POT LAWS CLASH, GROWER AWAITS SENTENCE

SACRAMENTO -- Not long after California voters gave a thumbs-up to the
use of medicinal marijuana, B.E. Smith's chiropractor recommended that
the decorated Vietnam veteran smoke a little of the herb to relieve
his symptoms of post-traumatic stress syndrome. Smith decided the
treatment worked so well that he planted some marijuana on an acre
near his Trinity County home. His wife, Mary, fretted that he would
wind up behind bars. But Smith assured her, ``I'm covered by the law.''

This morning, Smith will emerge from the Sacramento County Jail cell
where he's been held without bail since his conviction for marijuana
cultivation and possession in May to appear in court for sentencing.
In what is believed to be the first federal prosecution for growing
medicinal marijuana since voters endorsed the practice by approving
Proposition 215 in 1996, Smith could face up to six years in prison.

The case illustrates in stark terms the clash between the
three-year-old state law and federal law. No matter how many states
join California and four others in allowing doctors to prescribe
marijuana, cultivating cannabis still is against federal law.

``It just demonstrates the arrogance of the whole federal reaction to
this issue,'' said Rand Martin, chief of staff to state Sen. John
Vasconcellos, D-San Jose. ``The state voters have said this is what we
want, this is the law we want. Yet every branch of the federal
government has said, essentially, it's our way or the highway.''

Tim Zindel, a federal assistant public defender in Sacramento, said
Smith is the only person he knows who's been prosecuted in federal
court for growing fewer than 100 marijuana plants. But Trinity County
Sheriff Paul Schmidt pointed out that Smith was growing pot on federal
land -- land that had been seized by the government from another
marijuana farmer -- and quipped that Smith ``had to have a pretty big
headache'' if he needed to grow 87 plants.

David Michael, a San Francisco criminal defense attorney, estimates 3
million Californians use marijuana under California's Compassionate
Use Act. Michael figures federal agents targeted Smith because the
outspoken former logger and gold-panner flaunted his pot-growing. Not
only did Smith notify county supervisors of his intentions, but he
also told the county sheriff and the local media, and posted a sign --
meant to be read from the air -- in the middle of his pot plot,
declaring in giant letters that it was a medicinal marijuana garden.

The 52-year-old Smith has a reputation for testing limits on
individual freedoms and constitutional rights. He read the entire
state vehicle and penal codes and discovered that motorists can demand
to see a magistrate instead of signing an agreement to appear when
given a traffic ticket. And he wrote a book about it.

A friend who decided to test the law was thrown into jail, where he
alleges the officers stripped him and paraded him around. He sued, and
the suit came before U.S. District Judge Garland E. Burrell Jr. He
threw it out. Smith helped his buddy appeal, and the appeals court
ruled against Burrell.

Now, Burrell is presiding over Smith's trial.

``I'm not saying that's why B.E.'s trial turned out like it did,''
said Thomas J. Ballanco, Smith's attorney, ``but he (Smith) does have
a reputation as being a troublemaker down in Sacramento, and that's
because he helps people stand up for their rights, and he stands on
rights that we kind of let slip away.''

In Smith's case, Burrell has been unbending. He rejected attempts by
Smith's attorneys to mount several defenses: that Proposition 215
allowed him to grow pot; that federal agents led him to believe his
actions were legal because they waited five months after he had
planted the garden to destroy it; and that Smith had sought and
received legal counsel assuring him he could grow marijuana under the
state law.

Ballanco said the only defense motion Burrell granted was one to
correct an error in court papers that identified Smith as his son.
Confronted by Smith lawyers with Smith's birth certificate, Burrell
refused to grant the motion until the prosecutors admitted they had
misidentified Smith as his son, Ballanco said.

Smith's attorneys hope Burrell will give him a light sentence of 15
months or less; federal prosecutors want Smith to serve 36 months. But
Smith's attorneys say they fear Burrell has it in for Smith and will
throw the book at the full-time advocate for the rights of the little
man.

Michael, the San Francisco defense attorney, said if federal
prosecutors targeted Smith because he was outspoken, Smith should
appeal the case on constitutional grounds. ``If they are arresting
only people who are vocal about it, then they are engaged in selective
prosecution,'' Michael said. ``Then it becomes a case of their
stifling free speech and not conduct.''

Supporters of California's initiative are hoping that passage of a
bill Vasconcellos is carrying, and that state prosecutors are
supporting, will encourage federal officials to look the other way.
Written by Vasconcellos, Santa Clara County District Attorney George
Kennedy and state Attorney General Bill Lockyer, SB 848 would create a
medicinal marijuana registration process to implement Proposition 215
and ensure marijuana was available only to patients with legitimate
needs.

Nathan Barankin, spokesman for Lockyer, acknowledges the bill would
not prevent federal prosecutions in medicinal marijuana cases. But, he
said, the bill would make it easier for state officials to make sure
the initiative is not being abused.

In the meantime, Trinity County Supervisor R. Berry Stewart said the
conflict between state law and federal law ``is making life extremely
difficult.''

Stewart, who said Smith notified county supervisors in April 1997 of
his plan to raise pot, said another resident with a medical
certificate to grow and use marijuana approached the board last week.
``He said he was worried, too, that our law enforcement will bring him
down,'' Stewart said.

Ballanco said Smith's jurors also were confused. Interviews with
alternate jurors revealed the jury was aware of Proposition 215 and
didn't understand why it wasn't mentioned during the trial, he said.

Jurors, Ballanco explained, think of ``the law'' and don't distinguish
between state and federal law. ``It's hard to understand that
something could be legal under state law but (state law) is absolutely
irrelevant to federal law,'' he said