RULING JEOPARDIZES MEDICAL COOPERATIVE DEFENSE

DA challenges AG Guidelines on cooperatives, as well as cooperative transportation

By Richard Johnson

    On October 28, Mendocino County Superior Court judge Leonard La Casse ruled that a medical marijuana patient has no defense for transporting medicine for another patient for whom he is not a primary caregiver.

    The case involved one Don Alan Scoville who was searched by an MCSO deputy in January of this year while sleeping in his car en route to southern California carrying 9 lbs of processed marijuana in one pound packages in the trunk. He had a valid medical recommendation for 5 lbs and was carrying 6 pounds for a fellow cooperative member who had a valid recommendation for that amount and 3 pounds for himself. He was defended by Keith Faulder.

    On July 30, Mendocino County superior court judge Ronald Brown declined to hold  Scoville over for trial despite the prosecution’s vigorous legal argument against attorney general Brown’s 2008 guidelines concerning cooperative cultivation. But ADA Brian Newman appealed the dismissal, and the case was referred to judge La Casse, who remanded it to Brown’s court, ordering the defendant held over for trial.

    The interim ruling in this case is a direct threat to medical marijuana cooperatives growing in Mendocino County and distributing elsewhere,.

DA  LINTOTT: Total War on Medical Marijuana

Attacking AG Guidelines

 Faulder and prosecutor Brian Newman exchanged briefs and answers ahead of the preliminary hearing in July. In Newman’s pleadings, he audaciously attacked the very concept of cooperative cultivation discussed in the 2008 Attorney General Guidelines.

“The plain language of the statute (§11362,81(d) directing the AG to develop guidelines to ensure the security and nondiversion of marijuana grown for medical use by patients…) is directed at medical marijuana grown by patients;  nowhere does it direct the Attorney General to decide that cooperatives or collectives may exist as entities for the distribution of marijuana or legislate regarding their formation or operation.” He accused Brown of having legislated in violation of the separation of powers.

Newman asserted that all the statute provides is that patients can till the soil collectively. Any arrangement in which some members cultivate and others invest only money is not authorized.

    The court however, posed a hypothetical situation to Newman in a case where some members of the collective are too sick to travel to Laytonville or till the soil, and instead pay expenses for supplies and compensation for the workers; where one member has land and is good at growing  and others volunteer to dry and trim the crop and all have valid recommendations.

The court then posed the situation in the case at hand -- one member of the coop drives from San Francisco to Laytonville and returns with two shares, one for himself and one for another member.

Newman answered that in his opinion if a member’s only contribution to the coop is cash, then they are not entitled to marijuana. He stated one person could legally transport marijuana for another only if they were a primary caregiver, a status that was narrowly interpreted by the Mench decision of 2008 as limited to one who has consistently provided for the patient’s housing, health and security needs prior to the furnishing of marijuana. It was stipulated that in this case, Scoville was not the other patient’s primary caregiver.

Newman emphasized this relationship is “fact-based” and is not satisfied when two individuals independently sign membership applications to the same coop.

    In his pleadings, the prosecutor argued strenuously that Proposition 215 and SB 420 grant limited immunity for possession, cultivation and transportation only by individual patients and their primary caregivers, not to any organization.

 Counter-Argument:

Faulder in answering these arguments cited the 1997 People v. Trippet case which held that although the Compassionate Use Act did not expressly authorize transportation, practical realities dictate that there be some leeway in applying §11360 in cases where a proposition 215 defense is asserted, otherwise the results might be absurd.

    For example it would be absurd if a dying patient’s primary caregiver carrying otherwise legally cultivated and possessed marijuana down a hallway to the patient’s room were liable for a charge of transportation.

In his paper, Faulder also cited California Health and Safety Code sections 11362.765(b)(3) concerning immunity for an individual who assists a qualified patient or person with an ID card to administer medical marijana, and  HS1362.775, that gives patients who associate to collectively or cooperatively cultivate medical marijuana immunity from prosecution on that sole basis for possession, possession for sale, cultivation and transportation of medical marijuana. Both of these are in Proposition 215, the Compassionate Use Act.

After orally summarizing the position of both sides, judge Brown noted the  Attorney General’s guidelines defined cooperatives as organzations which facilitate the cultivation and distribution of medical marijuana. He stated that he found the Attorney General’s guidelines were reasonable and he gave them considerable weight and he also took into account the Trippet decision concerning the circumstances of transportation being consistent with the patient’s needs, and found insufficient reason to hold the defendant over for trial.

“No Defense for Cooperative Transportation”

In arguing his appeal, Newman concentrated on the CUA statutes and left out his attack on the guidelines. Citing §11362.765(b)(1)and (2), Newman said that propostion 215 protects only primary caregivers, not other patients who are not caregivers from transporting other patients’ medicine, even if they claim to be members of the same cooperative.

Ignoring §11362.775, La Casse agreed. “The defendant was not a caregiver for the person for whom he was transporting the marijuana. There was no caregiver relationship in this case, and so transportation is not entitled to a medical defense.

“As a matter of law, §11362.765 does not give you a defense,” he added.

Stating that for the purposes of a preliminary hearing there was probable cause to hold the defendant to answer for transportation and possession for sale, and ordered him to appear in Brown’s court on November 12.

In response to questioning by Faulder, La Casse affirmed that  in the meaning of §871(d) he found Brown had as a matter of law erroneously dismissed the case in July.

One scenario is a jury conviction in Department B which Scoville could appeal to the state level.

Meanwhile,  Newman is probably encouraging other prosecutors to employ the same tactic to torpedo medical marijuana defenses throughout the system. Together with 402 motions and the charging of trimmers with felony cultivation, the attack on the AG guidelines and cooperative transportation shows DA Lintott’s office is in a total war against marijuana.