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High Crimes
Publication date: August 26, 2002
Source: LA Daily Journal
Author: Jeffrey Anderson
Aids and cancer patients might be forgiven for not caring about the legal
issues in the ongoing balancing of state's rights and federal authorities.
For them, it's clear enough that California voters overwhelmingly approved
Proposition 215, allowing the legally to buy and smoke marijuana. However,
Attorney General John Ashcroft doesn't see it that way. It's a classic
showdown with thousands of painful deaths hanging in the balance.
Scott Imler decided to starve himself to death this summer to protest
federal drug enforcement action against a cannabis club.
After five days, he decided his death wouldn't provide an answer to his
problems.
Neither, so far, have the courts or law enforcement, which are locked in a
death grip over the right of terminally or chronically ill patients to smoke
marijuana, as provided by a state law and prohibited by the federal
government.
Federal agents raided the West Hollywood headquarters of the Los Angeles
Cannabis Resource Center on Oct. 25, 2001. They seized the club's computers,
medical files, bank accounts and inventory - 400 plants and 10 pounds of
harvested pot to serve the palliative needs of more than 900 medical patients,
90 percent of who suffer from cancer or AIDS.
Imler uses medical marijuana to diminish his suffering from
post-traumatic epileptic seizures. He had worked closely with city officials
to set up the center and had earned a reputation among advocates as a stickler
for detail who closely adhered to the mandates of local law enforcers.
Within seven months, Imler learned he was under federal investigation for
distribution of drugs. The Drug Enforcement Agency and the Internal Revenue
Service had filed federal forfeiture actions against the center's $1.2 million
building and its assets, including $55,000 in employee bank accounts the feds
had seized in the October raid.
And, since the October raid, 19 club members had died and more were
slowly dying. Some were willing to do so in public.
On June 5, they began to fast, hold demonstrations and conduct prayer
services and vigils in the parking lot of the Cannabis Resource Center, at the
corner of Gardner Street and Santa Monica Boulevard.
Advocates for the use of medical marijuana hung a banner on the center
that read, "Shame on George Bush for the Los Angeles Cannabis Resource
Center's D.E.A.th."
The hunger strikers demanded that the feds cease the forfeiture action, relent
from prosecuting any of the center's employees and return all property,
confidential medical files and research data to the center.
With U.S. Attorney General John Ashcroft cracking down on cannabis clubs
all over the country, particularly in California, the strikers also demanded
congressional hearings to address the federal government's efforts to squelch
a movement that has led to legalized marijuana use for medical purposes in
nine states.
The hunger strikers gave speeches and held rallies through the weekend,
for five days, growing weaker by the day.
"I can vomit to death at home, alone, in silence, or stand with my
friends for patients who will come after us," said Roger Moore, an AIDS
patient, on June 7. "It is not a difficult choice to make. "Pedro Jimenez,
another AIDS sufferer, stood next to a box full of pills and said that he
takes 35 medications a day and injections to numb the painful tingling
sensation that shoots down his arms and legs as a result of a condition called
neuropathy.
The marijuana both alleviates side effects from the medications and
provides relief from his neuropathy, Jimenez said.
"Some days, it feels like razor blades are cutting into my skin,"
Jimenez said, squinting into the afternoon sun. "Then, there's the diarrhea
and vomiting from AIDS medications." Numerous local and state officials
turned out to support the hunger
strikers, including state Assemblywoman Jackie Goldberg, D-Los Angeles, and
guest hunger striker Scott Svonkin, chief of staff for Assemblyman Paul
Koretz, D-Los Angeles.
U.S. Rep. Henry Waxman, D-Los Angeles, wrote a scathing letter to the
U.S. Department of Justice on June 6.
"This action makes absolutely no sense. It reflects the moral and
ideological views of zealots in the [Justice Department], instead of a
rational and clear-eyed evaluation of our most pressing national priorities,"
Waxman wrote.
On June 9, drained of almost all energy from five days of nothing but
water, Gatorade and fruit juice, Imler and the hunger strikers decided to
break the fast. They felt like they had demonstrated their commitment to the
cause, but more important, they realized the time had come to start saving
their strength for what figured to be a long fight ahead.
"If we kill ourselves, we're just doing what the feds want us to do, and
that's go away," Imler said to the protesters who had gathered that Sunday
afternoon.
Medical marijuana users - mostly people with life-threatening conditions
- have reached a point of no return, Imler said, a showdown between the
sovereignty of the state of California to regulate the health of its citizens
and the authority of the federal government to regulate controlled substances.
Proposition 215, the Compassionate Use Act, was passed by California
voters in 1996. It protects medical patients who use marijuana from state
prosecution if a licensed physician prescribes it.
