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Case 8:07-cr-00264-CJC Document 166 Filed 11/25/09 Page 1 of 23 Page ID #:607
1 Law Offices of Eric D. Shevin

Eric D. Shevin, Esq. (State Bar No. 160103)
2 Stephen J. Fisch, Esq. (State Bar No. 240774)
Meital Manzuri, Esq. (State Bar No. 258256)
3 15260 Ventura Blvd., Suite 1050
Sherman Oaks, CA 91403
4 Telephone: (818) 784-2700
Facsimile: (818) 784-2411
5
Attorneys for Defendant
6 STEELE SMITH
7
8 UNITED STATES DISTRICT COURT

9 FOR THE CENTRAL DISTRICT OF CALIFORNIA
10
11 THE UNITED STATES OF AMERICA, Case No. 07 - 264 - CJC

12 Plaintiff, NOTICE OF MOTION AND MOTION TO
DISMISS CASE FOR VIOLATION OF DUE
13 vs. PROCESS AND STATE SOVEREIGNTY
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STEELE SMITH
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Defendant.
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TO THE HONORABLE COURT AND THE U.S. ATTORNEY OR HIS REPRESENTATIVE:
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PLEASE TAKE NOTICE that on November 30, 2009, or as soon thereafter as the matter may
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be heard in department 9B of the Santa Ana Federal District Courthouse, STEELE SMITH through
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counsel of record, ERIC D. SHEVIN will, and hereby does, move to dismiss the charges against him
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because his right to Due Process has been violated. This motion is made pursuant to the Fifth
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Amendment, the Eighth Amendment, the Ninth Amendment and the Tenth Amendment to the United
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States Constitution.
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This motion is made on the grounds that the current charges against STEELE SMITH are a
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result of federal agents’ unconstitutional commandeering of state officials to enforce the Controlled
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Substances Act. Moreover, Due Process bars cruel and unusual punishment. Allowing this
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prosecution to continue would violate the interests of justice and fundamental fairness.
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MOTION TO DISMISS -1-

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Said motion to dismiss is based on this Notice of Motion, the attached Memorandum of Points
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and Authorities, such supplemental pleadings that may be filed in the course of this motion, the
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documents and records on file in this action and on any evidence and argument to be presented at the
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hearing on this motion.
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Respectfully submitted,
7
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10 DATED: 11/24/2009 /s/ Eric D. Shevin .
Eric D. Shevin: Ca State Bar 160103
11 Attorney for STEELE SMITH
Law Offices of Eric D. Shevin
Sherman Oaks, Ca 91403
13 Telephone: 818-784-2700
Facsimile: 818-784-2411
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1
MEMORANDUM OF POINTS AND AUTHORITIES
2
I.
3
4 INTRODUCTION
5 In the instant case, the proceedings against Defendant Steele Smith1 are in direct conflict with
6 the Fifth, Eighth, Ninth, and Tenth Amendments to the United States Constitution. The subject
7
matter of this case involves allegations of cultivating marijuana in violation of federal law. Mr.
8
Smith, however acted at all times with direct knowledge that his conduct was authorized by the
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expressed language of the Compassionate Use Act, codified as California Health & Safety 11362.5,
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11 et. seq. As a result of the divergence of state, constitutional, and federal law on the issue of medical
12 marijuana, Mr. Smith will be denied his fundamental right to Due Process and to a fair trial unless
13 this Court resolves the issues presented in this motion and Mr. Smith’s additional pre-trial motions
14
filed concurrently herewith. Undersigned counsel represents that the instant case is one of first
15
impression and that the District Court is empowered to act in order to preserve Mr. Smith’s rights as
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set forth herein.
17
The Fundamental Right to Due Process represents the principle that the government must
18
19 respect all of the legal rights that are owed to a person according to the law of the land. Murray v.
20 Hoboken Land, 59 U.S. 272, 276 (1855). In order to protect an individual’s right to Due Process, this
21 Court is empowered to place limitations on laws and legal proceedings, in order to define and
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guarantee fundamental fairness, justice, and liberty. Id. at 277. In order to ascertain whether a
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process involves the right to Due Process, the first step is to “examine the constitution itself, to see
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whether this process be in conflict with any of its provisions . . .” Id.
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1
27 The owner of a medical marijuana collective in strict compliance with California Health & Safety
Code §11362.5.
