Pubdate: Sun, 18 Nov 2012
Source: San Bernardino Sun (CA)
Copyright: 2012 Los Angeles Newspaper Group
Contact:  http://www.sbsun.com/
Details: http://www.mapinc.org/media/1417
Author: Wes Woods II

Burning Issue

MEDICAL MARIJUANA AND STATES RIGHTS: POT DISPENSARY OWNER FACES 10 
YEARS IN JAIL FOR VIOLATING FEDERAL LAWS

While Aaron Sandusky and his supporters contend he committed no crime 
under California state law, he stands to spend many years - and 
possibly the rest of his life - behind bars.

Sandusky was president of Upland-based G3 Holistic, a medical 
marijuana dispensary, which in California, is legal.

In October, however, he was convicted in federal court of eight 
counts related to growing, possessing and intending to sell marijuana 
for profit.

His case, one of a handful in which federal prosecutors have charged 
and convicted purveyors of medical marijuana in states where such use 
is legal, highlights a fundamental conflict between state and federal 
law at a time when public opposition to marijuana is waning.

"It really goes to the heart of federalism and the relationship 
between state government and state rights and federal government and 
federal power," said former U.S. District Court Judge Stephen Larson. 
"It's a classic contest between states' rights and federal power, and 
that contest needs to be resolved in courts and in Congress."

While no meaningful challenge to federal law has been mounted, 18 
states permit medical marijuana, and in the Nov. 6 election, Colorado 
and Washington legalized recreational use of marijuana.

Still, dispensaries and their owners find themselves in the 
crosshairs of law enforcement.

California's four U.S. attorneys in September announced they were 
taking aim at large-scale growers and dispensary owners who falsely 
claim that their operations comply with state law. Many such owners 
throughout Los Angeles County have found themselves caught in this 
spotlight as has been the case for the past several years.

The conflict over state and federal law has led to confusion and 
frustration by dispensary owners who believe what they are doing is legal.

Perhaps Sandusky thought he was safe from federal prosecution after 
President Barack Obama said the Attorney General would not prosecute 
marijuana cases in states that had legalized it.

His attorney, Roger Diamond, attempted to make that argument in his 
defense, but the judge refused to consider it.

On Oct. 12, Sandusky was convicted of conspiracy to grow marijuana, 
to possess marijuana with intent to distribute it and to maintain a 
drug-related premises. He was also convicted of one count of 
possession of marijuana with intent to distribute.

He faces a mandatory minimum sentence of 10 years in prison and could 
receive as much as a life sentence, said Bruce Riordan, assistant 
U.S. attorney.

His girlfriend, Darlene Buenrostro of Rancho Cucamonga, said Sandusky 
is being held in Metropolitan Detention Center in Los Angeles.

"He has good and bad days," Buenrostro said. "He was just shocked

President Aaron Sandusky gives a tour of Holistic, Inc. (Jennifer 
Cappuccio Maher/Staff Photographer) and didn't anticipate (his 
conviction). I don't know if you could read the look on his face. He 
was still feeling positive. But once the verdict was handed down, he 
was deflated."

A tangled tale

Sandusky's story is not a simple one.

He opened G3 Holistic in Upland in November 2009, six months after 
Obama, in a well-publicized interview with the Oregon Mail-Tribune, 
said the government would not aggressively pursue medical marijuana 
cases in states that had legalized it.

"I'm not going to be using Justice Department resources to try to 
circumvent state laws on this issue," Obama said in March 2009.

In the same month, the Justice Department issued its own policy 
statement, in which Attorney

Various types of medicinal marijuana. (Jennifer Cappuccio Maher/Statt 
Photographer) General Eric Holder said federal investigators would 
only target suspects who appeared to be using medical marijuana laws 
as a shield for illegal distribution, non-licensed distribution.

Whatever his intent, Sandusky did not receive a warm welcome in Upland.

The city, citing zoning laws banning dispensaries, sought and 
obtained an injunction, forcing G3 to close less than a year after it 
opened. Upland has a zoning ordinance on the books that bans 
dispensaries. The city's authority to ban dispensaries is being 
challenged in state Supreme Court.

Undeterred, Sandusky opened additional clinics in nearby Colton and 
Moreno Valley, even as he appealed Upland's injunction.

A few months later, in February 2011, he filed a federal lawsuit, 
accusing Upland's mayor, John "JP" Pomierski, of extortion, bribery 
and racketeering.

In March, federal agents arrested Pomierski and charged him with 
conspiracy, bribery and extortion, accusing him of demanding bribes 
from unnamed Upland businesses that appeared to be G3 and a local 
restaurant that also had filed claims against the city.

Sandusky continued to fight the city, winning a stay on the 
injunction from an appellate court in June 2011.

In November 2011, the court ruled that the city's injunction was 
valid on the grounds that the dispensary violated the city's zoning ordinances.

In December, G3 re-opened in Upland pending appeal to the state 
Supreme Court based on Diamond's interpretation of the law.

A start date for the trial has not been set.

Over the past year, the dispensary has closed and opened several 
times, as motions fly back and forth between the city and Sandusky's 
attorney, who contends Upland's goal is to ban dispensaries entirely, 
which is contrary to state law.

"Aaron wants that case to be pursued and I'm going to pursue it," 
Diamond said in October shortly after his client was found guilty and 
added nothing had changed.

"We're waiting for oral arguments" in Supreme Court.

