Pubdate: Wed, 01 Dec 2010
Source: Billings Gazette, The (MT)
Copyright: 2010 The Billings Gazette
Contact: http://billingsgazette.com/app/contact/?contact=letter
Website: http://www.billingsgazette.com/
Details: http://www.mapinc.org/media/515
Author: Clair Johnson

NO MEDICAL POT FOR DRUG DEALER AWAITING FIREARMS TRIAL

A federal judge has denied a convicted marijuana dealer's request to
use pot for medical purposes pending his trial on firearms violations.

Chief U.S. District Judge Richard Cebull on Tuesday ruled that Lemuel
Thomas "Butch" Small, 63, of Busby, would be violating his pre-trial
release conditions if he were allowed to use medical marijuana.

Defendants on pre-trial release must obey a number of conditions,
including that they not commit a federal, state or local crime.

Possessing marijuana, even for medicinal use, "is a crime under
federal and Northern Cheyenne law," Cebull said.

Small is a member of the Northern Cheyenne Tribe and lives on the
reservation.

Small and his wife, Christina Pilkington Small, 62, have pleaded not
guilty to being felons in possession of firearms for allegedly having
four guns and ammunition in Busby in May. Trial is set for Feb. 7.

The Smalls were convicted in federal court of distributing marijuana
and sentenced in 2003. Lemuel Small completed an 18-month sentence and
supervised release in 2007.

The Smalls were indicted on new charges in July. U.S. Magistrate Judge
Carolyn Ostby released Small in August pending trial but ordered him
to give up his marijuana card.

Small's attorney, Penny Strong, had asked that Small be allowed to
keep his valid, state-issued medical marijuana card and use marijuana
because he has serious medical problems, including chronic pain,
severe arthritis and diabetes.

Taking away Small's card would violate his constitutional rights and
amount to cruel and unusual punishment, Strong argued.

Pre-trial release conditions, Strong said, are to be tailored to the
individual's needs and are to be the least restrictive conditions
necessary to ensure appearance and to protect the community.

Strong also noted the attorney general's policy to not prosecute
persons who use pot for medicinal purposes.

Assistant U.S. Attorney Michael Wolf opposed Small's request, noting
that use and possession of marijuana remains a federal and tribal crime.

Wolf noted that Small pleaded guilty in November to drug abuse charges
in Northern Cheyenne Tribal Court for possessing medical marijuana,
which was seized during the investigation of the firearms case.

In his five-page ruling, Cebull also said the attorney general's
policy not to prosecute people for medical marijuana use in compliance
with state was irrelevant. Small "is not facing federal prosecution
related to his use or possession of marijuana," he said.

The judge further rejected claims that Small's rights to due process,
privacy, the pursuit of happiness and to be free from cruel and
unusual punishment were being violated.

"The right to use marijuana, however, is not a fundamental right and
the authority of the United States to prohibit the use of marijuana
has already been decided," Cebull said.
- ---
MAP posted-by: Matt