28
1 In the instant case, the proceedings against Mr. Smith are in conflict with the Fifth, the
2 Eighth, the Ninth, and the Tenth Amendments to the U.S. Constitution. The Fifth Amendment
3
requires both Procedural and Substantive Due Process. See Hamdi v. Rusmfeld 542 U.S. 507 (2004)
4
[quoting In Re Winship, 397 U.S. 507 (1970)]. As discussed in Mr. Smith’s motion to present a
5
complete defense, filed concurrently herewith, Procedural Due Process requires Steele Smith be
6
7 afforded the opportunity to be heard and present a defense based on his reasonable reliance on
8 California’s medical marijuana laws. Moreover, the punishment involved here violates Procedural
9 Due Process in conjunction with the Eighth Amendment. Under the Eighth Amendment, a person
10
may not be subject to cruel and unusual punishment, and such subjection would violate Procedural
11
Due Process. See e.g., Simmons v. South Carolina, 512 U.S. 154, 161 (1994). Here, strict compliance
12
with a valid state law will subject Mr. Smith to a mandatory minimum of ten years’ federal
13
imprisonment, and it is cruel and unusual and a violation of fundamental fairness that one’s lawful
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15 actions can result in such a harsh punishment by the federal government.
16 Finally, the federal government’s systemic plan to re-criminalize medical marijuana in

17 California violates the Ninth and Tenth Amendments. Under the Ninth Amendment, governmental
18
expansion should be denied if it violates the powers granted to the people or the states by the
19
Constitution. See U.S. Public Workers v. Mitchell, 330 U.S. 75 (1945). Here, the federal government
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seeks to expand its powers without constitutional authority and in violation of the rights afforded to
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22 the states under the Tenth Amendment.
23 The Tenth Amendment has been construed to protect each state’s authority to create its own
24 laws under the police power. New York v. United States, 505 U.S. 144, 167 (1992). Under this
25 authority, California and other states have passed laws allowing for the lawful use of medical
26
marijuana. The federal government’s plan to re-criminalize medical marijuana and the practice of
27
commandeering state officials has been documented and is implicitly obvious in the instant case.
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1 This plan and practice violates the Tenth Amendment and all that is considered fundamental under
2 states’ rights.
3
Analyzing the current facts under all of these Amendments of the Constitution demonstrates
4
violations of Mr. Smith’s right to Due Process and fundamental fairness, as well as attempts by the
5
federal government to subvert state laws. Accordingly, Mr. Smith moves to dismiss the current
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7 prosecution for such violations.
8 II.
9 STATEMENT OF FACTS
10 Beginning in 1981, Steele Smith ran a successful marketing business for twelve (12) years.
11 (Mr. Smith’s Declaration attached as Exhibit A). His success included two (2) U.S. patents, a U.S.
12
trademark, an award for outstanding young American from the US Junior Chamber of Commerce,
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and an award for Outstanding Young Californian. In addition to his success and accolades, Mr.
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Smith owned his own home and was living the American Dream.
15
A.
16
17 Medical Marijuana Helped Steele Smith When He Was Very Ill.
18 In 2001, Steele Smith was diagnosed with a rare disease called Zollinger-Ellison Syndrome
19 (“Zollinger”). This is a disease of the gastro-intestinal system (stomach, intestines, etc.). A person
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with Zollinger suffers from horrible ulcers that basically burn through the stomach. Symptoms of
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this awful disease include a burning pain in the abdomen, nausea, vomiting, bleeding, weakness, and
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fatigue. As a result of Zollinger, in the summer of 2001, Mr. Smith lost 60 lbs; he weighed 195lbs at
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24 a height of 6’7”. In an attempt to relieve Mr. Smith of his symptoms, his doctors prescribed
25 morphine. As a result of long-term use, Mr. Smith became dependant on and addicted to morphine to
26 such an extent that he could no longer operate his business. He lost contacts, credibility, and
27 eventually his home.
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1 Fortunately, through medical detoxification, Mr. Smith was finally able to beat the addiction.
2 Once Mr. Smith came off of morphine, however, he still suffered from the effects of the disease,
3
Zollinger, which has no cure. Afraid of further pain management drugs, he asked his doctor for an
4
alternative. It was then that Dr. Vicary recommended medical marijuana. He said it could help
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stimulate digestion, abate nausea, and stimulate his appetite. Upon trying medical marijuana, the
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7 symptoms of Zollinger decreased significantly and Mr. Smith was able to eat and maintain a healthy
8 weight.
