was quickly followed by a small string of raids on medical marijuana dispensaries in both northern and southern California. However, since President Obama’s cabinet was not yet fully appointed at this time, these raids were largely attributed to holdovers from the Bush Administration.
The most definitive signal of change in policy came during a mid-March press conference with the Attorney General, in which Holder said, "Given the limited resources that we have, our focus will be on people, organizations that are growing, cultivating substantial amounts of marijuana and doing so in a way that's inconsistent with federal and state law."
That was enough to inspire Lynch’s judge, George Wu, to do some further investigation on policy matters. Judge Breyer, however, said this issue was not a matter he would, or should, consider while handling the Hayes case. “That’s a matter of executive determination by the executive branch,” the judge asserted.
“Judge Wu said, ‘Please go determine what the policy is and whether you want to proceed,’” Judge Breyer explained, paraphrasing Judge Wu’s comments to the U.S. Attorney on the Lynch case. In contrast, Judge Breyer noted, the U.S. Attorney insisted on proceeding with the Hayes’s prosecution.
Although they involve similar charges, the Hayes case and the Lynch case are far from identical.
Lynch ran a medical marijuana dispensary in Morro Bay, where he had the enthusiastic approval of city government. He went to trial in the summer of 2008, just over a year after his facility was raided by the Drug Enforcement Administration. His cause was championed by A-list celebrities and featured in mainstream news media so frequently that he has become a medical marijuana household name.
Hayes’s case, however, is nearly invisible. The path he has taken in dodging his charges is a long one, lasting more than seven years and spanning the globe. By the time he was brought back from Romania late last year, only the stalwart local activists recognized him.
Hayes initially escaped prosecution by fleeing to Canada back in January 2002, just before he was indicted for his involvement with a San Francisco medical marijuana dispensary called the 6th Street Harm Reduction Center. The same indictment also brought criminal counts against Rick Watts and Ed Rosenthal, who remained in the country to face their charges.
San Francisco medical marijuana dispensary called the 6th Street Harm Reduction Center.
Watts, whose trial was delayed because of injuries from an auto accident, saw some of his most serious charges dismissed when the U.S. Attorney failed to prosecute him within the statutory timeline. Remaining counts were resolved through a plea agreement.
Rosenthal, whose cultivation books and advice columns earned him the nickname “the Guru of Ganja,” took a different route in fighting his case. The result has been an ongoing legal saga in which Rosenthal lost two jury trials, won one appeal and is currently fighting another.
In the meantime, the original prosecutor has retired and the judge has grown weary of the case. Judge Breyer recently challenged new prosecutor Kimberly Briggs to justify spending federal resources on the case, given higher priorities for the Department of Justice.
Even though the judge’s frustration has been apparent, he insisted Wednesday that it’s beyond his power to decide whether to go forward with the case. If the U.S. Attorney has elected to proceed, the judge maintained, then he must go forward with that decision.
“I can’t pick up the phone and call the Attorney General,” Judge Breyer told Panzer during Wednesday’s hearing. “The Attorney General speaks through the U.S. Attorney here.”
Panzer persisted nonetheless, arguing that it was within the judge’s power to find that there was a conflict of interest regarding the Hayes case.
Speaking in reference to the U.S. Attorney, Panzer expanded his statement. “If the client wants them to do one thing and they’re doing another, that’s a conflict of interest.”
“Who is the client?” Judge Breyer asked, seemingly puzzled.
Panzer responded confidently, “The United States of America.”
The answer appeared to exasperate Judge Breyer, who offered less graceful reiterations of his earlier comments. “Don’t drag the court into becoming the referee…” he said to Panzer. “It destroys my independence from the judicial branch – I mean, the executive branch.”
In spite of frustrations about the extended lifecycle of the case, Judge Breyer granted Panzer extra time to communicate with the Justice Department about their policy. “I don’t think we have to go back to Washington on this,” Judge Breyer scoffed about the postponement.
But Hayes’s supporters still had a surprise waiting for them.
Emerging from the courthouse, they quickly got word that a local medical marijuana dispensary was being raided. Although the dispensary was apparently unrelated to the Hayes case, the synchronicity provided a clear commentary. At the very same time that Panzer was arguing that federal medical marijuana policy had changed, the DEA was actively in the process of raiding Emmalyn's California Cannabis Clinic.
Mindful of Attorney General Holder’s public statements, the DEA chose its words carefully. "We believe there are not only violations of federal law, but state law as well," DEA Special Agent in Charge Anthony Williams read from a prepared statement.
Absent any formal change of policy, it appears that the conflict between activist expectations and law enforcement actions will revolve around how Holder’s words are construed.
According to federal prosecutors, Holder’s quote did not indicate a new mode of operation. In the Los Angeles office of U.S. Attorney Thomas O’Brien, Holder’s statements were interpreted as meaning business as usual. As O’Brien’s spokesperson Thom Mrozek told the press, "In every single case we have prosecuted, the defendants violated state as well as federal law."
It’s doubtful that Holder’s words will make a difference for Hayes. If Panzer fails to get the Justice Department to order the U.S. Attorney to drop the prosecution, the case will continue to inch closer towards an impending plea agreement.
In the meantime, Hayes good-naturedly endures the conditions of his pre-trial release, including wearing an ankle monitor and submitting urine samples. After court, as he left to go take the drug test, he waved goodbye to his supporters and asserted his confidence about passing.
“Oh yeah, I’ve been studying for this all week,” Hayes joked. And then, with a big grin, he shuffled down the hallway.
 |
Subscribe to this comment's feed