420 Magazine Background

Making A Federal Case

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On July 29, 2003, Tehama County sheriff's deputies raided the Red Bluff
residence of a 54-year-old woman named Cynthia Blake, who was cultivating
29 outdoor cannabis plants. Blake, a graphic artist with no criminal
record, has been employed for 16 years by the Federal Reserve in San
Francisco. She is on disability leave, with a well-documented medical

According to Blake's lawyer, Shari Greenberger, Blake and her "significant
other," David Davidson -a retired businessman with a residence of his own
in Oakland-had trimmed the plants in her Red Bluff garden only a few days
before the raid and decided to conduct a novice growers' experiment,
putting all the cuttings in the ground to see how many would root.

Davidson, 53, is also a documented patient. He was arrested with Blake in
Red Bluff on July 29. Davidson assumed he had nothing to hide and
acknowledged to Tehama authorities that he was also trying to start some
plants at his place in Oakland (a project Blake had nothing to do with).
Davidson says that when he then returned home, "The front door was standing
open and the place had been ransacked." The Oakland police claim to have
confiscated 600 plants, and the Tehama Sheriff puts the number pulled from
Blake's garden at more than 1,000.

Davidson was initially represented by Omar Figueroa who, like Greenberger,
works out of Tony Serra's office. Serra has now joined in representing
Davidson (the tougher case).

An expert witness hired by the defense, Chris Conrad, opined that the
cuttings seized by the Oakland police were so immature and/or withered that
few would meet the legal definition of a viable plant. The Alameda County
DA's office, conceding that at least 300 cutting weren't rooted, and
fearing a costly fight in front of pro-medical-marijuana jurors, decided
not to file charges against Davidson.

The Tehama County case against Blake and Davidson remained pending for more
than five months without a preliminary hearing. Greenberger says that
Assistant DA Lynn Strom was "stonewalling with regard to reviewing the
evidence... There had been a break-in to the evidence room and a lot of
marijuana was taken; we don't know if it involved our case or not. We
thought maybe this was why she was giving us a hard time. And we thought we
might have a chain-of-custody issue even if they recovered it."

If the defense could define the amount of viable marijuana as reasonable
for personal use, they could move at the preliminary hearing to get the
case dropped, based on the Mower precedent. But Strom would not let Chris
Conrad examine the evidence -"for security reasons, because he's a lay
person," she told the defense lawyers. So they prepared a motion seeking
permission for Conrad, accompanied by the DA, to inspect the cuttings.

On Tuesday morning, Jan. 13, Greenberger and Figueroa arrived at the Tehama
County Courthouse in Corning for a hearing before Superior Court Judge
Richard Schuler on their motion to examine the evidence. "I should have
known something was up because there was no one else in the courtroom when
we got there," says Greenberger, "except these two burly guys who had their
arms crossed and wouldn't talk to Omar when he introduced himself."

Assistant DA Strom surprised them by moving to dismiss the case against
Blake and Davidson. "Then she asked if we would go into the judge's
chambers with her to talk about scheduling," says Greenberger. "I figured
they were going to dismiss and re-file because she needed more time. While
we were in chambers she said, 'I'm sorry about all the cloak-and-dagger
stuff, the truth is, a federal indictment, has come down and as I'm
speaking, your clients are being arrested and transferred to the Eastern
District [federal jurisdiction]. This is a 10-to-life case under the
federal guidelines.'"

The federal indictment against Blake and Davidson charges them with
conspiracy to grow at least 1,000 plants, possessing marijuana with intent
to distribute, and manufacturing at least 100 plants.

Greenberger was slow to grasp the fact that Blake and Davidson had been
whisked away from the courtroom. She says she asked the judge, "'Why can't
we surrender our clients? This has been pending six month and they've made
every appearance.' At that point the judge, looking very uncomfortable,
said, 'You're using my chambers to conference this case. I know nothing
about what's happening and I'm not part of it.'"

Judge Schuler did not respond to a telephoned inquiry as to his
foreknowledge of the DA1s plan to physically remove Blake and Davidson from
his courtroom and have them charged under federal law.

Greenberger believes that Strom called in the feds because she didn't think
she could win the case. "She [Strom] said that part of the reason this was
happening was because Oakland was not filing charges and it was going to be
too hard for her to prove with the evidence she had... She said she'd been
talking to the feds for six weeks and that they'd been very interested in
this case all along -which I doubt, because it was Tehama County agents
that did the arrest."

Greenberger and Figueroa left Corning in haste and drove to Sacramento to
meet with their clients, who were being held at the county Jail. "We were
distraught," says Greenberger. "This was the worst experience of my career
- -the outrageous deceit... Then for 12 hours they wouldn't let us see our
clients! They were in 'Booking...'"

The lawyers met with the federal prosecutor and pre-trial services, set up
interviews for the next morning, got the matter put on the calendar, and
were able to get their clients released on $50,000 bail by the afternoon of
the 14th.