9 B.
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Steele Smith’s Compassionate Care
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After his success as a patient, Mr. Smith began to research the medical marijuana laws in
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California and read everything he could about Proposition 215, Health & Safety Code 11362.5, and
13
the Medical Marijuana Program Act. Since Mr. Smith had plenty of experience running a successful
14
15 business prior to his illness, he knew he could be successful helping other patients. In setting up his
16 medical marijuana collective, California Compassionate Caregivers (“C3”), Mr. Smith consulted
17 several attorneys, obtained business licenses, and filed taxes. C3 was an immediate success. He
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hired employees, had an office and provided many helpful services to people with illnesses. His
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services were not limited to medical marijuana, he also provided walkers, crutches, wheelchairs,
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porta-potties, bed pans, and other medical supplies FREE of charge.
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22 Mr. Smith has helped several seriously ill patients. For example, Mr. Smith cared for
23 Michelle Bockholt, a woman who suffers from severe scoliosis, for many years. (Declaration
24 Attached as Exhibit B). Ms. Bockholt has undergone several failed back surgeries, has metal rods
25 and artificial discs in her back, and been prescribed every type of pain-killer and muscle-relaxer to try
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and ease suffering. In an effort to reduce her suffering, Ms. Bockholt sought out alternative methods.
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She reports that medical marijuana helps in a variety of ways that other prescriptions do not or the
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1 side affects of which interfere with every day life. Medical marijuana helps her sleep better, helps
2 her eat better, and relaxes her body to ease suffering overall. Despite doctors’ many efforts, Ms.
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Bockholt may always suffer, but thanks to Mr. Smith she has learned to manage her pain in the best
4
way that works for her.
5
Mr. Smith has even been compensated by some patients’ insurance. Jason Waters, a young
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7 man aged 25 with Cerebral Palsy, who is quadriplegic, has had several surgeries and was a recipient
8 of a transplant. Steele Smith billed his transplant company in Maryland and was paid by their
9 insurance in full. In fact, Mr. Smith recovered costs from different insurance companies several
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times for the services he provided. Similarly, Mr. Smith provided an elderly woman, Dorothy
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Wretchko, aged 90, with numerous health services, including a free walker. Accordingly, through
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C3, Mr. Smith was able to become a contributing member of society once again and, as discussed in
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the motion to present a complete defense filed concurrently herewith, did so completely within the
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15 California medical marijuana laws.
16 C.
17 The Investigation of Steele Smith and C3
18
In February of 2007, Mr. Smith was investigated thoroughly by the Fullerton Police. Mr.
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Smith allowed these officers to come in and document the entire grow operation for Mr. Smith’s
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collective. After thoroughly documenting the grow, Steele Smith never heard from the Fullerton
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22 Police again. Then, nine months later, the Federal Government executed a raid. In his affidavit in
23 support of a criminal complaint, Special Agent Joseph Kolodzey admits that the raid in this case was
24 instituted with the help of state officials. (Attached as Exhibit C).

25 //
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1 III.
2 THE FEDERAL PROSECUTION OF MEDICAL MARIJUANA PATIENTS AND
3 SUBVERSION OF STATE LAW IS UNCONSTITUTIONAL UNDER THE TENTH
4 AMENDMENT.
Under the Tenth Amendment, “The powers not delegated to the United States by the
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6 Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
7 people.” The Tenth Amendment was established to protect the people and the states from an
8 intrusive federal government. See New York v. U.S., 505 U.S. 144 (1992); Printz v. United States 538
9
U.S. 1036 (1997). Accordingly, the federal government has limited powers and can only assert
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powers specifically granted by the US Constitution.
11
With this authority, the people of California passed the Compassionate Use Act and the
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legislature subsequently passed the Medical Marijuana Program Act. Therefore, the people of
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14 California – supported by the legislature – have asserted the right conferred upon them by the US
15 Constitution and showed their majority approval of medical marijuana.

16 "The federal government may not compel the States to enact or enforce a federal regulatory
17
program." Printz v. United States 538 U.S. 1036 (1997). “Congress may not simply commandeer the
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legislative process of the states by directly compelling them to enact and enforce a federal regulatory
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program.” New York v. United States, 505 U.S. 144, 161 (1992). The Federal Government’s actions
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21 constitute commandeering when it “requires state officials to assist in the enforcement of federal
22 statutes regulating private individuals.” Raich v. Gonzales, 500 F.3d 850 867 n.17 (9th Cir. 2007).
23 The manner in which the Controlled Substances Act is enforced can violate the Tenth Amendment.
24 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) (Chief Judge Kozinsky’s concurring opinion); See
25
also County of Santa Cruz v. Gonzales, (Attached as Exhibit D) (Case number C 03-01802 JF, Order
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granting in part and denying in part, defendants’ motion to dismiss, 2008). In this case, the evidence
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1 will show that the federal government has been subverting California medical marijuana laws in
2 violation of the Tenth Amendment, to the detriment of Mr. Steele Smith and others like him.
