U.S.A. v. Smith: Federal Judge Allows Medical Marijuana Defense

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U.S.A. v. Smith et al is a landmark cannabis case that could change federal medical marijuana law for all 50 states.

This is the first case in which a defendant in the United States has been allowed to raise an affirmative medical marijuana defense in federal court.

Cormac J. Carney is the presiding federal judge in U.S. v Smith. In a courageous and historic ruling he decided that the medical marijuana issues will be heard as testimony. This is the first time this has happened in U.S. history.

This story started in 2001 when Steele Smith — a law abiding business man — became very ill. He landed in an emergency room. Over the next four months it happened several more times. But the doctors could not figure out what was wrong. He was prescribed pain medication, and lost 40 pounds. Ultimately a rare diseases doctor diagnosed Steele’s disease as Zollinger-Ellison (Z-E). The disease causes painful ulcers, making it difficult for patients to eat and is so rare most doctors have never seen it. The result is extreme pain and nausea. Doctors prescribed him the strongest acid reducing drug available. For the severe pain, the doctor also prescribed high doses of morphine and sent him to a specialist (a pain doctor) who ordered a morphine regimen.

Steele became heavily addicted to morphine. With the support of his wife starting in 2004, he began to try and “kick” his morphine addiction. It almost killed him and he ended up in the intensive care unit (ICU). Over the next year and a half Steele battled his morphine addiction. After painstaking research he found a new drug, Suboxone, and under the care of a doctor over several weeks he was finally able to become completely drug free. However the under lying pain and nausea returned. He was unable to eat or live a normal life. After more research Steele was given a medical marijuana recommendation. He bought his marijuana at one of the dispensaries in Los Angeles.

His recovery is nothing short of miraculous with his pain and nausea now controlled using cannabis, Steele was able to eat again and his health returned. There are no dispensaries in Orange county where the Smith’s live so they must travel to L.A. to buy cannabis.

Steele and Theresa decide to open a small collective — California Compassionate Caregivers — in their home. After researching the law and proposition 215, they began to grow cannabis for safe access patients. Within a few months they found their patient base growing and by 2006 it reached over 1,000.

This did not escape the attention of the local police department. Officers from the Placentia Police Department came to the Steele home, seizing 18 plants, patient records, 4 pounds of medical marijuana, a small amount of concentrate and cash, but no charges were filed. After unsuccessfully trying to get his property and records returned repeatedly and after seeking legal advice, Steele decided to sue the city of Placentia, again simply seeking the return of his property.

The city of Placentia retaliated and moved the case to a federal level. This quashed Mr. Smith’s standing in the civil court, effectively killing the lawsuit. But that was not the end of it as the Smith’s were about to find out.

On Nov. 1, 2007 in an early morning raid, federal agents stormed the Smith’s two homes using paramilitary style tactics. Officers wearing masks and paramilitary gear broke down the front door and rousted the sleeping couple at gunpoint, holding them at gun point through out the raid. The agents abused the couples dogs by spraying them with a fire extinguisher. One of dogs died four days later.

As is standard procedure during marijuana raids nationwide the officers destroy the home during the search that followed. The home — as are most homes raided like this — was totally vandalized. In Hawaii county where I have lived for 30 years they conduct their marijuana raids in exactly the same way. Doors and gates are broken down, then left wide open for any and all of the public to take furniture and belongings at will. In Hawaii the police also rob these homes taking anything they want, cooking dinner, and joy ridding vehicles around the neighborhoods as they harass the neighbors searching there homes also even with out search warrants or probable cause.

In the Smith’s case the police also went to C3’s medical dispensary. They seized 2 pounds of medical marijuana and a small amount of concentrate. Police left the door wide open, inviting theft and vandals there also.

Steele, Theresa, Alex Valentine, a young patient with Elephant man’s syndrome and over thirty surgeries, and Dennis La Londe, a homeless man recently given shelter, were jailed. All but Theresa spent most of the next year in a maximum security, level-five Federal prison in Los Angeles. They were all charged with conspiracy to manufacture or grow marijuana and are facing ten years in federal prison.