Blake and Davis were arraigned in Sacramento on Jan. 17 before U.S.
Magistrate Geoffrey Hollows. At a press conference that day Tony Serra
summarized the situation: "Strom had concocted this terrible, illegal,
underhanded scheme to separate David and Cindy from their attorneys and
transition them into federal jurisdiction, where she knows that medical
necessity is not a defense... The U.S. attorney's office should never have
taken this case. David and Cindy have never sold marijuana. They grow it
strictly for their own medical use."

The defense will now prepare a motion to dismiss, arguing that the
Blake-Davidson grow(s) did not constitute interstate commerce as defined by
the 9th Circuit Court of Appeals in the Raich v. Ashcroft case, and
therefore the feds don't have jurisdiction. The prosecution will argue that
Blake and Davidson's plants could have yielded so much marijuana that the
price outside California would have been affected. Tehama County Assistant
DA Jonathan Skillman, seeking to justify the hand-off of the prosecution to
the feds, told the Sacramento Bee that "1,803 plants seized at the two
locations... could have supplied the entire West Coast."

Lawyers for Ed Rosenthal and Bryan Epis -both convicted of federal charges
similar to those filed against Blake and Davidson- already have filed
appeals based on the Raich decision. Tony Serra hopes to get the
prosecution of Blake and Davidson put off until the 9th Circuit rules on
those appeals.

The defense also plans to file a "selective and vindictive prosecution"
motion, based on the fact that that turning Blake and Davidson over to the
feds denies them the right to mount a medical-marijuana defense.

Blake and Davidson might be eligible for the "safety valve" (an exception
to mandatory minimums available to some non-violent first offenders) in
which case they could be facing 18- to 24-month sentences. But, as federal
prisoners, they would not be eligible for probation, and would have to
serve at least 85% of their sentences in custody.

El Dorado Gold

Phil Denney, MD, has issued more approvals for cannabis use than any other
California physician (9,800, including renewals) and has never run afoul of
the Medical Board. Since deciding in 1999 to make cannabis the focus of his
practice, Denney has become increasingly interested in the political and
legal aspects of the situation. He closely followed State Sen. John
Vasconcellos's efforts to pass a bill that would encourage implementation
of the medical-marijuana law in rural counties. When it passed as SB 420,
Denney promptly moved to take advantage of the provision that recognizes
patients' rights to cultivate cannabis "collectively or cooperatively."

On Jan. 1 Denney sent the following letter to the El Dorado County Board of

"As you may know, California Senate Bill 420 introduced by Senator
Vasconcellos was passed by the Legislature and signed into law by Governor
Davis. The Act becomes state law as of today. Specifically the Act adds
Article 2.5 (commencing with section 11362.7) to Chapter 6 of Division 10
of the Health and Safety Code. The Act, among other provisions, establishes
a voluntary program to issue identification cards to qualified medicinal
marijuana (cannabis) patients. One of the specified intentions of the Act
is to "enhance the access of patients and caregivers to medical marijuana
through collective cooperative cultivation projects" (Section 1, Subsection
b, number 3).

"I represent a group of El Dorado County citizens who are qualified
patients and caregivers as defined in the Act and we intend to establish a
collective cooperative cultivation project in El Dorado County. It is our
intention to provide safe access to affordable, high quality medicinal
cannabis for qualified patients and caregivers who reside in El Dorado
County. It is our goal that it no longer be necessary for any qualified
patient or caregiver to be forced to support the criminal marijuana 'black

"Our plan is to cultivate medicinal cannabis at a single outdoor site with
strict controls to prevent theft or diversion. We do not intend to
cultivate or distribute cannabis for profit and will be open and
transparent in all our activities. In addition we will avoid any and all
activities which could be construed as interstate commerce in accordance
with the recent U.S. 9th Circuit Court ruling in Raich v. Ashcroft. We plan
to choose and prepare a site immediately and anticipate a planting date
between May 15 and June 1 of this year. We anticipate a harvest in early
October. We are committed to the principles of sustained organic
agriculture and have no plans to use agricultural chemicals or pesticides
of any kind.

"We believe that as qualified medicinal cannabis patients and caregivers we
have a right to cultivate cannabis as medicine for our own use. While we do
not believe we need your permission or your approval for our project, we
would hope to gain your support and to proceed in a spirit of cooperation
and mutual respect. We look forward to opening a constructive dialog with
you and to developing an exemplary project which can be emulated throughout

"Democracy is a wonderful thing!


"Philip A. Denney, M.D."

The Chairman of the Board of Supervisors has indicated that the proposal
will be referred to the District Attorney and the Sheriff.

Pubdate: Wed, 21 Jan 2004
Source: Anderson Valley Advertiser (CA)
Column: Cannabinotes
Copyright: 2004 Anderson Valley Advertiser
Contact: ava@pacific.net