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San Francisco—For California attorneys who defend medical marijuana use, the U.S. Supreme Court’s decision last week in Gonzales v. Raich snuffed out a popular tactic. To make their clients’ cases, defense attorneys routinely cite the U.S. Constitution’s commerce clause, which gives Congress power to regulate activities that affect interstate trade. Many federal judges had been holding off on ruling on those motions, some attorneys said last week. Presumably they were waiting to see whether the Supreme Court would uphold the 9th U.S. Circuit Court of Appeals decision that favored plaintiffs Angel Raich and Diane Monson and hindered the federal government’s power to prosecute medical marijuana use in states that wanted to allow it. Looking to Congress Now that the high court has gone the other way, medical cannabis proponents are turning their attention to Congress. And while their lawyers still have existing defenses to take into courtrooms—such as arguments of medical necessity—new maneuvers are also expected. “Defense attorneys will craft new and novel defenses-just like the commerce clause argument was unheard of a decade ago,” said San Francisco criminal defense attorney Omar Figueroa. “Human ingenuity knows no bounds.” Speculation abounds as to whether last week’s opinion will lead to an increase in federal raids and prosecutions of medical marijuana organizations. Laurence Lichter, a San Francisco criminal defense lawyer, said his office is gearing up for an onslaught, adding that police officers who are cross-deputized as Drug Enforcement Administration agents have told him to expect “a flood” of federal arrests, indictments and prosecutions. “We’re all trying to figure out if the 43 [cannabis] clubs in San Francisco are going to be raided tomorrow.” Since the 9th Circuit’s underlying decision, “we were in sort of a wait-and-see —nobody knew, because there had been a great question placed upon the law,” said McGregor Scott, U.S. attorney for the Eastern District of California. “That question has now been answered definitively.” Still, Scott maintains that for all practical matters, the opinion isn’t likely to make federal prosecutors in his district more aggressive. “We only have limited time and limited resources,” he said. “And our focus has been and continues to be large-scale traffickers and large-scale growers.” The U.S. Attorney’s Office for the Northern District of California, reputed to be more mellow than the eastern district among medical marijuana advocates, did not have a comment last week.

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