Theresa was released after 2 months but forced to post a $200,000 bond, using her dying mother’s home and two signatures to meet the requirements of the bond. The remaining defendants suffered in federal prison for another 10 months. When Steele was finally released he had to wear an electronic ankle bracelet for another year. All the defendants to this day are still required to report regularly to federal pre-trial services.

While medical marijuana is not technically a legal defense, for the first time in U.S history the defendants will be able to testify to the jury that they were operating under prop 215. That testimony will show they were in complete compliance with California law, and the collective was very professionally run to provide safe access for patients in Orange county. The DEA is (as they always do) portraying these legal patients as ordinary drug dealers. But this time, for the first time, the jury will hear the other side.

In an interesting twist the government has offered a deal for time served to Steele. To his credit and at great risk to himself, he has decided not to take the deal and faces up to ten years in federal prison for that decision. Steele Smith wants to go to trial because he believes the issues are too important and need to be adjudicated. He is in a fight to uphold the Tenth Amendment of the United States Constitution, protecting States’ rights to allow their citizens safe, legal access to medical marijuana. The Smiths are true heroes and deserve our support.

For more information, please contact:

Theresa Smith
2166 W. Broadway, #100
Anaheim, CA 92804-2446
714-865-5335
theresasmith.steelescase@gmail.com

Some links on the case:


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  • Thomas

    Daniel Smith Pre-trial
    Location: ‎825 Maple Ave Torrance, CA
    Time: ‎8:30AM Wednesday, August 31st

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  • Thomas

    US v. Steele Smith is the first Federal Marijuana case allowing prop 215 (medical) testimony. This could change Federal Cannabis law.

    Theresa & Steele Smith were offered “time served,” instead they will face 10 years in prison in a fight to change Cannabis law in all 50 states.

    Time
    Tuesday, October 4 · 7:00am – 1:00pm
    Location
    Ronald Reagan Federal Building and Courthouse
    411 West Fourth Street
    Santa Ana, CA
    Created By
    US v. Steele Smith

    https://www.facebook.com/event.php?eid=123922994294976

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  • Thomas

    Is Eric Holder entrapping people that run clinics? Leading them to believe they are not going to be arrested as long as they are not in violation of state law. By saying the federal government will not go after marijuana dispensaries that comply with state law in February of 2009, wouldn’t that lead a reasonable mind to conclude at the least they will not be arrested by federal agents if they comply with state law. In fact many dispensaries believe they are not breaking the law at all based on AG Holders public announcement. Further is the Federal Government selectively enforcing federal law by telling people that and then arresting some and not others? Can they really pick and choose those that can break federal law and those that can not? I don’t think they can do that but it appears to me to be exactly what is happening. Another question that raises is should that affect cases like Steele and Theresa Smith? If its now okay to do what they were doing in 2007 why doesn’t the government drop the case?

    As a taxpayer I wish they would quit wasting my money on medical marijuana prosecutions. How much did they spend on those investigations, prosecutions, monitoring, and incarcerations of medical patients and dispensary operators? I resent them using my money for these prosecutions when my income continues to shrink and I have to cut back more every month just to get by. How about they just change the federal law and give us all a tax break.

    DEA to halt medical marijuana raids
    Holder confirms states to have final say on use of drug for pain control

    http://www.msnbc.msn.com/id/29433708/ns/health-health_care/

    Couple more videos

    Steele Smith on Norwegian TV –

    http://www.youtube.com/user/steelescase#p/a/u/2/UYAtzlYtCSM

    Steele Smith on Geraldo At Large – Medical Marijuana

    With Cheech and Chong

    http://www.youtube.com/user/steelescase#p/a/u/0/k5MpVlS7CCc

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  • An extraordinary and disturbing story. There is no legal provsion of medicinal cannabis at all in Britain. Generally though, judges do go very easy on people who can show a genuine medical need.

    http://peterreynolds.wordpress.com/2010/11/06/second-update-on-legal-medicinal-cannabis-in-britain/

