Indictment Looms for Dale Schafer

Attorney Dale Schafer -the husband of Dr. Marian "Molly" Fry-was summoned
to a "pre-indictment conference" last week by federal prosecutors in
Sacramento. Dale was offered a deal: plead guilty to cultivation of 99
plants and Uncle Sam will drop conspiracy-to-cultivate charges against your
wife and you... The alleged conspiracy involved the patients whose cannabis
use had been approved by Fry. "We were warning people that it was illegal
under federal law," says Fry. "And the government has turned that into
'conspiracy to evade federal law...'" Fry is recuperating rapidly from
surgery (to correct a botched surgery) on her ureter.

Ouch. She says she has more energy every day. "I've got to be up when Dale
is down," she says. "He's always up when I'm down."

The Osburns -A Reality Show

Lynn and Judy Osburn were in federal court in Los Angeles on April 7 to
face cultivation charges stemming from a raid on their home garden in
August, 2002. The DEA netted 32 plants, which Lynn and Judy -middle-aged,
documented patients-were growing for personal use. But the Osburns are also
being charged with cultivation in two previous years, when they were
growing for the Los Angeles Cannabis Resource Center. State raiders ripped
373 plants from the their garden in the summer of '00, and the feds took
242 in '01. They face a mandatory minimum sentence of five years in prison.

The Osburns also have to fight a civil-forfeiture move by the feds to
confiscate the rural spread on which they built their house some 25 years
ago, and raised their kids. They are well-known activists who, over the
years, have spoken and written and published and petitioned and lobbied and
demonstrated to promote the sacred herb. At the time of their most recent
bust, they were leading opposition to a six-plant limit that the Sheriff
and DA were seeking to impose on Ventura County medical marijuana
cultivators. With the Osburns doing time at the Metropolitan Detention
Center in downtown L.A. (Lynn did five months before making bail), the
opposition collapsed.

At the April 7 hearing, U.S. District Judge A. Howard Matz handed out a
"draft" decision granting the government's motion to exclude all references
to medical use when the Osburns come to trial. The Defense was allowed to
make last-ditch counter-arguments. Attorney Brenda Grantland presented an
entrapment-by-estoppel argument like the one Ed Rosenthal was forbidden to
raise in his recent federal case. Just as Ed had approval from the city of
Oakland, the Osburns had approval from the city of West Hollywood to
cultivate for LACRC members.

Attorney Bill Panzer argued that "necessity" impelled the Osburns to grow
for the LA club. He recounts his reasoning thus: "California says that
marijuana is legal for a discrete class of patients.

The feds, as stated by [DEA Administrator] Asa Hutchinson [at the SF
Commonwealth Club 2/12/02], are not going to make an effort to stop
individual patients from using it. If these people get their marijuana from
the black market, what does the government tell us? That they're supporting
terrorists! Therefore, out of necessity, the Osburns had to grow marijuana
to supply it to the people who were going to use it anyway to save America
from the terrorists. They were choosing the lesser evil to avert an
imminent harm -those are the elements of necessity."

Judge Matz indicated that he considered the necessity argument frivolous.
Panzer went down swinging: 'Your honor, is it the court's ruling that it's
unreasonable to believe the government?'"

Panzer and Grantland also made motions to dismiss the case on various
Constitutional grounds, including the 5th Amendment (no rational basis for
prohibition), the 9th Amendment (The People retain unwritten rights) and
the10th amendment (states' rights). The argument Matz seemed most receptive
to, according to Panzer, was that the Commerce Clause doesn't apply in a
simple cultivation case not involving interstate commerce.