3
A.
4 Federal Agents Have Commandeered State Officials to Re-Criminalize Medical Marijuana in
5 Violation of the Tenth Amendment.
6 The federal government has employed a consistent, long-standing practice and policy, to
7 undermine and render state medical marijuana laws unenforceable, and coerce California to re-
8
criminalize medical marijuana. First, the federal government selectively targeted its enforcement
9
efforts against physicians to undermine the state by incapacitating the mechanism the state chose for
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separating what is legal from what is illegal under state law. Conant v. Walters, 309 F.3d 629 (9th
11
Cir. 2002). The Federal Policy of targeting physicians was enjoined in Conant v. Walters because
12
13 that policy violated physicians’ First Amendment Rights. Id. In his concurring opinion, Judge
14 Kozinksy observed that the policy also violated the Tenth Amendment. Id.
15 Enjoined from pursuing its policy of targeting physicians, the federal government has turned
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to other means of selectively enforcing and threatening to enforce federal drug laws to force
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California and other states to re-criminalize medical marijuana.
18
Illustrating this federal practice and policy of targeted investigation, enforcement, and
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20 prosecution in order to sabotage and render unenforceable California’s medical marijuana laws, then-
21 Administrator of the DEA Asa Hutchinson publicly confirmed that medical marijuana raids were a
22 part of the federal government’s commitment to disrupt implementation of the Compassionate Use
23 Act. Hutchinson reiterated the federal policy of disrupting implementation of the state’s medical
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marijuana laws in a September 30, 2002 letter to California Attorney General Bill Lockyer.
25
Furthermore, Special Agent, Richard Meyer, a spokesman for the DEA, publicly stated, “There
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shouldn’t be any doubt about our determination to enforce the laws of the United States.” Deane
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28 Murphy, Clash on Medical Marijuana Puts a U.S. Grower in Court, N.Y. Times, January 21, 2003,

1 at A1.2 He also said, “Marijuana is illegal regardless of the intended use, regardless of the person
2 cultivating it and regardless of where it originated.” Id.
3
In a letter to Asa Hutchinson, then California Attorney General Bill Lockyer, characterized a
4
flurry of federal raids on medicinal marijuana providers as “wasteful, unwise and surprisingly
5
insensitive.” Id. Lockyer concluded, based on communication with federal officials that federal
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7 enforcement actions against cultivators and providers of medical marijuana during his tenure were
8 intended to be punitive and intimidating gestures, not aimed at enforcement of legitimate federal
9 interests, but at interfering with implementation of California law.

10
Furthermore, Bill Lockyer thought subversion was so egregious he felt compelled to issue a
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bulletin to all California Law Enforcement Agencies advising them that they are not required to
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enforce federal laws nor to act as agencies for federal law enforcement, and further asking them to
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observe California’s medical marijuana laws as valid and not to harass patients. (Bulletin Attached
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15 as Exhibit E).
16 Also, as a demonstration of the unlawful intermingling of federal and state agencies, attached
17 as Exhibit F, is a letter written to the DEA by the president of the California Police Chiefs’
18
Association (“CPCA”), which says:
19
What the CPCA is requesting is that DEA become more actively involved in
20 working with local law enforcement to close these distribution centers, seize their
profits and all marijuana . . .
21
It is the feeling of the CPCA, and our members, that a concentrated effort
22 sustained over a period of time would send a strong message to local and county
government that “medical marijuana” is not allowed . . .
23
Further demonstrating this policy and practice, the DEA sent hundreds of threatening letters
24
to landlords whose tenants were cultivating or distributing marijuana. These letters threatened to
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26 seize these landlords’ buildings and impose criminal sanctions if they did not evict their tenants
27 2
http://www.nytimes.com/2003/01/21/us/clash-on-medical-marijuana-puts-a-grower-in-us-
28 court.html?scp=1&sq=&st=nyt (Last Visited November 23, 2009).
1 imminently. Attached as Exhibits G1 – G5 are letters from the Mayors of San Francisco and
2 Oakland, Congressman John Conyers, a list of federal raids (including Steele Smith) written by
3
Conyers, as well as a resolution from the Board of Supervisors condemning these Draconian practices
4
by the DEA.
5
As a further illustration of the far-reaching consequences of the Federal government’s policy
6
7 to interfere with California’ s medical marijuana laws, defense has attached a non-exhaustive list of
8 federal prosecutions and raids of defendants following state medical marijuana laws. (Exhibit H).
9 Many of these defendants suffered tremendously fighting for their freedom, most of whom lost.
10
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1. Federal Judges have agreed that the government’s practices demonstrate an attempt to
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subvert state laws in violation of the Tenth Amendment to the United States Constitution.