Yet the U.S. Supreme Court, in 2001, upheld Ashcroft's authority to shut
down cannabis clubs on the basis that the federal Controlled Substances Act,
which prohibits distribution of marijuana, provides no exception for medical
necessity. U.S. v. Oakland Cannabis Buyer's Cooperative, 00151 (May 14, 2001).
Rather than definitively resolving a clash between state and federal
law, however, the justices left open a number of statutory and constitutional
issues and remanded the case to the 9th U.S. Circuit Court of Appeals.
Meantime, other cases in the federal appeals system have raised
significant constitutional issues that likely will head back to the high
court, legal experts say.
The most basic issue to be resolved begins with the First Amendment,
according to proponents of medical marijuana. In their minds, as medical
patients, they are just exercising their constitutional right to associate
freely in their cultivation and use of a drug that enables them to keep down
the mess of pills they must swallow each day.
If smoking a joint or two a day stimulates their appetite when they are
undergoing chemotherapy or wasting away from AIDS, they say, then consider it
an exercise of their due process right to be free from suffering and prolong
life in a humane way.
And, advocates of compassionate use ask, just what is the federal
government doing sticking its nose in the state's regulation of medical
marijuana anyway?
It seems to them that the principles of federalism apply squarely to
medical marijuana as an issue of health care and public safety.
The case against the Cannabis Resource Center could raise any or all of
these issues, experts say.
Federal law enforcers don't see any merit to these arguments.
Mere mention of "medical cannabis" prompted a DEA agent based in Los
Angeles to say recently, "There is no such thing as medical cannabis. It's
called marijuana, and it is a Schedule 1 narcotic classified by Congress as an
illegal substance with no currently
accepted medical use."
Tens of thousands of medical marijuana users and the California Medical
Association say the medical benefits are obvious, however. To the users,
federal enforcement actions targeting cannabis clubs are a heavy-handed
exercise of power by President Bush and Ashcroft that show the less
compassionate side of the conservative administration.
"This is like an organizational death penalty," Imler said of the
federal forfeiture action, his voice cracking slightly as he turned from the
podium after calling off the hunger strike June 9. "I don't know why we have
to go through this. We are not criminals."
It is two months later, mid-August, and Imler, 44, a former special
education teacher from Santa Cruz, is sitting in his office at the Cannabis
Resource Center, which has been reduced to a telephone and a mailing list,
unless somehow he defeats the forfeiture action. He says he has gained a
little weight recently, but he remains rail-thin, an imposing figure at 6 feet
4 inches tall.
Imler joined the medical marijuana movement after sustaining a head
injury in a ski accident in 1993, he says. The injury led to chronic seizures
that he could only occasionally control with prescription drugs such as
Dilantin, Depacote and phenobarbital.
Marijuana seemed to work better than anything does, he says, and it
prevented him from seizing every three days, like he'd been doing for three
years following his accident.
"You never know when it's going to happen," he says. "And when it does,
it's no fun waking up and finding that you're in a roomful of people and
you've wet your pants."
As frightening and embarrassing as the seizures were though, the auras
or dizzy spells that preceded them could be worse, Imler says.
"Most of the time, the spells just made me nauseous, and I'd be hugging
the toilet, almost praying for a seizure to make it stop."
Pot changed all that, he says, and allowed him to function and go out in
public without fearing a seizure.
"Yet here I am," he says as he discusses his fate and the possibility of
jail time.
DEA agents are conducting a criminal investigation into the center's
activities, he says, including his role as director of the club.
The civil forfeiture action, before the U.S. District Court for the
Central District of California, is stayed pending the outcome of the DEA's
investigation, which has no deadline, Imler says. A status report on the
investigation is due to U.S. District Judge
Manuel Real by Nov. 4.
With a number of medical marijuana cases making their way through the
court system - cases that could either strike down or buttress federal
authority - the feds may be dragging their feet on his investigation, Imler
says, perhaps to see which way the wind is
going to blow.
For what it's worth, California has spoken on the issue, he says. State
and local prosecutors and law enforcers - and the voters of California - have
indicated they'd prefer that medical marijuana users obtain pot from clean,
well-lit clinics, rather than from
sketchy drug dealers. Particularly, Imler says, if the clinics cooperate with
the local
authorities and in compliance with state law.
"Attorney General [Bill] Lockyear supports and voted for Proposition
215, and his intention is to honor the will of the voters," says Hallye
Jordan, a spokeswoman for Lockyer, whose office also filed an amicus brief in
Oakland Cannabis Buyer's Cooperative.