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  • Vanessa

    The author of this article makes quite a big claim, first asserting that a federal judge has granted the Smiths a medical defense and then declaring that this case will be the first in which federal defendants will be able to tell a jury at trial about state medical marijuana law. As far as a medical defense goes, I would love to celebrate this development, but it seems incredible to me that this could really be the case. I’m asking that the author provide information to clarify and back up this claim. Will the jury actually be instructed about state medical marijuana law and told prior to their deliberations that they can find the defendants “not guilty” if they show convincing evidence that they complied with state medical marijuana laws? If so, then yes, this would be the first medical defense in federal court that I’ve encountered. I also need clarification about the claim that the Smith case will be the first in which federal defendants are allowed to testify about acting under state medical marijuana laws. In what way, precisely, is this a first? I’ve personally seen four medical marijuana defendants do exactly that:
    Luke Scarmazzo during his trial in federal court in Fresno, CA: http://www.medicalmarijuanaofamerica.com/court-reports/chc/217-luke-qthe-business-manq-scarmazzo-takes-the-stand-in-chc-trial.html
    Ricardo Montes during his trial in federal court in Fresno, CA: http://www.medicalmarijuanaofamerica.com/court-reports/chc/239.html
    Eddy Lepp during his trial in federal court in San Francisco, CA: http://www.medicalmarijuanaofamerica.com/court-reports/eddy-lepp/231.html
    Dale Schafer during his trial in federal court in Sacramento, CA: the article devoted to Schafer’s testimony is now part of the book “Cool Madness” from MMA pub http://www.mmapub.com/ but the testimony is referenced online in the article on Tony Serra’s closing argument in the case: http://www.medicalmarijuanaofamerica.com/court-reports/fry-schafer/136.html

    All of these defendants were convicted in spite of the fact that the jury knew they were medical marijuana patients/providers. That is because they did not have a medical defense, and so the jurors were instructed to apply federal marijuana laws during deliberations, given the federal jurisdiction. If there really is a medical defense in the Smith case (and I sincerely wish that this could be so), then Smith has good reason to hope for an acquittal. If not, then Smith is in the same boat as defendants like those I’ve listed above. That means he will probably be counting on jury nullification, for which there is only a very slim chance. Would the author please provide a link to (or a scan of) a reference document for his medical defense claim? If this really is a medical defense in federal court, then it is ground-breaking indeed. I would appreciate the details so that I can understand the claim more clearly and have more confidence in it. Thank you.

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    • Thomas

      Aloha Vanessa

      I was talking about an affirmative medical marijuana defense to the charge as defined here-

      affirmative defense n. when a defendant files an answer, in addition to denying some or all of the allegations, he/she can state what are called “affirmative defenses.” These defenses can contain allegations, take the initiative against statements of facts contrary to those stated in the original complaint against them, and include various defenses based on legal principles. Many of these defenses fall into the “boilerplate” (stated in routine, non-specific language) category, but one or more of the defenses may help the defendant.

      In the video I posted of his interview, Steele Smith explains that the judge said he will be able to testify before the jury to the facts of his non profit medical marijuana business, he appears to have been in full compliance with California state law. (They were never charged criminally by the state). I have never seen or heard of that in a federal case before. If you say it has happened you may be right however I was not aware of it and have not seen it published anywhere. I will look at your links and case histories when I have more time and may certainly stand corrected if this is not the first time an affirmative medical marijuana case has been allowed in federal court.

      Here is what Mr. Smith had to say

      http://www.youtube.com/watch?v=Dz7O0dmVhkE

      Here is the link to the docket for the case.

      http://www.freecourtdockets.com/Dockets/USA-v-Smith-8-07-cr-00264-California-Central-Federal-District-Court-Docket-Page-7-39817-43063.htm

      The relevant motions filed and responses I believe are 166, 167, and 168. Those type of rulings in the lower courts from what I understand are not always published and that seems to be true in this case as I could not find them on Westlaw or elsewhere.

      To get the actual ruling in the judges words you will need to buy the transcripts for those dates. I live in Hawaii and that is not practical for me at this time, as per your inquiry. If anyone has them I would like to see that myself.

      For now Mr. Smith seems to understand the proceedings and was there, I am taking him at his word as I see no reason to doubt what he says.