13
In a concurring opinion in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), Chief Judge
14
15 Kozinsky opined that the federal government’s manner of enforcing the CSA had commandeered
16 California’s legislative process. Kozinsky also said, “[As] much as the federal government may
17 prefer that California keep medical marijuana illegal, it cannot force the state to do so . . . preventing
18
the state from repealing an existing law is no different from forcing it to pass a new one; in either
19
case, the state is being forced to regulate conduct that it prefers unregulated. Id. at 645-46 (Kozinski
20
J., concurring).
21
22 Moreover, in an ongoing case, County of Santa Cruz v. Gonzales, Judge Jeremy Fogel in the
23 San Jose division of the District Court of Northern California, used Kozinsky’s concurring opinion in
24 Conant to deny the federal government’s motion to dismiss. (Order Attached as Exhibit D) (Case
25 number C 03-01802 JF, Order granting in part and denying in part, defendants’ motion to dismiss,
26
2008). The Court there held that plaintiffs may be able to show that the federal government is
27
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1 “deliberately seeking to frustrate the state’s ability to determine whether an individual’s use of
2 medical marijuana is permissible under California law”. Id.
3
4
2. In this case, local officials were commandeered to help enforce the CSA against Steele Smith.
5
Not only is there evidence that throughout California there has been a concerted plan to re-
6
7 criminalize marijuana, but it is also clear that in the instant case, the Fullerton Police were
8 commandeered to help enforce the CSA against Defendant Steele Smith. As discussed above, in
9 February of 2007, Mr. Smith was investigated thoroughly by the Fullerton Police. Mr. Smith allowed
10
these officers to come in and document the entire grow operation for Mr. Smith’s collective. After
11
they thoroughly documented the grow, Steele Smith never heard from the Fullerton Police again.
12
Then, nine months later, the Federal Government executed a raid. In his affidavit in support of a
13
criminal complaint, Special Agent Joseph Kolodzey admits that the raid in this case was instituted
14
15 with the help of state officials. (Attached as Exhibit C).
16 Collaboration between the Fullerton Police and federal agents falls directly in line with the
17 CPCA letter, the letter by Mr. Hutchinson, and letters from Congressman John Conyers and several
18
other politicians, which ask the DEA to stop with the raids, and specifically lists Steele Smith as a
19
target. (Letters Attached as Exhibit G1 – G5). On the mercy of this Court, Mr. Smith asks the Court
20
not to turn a blind eye to the obvious practice of state police gathering evidence and turning it over to
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22 federal agents. State Police acting as investigators and reporting to the DEA constitutes a clear
23 example of commandeering and violates the Tenth Amendment.
24 //
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1 B.
2 Raich Does not Control in this Case.
3 Under the Commerce Clause, the Supreme Court upheld the Controlled Substances Act as it
4 applies to medical marijuana. Raich v. Gonzales, 545 U.S. 1 (2005). Limiting the application of its
5 decision, the Court also said, “state acquiescence to federal regulation cannot expand the bounds of
6
the Commerce Clause.” Id. at 26 [citing U.S. v. Morrison, 529 U.S. 598, 661-62 (2000)]. Using
7
Raich in the instant case would exceed its application because the current case does not involve the
8
commerce clause, rather a violation of the Tenth Amendment.
9
This case is further distinguishable from Raich because of the relief sought by Steele Smith.
10
11 In Raich, respondents sought relief in the form of an injunction against the federal government,
12 effectively asking the Court to invalidate the CSA as it applies to medical marijuana patients. Raich
13 at 1. Here, Mr. Smith does not ask this court to enjoin federal agents. Rather, he asks this Court to
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recognize federal agents’ actions as unconstitutional. As a remedy, Defense asks this Court dismiss
15
the case and allow federal and state discrepancies be resolved by Congress or the Supreme Court.
16
In the alternative, Mr. Smith requests that he be allowed to present a defense based on
17
18 compliance with the Compassionate Use Act, set forth in California Health & Safety Code §11362.5,
19 §11362.765, and §11362.775. These three provisions of the California Health & Safety Code
20 prohibit the criminal prosecution of individuals who are qualified to possess and/or cultivate
21 marijuana for medical purposes. The Compassionate Use Act is set forth in §11362.5 and provides
22
for the exemption of medical marijuana patients from prosecution. Under §11362.765, “any
23
individual who provides assistance to a qualified patient” and/or “cultivates or administers marijuana
24
for medical purposes to the qualified patient or person” shall be exempt from criminal sanctions.
