Quick Hits (page 3)
DEA Agent Accused of Defying State Constitution, Judge's Order
By: Mike McPhee (Denver Post)
Don Nord did not want to get caught up in a conflict between state and federal law over whether he can keep and use marijuana.
The Hayden man, who has a state Medical Marijuana Registry card allowing him to use the drug for pain caused by his cancer and phlebitis, just wants to recover the marijuana confiscated from him by a federal agent.
But that desire has planted him squarely in the middle of the tussle between federal and state officials. Although Colorado law allows the use of marijuana by authorized patients, federal law still forbids it. The dispute has been fought in courts from California to Washington, D.C., but has yet to be resolved.
Now, what started for Nord as possession of a few bucks' worth of dope has developed into a lesson in federalism. And his situation casts a spotlight on how the national debate over medical marijuana affects individuals, some of them poor and most in pain.
Nord's saga began Oct. 14. That's when nine members of the Grand, Routt and Moffatt County drug task force - one federal agent and eight local law enforcement officers - raided his tiny apartment, armed with a search warrant from Routt County Judge James Garrecht. They took three marijuana plants, 5 ounces of loose marijuana, a smoking pipe, some growing equipment and even Nord's registry ID card.
After Nord's attorney sent Garrecht a copy of the ID card, the judge in November ordered that everything taken, including the legal limit of 2 ounces of loose marijuana, be returned to Nord by Dec. 29. Nord was never charged with a crime.
The task force returned nearly everything two days before Christmas - everything but the 2 ounces of marijuana. The federal agent who took it from Nord says the stuff is illegal contraband, according to federal law, and that he doesn't have to return it.
On Dec. 30, Kristopher Hammond, Nord's attorney, filed a motion for contempt against the federal agent, Doug Cortinovis of the Drug Enforcement Administration, "for failing to follow the Colorado Constitution and a judge's orders." Cortinovis is headed to court to show why he shouldn't be held in contempt - of state court, that is.
And the U.S. Attorney's Office in Denver, which usually prosecutes criminals, will be forced to defend a federal agent against state charges.
Nord says the fight is a matter of personal comfort.
"I'm in a lot of pain now," he said. "I can't sleep without it. I really don't have the money to buy more."
But it's also a matter of principle.
"My client is (angry)," Hammond said. "Sure, he could go out and find some more (marijuana). He could just let the police get away with violating the Colorado Constitution and a court order. But he doesn't want to do that.
"He went to the trouble of getting a medical marijuana certificate, and he thought it meant something. Now this federal agent says he doesn't care about state law."
Jeff Dorschner, spokesman for the U.S. Attorney's Office, refused to comment on the case, other than to say, "(Cortinovis) is our client, and we will defend him vigorously. Our pleadings will state our position."
Cortinovis, who didn't return calls to The Denver Post, said through the U.S. Attorney's Office that he upholds only federal law, which bans marijuana except for small amounts for research.
Nord, 57, lost a kidney to cancer and suffers from phlebitis and diabetes. He's in chronic pain. In 2002, he applied for and received a registry card to smoke marijuana for medicinal purposes. Only nine states have such a law, and fewer than 300 people in Colorado have such ID cards.
A former laborer and maintenance man, Nord can't work and lives on a fixed income of $655 a month from Social Security disability. He says good-quality marijuana, "which doesn't hurt my lungs," costs $100 a quarter ounce. That amount, he says, lasts him about two weeks.
Hammond said a person with a medical marijuana card is allowed to have six plants and 2 ounces of loose marijuana. The loose marijuana that is now the subject of the court fight was old, Nord said, and no longer worked for him because it lacked the active agent THC. He said he was using it for fertilizer.
The plants that were confiscated in the raid, he said, weren't ready to be smoked yet and now are worthless.
Hammond said Nord has made small monthly payments to him for representing him but that he hopes the judge will order Cortinovis to pay Nord's attorney's fees.