      I do not know what the jury instructions will be but if they are allowed to hear the testimony as it appears is the case. I believe that does constitute an affirmative defense to the only charge in this case cultivation of marijuana. I believe after listening to Mr. Smith that the judge understands what that testimony will be about. I personally fail to see why he would allow it then instruct the jury they can not consider it because of federal law. Stranger things have happened in court rooms, so I suppose its possible, particularly if you are correct and this has happened before.

      At any rate I hope this clears up what I said in the article and apologize for any confusion I may have caused.

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      • Thomas

        I found this posted online

        Below is exactly what the judge wrote, including Case Number, Document Number, Page Number and Line Number, in his order regarding this.
        “Case 8:07-cr-00264-CJC Document 103 Filed 04/28/08
        ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO SUPPRESS
        Order beginning Page 5, Line 27 …Defendants are nonetheless entitled to testify, should they so choose, about why and for what purpose they cultivated marijuana. Such testimony will allow the jury to understand the context within which the alleged crimes took place. See United States v. Dally, 974 F.2d 1215, 1216 (9th Cir. 1992) (quoting United States v. Moore, 735 F.2d 289, 292 (8th Cir. 1984)) (“The jury cannot be expected to make its decision in a void – without knowledge of the time, place, and circumstances of the acts which form the basis of the charge.”)

        Defendants may not, however, offer third-party witnesses to prove up any aspect of their testimony, such as expert testimony on the medicinal effects of marijuana or the legality of Defendants’ conduct under the Compassionate Use Act. If Defendants choose to testify about the motivation for their conduct, the jury will be provided with the appropriate limiting instructions explaining their duty to follow the law as instructed by the court, and the inapplicability of the Compassionate Use Act as a defense to federal charges. Order ending Page 6, Line 12.
        April 28, 2008
        Cormac J. Carney, United States District Judge”

        Reading what the judge wrote technically I was wrong as Vanessa pointed out. Assuming these arguments have been allowed before I still think the facts of this case may be unique. The judge did not have to allow them to talk about why they had the marijuana but he did.

        The Judge certainly seems to be giving them the best chance by allowing them to talk about the state law. As long as he lets them talk they can explain in detail that California allows people to use marijuana for medical reasons and explain what prop 215 allows as far as collectives like theirs ect.

        The judge may also have opened the door for an appeal should they lose.

        They can possibly argue because it is legal in California and they have introduced statements of fact to this they didn’t believe they were breaking the law.

        Through Mens Rea

        As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and wilfulness.

        A fundamental principle of Criminal Law is that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness of the fact that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element.

        The concept of mens rea developed in England during the latter part of the common-law era (about the year 1600) when judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common-law crime varied. Murder, for example, required a malicious state of mind, whereas Larceny required a felonious state of mind.

        Today most crimes, including common-law crimes, are defined by statutes that usually contain a word or phrase indicating the mens rea requirement. A typical statute, for example, may require that a person act knowingly, purposely, or recklessly.

        Sometimes a statute creates criminal liability for the commission or omission of a particular act without designating a mens rea. These are called Strict Liability statutes. If such a statute is construed to purposely omit criminal intent, a person who commits the crime may be guilty even though he or she had no knowledge that his or her act was criminal and had no thought of committing a crime. All that is required under such statutes is that the act itself is voluntary, since involuntary acts are not criminal.

        Occasionally mens rea is used synonymously with the words general intent, although general intent is more commonly used to describe criminal liability when a defendant does not intend to bring about a particular result. Specific Intent, another term related to mens rea, describes a particular state of mind above and beyond what is generally required.

        I think the judge gave the Smiths the best chance to win I have seen although that does not rise to the level of a legal medical defense.

        I am happy that the article is raising awareness of this and other cases.

        I hope people will rally around the Smiths and support them in any way they can.

        I apologize for the inaccuracies and mistakes in the article.

        Mahalo Thomas

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        • Vanessa

          Wow! I’m impressed by the thorough responses. Thank you!

