GUILTY VERDICT IN KEY POT TRIAL: FEDERAL CASE BREAKS GROUND

B.E. Smith, a Vietnam veteran whose postwar stress and disillusionment
with government caused him to retreat to the rugged isolation of
Trinity County, was found guilty Friday in Sacramento federal court of
marijuana cultivation and possession.

The trial has been closely watched nationwide because it could help
determine whether medicinal necessity is a valid marijuana defense in
courts governed by federal law, which does not recognize California's
medicinal exception for pot.

Smith, 52, insists that trauma from the war prompted him to begin
smoking marijuana and he secured a doctor's prescription after passage
of the state's Compassionate Use Act, which legalized marijuana for
those with medical authorization.

Over the strong objections of Smith's attorneys, U.S. District Judge
Garland E. Burrell Jr. ruled before the trial that medicinal necessity
was not available to Smith as a defense.

Robert Booker, a Smith attorney, said after the verdict that his
planned appeal could well set precedent for medicinal defenses in the
nine states and two territorial possessions covered by the 9th U.S.
Circuit Court of Appeals.

But Booker predicted that federal prosecutors will ease their hardline
approach even before the appellate court rules.

He noted that the Clinton administration announced Friday a release of
its hold on government-grown, research-quality marijuana to scientists
who want to study its medical effects.

Smith's trial, which featured movie star Woody Harrelson as a defense
witness, was the first criminal marijuana trial in a California
federal court involving a medicinal claim since passage of Proposition
215 in 1996. There were some angry utterances from Smith supporters as
the seven men and five women on the jury filed out a side door of the
courtroom, escorted by U.S. marshals.

The emotional level rose in the courtroom when Burrell ordered Smith
taken into custody immediately.

His attorneys argued the law allows discretion on release pending
appeal. The judge, however, said that is true only when there are
potentially significant issues on appeal. In this case, he said, there
are no such issues, and that includes his rejection of Smith's
selective prosecution and medicinal claims and his refusal to remove
himself as the trial judge. As Smith was led away in handcuffs, there
were shouts of, "We love you, dad," and "You're a free man." Outside
the courtroom, a tearful friend said, "The only victim here is B.E."

In a hallway interview, Booker said his client "will come out OK, and
the country will too. It took a brave soldier to stand up on the front
lines of this issue."

Booker said that during the daylong deliberations, Burrell refused the
jury's request to look at federal statutes showing an exception to the
possession prohibition and that Smith's 87 plant garden in Denny was
not the variety of cannabis legally defined as marijuana.

"They were misled," said Booker of the jury. "If they had seen the
truth, the verdict would have been different."

Not so, said Assistant U.S. Attorney R. Steven Lapham. He said the
exception is for a prescribed drug and federal law prohibits a
prescription for marijuana. He also noted that Smith's prescription
was written by a chiropractor.

Moreover, the prosecutor said, Smith and others with whom he claimed a
caretaker relationship could not grow or smoke marijuana legally even
under state law. Proposition 215 allows growing only by people with a
terminal illness or no alternative remedy for an ailment or by a
designated caregiver, he said. "This guy is simply abusing the
Compassionate Use Act, and it doesn't supersede federal law anyway."

Lapham further said Smith was growing a variety of cannabis
botanically identical to the one specified in the federal statute. It
bears a different name, he said, because it is endemic to India.

Federal appellate courts have found that Congress, in the 1970
Controlled Substances Act, "intended to outlaw marijuana in all its
forms and varieties," he said.

The defense attorneys put forth "arguments that have long ago been
dealt with by the courts," Lapham said. "They simply couldn't live
with the rules."