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Sacramento judge rejects challenge to government’s marijuana classification

In remarks from the bench on Wednesday, a Sacramento judge said she will reject a challenge to the federal government’s classification of marijuana as one of the most dangerous street drugs.

The remarks of U.S. District Judge Kimberly J. Mueller were made during a brief status conference in the case of 16 individuals indicted in October 2011 on charges of conspiring to manufacture at least 1,000 marijuana plants in Tehama and Trinity counties.

Mueller assured the opposing attorneys she will file a written opinion by the end of the week.

The challenge has been closely watched by medical marijuana activists, the media and the legal community nationwide.

The judge’s remarks were first reported by California NORML, a nonprofit, membership organization dedicated to legalizing cannabis. Representatives of NORML were in the courtroom.

Mueller said her duty is “to resolve the legal questions,” and not to make public policy. She “treads lightly,” she said, because the defendants are challenging a decision “made by Congress, which is the first representative branch of government.”

She concluded “this is not the court and this is not the time” to declare a federal statute unconstitutional. However, contrary to prosecutors’ arguments, she said she also concluded “the defendants have standing to bring this challenge” and “the court has jurisdiction.”

Mueller said that the statute passes the “rational basis” test, and additional questions raised by the defense are for Congress to resolve.

She said the defendants did not meet their burden of showing discriminatory application of the government’s zero-tolerance policy on marijuana.

In November 2013, San Francisco attorney Zenia Gilg, who represents defendant Brian Justin Pickard, filed a motion to dismiss the indictment, contending on constitutional grounds that scientific and medical evidence casts serious doubt on the accuracy of government findings that resulted in the listing of marijuana as a “Schedule I” controlled substance.

Gilg and co-counsel Heather Burke argued that “there exists no rational basis on which such a classification may be justified. In sum, the evidence is indisputable: cannabis can and has been used safely under medical supervision for decades.”

Assistant U.S. Attorney Samuel Wong’s initial reaction was that Mueller has no jurisdiction, that it is a question reserved for the U.S. Drug Enforcement Administration and Congress. When the judge told him she was going to proceed with an in-depth examination of the question, he said it would have to be handled by attorneys from the U.S. Justice Department in Washington, D.C., and that would take some time to arrange. She said that was not a problem, that there was no hurry.

In a brief filed in January, Gilg and Burke argued that the government’s fiscal 2015 appropriations bill “leave(s) no doubt of the absurdity of this irrational classification.”

The brief points out that the bill prohibits the U.S. Department of Justice from using funds to prevent 33 states, including California, “from implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

Thus, federal law now shields medical marijuana distributors from prosecution, depending on the state in which they do business, and it now “recognizes the existence of marijuana as medicine,” the brief states.

Taken as a whole, the defense attorneys claim, the situation violates the equal protection clause of the Fifth Amendment and the doctrine that all states are entitled to equal sovereignty.

But prosecutors argued in a reply brief that Gilg and Burke fell short of proving their case.

“The most defendants can muster is weak evidence that marijuana, or components within marijuana, might have medical application and should be further studied,” the government's brief says.

This is the same matter the U.S. attorney general and two federal agencies “have evaluated in ... many scheduling petitions in the past 40 years, and which they are in fact evaluating now,” the prosecutors stated.

They urged Mueller “to see this motion for what it is – an end run around the ongoing administrative process ...”

In a telephone interview Wednesday after the hearing, Gilg said she is “devastated for my client, but I have not given up. The issue is too important. We knew it would be a difficult battle and knew, no matter who won, it would be a decision ultimately made by” a federal appeals court.

She pointed out that, before there can be an appeal, there will either have to be a trial, or she will have to make a deal with the government calling for Pickard to plead guilty conditioned on the outcome of an appeal.

“I appreciate Judge Mueller giving us the opportunity to create this comprehensive record on the issue,” Gilg said. “Such an opportunity hasn’t been accorded by a federal judge in a long time. It took a lot of courage.”

In a prepared statement, U.S. Attorney Benjamin Wagner said, “The question ... was not whether marijuana should be legalized for medical or recreational use, but whether decisions concerning (its) status ... should properly be made” in accord with the science-based process “set forth in the Controlled Substances Act and passed by Congress.”

Call The Bee’s Denny Walsh, (916) 321-1189

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