          Unfortunately, I am also disheartened. Now that I have the details of what is being permitted, I can see that what is allowed in this case is the same as what was permitted in the other federal medical marijuana trials I attended in courtrooms across California. These, as I mentioned, were United States v. Dale Schafer & Marion Fry, United States v. Charles Edward Lepp, United States v. Luke Scarmazzo & Ricardo Montes. (Even Ed Rosenthal was permitted to testify in front of the jury about medical marijuana during his re-trial in 2007 — that is, the judge told him he could say whatever he wanted on the stand but Ed said that was worthless if he couldn’t call any supporting witnesses to testify about medical marijuana, so he chose not to call any witnesses at all.) As for chances on appeal, I’m not quite as optimistic. It seems to have become standard to let defendants testify about medical marijuana in federal trials so long as it’s in reference to their motivation (especially regarding intent crimes) but to not allow compliance with state medical marijuana laws to be argued as an actual defense. The appellate courts seem to be holding steady with that. In fact, the 9th Circuit just ruled against Schafer and Fry in their appeal last month. But we’ll see how it all plays out.

          I hope with all my might that there’s an acquittal in the Smith case. That would be ground-breaking. However, testifying about medical marijuana at a federal trial is definitely not a first, so it would be beneficial for us all to remember that the chances for a “not guilty” verdict are very slim here and to wish them the very best against those staggering odds.

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        • Hi Thomas, thank you for your response, however, I don’t understand. Vanessa is talking about a medical defense allowed during the sentencing phase. That is a separate hearing, after verdict is reached, where yes, their Judges allowed mm testimony. Not during original trial were they allowed medical defense testimony. Vanessa even states at Ed’s Re-trial, not during first trial. Judge Careney, is allowing, on motion, before trial, to present testimony. That’s a first, that simple. Please do not apologize. I invite Vanessa to contact me and we can have an intelligent discussion because I would love to have her support. Mahalo.

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          • Thomas

            Aloha Steele

            Thank you for the clarification……I am not an attorney by any means and it gets a little deep for me at times…..I absolutely believe you understand this better than I do. I just posted the video’s of your interview in Norway and the one in the Geraldo Rivera story. Please keep us updated with any press releases or comments you want made public. The article is getting a lot of views from all over the world and has been re posted to other sites. Its gotten a good response on face book also. Best wishes……….Thomas

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    • Vanessa, thank you for your reply. You are a perfect example of how a little knowledge can be dangerous. First of all, our website http://WWW.steelescase.org is the source of information regarding your query. It is clearly listed and had you simply visited the site and done some reading. So, I will spare you… the judge is allowing, on record in a motion in limine, to exclude evidence and argument re: mm issues.4-23,28,29. Bottom of pg.7& top of page 8. Docket #’s 99, 101, 102, 103. Also, this is where you are wrong: none of the four cases cited did the federal Judge allow the defendant to present a medical defense… NONE. They defense attorneys surely tried to work it in to the record, however, Judge denied. Scarmazzo was a dirtbag thumping his nose at the feds so disrespectfully and Montes was his yes man. I know Eddy Lepp; he used a religious freedom defense. The last one, I’m not sure, however, his Judge did not allow a medical defense. So, get your facts straight. Spend some of your time and energy doing some good… our fight is your fight too. We are on the same team.

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      • Vanessa

        I’m not sure what led Mr. Smith to believe that I was talking about testimony given by defendants at sentencing hearings. I was not. (In fact, in these cases, a jury does not consider sentencing at all.) I was talking about federal defendants testifying about their involvement with medical marijuana during their actual criminal trials and in front of the jury, before the deliberations and the verdict. I want to make myself very clear about that.

        When it comes to Ed Rosenthal’s re-trial, that too was an actual jury trial ““ it was the second one because the appellate court (9th Circuit) ordered the trial to be re-done because of “Ëœjuror misconduct’ in the first trial. I can talk more about the misconduct issue if desired, but it’s not relevant to what we’re discussing here.