"It has been our policy to not prosecute medical marijuana users," Jane
Robison, spokeswoman for the Los Angeles district attorney's office, says. "We
also do not prosecute growers unless there is evidence of a commercial purpose
such as scales and bags."
San Francisco District Attorney Terrence Hallinan vigorously has
supported Proposition 215, and the city of San Francisco is considering a
local ordinance that would call for funding to establish a municipal pot
garden to meet the needs of its resident medical users.
Hallinan was not available for comment.
However, the political situation throughout California remains tense
because of the clash between state and federal authorities, Imler says.
Gov. Gray Davis has just one thing to say: "The Governor believes that
regulation of controlled substances is up to the federal government," says
Hilary McLean, a Davis spokeswoman.
The tension among federal prosecutors in the Central District and even
the center's defense team is particularly thick, Imler and others close to the
case say. No one associated with the matter, including Real, wants to be
trying to a jury a civil forfeiture
action or a potential criminal action against a cannabis club that was
operating in plain view and with no complaints from either state or local
authorities.
The prosecutors assigned to his case are apprehensive about sticking
their necks out too far, Imler says.
"From what I've heard, they're just taking marching orders from the
Department of Justice in Washington, D.C.," he says.
Assistant U.S. Attorney Patrick Fitzgerald, the prosecutor assigned to
the case, will not comment on the matter.
John Lee, the assistant U.S. attorney assigned to the forfeiture action,
acknowledges that there are more dubious cannabis clubs than the center but
denies that the Justice Department is calling the shots on the case.
"We wouldn't be doing this if we didn't believe in it or didn't have
enough evidence to substantiate the claims," Lee says.
The federal public defender's office, which represents Imler and the
center, will not comment on the case.
William Genego, the center's private criminal defense lawyer, was not
available for comment.
For the moment, Imler says, the feds have achieved their objective, which is
to put the Cannabis Resource Center out of business.
"After the DEA raid, I suppose we could have reopened the center in the
shadows of the black market, but the doctors weren't down with that, and the
members weren't, either," he says, his voice hoarse with weary determination.
Since the bust, members have been "doing the best they can to get by,"
says Imler, which means relying on neighbors, friends, back alleys and street
corners.
And Imler?
"I plead the Fifth," he says. "But I can tell you that, even when I
smoke pot, it's not like getting high, like most people would do on a Saturday
night before going to a club or something."
Imler begins talking about how life at the center has become rather
uneventful since they took down the protest camp in the parking lot. The
center had kept it in place for 45 straight days, he says, until a drunken
driver recently ran over the signs and displays
that were left up each night.These days, he just mans the telephones and
waits, he says.
Just then, an e-mail flashes across his computer screen. Matters may
have taken a turn for the worse.
The e-mail is from the center's former marijuana growers Lynn and Judy
Osburn of Ventura County.
"Helicopter, county sheriff and five vans coming up the driveway!" Imler
says, reading the e-mail out loud. "That's all it says."
If so, this would not be the first time. DEA agents had raided the
Osburns' farm near Ojai one month before they showed up on his doorstep last
October, Imler explains. The feds have brought a forfeiture action against the
couple, which Real consolidated in early August along with the two forfeitures
against the center.
Judy Osburn uses marijuana for severe muscle spasms that resulted from a
back injury, he says, and Lynn Osburn uses it to treat migraines and muscle
spasms that resulted from a neck injury he sustained in the Vietnam War.
They joined the center as members in 1997, Imler says, and have
continued to grow marijuana for personal use since it went out of business.
Court papers indicate that the Osburns were charged back in 1988 with
cultivation of marijuana and possession of marijuana for sale - civil offenses
under California's Health and Safety Code - and later convicted in state court
of those offenses.
Imler fears they are about to be arrested again, this time on federal,
criminal distribution charges. The next day, on Aug. 14, the U.S. attorney's
office files a criminal complaint in the U.S. District Court for the Central
District charging the Osburns with one count of manufacturing a controlled
substance and one count of maintaining a drug establishment.
An affidavit filed with the complaint by DEA Agent Anthony Zavacky
states that he discovered 342 marijuana plants, 15 bags of crushed marijuana,
a manufactured "tincture" derived from marijuana and the apparatus to process
the plants such as hot plates, metal pots and metal strainers.
Zavacky also has discovered six guns, including a shotgun and a
.22-caliber rifle, the affidavit states.
Imler won't comment on the Osburns' activities aside from their
involvement with the center, before the October 2001 DEA raids.
"They had the best deal going, exclusive outside supplier of marijuana
for the most reputable medical marijuana clinic in the country," he says.
