Motions For Use Of Medical Marijuana

Here are the motions to modify terms of pretrial release to allow the use of medical marijuana. These were filed before Judge Patel on Tuesday May 31st 2005.

J. TONY SERRA #32639
SHARI L. GREENBERGER #180438
OMAR FIGUEROA #196650
506 Broadway
San Francisco CA 94133
Telephone: 415/986-5591
Attorneys for Defendant
REV. CHARLES EDWARD LEPP
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
REV. CHARLES EDWARD LEPP, et al.,
Defendants.
_____________________________/
CR 04-0317 MHP

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO MODIFY TERMS OF PRETRIAL RELEASE TO ALLOW USE OF MEDICAL MARIJUANA INTRODUCTION.

Rev. Edward Lepp is a seriously-ill Californian qualified to possess and cultivate marijuana for his medical use under California’s Compassionate Use Act of 1996 (codified as Cal. Health and Safety Code § 11362.5,) and California Senate Bill 420 (Cal. Health and Safety Code § 11362.7 et. seq.). Pursuant to current Ninth Circuit precedence in Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 159 L.Ed.2d 811, 124 S.Ct. 2909 (2004), which held that the cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity, and thus, federal criminal law prohibiting Unless this Court grants permission for the use of sacrament under the Religious Freedom Restoration Act, pursuant to the accompanying memorandum filed by the defense and lodged contemporaneously herewith.

As a course of Rev. Lepp’s treatment, he has and will only use medical cannabis, which was cultivated with the soil and water originating from within the borders of the State of California. Id. He has and will only use medical cannabis which grew from the aid of growing equipment and supplies manufactured within the borders of the State of California. Id. Rev. Lepp further has not and will not sell, distribute or otherwise place his medical cannabis in commercial use. Id. Rev. Lepp has and will only use cannabis for medical purposes. Id. 1

ARGUMENT
I.
REV. LEPP’S USE OF MEDICAL MARIJUANA WITHIN THE CONFINES OF RAICH v. ASHCROFT ARE LEGAL AND HIS PRETRIAL RELEASE CONDITIONS SHOULD ALSO SO MANDATE. The Ninth Circuit in Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 159 L.Ed.2d 811, 124 S.Ct. 2909 (2004), pronounced that individuals who grow and possess medical marijuana for their own personal use are participating in a noncommercial activity. The Court found it “critical” that “intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician –- is, in fact, different in kind from drug trafficking.” Id. at 1228. The Ninth Circuit distinguished these two classes of activities for purposes of the Commerce Clause, noting that “the limited medicinal use of marijuana as recommended by a physician arguably does not raise the same policy concerns regarding the spread of drug abuse.” Id. Significantly, the court explained that the use of medicinal marijuana in that case was “clearly distinct from the broader illicit drug market — as well as any broader commercial market for medicinal marijuana — insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce.” Id. From this frame of reference the court analyzed the constitutionality of the Controlled Substances act as applied to “the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law. This class of activities does not involve sale, exchange, or distribution.” Id. The court then went on to determine whether the class of activities at issue “substantially affects” interstate commerce. If an activity, commercial or noncommercial, has a substantial effect on interstate commerce then the federal government has the right to regulate that activity via the Commerce Clause. In order to determine if an activity has a substantial effect on interstate commerce, the Supreme Court in Morrison, 529 U.S. 598 (2000), established the following four factor test: (1) whether the statute regulates commerce or any sort of economic enterprise; (2) whether the statute contains any “express jurisdictional element that might limit its reach to a discrete set” of cases; (3) whether the statute or its legislative history contains “express congressional findings” regarding the effects of the regulated activity upon interstate commerce; and (4) whether the link between the regulated activity and a substantial effect on interstate commerce is “attenuated.” Moreover, the Court noted that the first and fourth factors are the most important in the above determination. Raich, 352 F.3d at 1229, citing Morrison, 529 U.S. at 610-12; see also McCoy, 323 F.3d at 1119. The Raich Court made the following findings when applying the above four-factor test to medical marijuana users: (1) As applied to the limited class of activities presented by this case, the CSA does not regulate commerce or any sort of economic enterprise. The cultivation, possession, and the use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity. Lacking sales, exchange or distribution, the activity does not possess the essential elements of commerce. Id. at 1229-1230. (2) The CSA does not contain any jurisdictional element that limits its reach. Therefore, “Congress has exceeded its power under the Commerce Clause.” Id. at 1231. (3) Congress did make certain findings in the CSA regarding the activities effect on interstate commerce. Id. at 1231. However, the findings are not specific to medical marijuana and it is unlikely Congress was considering this activity when it made its findings. Id. at 1231. Even though this factor weighs in favor of the CSA being constitutional as applied to medical marijuana users, the Raich Court aligning itself with the Morrison Court, warned that the mere existence of Congressional findings is not sufficient by itself to sustain a constitutional challenge. Id. at 1232. (4) “[I]ntrastate cultivation, possession and use of medical marijuana on the recommendation of a physician could, at the margins have an effect on interstate commerce by reducing the demand for marijuana that is trafficked interstate. It is far from clear that such an effect would be substantial.” Id. at 1233. However, the Court did state that other Courts addressing this specific question found that medical marijuana users’ and cultivators’ effect on interstate commerce is too attenuated. Id. at 1233. Based on the above findings, the Court in Raich found that medical marijuana did not have a substantial effect on interstate commerce. Therefore, the Court found that the CSA, as applied to medical marijuana users and cultivators was unconstitutional.