        What we’re talking about is a medical defense at a federal marijuana trial, and whether a medical marijuana patient or provider has gotten one. I agree with Mr. Smith that the defendants I mention did not have a medical defense during their federal trials. That’s the point I’m making precisely. From what I can tell in the decision on this matter in the Smith case, the defendants I’ve mentioned were allowed the same thing during their trials ““ that is, they had was permission from the judge to tell the jurors during their trial about their use/cultivation/distribution of medical marijuana. This was allowed for the limited purpose of explaining their motivation. Compliance with state law was not a defense that could be argued in these cases and was not to be determined in reaching a verdict. It was simply a matter of allowing the defendant to tell the jury why he did what he did, but not legal grounds for arguing at trial that he was not guilty. (I say “he” because all of the defendants I’m talking about are in fact male.) Sure, this situation doesn’t seem right on a common sense level, but that’s how these things go much of the time in the legal world.

        It’s not really a loss on the prosecution’s side when the defendant testifies about something that isn’t an actual defense to the charges. Sure, a lot of federal prosecutors (U.S. Attorneys) would probably rather not get into the medical marijuana issue in front of a jury if they don’t have to, but they don’t risk very much as long as it’s just the defendant talking about his personal motivation and not an actual legal defense that can be considered during deliberations. True, there is the chance that the jurors will be so moved on a human level that they will acquit in spite of the judge’s instruction to apply only federal law during deliberations, but this chance is really quite small. The jury selection process purposefully weeds out many of the people who would be inclined to do this, but there’s also enormous pressure (some might say intimidation) to do precisely as instructed by the judge. It’s much more likely that the admissions made by the defendant on the stand will actually help the prosecution’s case ““ that is, the defendant will be incriminating himself by testifying about his medical marijuana activities, and this will effectively remove any reasonable doubt in the minds of the jurors that he did not do the things he’s charged with doing. This can make it a lot quicker and easier for the jurors to reach a guilty verdict while deliberating. So, the prosecution risks very little in these situations and stands to gain quite a lot.

        It can be really confusing to grapple with the difference between getting to testify about something at trial and actually getting to use it as a legal defense. I’m inclined to explain it by using an analogy that most people are familiar with, but I want to first say that I am in no way comparing medical marijuana to murder here. I know these are highly-charged emotional matters, but for my purposes, please try to think of it all in terms of theory. Imagine, if you will, a situation in which a person is charged with murder and goes to trial on that charge. In this imaginary situation, the defendant is allowed to testify about how he killed a man who was attacking him, but when the jury goes to deliberate they are told that self-defense is not a legal defense for them to consider in their verdict. So the jury is left with the question of whether or not there’s reasonable doubt that the defendant committed the murder, and the defendant’s own testimony is a pretty powerful indication that he did indeed kill a man. This is purely theoretical, as I said, but it’s a useful analogy for grasping what goes on in trials in which a defendant is allowed to take the stand and testify about his medical marijuana activities but the jury is not permitted to consider compliance with medical marijuana laws as an actual legal defense. It seems nuts, and in a lot of ways it is, but this is how it has played out in the federal medical marijuana trials I’ve attended. And those are just the ones I’ve actually seen firsthand. On the whole, there are probably many others I didn’t get to personally observe.

