Pubdate: Tue, 23 Apr 2002
Source: Recorder, The (CA)
Copyright: 2002, NLP IP Company
Contact:  http://www.callaw.com/
Details: http://www.mapinc.org/media/652
Author: Jason Hoppin, The Recorder

ARE POT CLUBS ABOUT TO GO UP IN SMOKE?

A U.S. District Judge Appeared Friday To Side With The Federal Government 
In A Case Against Pot Clubs.

The day before marijuana advocates' equivalent of a religious holiday, 
federal Judge Charles Breyer of the Northern District of California assumed 
the role of buzzkill by appearing ready to side with the federal government 
in a suit against San Francisco Bay Area medical marijuana clubs.

An adverse ruling would jeopardize medical marijuana distribution centers 
established after the 1996 passage of California's Proposition 215. Most of 
Breyer's questions during a hearing Friday were aimed at shaping any relief 
he grants the government, while he entertained none of the pot clubs' 
possible defenses -- not exactly the type of hearing advocates were hoping for.

The judge told the courtroom -- which included a solitary government 
lawyer, a dozen defense lawyers and a gallery of people who drifted in from 
last week's National Organization for the Reform of Marijuana Laws 
convention in San Francisco -- that he would issue an order in the case 
soon. But he seemed more interested in whether he needed to accompany that 
order with a permanent injunction should the medical marijuana clubs lose.

"Is it your view," Breyer asked lead defense attorney Annette Carnegie, 
that if they lose, "the defendants will not dispense of marijuana? Can you 
make that representation?"

Carnegie, a partner at San Francisco-based Morrison & Foerster, was unable 
to give Breyer a definitive answer, but argued against an injunction.

If the clubs lose United States v. Oakland Cannabis Buyer's Cooperative, 
98-0088, Breyer said he will ask them to submit declarations -- under seal, 
if necessary -- stating whether they will comply with his ruling. If they 
won't comply, he seemed to suggest that he would, perhaps reluctantly, give 
the government an injunction.

The distinction is important: If Breyer issues an injunction, the 
government could pursue individual cases against the clubs under a much 
easier burden. But Carnegie pointed out that such a standard would 
eliminate some of the safeguards of the criminal justice system, including 
trial by jury.

Breyer, however, was averse to forcing the government to enforce his ruling 
through criminal prosecutions. "I have a very hard time urging the 
government to pursue marijuana cases in the criminal context, because I 
have some idea of what happens" to defendants under federal drug sentencing 
statutes, he said. "To ask me to ask [the government] to do that ... it 
just strikes me that you're asking me to do something that I'm not terribly 
comfortable, in my role as the court, doing."

Later, U.S. Department of Justice senior counsel Mark Quinlivan told Breyer 
that by pursuing a civil case, the government had taken "a measured 
approach where we sought to enforce federal law and yet not put the liberty 
of the individual defendants at risk."

The case was filed in 1998 by the Justice Department, alleging that the 
commercial distribution of marijuana under Proposition 215 violates federal 
law. Breyer's decision will not affect the personal cultivation or use of 
medical marijuana.

The judge is in the unenviable position of having been reversed twice by 
higher courts in the same case, on the same issue. He previously foreclosed 
a medical marijuana defense before being overturned by the 9th U.S. Circuit 
Court of Appeals. When he reversed himself, he was overturned unanimously 
by the U.S. Supreme Court.

Friday's hearing was held the same week as the annual NORML convention and 
came the day before April 20, known to advocates as a day to celebrate -- 
and smoke -- marijuana.

At the conference, Oakland Cannabis Buyers' Cooperative attorney Robert 
Raich seemed braced for defeat. He told a crowd of marijuana advocates at 
San Francisco's Crown Plaza Union Square Hotel that an adverse ruling from 
Breyer would not be the end. "No matter what happens at the district court 
level, that's not the final word," Raich said.

He also told the crowd, amid the odor of marijuana smoke, that he would ask 
Breyer to take judicial notice of an Oregon federal judge's recent decision 
to strike down Attorney General John Ashcroft's directive that assisted 
suicide violates federal law, a decision seen as a boon for states' rights.

However, neither that argument, nor others Raich outlined, were uttered in 
court Friday. Carnegie was able to briefly suggest that the Commerce Clause 
foreclosed federal involvement in the intrastate growth and distribution of 
marijuana, but Breyer did not seem interested.

Perhaps sensing that the writing was on the wall, Oakland, Calif., solo 
defense attorney William Panzer leaped to the podium to argue that Breyer 
should consider those defenses. "There's still some very viable arguments 
on the part of the defendants," Panzer said.

Breyer insisted the balance of his questions did not tip judgment against 
the defendants.

Some have criticized the government's prosecution of medical marijuana 
clubs in civil court as an end-run around the difficulties of prosecuting 
them in criminal court, where the law would be interpreted -- and perhaps 
ignored -- by a local jury, rather than a judge.

In asking whether an injunction is needed, Breyer touched on the issue. 
"Should I consider jury nullification?" he asked Carnegie.

"I think that's a false issue," Carnegie said.
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