MEDICAL POT GROWERS FIND NO REFUGE FROM FEDS

Marijuana growers who believed they were protected by the movement in
Sonoma County and across California to sanction medicinal marijuana have
been targeted by federal agents in a stepped up battle against pot. The
crackdown in the wake of a key U.S. Supreme Court ruling almost two years
ago has swept up seven Sonoma County medical marijuana growers. A Windsor
man has been sent to federal prison. Santa Rosa and Jenner men face
sentencing in San Francisco federal court. Two Santa Rosa men await federal
charges. And one Petaluma man is preparing for trial while another has fled
to Canada.

Medical marijuana advocates say they are casualties of the federal
government's campaign against people who grow and use marijuana for cancer,
chronic pain, AIDS and other illnesses allowed under the ballot measure
California voters approved seven years ago.

Federal authorities counter they are enforcing federal laws to protect
communities from illegal drugs and traffickers.

The deep legal divide between local authorities who accept medical
marijuana cultivation and federal authorities who consider it a major
felony was dramatized two weeks ago with the conviction of Oakland
marijuana advocate Ed Rosenthal, who now faces up to 40 years in prison.
Despite following local guidelines, growers increasingly question whether
there is any safe ground given the recent push by federal agents. "We were
trying to help sick little old ladies and people with cancer. Here I had
faith in my government," said Dan Nelson, who was arrested with Ed Bierling
following a DEA raid that shut down the Aiko Compassion Center, a Santa
Rosa medical marijuana dispensary.

"The government seems to be on a perverse mission to destroy families,"
Bierling said. "You lay at night thinking, am I going to be taken away from
my children and the stigma they will have to live with. It's a horrible
situation."

A Drug Enforcement Administration spokesman wouldn't comment on Aiko or any
other case. But he said agents are going after large-scale growers of a
drug the federal government considers as dangerous as heroin. The law is on
their side, based on the U.S. Supreme Court ruling in May 2001 that medical
need is not a defense to federal laws prohibiting growing or distributing
marijuana.

"If we find out that somebody is illegally distributing drugs, we will do
something about it. Nothing is off limits," said Richard Meyer, spokesman
for the agency's San Francisco office, which oversees federal drug
operations from Bakersfield to Oregon. "Anyone who is growing marijuana and
is vocal shouldn't be surprised if we pay them a visit." The issue appeared
settled in Sonoma County two years ago when guidelines were established to
regulate medical marijuana because state law did not. Advocates and law
enforcement found a middle ground in the wake of two Sonoma County medical
marijuana trials that ended in acquittals. The federal push has not altered
the approach of the Sonoma County Narcotics Task Force and officers
continue to follow the guidelines, said Kent Shaw, the state Bureau of
Narcotic Enforcement official who leads the team. "It was made very clear
really from the inception that we would follow the county guidelines and
not use any tactics to circumvent that," Shaw said. He explained, however,
that county and federal agents will share some limited information. "We
would be aware of the type of case they're doing and the area they're
working in."

Since the guidelines were established, the Sonoma County District
Attorney's Office has filed or reviewed about 20 cases that involved
defendants using a medical marijuana defense. No one who has adhered to the
guidelines has been prosecuted, District Attorney Stephan Passalacqua said.
"What we're doing here in Sonoma seems to be working well," he said.
Leaders of the Sonoma Alliance for Medical Marijuana said they are not
aware of anyone who followed the guidelines and was arrested or charged by
local authorities.

"A lot of this stuff is on faith. It's hard for us to trust law
enforcement, but really, that's where it's at," said Ernest "Doc" Knapp,
spokesman for the alliance. "They claimed all along, 'You can trust us and
we're not going to bust you,' and nobody has."

The guidelines allow each medical marijuana user with physician approval to
grow up to 100 square feet with a limit of 99 plants and produce three
usable pounds per year. They are considered among the most liberal in the
state. More than 100 people seek doctor approvals annually in the county,
according to the Sonoma County Medical Association.

The region's burgeoning medical marijuana movement is tracked by two drug
task forces formed about a year ago after local and federal agents decided
to break up a DEA-led team. Both the county and federal task forces work
out of the same Santa Rosa office.

While the DEA task force investigates larger, more serious drug cases,
Meyer said the agency would take on marijuana cases involving fewer than
the 800- to 1,000-plant range the DEA has used as a threshold. The DEA has
a policy of not going after drug users, he said. "There's no one
determinant factor. We have an advantage in that we don't have to worry
about" the state law, he said.

Federal agents and attorneys won't discuss specific policies that trigger
investigations or charges in a medical marijuana case, but some trends can
be spotted in the Sonoma County cases, according to advocates and
attorneys. The DEA appears to go after marijuana dispensaries, where
members with physician approvals can obtain plants or marijuana, and
cooperatives, where individuals grow marijuana for their use and others as
caregivers. Those who grow only for personal use or a family member or have
fewer than 100 plants are generally left alone.

The 100-plant threshold is significant because federal guidelines mandate a
five-year minimum sentence on convictions with at least that amount. Mike
Foley, however, suspects he was targeted despite growing 95 plants because
he is a medical marijuana advocate. The Jenner resident believes the
federal government also doesn't like him because a Sonoma County jury
acquitted both Foley and Ken Hayes, a former Petaluma resident now seeking
asylum in Canada, in a medical marijuana case nearly two years ago. "I
thought I'd already gone through the fire," said Foley, now facing
sentencing in federal court in March after pleading guilty to growing
marijuana. "Where does the federal government get off enforcing unjust,
unpopular laws. The patients are going to get their medicine." Another
grower, Alan MacFarlane, was acquitted two years ago in the county's first
medical marijuana case to go to a jury trial. Then in August, DEA agents
raided the cooperative MacFarlane operates at his Santa Rosa home and
seized the 128 plants he was growing. He wasn't arrested. "Everything was
transparent, everything was right and correct. It's very stressful," he said.