        Please understand that I’m not saying a defendant should or shouldn’t testify at trial, and I don’t mean to imply that there’s no chance for jury nullification. At some point, if these prosecutions continue, it could happen. We might not be there yet, though. Only time will tell. All I’m saying is that there are a lot of factors at play here and that many people aren’t aware of them. I’ve been attending court and writing about these cases for nearly seven years now, and the closest thing I’ve seen to jury nullification so far was during the trial of dispensary operators Luke Scarmazzo and Ricardo Montes. (On this matter, how Mr. Smith feels about these men personally isn’t relevant to what they were allowed to do during their trial, which was to tell the jury about medical marijuana, when and why they used it, and about setting up their dispensary to supply other documented medical patients with marijuana.) What happened was that one of the jurors on the case was an elderly man whose wife had died just days before he was put on the Scarmazzo/Montes jury. Although he didn’t disclose it to anyone on the case until the jury was actually deliberating, it turned out that his wife had used medical marijuana in her dying days and he felt that he couldn’t live with himself if he convicted someone who was just providing medical marijuana. What happens in the jury room is pretty private stuff, but we do know that he told this to the other jurors and some of them felt differently about it ““ so much so that they sent a note to the judge suggesting that one of the jurors be dismissed in the middle of deliberations because he was biased. The man was then called out by the judge in open court and questioned, at which point he explained the situation and was promptly dismissed from the jury. An alternate replaced him and deliberations began all over again”¦and the jury quickly reached its guilty verdicts on most counts. (I should mention that the jury acquitted on the charge of the possession of a firearm in furtherance of a drug crime and deadlocked on the conspiracy charge, but they convicted on the crimes related to marijuana, including one that carried a mandatory minimum twenty-year sentence.) If the widowed juror had been able to stay on the jury and to resist the tremendous pressure from other jurors to convict, there would have been a hung jury and this would mean a mis-trial”¦and then, since there wasn’t a verdict, the case could be re-tried without it being double jeopardy, and that’s almost certainly what would happen. One lone “biased” juror can’t acquit a defendant unless he convinces all his fellow jurors to vote his way, and this is a pretty remarkable occurrence, especially when a defendant has testified about his involvement with marijuana and there’s no longer a serious issue of reasonable doubt. I don’t mean to be long-winded here ““ I’m just trying to explain the challenges faced by a federal medical marijuana defendant trying to get an acquittal at trial when the jury is prohibited from considering compliance with state law as grounds for reaching a not guilty verdict.

        On another note, I have visited Mr. Smith’s website several times over the past year or so. Whenever I read the postings there, I saw the same rulings that had been made in the other federal medical marijuana cases I mentioned in my previous posts and I was disappointed. However, I keep hoping that Mr. Smith will get an actual medical defense, and that’s why I asked about the documentation this author (Thomas) relied upon for this news article ““ that is, I hoped that there had been a new development that I hadn’t seen on Mr. Smith’s site. I don’t think it’s relevant which websites I go to for news and when/why I request documentation, but since Mr. Smith took issue with my research process, I’m explaining.

        I am indeed on Mr. Smith’s side here ““ disagreeing with him about what happened in prior trials does not mean that I’m against him and does not mean that I’m not doing good for the movement. I think we should assume best intentions here, as we are among friends. It’s because I care that I would like everyone to look more deeply into what happened during other fairly recent federal medical marijuana trials. When it comes to the federal trials in question (U.S. v. Fry/Schafer, U.S. v. Lepp, U.S. v. Scarmazzo/Montes), I saw and heard defendants in each case get on the stand and testify about medical marijuana to a jury. I have done my best to document these occurrence, but other writers have published shorter accounts of these happenings if verification is needed. The Modesto Bee (John Ellis & Susan Herendeen) wrote about U.S. v. Scarmazzo/Montes. Both defendants testified to the jury about medical marijuana in that trial, and it is described in various articles on the Modesto Bee website at: http://www.modbee.com/2008/09/07/422071/second-thoughts-and-a-new-pot.html

        One relevant quote from that article:
        “Montes, 27, and Scarmazzo, 28, testified on their own behalf during their trial this spring, saying the California Healthcare Collective, formerly on McHenry Avenue, complied with state laws, paid taxes, verified doctor’s recommendations before every sale and had a business license from the city.”

        (Please note that this article is talking about trial testimony, in front of the jurors. As I’ve said, there is no consideration of sentencing by the jury in these cases. Regardless of that fact, however, sentencing had not even occurred yet at the time this article was written.)

        Similarly, Denny Walsh of the Sacramento Bee attended portions of U.S. v. Fry/Schafer, and sentences about the Schafer’s testimony are included in his articles. The Sacramento Bee doesn’t archive online as thoroughly as some other papers, but the stories have been strung to various other website and can still be viewed there in full. See: http://www.compassionatecoalition.org/node/4442 (or http://www.drugsense.org/nl/show_dsw.php?the_file=2007/ds07.n512 for a snipped version)

        A relevant portion of that article:
        “Even though medical necessity is not a defense to federal marijuana charges, U.S. District Judge Frank C. Damrell Jr. allowed Schafer to tell the jury much of the back story of the couple’s involvement with the drug.

        “ËœHe has a right to explain why he did what he did,’ the judge ruled.

