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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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