25
26 Finally, §11362.775 specifically allows qualified patients to associate within the state of California as
27 collectives or cooperatives to cultivate marijuana for medical purposes. Mr. Smith is a qualified
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1 patient and cultivated marijuana for his lawful collective. Under these provisions, therefore, he
2 understood he was exempt from criminal prosecution and should be allowed to present his reliance on
3
valid California law as a defense.
4
5
1. An evidentiary hearing should be conducted as a prerequisite to Federal jurisdiction in a
6
7 case where compliance with state law is claimed.
8 As discussed herein, Federal jurisdiction would be appropriate if Mr. Smith’s operations were
9 not in compliance with valid California medical marijuana laws. Recently, the U.S. Department of
10
Justice issued a memorandum to U.S. Attorneys stating, “As a general matter, pursuit of
11
[prosecutorial] priorities should not focus federal resources in your States on individuals whose
12
actions are in clear and unambiguous compliance with existing state laws providing for the medical
13
use of marijuana.” (Memorandum Attached as Exhibit I).
14
15 This memorandum sets a new legal standard for Federal prosecutions in medical marijuana
16 cases. Compliance with California’s medical marijuana laws is a legal determination, and therefore
17 appropriate for this Court to review prior to trial. An evidentiary hearing is thus required in this case
18
to determine Federal Jurisdiction.
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1 C.
2 Recent Judicial Precedent and Executive Public Statements Show that Federal Law
3
Acknowledges a State’s Medical Marijuana Laws.
4
5
1. In several cases, the United States Supreme Court has shown tacit approval of California’s
6
7 medical marijuana laws.
8 “The Supremacy Clause unambiguously provides that if there is any conflict between federal
9 and state law, federal law shall prevail.” Raich at 29. Notwithstanding its decision in Raich, the
10
Supreme Court showed its tacit approval of state medical marijuana laws by refusing to review City
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of Garden Grove v. Superior Court of Orange County, Felix Kha, 157 Cal.App. 4th 355 (4th Dist. Ct
12
of Appeal 2007). Defendant Kha was caught with a third of an ounce of marijuana and the case was
13
dismissed because the defendant was a medical marijuana patient. Id. The issue then became
14
15 whether to return his medical marijuana, a Schedule 1 controlled substance under Federal Law. Id.
16 The Fourth District Court of Appeal ruled Defendant Kha was entitled to the return of his property.
17 Id. at 390. Since the California Supreme Court and the U.S. Supreme Court both refused to review
18
the decision the Kha case stands as authority and provides tacit approval of California’s medical
19
marijuana laws. Id.
20
Similarly, the U.S. Supreme Court recently refused to hear the appeals of two California
21
22 Counties (San Diego and San Bernardino) who objected to California’s thirteen-year old medical
23 marijuana law and claimed it should be struck down as violating the Federal Controlled Substances
24 Act. See County of San Diego v. San Diego NORML, 165 Cal.App.4th 798 (2008), Certiori Denied
25 2009. The Supreme Court’s refusal to hear the matter again shows tacit approval of California’s right
26
to maintain medical marijuana laws.
27
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1 2. The Department of Justice’s memorandum endorses states’ authority to regulate medical

2 marijuana.
3
As discussed above, on October 19, 2009, a memorandum from the office of the Attorney
4
General was sent to U.S. Attorneys. The memorandum “provides clarification and guidance to
5
federal prosecutors” with regards to medical marijuana. (Attached as Exhibit I). The memorandum
6
7 instructs U.S. attorneys to be mindful of the limited investigative and prosecutorial resources
8 available to the government. The memo differentiates prosecutorial priorities with regards to
9 marijuana, singling out the difference between marijuana illegally sold and possibly obtained
10
criminally from, for example, Mexican Cartels, and marijuana grown by bona fide patients and
11
distributed according to state laws. The memo goes on to explain:
12
As a general matter, pursuit of these priorities should not focus federal resources in
13 your states on individuals whose actions are in clear and unambiguous compliance
with existing state laws providing for the medical use of marijuana.
14
15 Collectively, the Supreme Court’s tacit approval, the Attorney General’s public press
16 conference statement that American Policy endorses California’s right to maintain medical marijuana
17 laws, and the recent memorandum to U.S. Attorneys, overwhelmingly demonstrate that the CSA does
18
not apply when a defendant is following California’s medical marijuana laws.
19
In this case, Mr. Smith was operating a medical marijuana collective in compliance with state
20
law. He met with attorneys and local law enforcement to ensure his compliance with state law. Yet
21
22 the federal government continues with this prosecution in violation of federal policy. Accordingly, as
23 discussed herein, a hearing is required to establish Steele Smith’s compliance with state law. If
24 compliance is found, the case must be dismissed.