        Fry was diagnosed with breast cancer in late 1997 and, following radical surgery, began chemotherapy, Schafer related. After other remedies failed to counter the ill effects of the treatment, Schafer began growing marijuana for Fry’s use, he testified.

        In 1999, Schafer said, he expanded his crop, giving half to an AIDS patient and keeping half for Fry and himself. He started using marijuana that year for his hemophilia and back problems, he testified.

        It was also in 1999, according to Schafer, that he gave up his law practice and began the Medical Research Center in Cool, where he counseled people on the state laws governing marijuana and Fry wrote recommendations that, under California law, allowed recipients to use the drug as medicine.”

        (Again, this article was written prior to sentencing and was referencing testimony given by Schafer in front of a jury.)

        Eddy Lepp’s trial is more difficult to substantiate because no newspaper reporters were there and it was very sparsely attended. I was there and saw him testify about medical marijuana in front of a jury, but my word and my articles on the matter do not appear to be sufficient proof for Mr. Smith. However, since he’s friends with Eddy, he can easily ask about my accuracy and question Eddy about whether he spoke about medical marijuana in front of a jury. That shouldn’t be hard to do. (Yes, he’s in prison now, but he’s very good about answering letters.)

        Eddy also testified at trial about being Rasta and about having a ministry, but he wasn’t granted a medical defense. Yes, he spoke about both of these topics (religion and medical use) to the jury during trial, but he wasn’t allowed a medical or a religious defense. There were some news articles written after the verdict that based their facts on information gleaned from filed court documents and attorney interviews, but they weren’t first-hand accounts. I can look those up if anyone thinks they’re relevant.

        I’m trying to take the time to write about all this because I think it’s really important to talk this through and come to an understanding. I really don’t want this to come off like a contest about who was first. That’s not the important thing here. Rather, I’m trying to make a point of this so that people can know what has happened in other trials and what we can learn from it. Of the cases I’ve mentioned, Luke Scarmazzo and Ricardo Montes are in prison, Eddy Lepp is at a federal prison camp, and Mollie Fry and Dale Schafer just lost their appeal and are set to surrender themselves to federal custody soon. I’m not saying that to “Ëœscare anyone straight’ ““ I’m just trying to say that these people have been through it already, so we should at least look closely at what happened to them in court and learn what we can. That’s the tiny silver lining to a very gray and grim situation. As with every learning situation, we all see things somewhat differently and draw varying conclusions. I have no expectation that there’s one singular lesson to be learned from these cases. But please, give me the benefit of the doubt and take a more careful look. I maintain that the federal district court has allowed these defendants what Steele Smith has also been granted. I don’t want to step on anyone’s toes or hurt anybody’s fundraising efforts, but it just wouldn’t be right for me to have this knowledge and not defend it as best I can.

        It would be lovely to be wrong and to find out that Mr. Smith is indeed in a novel legal situation, but sadly, I fear that he is not. He still deserves our full support, of course, and he has my best wishes in this struggle, no matter what happens. If the matter is still in dispute, I welcome a private conversation with him. Thanks for listening.

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  • Honored to share your story on my website and forum!

    Anything else I can do to help, just ask!

    One more thing, “Suboxin” should be spelled “Suboxone”..

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    • Thomas

      Thanks Adam

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    • Thank you, Adam. What is your url?

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    • Dear Thomas,

      I am absolutely impressed and honored that you have written out story with such accuracy and heart… I am speechless, much respect to you… Thank you. We truly are fighting the good fight… God has tasked us to do his bidding for ALL of our rights and mmj patients everywhere – we are truly, heart and soul up for the job. Our thanks to all those who support our case and cause, it’s for you and us 🙂

      Most Sincerely,

      Theresa Smith

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      • Thomas

        Theresa and Steele you are in our prayers at Friends for Justice here in Hawaii county…..Thank you…….If we can do anything for you as Friends for Justice contact us/me here.

        Email FFJ friendsforjustice@gmail.com

        Email Thomas nimo1767@gmail.com

        Or call 808-936-3827

        I will post the USA v Smith article and your contact information on Friends for Justice website soon.

        http://friendsforjustice.us/

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