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A federal judge in Los Angeles and a county judge in Colorado are the latest jurists to defy prosecutors seeking convictions against defendants using marijuana for medicinal purposes. The recent rulings are the latest salvos in an ongoing battle between tough federal drug policies and laws passed in nine states that allow the use of what they term “medical marijuana.” In Los Angeles, U.S District Judge Howard Matz lectured prosecutors for using their resources to prosecute three officers of the now-shuttered Los Angeles Cannabis Resource Center. The center grew and doled out marijuana to ease the suffering of cancer and AIDS patients, and others registered with the state who had, among other ailments, chronic pain. Such centers, though permitted by California’s 1996 Compassionate Use Act, violate federal drug laws. Prosecutors sought two-year sentences. But Matz earlier this month departed from Federal Sentencing Guidelines and gave the men probation. One of those charged has cancer and another undergoes treatment for HIV. U.S. v. Imler, No. CR 03-273-AHM (C.D. Calif.). ORDERS TO RETURN Last week in Routt County, Colo., Judge James Garrecht ordered authorities to return two ounces of marijuana they had seized from Don Nord, 57, who used the drug to ease the debilitating symptoms of his many ailments, including kidney cancer, phlebitis, diabetes and lung disease. Colorado law permits the cultivation and use of marijuana to mitigate symptoms of cancer, AIDS, chronic severe pain and other conditions. “Just the kind of person you want to keep from getting their drugs,” quipped Kristopher Hammond of Oliphant, Hammond, Atwell & Combs in Steamboat Springs, Colo., who represented Nord. Nord is registered with the state as a medical marijuana user, but the drugs were still seized, even though he had shown police his registry card when they came to his door with a search warrant, Hammond said. People v. Nord, No. 03M616 (Routt Co., Colo., Co. Ct.). Garrecht gave the county until Dec. 21 to return the drugs. Though a first in Colorado, Garrecht’s ruling is in conformity with the actions of many judges in states such as California and Oregon. “The police are good at enforcing the law, let’s see how good they are at obeying it,” Hammond said. Routt County Assistant DA Marc Kerry St. James felt compelled to fight against returning the marijuana because of the conflict with federal law, although his office supports the state’s law, he said. The drugs were seized by a joint local-federal task force. His office will not appeal the ruling and will attempt to comply. However, the drugs are in the possession of the federal Drug Enforcement Administration. Lawyers asserted that turning seized marijuana over to federal authorities has become a common tactic in evading state compassionate-use laws. A federal district court in California thwarted a similar tactic last August. Marilyn Hall Patel, chief judge for the Northern District of California, ruled that a federal seizure warrant was unlawful because it contravened the orders of a state court that had disposed of the property, which was in its control when it ordered the marijuana to be returned to its owner. In re The Matter of the Seizure of Approximately 28 Grams of Marijuana, 278 F. Supp. 2d 1097. A motion for relief from judgment is pending in her court. Federal law enforcement authorities have shut down all licensed state marijuana distribution centers. “The feds have attempted to close these kinds of centers,” said Allen St. Pierre, the executive director of the Washington-based National Organization for the Reform of Marijuana Laws Foundation. “But they continue to thrive in the underground in the states where voters have cast their will.” This underground, unlike the for-profit underground, “exists just barely below the surface because of societal acceptance at the electoral level.” He praised Matz for not being an “automaton.” Tom Riley, a spokesman for the White House’s Office of National Drug Control Policy, defended federal law enforcement, but asserted that there is “no benighted federal policy that refuses to look at the science.” Riley said the government supports clinical trials of elements of the cannabis plant and noted that there are “scheduled” drugs available by prescription derived from coca and poppy plants. “But we don’t let people grow their own poppies,” Riley said. “I question the wisdom of giving back a dangerous substance like marijuana … a known carcinogen with serious addictive qualities.” The U.S. Supreme Court rejected state compassionate-use acts in U.S. v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483 (2001). The court held that even assuming that necessity was a recognized defense to a criminal violation, a medical-necessity exception for marijuana was at odds with the substance control act. That statute specifically lists marijuana in a category that Congress determined had no medical benefits warranting an exception, the court said. Ronald Kaye of Pasadena, Calif.’s Kaye, McLane & Bednarski, attorney for Scott Imler, 45, the Los Angeles Cannabis Resource Center’s president and founder, called his client’s prosecution “politically motivated and not locally driven.” Imler is the co-author of the California proposition that gave official sanction to selling and growing marijuana for medical use. “The city of West Hollywood lent them the money to buy the building the center was housed in,” Kaye said. Even the prosecution did not “dispute that this was the most squeaky clean operation in the state.” The government has not yet decided whether it will appeal the sentence, said Assistant U.S. Attorney Patrick Fitzgerald, the lead prosecutor in the case. John S. Martin Jr., a former U.S. district court judge and the former U.S. attorney for the Southern District of New York, who claimed to have imposed some of the “toughest sentences in the country,” championed Matz’s decision to depart from the sentencing guidelines and grant probation. “It is the prototypical case where departure is appropriate,” Martin said.

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