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Growin' Our Own (page 3)
Disclosure of Limbaugh Plea Talks Draws Rebuke
By: John Pacenti (Palm Beach Post)
The recent release of hundreds of pages of records about the Rush Limbaugh investigation, including plea negotiations, incensed the radio commentator's attorney and brought renewed charges of a smear campaign by prosecutors.
Responding to a conservative legal foundation's request for documents to support such a theory, State Attorney Barry Krischer's office released allegedly confidential letters between Limbaugh's attorney and prosecutors in which each side rejected the other's proposal late last year to make the prescription fraud case go away.
Limbaugh's attorneys wanted pretrial intervention, a sentencing program that would require Limbaugh to continue his drug treatment for an admitted addiction to painkillers.
Krischer's office countered that, in exchange for not unsealing his seized medical records, Limbaugh could plead to one count of "doctor shopping," a third-degree felony, and take three years' probation and community service.
"Mr. Limbaugh never considered accepting the state's ludicrous offer," Limbaugh attorney Roy Black said in statement. "He was not going to plea to something he did not do."
Limbaugh's lawyers, as well as the Landmark Legal Foundation, which made the public records request Jan. 15, saw the release of the letters to the media as another example of Krischer using a double-standard in the case.
Routinely, the state attorney's office says it won't comment on plea negotiations or investigations. Krischer's office has steadfastly held that Limbaugh's rights have been scrupulously protected during the investigation.
Black said Krischer violated Florida law and legal ethics by releasing the documents.
According to the records, Krischer's office consulted with the state Attorney General's Office and the Florida Bar before releasing the information.
Landmark said it was considering taking Krischer to court over the released documents, which were given to the media. Landmark, based in Herndon, Va., and Kansas City, said Friday it had not received the documents, which were made available by the state attorney's office through a West Palm Beach copy shop.
"Depending on what's been released, we may be inviting him to join us to have a conversation in front of a judge," said Mark Levin, director of Landmark.
A former U.S. attorney said the issue most likely will be heading to court. Miami attorney Kendall Coffey said releasing settlement negotiations could have a chilling effect in future cases. For example, he said, a co-defendant could file a public records request and find out if an accomplice was negotiating with prosecutors.
"Evidently, the state attorney general has taken a broad view of what many will dispute," said Coffey, who was U.S. attorney for the Southern District of Florida from 1993 to 1996. "I don't think the ramifications of this matter are confined to high-profile subjects. They reach across the board."
Joanne Carrin, spokeswoman for the Attorney General's Office, said it's not unusual for local agencies to call and ask questions about the public records law. She said the office knows of no exceptions to the public records law for documents relating to settlement negotiations.
The Florida Bar said it couldn't comment on the Limbaugh case and does not give legal advice. But according to a memo dated Thursday from Krischer's office, the Bar told prosecutors it had an ethical obligation to release the letters.
Meanwhile, with all the hoopla over the Limbaugh case, the 53-year-old Palm Beach resident has yet to be charged.
Medical records still sealed.
Limbaugh's drug use became public when his former maid, Wilma Cline, told the supermarket tabloid The National Enquirer for an October story that she provided the radio host with thousands of illegal pain pills.
According to an Oct. 3 letter from Black to Assistant State Attorney James Martz, Limbaugh offered his assistance in any investigation into Cline and her husband, David. The next week Limbaugh told his listeners he was addicted to painkillers and entered a five-week drug rehabilitation program in Arizona.
Limbaugh has denied breaking any law, saying he became addicted to prescription pills while being treated for back and ear pain.
"Mr. Limbaugh went to these doctors to relieve chronic, intractable pain. There was no doctor shopping," Black said Friday.
When he returned to the air Nov. 17, Limbaugh accused Krischer's office of investigating him for political reasons. Eight days later, investigators executed search warrants for his medical records from doctors in medical offices in Jupiter and West Palm Beach. The medical records remain sealed as Limbaugh appeals a circuit judge's decision to allow prosecutors to view them.
The American Civil Liberties Union and the Association of American Physicians and Surgeons are filing legal briefs on behalf of Limbaugh, saying release of his medical records would undermine doctor-patient confidentiality.
