COURT HEARS APPEAL FROM POT ADVOCATE

San Diego Case Pits Federal Vs.State Laws

PASADENA - San Diego medical marijuana advocate Steve McWilliams asked
a federal appeals court yesterday to throw out his felony drug
conviction as unconstitutional.

The prosecutors who indicted him argued against dismissal, saying a
1970 federal marijuana law allowed them to prosecute defendants like
McWilliams, whom they claim distribute the drug.

McWilliams' appearance before a three-member panel of the 9th U.S.
Circuit Court of Appeals was the latest round in the battle over
whether the U.S. government can pursue marijuana charges against
patients in states where medicinal use of pot is legal.

The panel could take months to decide. No matter the outcome, an
appeal is expected and the case could end up before the U.S. Supreme
Court.

Despite the passage of medical marijuana initiatives in nine states,
the Drug Enforcement Administration has vowed to arrest medical
marijuana providers, describing them as common drug dealers. In 2001,
the U.S. Supreme Court ruled defendants charged with distribution
could not use medical necessity as a defense, bolstering federal
prosecution of patients and the people who grow marijuana for them.

In December, the 9th Circuit further complicated the dispute by
concluding the Constitution's commerce clause prevents federal
authorities from prosecuting pot cases if the marijuana is used for
medicinal purposes and not intended for distribution.

Two Northern California women filed the lawsuit, asking for an
injunction that would stop the federal government from filing charges
against them. Angel Raich of Oakland suffers from an inoperable brain
tumor and relies on marijuana to help her move around and stimulate
her appetite. Diane Monson of Oroville has chronic back pain and
spasms she says are reduced by smoking marijuana.

Yesterday, McWilliams' lawyer, David Zugman, asked the panel to apply
the 9th Circuit decision to his client's case and dismiss the charges,
saying the federal government should only have jurisdiction over sales
or distribution of drugs.

McWilliams has maintained he grew marijuana plants in his front yard
to relieve pain from injuries he sustained in two vehicle accidents,
not to sell to others.

Facing up to 40 years in federal prison, McWilliams pleaded guilty in
February 2003 to a single felony charge of illegally cultivating about
25 plants on the condition he receive no more than six months in prison.

The sentence was deferred, pending the outcome of his
appeals.

As part of a plea agreement, prosecutors agreed to dismiss a second
cultivation charge for growing 448 plants confiscated by police in
1999.

In the agreement, McWilliams admitted he distributed the drug to
others. His defense attorney said the wording of the agreement was
intended to mean he only grew the marijuana for himself and his
live-in companion.

Assistant U.S. Attorney Timothy Coughlin seized on the admission as
proof prosecutors had jurisdiction to indict McWilliams. Federal
authorities also have photos of McWilliams handing out the drug two
days before his arrest in October 2002.

"Individuals were walking out of his residence with bags of
marijuana," Coughlin said.

Judge Andrew J. Kleinfeld said he wasn't convinced prosecutors had
evidence McWilliams was distributing the drug. He said prosecutors
also hadn't shown how much marijuana McWilliams might have harvested
from the plants.

"My impression is that you get a lot out of 25 plants, but I lack
personal experience," Kleinfeld said, eliciting laughter from lawyers
listening to the arguments.

At the same time, Kleinfeld said he was concerned about dismissing
charges in a case he said could involve drug sales.

"I don't know if this guy is a big marijuana dealer or if he's a sick
guy," the judge said.

Kleinfeld and the other panel members appeared reluctant to dismiss
the charges, instead hinting they might instead send the case back to
San Diego federal court, where the trial judge would re-examine the
evidence.

"This is a major constitutional case," Kleinfeld said. "If he's
distributing to other sick people, it may not be a violation of
California law. But it is a violation of federal law. It would be nice
to know if he's distributing to others. It seems to me, we need to
find out."