[WAMM]

If the federal government's evolving medical marijuana policy takes more concrete shape in the coming weeks, the first signs may come in two pending California cases.

In Los Angeles on Monday, a judge postponed the sentencing of a former dispensary owner and ordered the Department of Justice to put its new position in writing by the end of April, though he said he didn't think it will affect the defendant's conviction.

But new DOJ rules will likely play a more decisive role in a case in San Jose, where the city and county of Santa Cruz teamed up with a local dispensary to sue the U.S. attorney general and other federal officials for allegedly interfering with California's medical marijuana laws.

At a court appearance on Monday, the two sides agreed to pause the case until early May. And according to plaintiffs attorney M. Allen Hopper, Assistant U.S. Attorney Mark Quinlivan said at the time that "there may well be" a written change of policy handed down by then.

"This would be a sea change," said Hopper, litigation director for the ACLU's Drug Law Reform Project. "I don't think that that's too strong of a characterization. If what the press is reporting that Attorney General [Eric] Holder said is accurate and does become the Department of Justice policy, it would be a significant change." In recent comments to reporters, Holder has signaled a break from the Bush administration and a shift toward a less aggressive marijuana enforcement strategy.

Northern District of California Judge ****** Fogel, who is presiding over County of Santa Cruz v. Holder, 03-01802, set a settlement conference for May 7 and told Quinlivan that the plaintiffs need to see "something in writing that gives them some degree of certainty about what the new policy is," according to Hopper.

Quinlivan, reached on Wednesday, declined to talk publicly and referred questions to Justice Department headquarters in Washington, D.C. Laura Sweeney, a spokeswoman there, said that federal resources won't be used against individual patients or licensed caregivers who comply with state law. She said she was familiar with the Los Angeles case but would not comment on whether a formal, written DOJ policy on medical marijuana is forthcoming.

With two federal judges now "breathing down their backs," DOJ officials will likely produce something that stakes out their position, said Daniel Abrahamson, a Berkeley, Calif.-based attorney who directs legal affairs for the national Drug Policy Alliance and also represents the plaintiffs in the Santa Cruz case.

"We hope that the government will come back with a very clear statement that medical marijuana dispensaries that [comply with state law] ... will not be targets of federal investigation, federal prosecution or federal interference generally," he said.

If Quinlivan delivers that missive in the Santa Cruz case, Abrahamson said, he presumes it will apply nationwide.

Thirteen states have enacted laws that legalized medical marijuana, according to the Washington, D.C.-based Marijuana Policy Project. California, which passed the Compassionate Use Act in 1996, was the first.

In February, Holder hinted at a press conference that the DOJ would rein in its use of federal drug statutes to go after medical marijuana providers and users. Then, on March 18, he told a gathering of reporters that the department will focus only on "people, organizations, that are growing, cultivating substantial amounts of marijuana and doing so in a way that's inconsistent with federal law and state law."

At court in San Jose on Monday, Hopper said the judge and lawyers all referenced Holder's recent statements, with Fogel saying that they appear to indicate a new policy that could provide "motivation and framework for settling the case."

In the Santa Cruz case, a team of agents from the Drug Enforcement Administration raided the Wo/Men's Alliance for Medical Marijuana, based in the city of Santa Cruz, in the early morning hours of Sept. 5, 2002, according to the plaintiffs. The agents held the owners at gunpoint, seized marijuana and cut down 167 plants, but no criminal drug charges against WAMM or its patients ever materialized.

The co-op, joined by some of its patients and the city and county of Santa Cruz, sued the government in April 2003. In mid-2008, Fogel denied the government's attempt to dismiss the plaintiff's claim that federal enforcement efforts in California violate the state's rights under the 10th Amendment.

Northern District U.S. Attorney Joseph Russoniello told The Recorder last year that small, nonprofit "caregivers" are a low priority for his office, and Northern District prosecutors appear to be limiting their targets to large-scale, commercial growers and to property owners like the recently sentenced Josh Hedlund, who owned land in Humboldt County, Calif., and a warehouse in Berkeley. On Wednesday, spokesman Jack Gillund referred questions on any changes in policy to Washington.

Aside from the WAMM raid and others in the San Francisco Bay Area, much of the federal marijuana enforcement in California has taken place in the state's southern counties, particularly Los Angeles. Thomas O'Brien, U.S. Attorney for the Central District, has pursued four cases in recent years that involve medical marijuana dispensaries, said Thom Mrozek, a spokesman for the office.

Mrozek said the defendants in those cases all broke California law and thus fall within the guidelines sketched by Holder. But the attorney representing Morro Bay, Calif., dispensary owner Charles Lynch, whose sentencing was postponed on Monday, said he disagrees. Reuven Cohen, of the local federal public defender's office, said Lynch secured a business permit, paid taxes and won approval for his dispensary from the town's mayor.

"Today, Charlie Lynch would not be prosecuted," he said. "They would tell you otherwise, but it's pretty clear Charlie is the end of the line. The only question is whether he gets crucified."


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