Furthermore, a Ninth Circuit District Court in County of Santa Cruz v. Ashcroft, 314 F.Supp.2d 1000, 1008 (2004), found that the cultivation and use of medical marijuana by a collective does not run afoul of the CSA, as such conduct is limited to personal non-commercial medical purposes. Likewise, in the present matter, Rev. Lepp seeks to use medical marijuana, as allowed under the laws of California, while on pretrial release. His possession and use of medical marijuana will comply to the confines of the Raich decision, and therefore, be valid and legal under federal law.

II
ALTERNATIVELY, UNDER THE DOCTRINE OF MEDICAL NECESSITY, THIS COURT SHOULD ALLOW REV. LEPP USE OF MEDICAL CANNABIS. In reaffirming recognition of the necessity doctrine from United States v. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989), the Ninth Circuit’s decision in United States v. Oakland Cannabis Buyers’ Coop., 190 F.3d 1109 (9th Cir. 1999), specifically and expressly applied the necessity doctrine to suffering patients who need medical cannabis. The Court acknowledged that As Justice Stevens pointed out in his OCBC concurrence, to the 2 extent the five-vote majority opinion may have purported to limit the application of the medical necessity doctrine beyond the facts of that case, the “opinion on this point is pure dictum.”

there is a class of people with serious medical conditions for whom the use of cannabis is necessary in order to treat or alleviate those conditions or their symptoms; who will suffer serious harm if they are denied cannabis; and for whom there is no legal alternative to cannabis for the effective treatment of their medical conditions because they have tried other alternatives and have found that they are ineffective, or that they result in intolerable side effects. Id. at 1115. Although that decision was subsequently reversed with respect to cannabis distribution in United States v. Oakland Cannabis Buyers’ Coop. (“OCBC”), 532 U.S. 483 (2001), it was 2 notably preserved by the Court’s concurrence: Because necessity was raised in this case as a defense to distribution, the Court need not venture an opinion on whether the defense is available to anyone other than distributors. Most notably, whether the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here.

Id. at 501 (Stevens, J., concurring in judgment). Accordingly, the Court’s precedent remains the law of this Circuit with respect to individual patients. Here, as detailed in Rev. Lepp’s declaration, cannabis is the only method of treatment that deals with the burden of the scope of maladies that he suffers and alleviates his pain. Indeed, Rev. Lepp is seriously ill; he will suffer imminent harm without access to cannabis; needs cannabis to alleviate his medical conditions or their symptoms; and has no reasonable legal alternative to cannabis, having tried all other legal alternatives, which were ineffective or resulted in intolerable side effects. Under these circumstances, Rev. Lepp’s use of medical marijuana is absolute and necessary.

CONCLUSION
Based upon the foregoing, Rev. Lepp respectfully requests that this motion be granted, and that he be allowed to use medical marijuana while on pretrial release.

Dated: May 16, 2005
/s/ J. TONY SERRA
J. TONY SERRA
SHARI L. GREENBERGER
OMAR FIGUEROA
Attorneys for Defendant
REV. CHARLES EDWARD LEPP

J. TONY SERRA #32639
SHARI L. GREENBERGER #180438
OMAR FIGUEROA #196650
506 Broadway
San Francisco CA 94133
Telephone: 415/986-5591
Attorneys for Defendant
REV. CHARLES EDWARD LEPP
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
REV. CHARLES EDWARD LEPP, et al.,
Defendants.
_____________________________/
CR 04-0317 MHP

NOTICE OF MOTION AND MOTION TO MODIFY TERMS OF PRETRIAL RELEASE TO ALLOW USE OF MEDICAL MARIJUANA

Date: May 31, 2005
Time: 10:00 a.m.
Dept: Judge Patel

TO THE CLERK OF THE ABOVE-ENTITLED COURT, TO THE UNITED STATES ATTORNEY FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND TO PRETRIAL SERVICES FOR THE NORTHERN DISTRICT OF CALIFORNIA: Defendant Rev. Edward Lepp, through counsel, will and hereby does move to modify terms of his pretrial release. Specifically, Rev. Lepp respectfully requests that he be allowed to use medical marijuana, which is essential to his health and well-being, while on pretrial release. This motion is based on the memorandum of points and authorities and declaration filed herewith, the files and records of the case, and such other evidence as may be presented at the hearing on this motion.

Dated: May 16, 2005
/s/ J. TONY SERRA
J. TONY SERRA

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