Imler co-founded the Cannabis Resource Center in 1996 as a charitable
nonprofit organization, shortly after passage of Proposition 215, which he
co-drafted with San Francisco pot dealer and medical marijuana activist Dennis
Peron and attorney William
Panzer.
It began as a buyer's club, he says, which supplied medical users with a
daily menu of pot, sometimes having to acquire it on the black market.
But he and his co-founders knew from the start that the risk of being
shut down was high. They wanted their club to be above scrutiny, particularly
from detractors who feared the influx of other drugs or infiltration by street
dealers.
So Imler consulted with lawyers, West Hollywood officials and former Los
Angeles County Sheriff Sherman Block, who supported the cannabis club.
Richard Odenthal, the former captain of the Los Angeles County Sheriff's
Department in West Hollywood and the director of public safety for the city
says, "We told them, as long as their operation was quiet, we were fine with
it. In the four years I was working with the Cannabis Resource Center, we
never had a single incident."
When he took office, Los Angeles County Sheriff Lee Baca supported the
center but wanted it to remain free of any black market dealings, Odenthal
says. To satisfy Baca's wishes, the center learned to grow its own plants, and
with the help of the Osburns, it soon became totally self-sufficient.
Baca would not comment for this story.
In 2000, after Imler and several founding members forked over a down
payment of $150,000, the city of West Hollywood co-signed a bank loan that
allowed the center to purchase for $1.2 million the building they had been
leasing.
When the DEA shut it down last October, Imler says, the center had 10
full-time employees and 24 volunteers. It had generated $1.2 million in
revenue the previous year, which was put back into operating costs, inventory
and employee salaries, he says.
The center's only requirement for membership had been a doctor's
prescription, Imler says. After verifying that a prospective member had a
valid prescription from a licensed physician, the center would invite
applicants in for an "eye-to-eye" assessment, he says.
The purpose of the assessment was to weed out potential drug addicts or
troublemakers, he says.
"We'd explain the rules and make sure they weren't tweekers," Imler
says.
The center has a database with the names of 450 physicians who have
prescribed marijuana for their patients, Imler says.
It eventually grew to 960 members, he says, and became a visible force
in the community of West Hollywood as well as a nationally recognized clinic,
turning away almost as many people as it accepted.
"We didn't want to get too big and have a volume of pot that would drive
us back into the black market," Imler says. "We rejected a lot of people."
He laughs as he describes a live chat on The New York Times' online
Drug Policy Forum, in which a participant characterized the center as
"fastidious to the point of being persnickety."
"We developed a reputation as the strictest center in the country," he
says, "which was to the dismay of many in the advocacy movement. They thought
we were too engaged with law enforcement. They never trusted us.
At its peak, the center had access to a total of 1,000 plants, Imler
says.
"That's about one plant for each member," he says. "Lots of clubs
operate with a bigger inventory than that."
Before the raid, he says, whenever the center ran out of marijuana, they
would call the Osburns, who would drive down from Ventura with a fresh supply,
usually about twice a month. "The cost initially was $3,200 per pound, but
eventually, we negotiated a reduced rate of $2,800 per pound based on the
volume the members consumed," Imler says.
A single plant, depending on growing conditions, can yield between 8
ounces and a pound, he says.
"We went through about 5 pounds per week, for 960 people," he says.
Members purchased the weed on a sliding scale, he says, because 30
percent were on insurance disability and couldn't afford to pay. Others made
contributions as they drew pot from the system.
The going rate was usually $50 for an eighth of an ounce, Imler says.
Observers say that Imler and the center are squeaky clean and that
criminal charges are unlikely.
"Federal prosecutors don't want to face a jury on this," one drug law
expert says.
U.S. Attorney Deborah Yang of the Central District did not return calls for
comment.
"They made sure they did everything right," says a lawyer familiar with
the group who requested anonymity. "They were doing what they were told to do
by the highest civilian law authorities in the state. They couldn't have done
a better job of setting it up."
Unfortunately, other cases may reach the U.S. Supreme Court before his,
Imler says. In his view, the Los Angeles Cannabis Resource Center, with its
solid reputation, is the best case to test a number of significant
constitutional issues before the high court,
he says.
In January 1998, undercover DEA agents posed as medical marijuana
patients in a sting operation against the Oakland Cannabis Buyer's
Cooperative.
Although the cooperative required the agents to show a doctor's
prescription - which turned out to be phony - the feds busted the cooperative
on the grounds that it violated the Controlled Substances Act, which prohibits
distribution of drugs classified by Congress as Schedule 1 narcotics.
The act classifies heroin, LSD and marijuana as Schedule 1 narcotics
that have a high degree of potential for abuse, lack an accepted medical use
and cannot be used for anything other than government-approved research.
