U.S.-STATE POT FIGHT SNAGS AREA GROWER

The Court Appeal of Two Ailing Women May Tip the Scales.

Richard Marino says he did everything right.

From the day he opened his retail establishment in an 80-year-old building
in Old Roseville, he says, he scrupulously screened his customers to make
sure no one who was unqualified was able to buy his product. He established
meticulous business procedures and even joined the Chamber of Commerce.

"I worked my (butt) off to make this whole thing work," he said last week
over a lunchtime bowl of soup. "... I was trying to be part of the community."

The federal government, however, says Marino did at least one thing very,
very wrong.

"He was selling marijuana," said Gordon Taylor, chief of the U.S. Drug
Enforcement Administration's Sacramento office. "It's pretty simple . you
can't do that. It's against the law."

Just which law - and whose law trumps whose - are at the core of the
federal government versus Marino.

And the Marino dust-up is just one skirmish in an 8-year-old war that has
pitted states against the federal government, federal judges against
federal prosecutors and two very sick Northern California women against the
Bush administration.

Last week, the U.S. attorney's office filed a civil complaint against
Marino, a 51-year-old former electrician who opened his Capitol
Compassionate Care store on Old Roseville's Lincoln Street in late January
to sell marijuana to people with medical prescriptions for it.

The complaint, in which the government contends Marino profited from an
illegal enterprise, asks a federal judge to order the forfeiture of the
5-acre Newcastle property Marino bought for $550,000 last June, and the
historic building in which he leases space.

The Lincoln Street building is owned by Richard Ryan, an attorney at the
Roseville Legal Center. Ryan did not return numerous calls from The Bee for
comment.

The complaint followed a Sept. 3 raid on Marino's house and store in which
DEA agents seized a total of 500 marijuana plants and $105,000 in cash.

Despite the raid and complaint, however, no criminal charges have been
filed against Marino so far, and as of last week he was still open for
business.

The reason for that, sources both within and outside the federal government
say, is rooted in the melange of medicine, law and politics from which the
issue springs, as well as a case looming before the U.S. Supreme Court.

In 1996, 56 percent of California voters approved Proposition 215, which
legalized the use of marijuana as a prescribed medicine. Eight other states
have enacted similar laws, and at least that many are contemplating them.

The issue continues to garner strong support in California. Last year,
legislators and then-Gov. Gray Davis approved a bill clarifying medical pot
guidelines and setting up an ID card system for users and providers. A
Field Poll released in late January showed 74 percent of respondents favor
the use of marijuana as medicine.

But the U.S. Justice Department is not among the cheerleaders, contending
that federal drug laws pre-empt state laws. And federal laws make no
exceptions for marijuana by prescription.

"Marijuana is not medicine," said White House drug czar John P. Walters
during a trip to Sacramento last February. "We in the federal government
will enforce the (federal) law."

In California, at least, enforcement has been selective and sporadic, and
prosecutors' enthusiasm for busting medical pot users and growers has not
been shared by some federal judges:

* In June 2003, a federal judge in San Francisco sentenced a prominent
Oakland medical pot grower to the single day he already had spent in county
jail.

U.S. District Judge Charles Breyer said a "just punishment ... requires
substantial departure" from federal sentencing guidelines that set a
maximum of 60 years.

* Last April, a Ventura County woman was sentenced to six months of home
detention and 100 hours of community service for supplying marijuana to a
medical pot center in West Hollywood.

In handing out the relatively light sentence, U.S. District Judge A. Howard
Matz invoked the "lesser harm doctrine," which says crimes sometimes can be
justified if they are committed to avoid a greater harm -in this case the
suffering of patients at the pot center.

* Last month, the 9th U.S. Circuit Court of Appeals freed a Chico man who
was the first patient and cultivator associated with a California medical
marijuana dispensary to go to trial in federal court after passage of
Proposition 215.

Bryan James Epis had served two years of a 10-year sentence when he was
ordered released on bail until a medical marijuana case pending before the
U.S. Supreme Court can be decided.

Stymied by the courts, federal prosecutors have in some cases turned to a
less direct route to closing down medical pot purveyors.

While unusual, said a government source, it is not unprecedented for
prosecutors to file a civil forfeiture complaint without accompanying
criminal charges, particularly in cases where the government feels it can
meet the lower burden of proof that accompanies civil cases.

In the case of the West Hollywood center, for example, the DEA seized the
building even though the center had the support of local law enforcement
and city officials. In fact, the city had made the down payment and had a
second mortgage on the center's building.

The DEA subsequently sold the building for $1.25 million. The city is suing
the federal government in an effort to recoup its loss.

Another motive, said Mill Valley attorney Brenda Grantland, might be to
dissipate a defendant's resources in the event charges are filed later.

"If everything you've got is seized in a civil forfeiture, and they come
along later with a prosecution, you have limited resources with which to
mount an effective defense," said Grantland, an expert on federal
forfeiture law.

Federal prosecutors have refused to talk on the record about the Marino case.

But privately, they acknowledge Marino's high public profile made him tough
for them to ignore.

"Whatever else may be said of Mr. Marino," said one source, "he was tugging
on Superman's cape."

Speaking not about the Marino matter but in general terms, U.S. Attorney
McGregor Scott said "federal law enforcement has attempted to find a
balance in the conflict between state and federal law."

"In instances where the law is clearly being violated," Scott said,
"federal law enforcement is quite obviously left with no choice but to
vigorously enforce the law."

How vigorously may hinge on the judicial fate of two severely ill Northern
California women.

The women, Angel Raich of Oakland and Diane Monson of Oroville, have sued
to block federal interference with their pot supplies, contending the
government lacks the power to regulate medical pot in cases where its
cultivation and use do not involve interstate commerce.

Both women suffer from incurable ailments and use marijuana to alleviate
their symptoms.

The 9th Circuit sided with the women last year, and the Supreme Court
agreed to hear the government's appeal during the high court's session that
starts next month.

In the meantime, government sources said, federal prosecutors are treading
softly in seeking criminal convictions in medical marijuana cases while
"waiting for Raich."

In one such case, an El Dorado County doctor and her attorney husband who
had recommended marijuana for sick people and dispensed the drug had their
patient and client records seized in 2001 by the DEA.

In the three years since, Dr. Mollie Fry and Dale Schafer have not been
charged, nor have their assets been seized, other than the records.

But Supreme Court decisions sometime raise more questions than they answer,
and it is unclear in the Raich case whether the justices will touch on
those who formally dispense medical marijuana, or narrow a decision to
those who use it.

All of which gives Richard Marino cause for concern.

"I did this to provide a safe place for people to get medical marijuana,"
he said. "I'm sick about this whole thing.

"I didn't want to go to jail. I didn't want this."