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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.

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