ARE POT CLUBS ABOUT TO GO UP IN SMOKE?

A U.S. District Judge Appeared Friday To Side With The Federal Government
In A Case Against Pot Clubs.

The day before marijuana advocates' equivalent of a religious holiday,
federal Judge Charles Breyer of the Northern District of California assumed
the role of buzzkill by appearing ready to side with the federal government
in a suit against San Francisco Bay Area medical marijuana clubs.

An adverse ruling would jeopardize medical marijuana distribution centers
established after the 1996 passage of California's Proposition 215. Most of
Breyer's questions during a hearing Friday were aimed at shaping any relief
he grants the government, while he entertained none of the pot clubs'
possible defenses -- not exactly the type of hearing advocates were hoping for.

The judge told the courtroom -- which included a solitary government
lawyer, a dozen defense lawyers and a gallery of people who drifted in from
last week's National Organization for the Reform of Marijuana Laws
convention in San Francisco -- that he would issue an order in the case
soon. But he seemed more interested in whether he needed to accompany that
order with a permanent injunction should the medical marijuana clubs lose.

"Is it your view," Breyer asked lead defense attorney Annette Carnegie,
that if they lose, "the defendants will not dispense of marijuana? Can you
make that representation?"

Carnegie, a partner at San Francisco-based Morrison & Foerster, was unable
to give Breyer a definitive answer, but argued against an injunction.

If the clubs lose United States v. Oakland Cannabis Buyer's Cooperative,
98-0088, Breyer said he will ask them to submit declarations -- under seal,
if necessary -- stating whether they will comply with his ruling. If they
won't comply, he seemed to suggest that he would, perhaps reluctantly, give
the government an injunction.

The distinction is important: If Breyer issues an injunction, the
government could pursue individual cases against the clubs under a much
easier burden. But Carnegie pointed out that such a standard would
eliminate some of the safeguards of the criminal justice system, including
trial by jury.

Breyer, however, was averse to forcing the government to enforce his ruling
through criminal prosecutions. "I have a very hard time urging the
government to pursue marijuana cases in the criminal context, because I
have some idea of what happens" to defendants under federal drug sentencing
statutes, he said. "To ask me to ask [the government] to do that ... it
just strikes me that you're asking me to do something that I'm not terribly
comfortable, in my role as the court, doing."

Later, U.S. Department of Justice senior counsel Mark Quinlivan told Breyer
that by pursuing a civil case, the government had taken "a measured
approach where we sought to enforce federal law and yet not put the liberty
of the individual defendants at risk."

The case was filed in 1998 by the Justice Department, alleging that the
commercial distribution of marijuana under Proposition 215 violates federal
law. Breyer's decision will not affect the personal cultivation or use of
medical marijuana.

The judge is in the unenviable position of having been reversed twice by
higher courts in the same case, on the same issue. He previously foreclosed
a medical marijuana defense before being overturned by the 9th U.S. Circuit
Court of Appeals. When he reversed himself, he was overturned unanimously
by the U.S. Supreme Court.

Friday's hearing was held the same week as the annual NORML convention and
came the day before April 20, known to advocates as a day to celebrate --
and smoke -- marijuana.

At the conference, Oakland Cannabis Buyers' Cooperative attorney Robert
Raich seemed braced for defeat. He told a crowd of marijuana advocates at
San Francisco's Crown Plaza Union Square Hotel that an adverse ruling from
Breyer would not be the end. "No matter what happens at the district court
level, that's not the final word," Raich said.

He also told the crowd, amid the odor of marijuana smoke, that he would ask
Breyer to take judicial notice of an Oregon federal judge's recent decision
to strike down Attorney General John Ashcroft's directive that assisted
suicide violates federal law, a decision seen as a boon for states' rights.

However, neither that argument, nor others Raich outlined, were uttered in
court Friday. Carnegie was able to briefly suggest that the Commerce Clause
foreclosed federal involvement in the intrastate growth and distribution of
marijuana, but Breyer did not seem interested.

Perhaps sensing that the writing was on the wall, Oakland, Calif., solo
defense attorney William Panzer leaped to the podium to argue that Breyer
should consider those defenses. "There's still some very viable arguments
on the part of the defendants," Panzer said.

Breyer insisted the balance of his questions did not tip judgment against
the defendants.

Some have criticized the government's prosecution of medical marijuana
clubs in civil court as an end-run around the difficulties of prosecuting
them in criminal court, where the law would be interpreted -- and perhaps
ignored -- by a local jury, rather than a judge.

In asking whether an injunction is needed, Breyer touched on the issue.
"Should I consider jury nullification?" he asked Carnegie.

"I think that's a false issue," Carnegie said.