MacFarlane said that marijuana eases spasms and side effects from his
chemotherapy treatments for thyroid cancer. While he continues to grow for
himself, MacFarlane said now he can grow for only two or three others with
physician approvals to keep his plant total under 100. "I think they're
going to target and harass and try and scare people into stopping. It won't
work. This is a pain reliever and people want it," he said. "Hopefully they
will leave me alone and they will leave these patients alone."

One case in particular concerns the medical marijuana community because it
appears from an official report that county task force officers started an
investigation and handed it off to DEA agents. "That one made us really
angry. That's not supposed to happen," said Mary Pat Jacobs, of the alliance.

Mark Whitney was the medical marijuana grower arrested by DEA agents. He
faces sentencing in March after pleading guilty in federal court to
cultivating 420 marijuana plants.

Whitney used marijuana for phantom pain after losing his left leg in a
motorcycle accident. He thought he would stay off the DEA's radar screen by
forming a small cooperative with 10 others to grow medical marijuana in a
Santa Rosa home he rented.

A neighbor reported him and officers with the county task force raided the
home. "I knew what I was doing. I just didn't think I was going to run into
the DEA. Within 30 minutes the DEA was there," Whitney said. "If local
officials had told me I was doing too much I would have immediately changed
and done what they said. But I never had the opportunity." Shaw said the
local officers called DEA agents after Whitney told them he had provided
starter plants to the Aiko club. The officers, Shaw said, had been aware
the DEA was investigating Aiko.

"There have been a few cases where the DEA has been part of our
investigations," Shaw said. "We've never had one instance where we went out
and somebody met the county guidelines and we called the DEA to take over
the investigation."

The Whitney case has undermined some trust medical marijuana advocates had
developed in law enforcement. Some medical marijuana growers are
considering keeping all physician approvals and caregiver forms with their
attorneys.

Another example of lingering mistrust is participation in the medical
marijuana review process.

The medical association review confirms that a physician has recommended
the use of marijuana to someone and that the physician has a bona fide
relationship with the individual.

A total of 460 of 515 reviews have been granted during the four years since
the process began. Only 50 have been shared with the district attorney.
Although voluntary, the goal was to help law enforcement verify legitimate
medical marijuana users and avoid hassles in the field. Still, advocates
and law enforcement authorities agreed they have come a long way from the
years of confusion and conflict following the approval of Proposition 215
in 1996.

While the specter of federal enforcement never went away, efforts targeting
medical marijuana growers have been made only since 2001. In May of that
year, the U.S. Supreme Court issued its ruling eliminating medical
necessity as a defense to federal laws prohibiting growing and distributing
marijuana. The decision overturned a federal appeals court ruling in a
civil case the federal government brought against the Oakland Cannabis
Buyers' Cooperative.

Keith Alden of Windsor was the first defendant in federal court in San
Francisco to use medical marijuana as a defense following the ruling. Alden
was charged with growing and maintaining a place for growing marijuana. He
represented himself before Federal District Judge Martin Jenkins with
assistance from Barry Portman, U.S. Federal Public Defender for the
Northern District of California.

Portman argued that Alden could tell the jury why he was growing marijuana.
"I argued long and hard for a way of getting it in under maintaining a
place, that he did so with the intention of cultivating marijuana to offer
medical relief to others who otherwise could not relieve their symptoms,"
Portman explained.

Assistant U.S. Attorney George Bevan, citing the Supreme Court ruling,
argued Alden's purpose for growing marijuana was not relevant under federal
law and is not a legal defense.

The judge ruled for the prosecution. The jury never heard a medical
marijuana defense and Alden was convicted last February of growing more
than 700 plants. Alden faced a five-year minimum prison sentence, but the
judge granted probation. During the first trial Alden resumed growing
marijuana. He was arrested while on probation and a jury found him guilty
in November after Alden and Portman, once again, were blocked from
presenting a medical marijuana defense. This time, Jenkins sentenced Alden
to more than 40 months in prison. He is housed at the federal detention
center in Dublin. "Having now sat through two of these, it was pretty clear
to me that the jury in both cases got the drift. The circumstances usually
emerge," Portman said.

Juries in medical marijuana trials are selected after answering questions
about their views on medical marijuana, the state's law, and the U.S.
Constitution's supremacy clause giving federal drug laws precedence over
state laws.

"And basically what you get is a jury that agrees they will follow the law
even though they may disagree with it," Portman said. Jurors were outraged
following Rosenthal's federal trial in San Francisco, in which he was
denied a medical marijuana defense. After the jurors convicted Rosenthal of
being a drug supplier, they learned he had been growing marijuana for
dispensaries and clubs serving seriously ill people in an official capacity
for Oakland under the city's medical marijuana ordinance.

Five of the jurors, including three from the North Bay, issued a public
apology to Rosenthal.

Some said they might have voted for acquittal and perhaps forced a mistrial
had they known medical marijuana is not allowed as a defense in federal court.