At trial, the cooperative argued that marijuana is the only drug that
can alleviate severe pain and debilitating symptoms of patients who suffer
from cancer, AIDS and other illnesses that require intense medication with
numerous side effects and therefore is medically necessary for those patients.
U.S. District Judge Charles Breyer of the Northern District of
California rejected the defense of medical necessity and ordered the club to
cease supplying its members with marijuana. After the cooperative continued
distributing marijuana for medical purposes, the 9th Circuit ordered the
District Court to modify its order by recognizing that medical necessity was a
"legally cognizant defense."
Because the case raised significant questions as to the ability of the
federal government to enforce the nation's drug law, the U.S. Supreme Court
took up the issue and ruled, on May 14, 2001, that medical necessity is no
exception to the federal law.
Imler says that the center, not the Oakland Cannabis Buyer's
Cooperative, would have been better off arguing the medical necessity argument
to the Supreme Court because the center never got busted selling pot to
undercover DEA agents. Their record was clean, he says.
"That's baloney," says Santa Clara University Law professor Gerald
Uelman, a drug law expert and one of the cooperative's lawyers. "The problem
wasn't with the facts, it was with the U.S. Supreme Court."
Having burned up the medical necessity defense, on remand to the 9th
Circuit, Uelman says the Oakland cooperative intends to rely on a provision
in the Controlled Substances Act that confers immunity on state law officers
engaged in the enforcement of any law related to a controlled substance.
Because the cooperative had the Oakland City Council and local law
enforcers behind it, he says, and because it was operating in compliance with
state law, the cooperative should be immune from prosecution under federal law
as state agents.
The cooperative has a number of other arguments it intends to raise,
Uelman says.
Some of the arguments are the same ones that Imler's lawyers will be trying in
federal District Court, Imler says. He is frustrated by the possibility that
higher courts may rule on these issues before his case gets the chance to make
new law.
"There are a number of constitutional issues that have never been
addressed by the Supreme Court or the 9th Circuit Court of Appeals," Robert
Raich, Uelman's co-counsel and the attorney who argued for the Oakland
cooperative before the high court in 2001,
says Raich, an Oakland attorney, points to constitutional issues related to
the Due process Clause, the Commerce Clause and the 10th Amendment, which
leaves to the states all powers not reserved by the federal government.
"Under the Due Process Clause, you have the sanctity of the
physician-patient relationship and the right to be free from pain, to prolong
life and to ameliorate suffering," Raich says. "Then, under the Commerce
Clause, the federal government cannot regulate anything that is not interstate
commerce. Medical cannabis is not commerce, but even if it is, it is sold
intrastate.
"And then, under our system of dual sovereignty, there's the state's
right to regulate health care. And the voters of California have indicated
that they want patients to have access to cannabis for medical purposes."
Because the 9th Circuit could rule on issues of law that Imler and the
Cannabis Resource Center could be raising in U.S. District Court, legal
experts see the center's case as problematic for federal prosecutors and for
Real.
"This is an unusual case," one expert says. "It's unique in a meaningful
way. This is a case that could come back to haunt the [District Court]. The
facts are like a professor drew them to bring this thing to a clash on
constitutional grounds.
"But there may be alternative remedies rather than a head-on clash over
state-federal law."
The possibility of alternative remedies arises from the Supreme Court
opinion in Oakland Cannabis Buyer's Cooperative, Uelman says. In that case,
the high court ruled that the only exception to the Controlled Substances Act
is for clinical trials by a federally approved medical research body.
Imler says the center would gladly apply to become a subject for medical
research related to marijuana use and life-threatening illnesses.
"We'd be happy to participate in federally approved research," Imler
says. "Let the academics come in and crunch data. We've proven that we can
keep complete records for the last five years. I can account for every flake
of pot that has come through this place."
Until such a day comes, however, Imler and his fellow members of the Los
Angeles Cannabis Resource Center are walking a fine line between state and
federal law while trying to keep down their food or keep from seizing up in
public.
Once in a while, a member stops by to see how the case is progressing,
Imler says.
"I saw Pedro [Jimenez] the other day, he's still hanging in there," Imler
says.
Jimenez has been HIV-positive since 1986 and has AIDS. One time, after
he could not hold down solid food for 44 days, the disease began to attack his
gall bladder, and he almost died, he said.
"The side effects from the drugs are so fierce that I need cannabis as
much as I need the other medications," Jimenez says. "People see these new
drugs for HIV on the glossy pages of magazines and think we can climb a hill.
"Maybe in a wheelchair."
__________________________________________________________________________
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