WILL 885(D) BECOME A HOUSEHOLD WORD?

Section 885(d) of the federal Controlled Substances Act entitles undercover
police officers to obtain, handle, and sell illicit drugs.

It states that "no civil or criminal liability shall be imposed" on any
"authorized officer... who shall be lawfully engaged in the enforcement of
any law or municipal ordinance relating to controlled substances." Section
885(d) applies to officers employed by cities, counties, and states, as
well as to federal agents.

After Prop 215 legalized the medical use of marijuana in California, an
astute defense specialist named Amitai Schwartz suggested to Jeff Jones of
the Oakland Cannabis Buyers Co-op and his attorney, Robert Raich, that
Section 885(d) might afford protection if the city officially endorsed
distribution through the OCBC. Raich convinced the city council that 885(d)
would apply if they deputized Jones to make the herb available to patients
qualified to use it under California law. And so they did, by a unanimous
vote on July 28, 1998.

In January 1998 the Clinton Administration had sought an injunction to
close the OCBC and five other dispensaries for violating provisions of the
Controlled Substances Act. At trial before U.S. District Judge Charles
Breyer on August 31, 1998, Raich tried to make his 885(d) argument.

Several Oakland officials, including an assistant city attorney, were
prepared to testify that they believed their cannabis distribution program
was legal under 885(d). But Breyer ruled that it would violate the blatant
prohibitionist purpose of the Controlled Substances Act to interpret
Section 885(d) as protection for cannabis providers.

Breyer calls his interpretation "the common-sense reading of the
statute." But the Raich/Oakland reading is the literal one, and statutes
are supposed to mean what they say.

Raich has now made the 885(d) argument four times in connection with the
OCBC case (which is now back in the Ninth Circuit Court of Appeal
pipeline), "and not once," he says, "has a judge shown great interest in
it. So it was very gratifying to see two judges on the Ninth Circuit panel
that is hearing Ed Rosenthal's appeal ask detailed questions about 885(d),
and indicate that they were giving it very serious attention."

Rosenthal's appeal is being handled by Dennis Riordan and Joe Elford. They
argue that 885(d) applies because Rosenthal was authorized by Jeff Jones to
grow clones (starter plants) for distribution through the OCBC program. A
three-judge panel heard oral arguments Sept. 13. Betty Fletcher and Marsha
Berzon showed positive interest when Riordan and Elford made their points.
Judge John Gibson, a visitor from the 8th Circuit, showed sympathy for the
prosecution.

Riordan is considered an ace appeals specialist. (Among his many triumphs
was getting Marjorie Knoller's sentence reduced from murder to manslaughter
in San Francisco's infamous "dog-mauling"case.)[which will later be heard
by the California Supreme Court.] He and Elford told the Ninth Circuit
panel there were several reversible errors in the record of the Rosenthal
trial (which also had been presided over by Charles Breyer), in addition to
the decision to exclude the 885(d) argument.

Breyer had not allowed the jury to hear that Rosenthal thought he was
acting legally. "If the jury got to hear that," according to Riordan, "they
could have decided Ed was acting in good faith and acquitted him. He was
denied the right to present a mental-state defense to the jury."

Rosenthal's lawyers also challenged the propriety of Assistant U.S.
Attorney George Bevan's dialog with the grand jury that produced the
initial indictment. Members of the grand jury had asked repeatedly if the
government's goal was to close down cannabis clubs and Bevan repeatedly
denied it. [Only days before, the DEA had cleaned out the Harm Reduction
Center and padlocked its door.]

Also being appealed is Breyer's ruling that the conduct of jurors Marney
Craig and Pam Klarkowski did not constitute grounds for a mistrial.

Craig had asked a lawyer of her acquaintance if she could vote her
conscience whether or not it clashed with the judge's instructions. The
lawyer/friend's answer had been an unequivocal, "No. You must obey the
judge." He added that she could get into "bigtrouble" if she did
not. Craig relayed this information to Klarkowski as they drove to court
on the morning deliberations were to begin.

Under the relevant federal rule of evidence, 606 (b), the improper
influencing of jurors during the course of a trial can be grounds for
dismissal.

Prosecutor Amber Rosen seemed to be going through the motions. She failed
to counter so many assertions and arguments made by Rosenthal's lawyers
that Judge Gibson felt impelled to ask, as she closed, if she was sure she
didn't have anything more to add.

The government is arguing that Breyer didn't have the authority to give
Rosenthal such a light sentence (one day, time served). Rosenthal's lawyers
are confident that Breyer did have the authority, but like their client,
they are not expressing any gratitude. (The one-day sentence represented a
dramatic capitulation on Breyer's part. At the outset of the proceedings he
had expressed skepticism that Ed Rosenthal was unaware of his previous
ruling in the OCBC case that Oakland's distribution program was illegal
under federal law. But after Rosenthal's trial, influenced perhaps by
editorials in the San Francisco Chronicle and the New York Times, Breyer
found that Ed had a "reasonable belief" that he had been properly
authorized to cultivate by the city of Oakland.)

Rosenthal wants to get his felony conviction overturned and to win a
political victory for the medical marijuana movement/industry. A ruling is
expected this month.

The biggest victory would be recognition by the Ninth Circuit that 885(d)
applies to city-or state-sanctioned cannabis operations. Then the Oakland
model almost certainly would be adopted by cities and counties throughout
California. The Bush Administration almost certainly would appeal to the
U.S. Supreme Court, forcing Chief Justice Roberts and other so-called
"conservatives" to abandon their allegiance to local control.

Congress almost certainly would move to reword the Controlled Substances
Act, opening up discussion of marijuana's status as a Schedule-1 drug
(dangerous, with np medical utility). Things could get interesting.

And if the Ninth Circuit panel denies or doesn't address the 885(d)
argument, it will be raised again by Robert Raich on behalf of Jeff Jones
in the OCBC case.

"Duke" Schmidt's Fate

Shortly after the Rosenthal case U.S. District Judge Charles Breyer
presided over the prosecution of Robert "Duke" Schmidt, who received a
41-month sentence for cultivation (as described in C-Notes 7/13/05). Duke
Schmidt1s belief that the government had given him a green light to grow
marijuana for medical purposes was at least as sincere as Ed Rosenthal's.
Although the circumstances of their cases differed, the sentencing
discrepancy can be seen as a function of class.

Ed, by dint of his status as a writer/publisher, and his connections
(overlapping Judge Breyer's social circle), and his fundraising ability,
and his attractive family and extensive support system, had unique
resources to bring to his court fight. Also, he was a nonviolent first
offender, somebody about whom jurors could declare, "Ed Rosenthal is not a
criminal." Duke, on the other hand, had done time (for bringing marijuana
into New Orleans by sea in the early 1970s).

Schmidt was supposed to start serving his sentence last month, but he's
still at liberty because the government hasn't returned a sword collection
and other personal property seized from Schmidt's residence.

He will be in court October 5 in connection with his return-of-property
motion. Schmidt's doctor, Tod Mikuriya, is outraged that the government
won't allow him to medicate with Marinol, let alone cannabis.

This is Schmidt1s punishment for attempting to wrestle the rifle away from
an agent who had awakened him with a prod of the barrel on the morning of
the bust. "My post-traumatic stress disorder is triggered by having guns
pointed at me," said Schmidt, "especially when I'm woke up with one in my
face."

Schmidt1s belief that he had a go-ahead from the feds is based primarily on
his filing of DEA Form 225, an application to manufacture controlled
substances. He says the DEA not only cashed his checks ($850 annually,
starting in 1999) but sent him a control number.