As for the mayor, Pomierski ultimately accepted a plea bargain before 
his case could go to trial and he was sentenced in August to two 
years in prison for accepting a $5,000 bribe in return for the city's 
granting of a permit to a local business.

Pomierski's successor, Ray Musser, sought federal assistance in the 
city's fight against Sandusky, writing on May 5, 2011, to U.S. 
Attorney Andre Birotte, Jr., asking the federal government to help 
the city "prohibit the commercial cultivation and dispensing of 
'medical marijuana."'

Agents from the Drug Enforcement Agency raided G3 in March, and in 
June Sandusky and five of his employees were arrested on suspicion of 
violating federal drug laws.

While his employees pled guilty to lesser charges, Sandusky 
maintained the prosecution was unjust.

U.S. District Judge Percy Anderson refused, however, to admit 
evidence or testimony related to conflicts between state and federal 
law or to consider statements made by the president or the Justice 
Department. Anderson refused because the matter was a federal case.

In October, Sandusky was found guilty.

Law of the land

Sandusky's conviction drew national attention and coverage from 
publications as diverse as the Washington Times, Huffington Post and 
any number of medical marijuana niche publications.

Kris Hermes, spokesman for Oakland-based Americans for Safe Access, 
the largest national member-based organization promoting safe and 
legal access to cannabis for therapeutic use and research, said the 
manner in which courts consider evidence is a roadblock to a fair 
trial in cases such as Sandusky's.

Federal law is such that the government doesn't recognize the medical 
value of medical marijuana, and there is no distinction between 
medical use and non medical use, Hermes said.

Without that distinction, the government can effectively exclude any 
evidence of medical use even if people being tried are in compliance 
with local and state laws.

"That's the situation with Aaron Sandusky," Hermes said. "As with 
really every defendant that's tried in federal court, the lack of a 
defense is a huge problem. We've tried to introduce legislation on 
several occasions to help a defendant with a reasonable defense but 
we haven't been successful on that front yet."

Hermes said his group has a lawsuit in Washington D.C. federal court 
challenging the government's position that marijuana has no medical 
value and oral arguments for it were recently made.

"We're hopeful that will begin a process that if we prevail in court 
of establishing a more sensible health policy for medical marijuana," 
Hermes said.

Larson, the retired federal judge, declined to speak specifically 
about Sandusky's case, but noted that in federal court, it's not 
unreasonable or unusual for arguments based on state law to be prohibited.

"State law does not govern in federal court," Larson said. "State law 
would not be admissible. It's something the U.S. Congress needs to 
resolve. The states cannot force the federal government to change 
their law. This is something federal law will have to accommodate."

Lanny Swerdlow, a Palm Springs resident and local advocate for 
medical marijuana, believes that if courts could consider medicinal 
use of marijuana or state laws, cases like Sandusky's would end very 
differently.

"That is the biggest," Swerdlow said of allowing the prohibited testimony.

"There is more of a likelihood that a defendant in federal court 
could be acquitted by a jury if they're allowed to present evidence 
of medical necessity or compliance of state law. But it's just a 
formality for the court to side with the federal prosecution. The 
U.S. Supreme Court has indicated no difference between medical and 
non medical use of marijuana."

Bigger issues

The important issue Sandusky's case reveals is not limited to medical 
marijuana, Larson said.

"I would hope that the courts and Congress take a longer view on this 
issue and look beyond the particulars of whether or not medical 
marijuana dispensaries are going to be lawful and consider the impact 
this has for our constitutional form of government and what role the 
states continue to play in that framework," Larson said.

Besides medical marijuana, there are numerous issues, such as gay 
marriage, immigration, healthcare and energy that fall under the same 
umbrella, Larson said.

"We saw that play out big time, and we see it going forward in health 
care," Larson said.

"The passage of Obamacare and challenge of states by the mandatory 
nature of it. The federal government, the Supreme Court, found that 
the tax and spending power of the federal government trumped states 
rights. If you take an overview of the history of the U.S. since the 
founding constitution, a general erosion of states rights and growth 
of federal power, that's been the general trend for 225 plus years. 
But there are instances where there's adjustments. It's interesting 
to see how this plays out."

Sandusky will be sentenced Jan. 7 in U.S. District Court.

Diamond, Sandusky's attorney, said his client's spirit was not broken 
despite the case.

"He feels strongly about the importance of providing medical 
marijuana to people who need it," Diamond said. "He is extremely 
sincere in his beliefs. And he has faith in the appellate system. I do, too."

[sidebar]

Aaron Sandusky

Upland

Convicted: Yes, in October for violating two counts of violating 
federal marijuana laws of conspiracy to manufacture marijuana and 
intent to distribute. He is in custody awaiting sentencing in January.

Years in prison: Facing 10 years in prison

Gerald and Jeremy Duval

Michigan father and son Convicted: Yes, in May for conspiring to 
manufacture more than 100 marijuana plants, manufacturing marijuana 
plants with intent to distribute them and maintaining a place to 
distribute marijuana.

Charles C. Lynch

Arroyo Grande

Convicted: Yes, in 2009 to a reduced term of a year and a day in 
prison for five marijuana-related offenses for running a medical 
marijuana dispensary collective in San Luis Obispo County. Lynch is 
out on bail pending the appeal.

Years in prison: Pending
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MAP posted-by: Jay Bergstrom