BERKELEY RESIDENTS TO FACE TRIAL FOR CANNABIS POSSESSION

Prosecution Moves To Dismiss

An Alameda County Superior Court judge began hearing pre-trial arguments on
Monday for a case involving two Berkeley residents who were arrested a year
ago for possession of 10 pounds of marijuana.

Alameda County prosecutors yesterday moved to dismiss the couple's defense
that they were distributing the pot to critically ill patients as members
of a licensed medical marijuana distributor.

Michael Fenili, 28, and his girlfriend Celina Perez, 25, are facing felony
charges for possession of marijuana and intent to sell, after police
confiscated the pot from the couple's van near People's Park last August.

The case has raised legal questions about the limits of medical marijuana
use and who can be considered a "primary caregiver" under a 1996
voter-approved ballot initiative.

Proposition 215 "ensures that patients and their primary caregivers who
obtain and use marijuana for medicinal purposes upon recommendation of a
physician are not subject to criminal prosecution or sanction," according
to the iniative's original language.

At the Alameda County Superior Court in Oakland yesterday, prosecutors
spent the day cross-examining defense witnesses and leaders of the First
Hemp Bank and its subsidiary, the Buzzy Linhart Medical Foundation.

Both organizations are licensed by the city of Oakland to issue medical
marijuana to their members.

Buzzy Linhart, a founding member of the Buzzy Linhart Medical Foundation,
said in his testimony that the confiscated marijuana actually belongs to
him and not to the defendants.

Linhart said Felini worked for the organization as a "compassionate
caregiver" who stored the drug for later distribution among the group's 48
patients, who are suffering from cancer, AIDS and other illnesses that
cause chronic pain.

"I had asked (Fenili) to keep it in his bus because I promised my landlord
that I would keep large amounts of (marijuana) in other places," said
Linhart, who uses the drug to relieve his persistent arthritis pains.

He added that for four years he has bought homeopathic remedies from
Fenili, who owns a natural herbs company.

Alameda County prosecutors could not be reached for comment yesterday
afternoon.

Lawyers for Fenili and his co-defendant argued that their clients are
protected by Proposition 215.

Fenili said he has turned down settlement offers made by the prosecutors.

"I don't believe I've done anything wrong," he said. "We are dealing with
people who have medical notes (from doctors), who don't have money and need
cannabis and the government seems to be interrupting the will of the voters."

Since Californians overwhelmingly passed Prop. 215, however, its practical
application has met many obstacles.

Both supporters and critics of the proposition say the law is not clear
about what exactly constitutes a "primary caregiver."

"We want to make sure that providers are not arrested," said Xeno
Rasmusson, a health consultant for the Buzzy Linhart Medical Foundation and
professor at CSU Hayward. "It's really difficult and dangerous to get
(marijuana) from the streets and (our foundation) has set up a network of
friends who look out for each other."

The judge's ruling on the motions is expected tomorrow when testimony
concludes.

A jury trial date has not yet been set.