NO JAIL GIVEN IN POT CASE

A Brighton medical marijuana user will not serve any additional jail
time for his decision to openly grow marijuana in his backyard to
treat his rheumatoid arthritis as well as his wife's breast cancer.

An attorney for Gary Katz said Thursday that his 59-year-old client's
decision to grow marijuana for medicinal purposes in a locked,
fenced-in area of his backyard without a roof was a mistake and that
the probation office's recommendation of no jail time was
appropriate.

"It was a mistake; it wasn't an intentional criminal act," defense
attorney John A. Shea said. "I don't see the benefit of jailing
someone who mistakenly interpreted the law before it was interpreted"
by the judiciary.

However, Assistant Prosecutor Shawn Ryan called the probation's
office's recommendation "completely unreasonable" due to Katz's
history of trafficking in marijuana.

Katz has a 1999 conviction for a delivering/manufacturing 5-45 kilos
of marijuana -- a charge that resulted after officers found a
marijuana grow operation in the basement of his home.

In the current case, officers found 24 plants in Katz's backyard,
which was surrounded by a locked 6-foot-tall fence. Twelve of the
plants belonged to Katz. The other 12 plants belonged to his wife.
Both were legally allowed to possess the marijuana under the Michigan
Medical Marihuana Act for their personal use for medicinal purposes.

Ryan said the Katz's marijuana was not merely plants, but "bushes"
that topped 6 feet tall.

An undercover narcotics officer estimated that one marijuana plant
could yield a pound of marijuana per year, which would sell for about
$38,400 on the street.

"That amount ... is not personal use," Ryan argued.

Shea said "clearly" Katz "was trafficking" in the 1999 case, and he
took "his lumps" for that by serving his time in prison. Shea said
officers found no evidence -- such as a sale log -- indicating Katz
was trafficking in drugs this time.

"He was growing marijuana he and his wife believed they were legally
allowed to grow," Shea said.

Ryan asked Judge Michael P. Hatty to sentence Katz to at least four
months in jail.

In the end, Hatty ordered Katz to spend one day in the county jail,
time he has already served, and to spend two years on probation for
manufacturing marijuana.

"You did grow marijuana in an unsecured spot," the judge told Katz.
"Someone could have hopped the fence. ... Ignorance of the law is no
defense."

Officers with the Livingston and Washtenaw Narcotics Enforcement Team
raided Katz's home in August 2010 after receiving a tip there was
marijuana growing in the backyard.

Shea said Katz and his wife, who were both card-carrying medical
marijuana patients, believed the locked fence around their backyard
constituted a "locked, secure facility" as required in the state's
medical marijuana act.

Prosecutors statewide have argued the lack of a roof on such a
"facility" violates the law.

"I think they feel a bit bamboozled by the act," Shea said after the
hearing. "It would have been nice ... to have guide posts before
charging people with violating the (act's) provisions."

Michigan voters approved a ballot proposition in 2008 to allow
marijuana use for medicinal purposes.

Shea said Katz has since let his medical marijuana card lapse.
However, his wife still maintains her card.

Shea said although Katz's wife can still legally possess marijuana for
her medicinal purposes as long as she follows the law, he believes it
would be unwise for her to do so in the same home she shares with her
husband.

"I think it would be dangerous for Gary to be around growing
marijuana," Shea said frankly. "Would it constitute a violation for
Mr. Katz's probation? I would like to say no, but I don't want to have
to argue it to a judge."