25 //
26
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1 3. U.S. Attorney General, Eric Holder, has repeatedly endorsed states’ authority to regulate
2 medical marijuana.
3
Speaking at a press conference with DEA administrator Michele Leonhart on February 25,
4
2009, U.S. Attorney General, Eric Holder, stated, “You will be surprised to know that the Justice
5
department will be acting in a manner consistent with what [the President] said during the campaign”.
6
7 David Johnston, Obama Administration to Stop Raids on Medical Marijuana Dispensers, N.Y.
8 Times, March 18, 2009, at A20. 3 Similarly, on March 19, 2009, Eric Holder explained that under
9 current American policy, the Justice Department would no longer prosecute marijuana dispensaries
10
operating legally under state laws in California or dozens of other states. Josh Meyer and Scott
11
Glover, Medical Marijuana Dispensaries will no Longer be Prosecuted, Attorney General Says, L.A.
12
Times, March 19, 2009, at A1.4
13
The American Policy on medical marijuana, as declared by President Barack Obama, is that
14
15 the “concept of medical marijuana” used and controlled in the same manner as other drugs prescribed
16 by doctors, is “entirely appropriate”. Stephen Denan and Ben Conery, DEA Pot Raids go on, Obama
17 Opposes, WA Times, February 5, 2009, at A1.5 At a campaign stop in New Hampshire, Obama was
18
specific about medical marijuana raids, “I would not have the justice department prosecuting and
19
raiding medical marijuana users”.6
20
//
21
22 //
23 //
24 3
http://www.nytimes.com/2009/03/19/us/19holder.html; video available at
25 http://video.google.com/videoplay?docid=6095694075952782261# (Last visited November 20,
2009).
4
26 http://www.latimes.com/news/local/la-me-medpot19-2009mar19,0,4987571.story (Last visited
March 27, 2009)
5
27 http://www.washingtontimes.com/news/2009/feb/05/dea-led-by-bush-continues-pot-raids/ (Last
visited November 20, 2009)
6
28 http://granitestaters.com/candidates/barack_obama.html (Last Visited November 20, 2009)
1 4. This is an Issue of First Impression.

2 Raich and Kha together demonstrate that the relationship of federal drug law and state
3
medical marijuana laws remains undefined. Here, the defendant does not ask this Court to legislate,
4
rather Mr. Smith appeals to this Court’s sense of fairness in applying a federal law which conflicts
5
with a state law in such an egregious manner, that the consequences could include a mandatory
6
7 minimum of ten years in federal prison.
8 The defense is hard pressed to find an analogous situation where state and federal laws
9 directly conflict, resulting in prosecutions of individuals who are complying with state laws. As a
10
consequence of such confusion, a man’s freedom is at stake. Counsel hesitantly compares our
11
instant situation to the tragic reality of slavery in the late 19th century. At that time, various states
12
had laws enforcing slavery while others outright banned it. In 1850, this conflict led to the federal
13
government passing the Fugitive Slave Law to try and regulate the confusion caused by differing
14
15 slave laws across states and with the Union itself. Under that law, Northerners were required to
16 return any slaves who escaped from the South to the North. Only then, did competing laws so
17 strongly implicate a man’s freedom. A runaway slave who was otherwise in a law abiding state was
18
still subject to have his freedom taken away by a different state based on their laws.
19
The glaring injustice implicated in the Fugitive Slave Law strikes a similarity with the glaring
20
injustice involved here. There, competing laws were so dire as to deprive a man of his freedom.
21
22 Accordingly, when a man’s freedom is at stake, justice requires a careful managing of this
23 gray area. As discussed above, the federal government has gone to great lengths to try and re-
24 criminalize medical marijuana in California. These efforts have forced state officials to acquiesce
25 beyond the requirements of the Commerce Clause and have thus operated in violation of the Tenth
26
Amendment. Mr. Smith accordingly urges this Court to dismiss this case.
27
28
1 IV.
2 THE CURRENT PROSECUTION CARRIES A MANDATORY MINIMUM SENTENCE OF
3 TEN YEARS, WHICH VIOLATES STEELE SMITH’S RIGHT TO DUE PROCESS UNDER
4
THE FIFTH AND EIGHTH AMENDMENTS.
5
6 In criminal cases, Due Process protections overlap with procedural protections provided by
7 the Eighth Amendment to the United States Constitution. See e.g., Simmons v. South Carolina, 512
8
U.S. 154, 161 (1994). The Eighth Amendment guarantees reliable procedures and protections against
9
cruel and unusual punishment. See Herrera v. Collins, 506 U.S. 390 (1993).