The Constitution limits the federal government's powers to those it spells
out. The feds don't have "police power" to enact or enforce criminal laws;
those powers were retained by the individual states. One of the powers
specifically given to the federal government is the power to regulate
interstate commerce. (Thus Article I Section 8 Clause 3 is known as the
Commerce Clause.) Panzer cited a recent case, U.S. v. McCoy, in which the
9th Circuit Court of Appeals ruled that the feds had no right to prosecute
the parents of a 10-year-old girl for taking and developing locally a
picture of her (and mom) with genitals showing. "Growing your own marijuana
is like taking your own picture," Panzer reasoned. "And in that case the
camera and film were obtained through interstate commerce."

Lynn Osburn, who has a previous conviction, had also been charged as a
felon in possession of a gun; the defense challenged the constitutionality
of the statute. Judy says the guns on the property were hers. "We live in
the mountains where coyotes, bear and mountain lions roam. I kept a normal
assortment of ranch-type weapons to kill the deadly Mojave Green
rattlesnakes that would try to take up residence... or to put down an aged
horse... or to shoot into the air when the dogs needed some assistance in
chasing away large predators." Fill in the dots with long, sad
rationalizations for taking the lives of such admirable creatures... Some
women, you just know they need a few years in federal prison.

Judge Matz has yet to rule on the Osburns' motions to dismiss, but on April
9 he finalized his ruling that references to medical use would be
inadmissible if the case proceeds to trial... And he denied the motion to
dismiss gun charges.

A trial in L.A. now seems very likely. "We don't know when," says Brenda
Grantland, "And how long it will take will mostly depend on how many
witnesses the government puts on, because the judge's rulings pretty much
preclude us from putting on any defense at all."

After the trial, almost inevitably will come an appearance before the Ninth
Circuit Court of Appeals. As Judy Osburn notes, "No federal appeals court
has yet ruled on how federal jurisdiction applies to cannabis grown and
distributed according to state law under local government supervision -from
start to final consumption by qualified patients within California." She
hopefully quotes the opinion by Ninth Circuit Justice Alex Kozinski,
concurring in last year's Conant v Walters decision, that "Medical
marijuana, when grown locally for personal consumption, does not have any
direct or obvious effect on interstate commerce." The Osburns are hoping
that Kozinski's 9th Circuit brethren will use their case as the occasion to
tell the feds to mind their own beeswax.

The federal forfeiture case against the Osburns is stayed until the
criminal case is resolved.

An automatic right to a stay was written into The Civil Asset Forfeiture
Reform Act of 2000, thanks to an eight-year effort by... Judy Osburn and
Brenda Grantland. The US Supreme Court has ruled that facing criminal and
civil penalties for the same "crime" does not constitute double jeopardy.
"But it sure felt like double jeopardy trying to meet all the deadlines,"
says Judy.

Apologies to Dr. Feldman Harvey Feldman, PhD, was correct in saying (3/12)
that the Drug Policy Alliance's "Prop S Working Group" had not, after four
meetings, come up with an actual plan whereby San Francisco would cultivate
and distribute cannabis. Another member of the exclusive "Working Group"
confirms that, after five meetings, there's still no plan on the table...
As a result of telling the truth to your correspondent, Dr. Feldman has
been barred from meetings of the "Working Group." Let me remind you,
comrades, that blacklisting -like the cover-up of a crime-inevitably
involves more and more people.

The dynamics are similar. To blacklist somebody you have to do more than
badmouth and disinvite him or her from your meeting; you have to make sure
that nobody who attends the meeting talks to him or her. And if s/he finds
out anyway, then you have to make sure that nobody talks to anybody who
talks to him or her. And so on. It's an ugly business, and kind of shameful.

Undercover Philologists Come Up Short

The May issue of Harper's reprints a list of "'street terms' for marijuana"
developed by the White House Office of National Drug Control Policy (aka
the Drug Czar's office). But it doesn't include the term most commonly
used in California: "medicine." Certain "street terms" on the ONDCP list
have the earmarks of the put-on: "Haircut?" "Indian boy?" "Salt and
pepper?" "Kate Bush?..." Could it be that creative youths were planting
these terms with gullible agents?"