To obtain the court-approved search warrants, investigators used records from the Lewis Pharmacy near Limbaugh's Palm Beach mansion that showed he filled prescriptions for more than 2,000 pills of painkillers, including OxyContin, and anxiety medications.
Black, in a Dec. 11 letter, proposed that Limbaugh be referred to the pretrial diversion program. In that scenario, Limbaugh's addiction treatment would be monitored and, if successful, the case would be stricken from his record.
"Mr. Krischer told me specifically that the office policy is not to prosecute addicts/users of illegal controlled substances, but to go after the doctors who prescribed them illegally and the pushers on the street," Black wrote.
A note on top of the letter says it is confidential as part of settlement discussions under Florida law and Florida rules of criminal procedure.
In a Dec. 15 letter, Krischer's office rejected the proposal, saying the pharmacy records would support more than 10 felony counts of doctor shopping against Limbaugh. Doctor shopping is when a patient dupes at least two doctors into prescribing excessive medication.
Also in the letter, Martz told Black that, if Limbaugh pleaded guilty to one count of doctor shopping, prosecutors would recommend three years' probation, random drug tests and community service to raise public awareness of prescription drug addiction. The medical records would remain sealed and a guilty conviction would not appear on Limbaugh's record.
"We hadn't even had a chance to communicate our rejection of the state's supposedly confidential but preposterous proposal, when we received a call from a news reporter asking if it was true that Mr. Limbaugh was going to plead guilty," Black said Friday.
Incensed, Black wrote a letter to Krischer asking that his spokesman, Mike Edmondson, be criminally investigated for a deliberate pattern of disclosures "to publicly destroy Mr. Limbaugh's reputation."
"To date, our demand has been met with deafening silence," Black said.
'Journalist shopping' claim.
Black told cable TV news channel MSNBC on Jan. 14 that he felt Krischer was kowtowing to public pressure. In Friday's public disclosure, more than 300 letters and e-mails from the public -- most urging Limbaugh's prosecution -- were released.
On Jan. 15, Landmark, a conservative legal firm that has sued the Internal Revenue Service and other government agencies, entered the picture, seeking documents because it was concerned Krischer may be trying "to punish Rush for his viewpoints." It accused the state attorney of "journalist shopping."
Levin, Landmark's director, said a letter faxed from Krischer's office Friday seemed to be contradictory to what was released. It stated that "communications which include references to the facts which led to the ongoing investigation" would not be part of the records released.
"I've never seen anything like this," Levin said. "They made it quite clear this is the sort of thing we wouldn't get. I don't know what game they're playing. I think this is a very serious error in judgment."
The Limbaugh camp said the disclosure was illegal and is further proof of a smear campaign. "Because the state has no case against Mr. Limbaugh they continually seek to discredit him in the media," Black said.
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Pipeline (page 3)
Judges Defying Federal Law in Medical Marijuana Cases
By: Leonard Post (The National Law Journal)
NEW YORK -- A federal judge in Los Angeles and a county judge in Colorado are the latest jurists to defy prosecutors seeking convictions against defendants using marijuana for medicinal purposes.
The recent rulings are the latest salvos in an ongoing battle between tough federal drug policies and laws passed in nine states that allow the use of what they term "medical marijuana."
In Los Angeles, U.S District Judge Howard Matz lectured prosecutors for using their resources to prosecute three officers of the now-shuttered Los Angeles Cannabis Resource Center.
The center grew and doled out marijuana to ease the suffering of cancer and AIDS patients, and others registered with the state who had, among other ailments, chronic pain.
Such centers, though permitted by California's 1996 Compassionate Use Act, violate federal drug laws. Prosecutors sought two-year sentences. But Matz earlier this month departed from Federal Sentencing Guidelines and gave the men probation. One of those charged has cancer and another undergoes treatment for HIV. U.S. v. Imler, No. CR 03-273-AHM (C.D. Calif.).
ORDERS TO RETURN
In Routt County, Colo., Judge James Garrecht ordered authorities to return two ounces of marijuana they had seized from Don Nord, 57, who used the drug to ease the debilitating symptoms of his many ailments, including kidney cancer, phlebitis, diabetes and lung disease.
Colorado law permits the cultivation and use of marijuana to mitigate symptoms of cancer, AIDS, chronic severe pain and other conditions.
"Just the kind of person you want to keep from getting their drugs," quipped Kristopher Hammond of Oliphant, Hammond, Atwell & Combs in Steamboat Springs, Colo., who represented Nord.
Nord is registered with the state as a medical marijuana user, but the drugs were still seized, even though he had shown police his registry card when they came to his door with a search warrant, Hammond said. People v. Nord, No. 03M616 (Routt Co., Colo., Co. Ct.).
Garrecht gave the county until Dec. 21 to return the drugs. Though a first in Colorado, Garrecht's ruling is in conformity with the actions of many judges in states such as California and Oregon.
"The police are good at enforcing the law, let's see how good they are at obeying it," Hammond said.
Routt County Assistant DA Marc Kerry St. James felt compelled to fight against returning the marijuana because of the conflict with federal law, although his office supports the state's law, he said. The drugs were seized by a joint local-federal task force. His office will not appeal the ruling and will attempt to comply. However, the drugs are in the possession of the federal Drug Enforcement Administration.
Lawyers asserted that turning seized marijuana over to federal authorities has become a common tactic in evading state compassionate-use laws.
A federal district court in California thwarted a similar tactic last August. Marilyn Hall Patel, chief judge for the Northern District of California, ruled that a federal seizure warrant was unlawful because it contravened the orders of a state court that had disposed of the property, which was in its control when it ordered the marijuana to be returned to its owner. In re The Matter of the Seizure of Approximately 28 Grams of Marijuana, 278 F. Supp. 2d 1097. A motion for relief from judgment is pending in her court.
Federal law enforcement authorities have shut down all licensed state marijuana distribution centers.
"The feds have attempted to close these kinds of centers," said Allen St. Pierre, the executive director of the Washington-based National Organization for the Reform of Marijuana Laws Foundation. "But they continue to thrive in the underground in the states where voters have cast their will."
This underground, unlike the for-profit underground, "exists just barely below the surface because of societal acceptance at the electoral level." He praised Matz for not being an "automaton."
Tom Riley, a spokesman for the White House's Office of National Drug Control Policy, defended federal law enforcement, but asserted that there is "no benighted federal policy that refuses to look at the science."
Riley said the government supports clinical trials of elements of the cannabis plant and noted that there are "scheduled" drugs available by prescription derived from coca and poppy plants.
"But we don't let people grow their own poppies," Riley said. "I question the wisdom of giving back a dangerous substance like marijuana . . . a known carcinogen with serious addictive qualities."
The U.S. Supreme Court rejected state compassionate-use acts in U.S. v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483 (2001). The court held that even assuming that necessity was a recognized defense to a criminal violation, a medical-necessity exception for marijuana was at odds with the substance control act. That statute specifically lists marijuana in a category that Congress determined had no medical benefits warranting an exception, the court said.
Ronald Kaye of Pasadena's Kaye, McLane & Bednarski, attorney for Scott Imler, 45, the Los Angeles Cannabis Resource Center's president and founder, called his client's prosecution "politically motivated and not locally driven."
Imler is the co-author of the California proposition that gave official sanction to selling and growing marijuana for medical use.
"The city of West Hollywood lent them the money to buy the building the center was housed in," Kaye said. Even the prosecution did not "dispute that this was the most squeaky clean operation in the state."
The government has not yet decided whether it will appeal the sentence, said Assistant U.S. Attorney Patrick Fitzgerald, the lead prosecutor in the case.
John S. Martin Jr., a former U.S. district court judge and the former U.S. attorney for the Southern District of New York, who claimed to have imposed some of the "toughest sentences in the country," championed Matz's decision to depart from the sentencing guidelines and grant probation.
"It is the prototypical case where departure is appropriate," Martin said.
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