10
Moreover, punishments must not be excessive. Solem v. Helm, 463 U.S. 277 (1983). In
11
12 Solem, the Court ruled that incarceration constitutes cruel and unusual punishment if it is
13 “disproportionate to the crime”. Id. The Court further explained that a court's proportionality
14 analysis of a criminal sentence to determine the sentence's propriety under the Eighth Amendment
15 should be guided by objective criteria, including:
16
(1) The gravity of the offense and harshness of the penalty,
17
(2) The sentences imposed for the commission of the same crime in the same jurisdiction, and
18
(3) The sentences imposed for the commission of the same crime in other jurisdictions.
19
Id.
20
The gravity of the offense here is nonexistent as Mr. Smith’s conduct is lawful where the
21
underlying activities took place. Steele Smith is charged with conspiracy to cultivate marijuana. As
22
23 discussed, several states have legalized marijuana because it medically assists many who are in need.
24 Moreover, despite marijuana’s scheduling under the CSA, most modern health studies show that
25 positive medical effects of marijuana exist and furthermore that potential for abuse is minimal. Since
26
medical marijuana is lawful in California and several other states, and its benefits are recognized, the
27
gravity of the crime is accordingly low. In contrast, Steele Smith is threatened with imprisonment,
28
1 thus the penalty involved here is extremely harsh to say the least. (21 U.S.C. §841 provides a
2 mandatory minimum sentence of ten years for cultivating 1000 plants).
3
There is little precedent for sentencing medical marijuana providers. Many of these types of
4
cases do not make it to trial, and of the ones that do, many judges have found mercy on Defendants
5
similarly situated to Steele Smith. For example, Ed Rosenthal was convicted of cultivation in the
6
7 Ninth Circuit, but the judge only sentenced him to one day in prison – time already served. U.S.A. v.
8 Rosenthal, 454 F.3d 943, (9th Cir. 2006). Similarly, despite mandatory minimums, in June 2009,
9 Federal Judge George Wu sentenced Charles Lynch, who was convicted of federal charges similar to
10
Steele Smith’s, to 366 days in jail and granted him bail pending appeal.7 Wu was sympathetic with
11
the dichotomy of laws and went out of his way to stay within the law while giving Mr. Lynch the
12
minimum sentence possible. It is clear, therefore, that other judges in this circuit have not found the
13
punishment to be proportionate with the crime.
14
15 As discussed throughout this motion, in the jurisdiction where the alleged crime was
16 committed, Mr. Smith’s conduct is not criminal and not prosecuted. Thus, in reviewing other
17 jurisdictions, it is clear that imprisonment for medical marijuana cultivation is not typical.
18
Accordingly, all three proportionality considerations discussed by the Court weigh heavily in
19
favor of a finding that the ten-year mandatory minimum involved here is disproportionate to the
20
offense and thus constitutes cruel and unusual punishment. Procedural Due Process, in conjunction
21
22 with the Eighth Amendment, therefore, bars the current prosecution.
23 //
24 //
25
26
27 7
Case No. 07 – 689 – GW, See http://articles.latimes.com/2009/jun/12/local/me-pot12 (last visited
28 November 4, 2009).
1 V.
2 THE CURRENT PROSECUTION VIOLATES STEELE SMITH’S SUBSTANTIVE DUE
PROCESS RIGHT TO THE PURSUIT OF HAPPINESS.
3
Substantive Due Process is violated “If a practice or rule offends some principle of justice so
4
rooted in the traditions and conscience of our people as to be ranked as fundamental”. Snyder v.
5
6 Massachusetts, 291 U.S. 97, 105 (1934). Under the Declaration of Independence, Americans have
7 the right to life, liberty and the Pursuit of Happiness. (U.S. Declaration Ind.) A difficult term to
8 define, the Pursuit of Happiness is a fundamental right founded on the idea that people have the right
9
“to be left alone by government” and to define their own concept of existence. See Winston v. Lee
10
470 U.S. 753 (1985).
11
Further, “[w]ithout doubt, [the Pursuit of Happiness] denotes . . . the right of the individual to
12
13 contract, to engage in any of the common occupations of life . . . as essential to the orderly Pursuit of
14 Happiness by free men”. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Moreover, privileges long
15 recognized as fundamental to the Pursuit of Happiness include the right to quality of life. See Cruzan
16 v. Dir. Mo. Dep't of Health, 497 U.S. 261 (1990).8
17
Under Substantive Due Process, and empowered by the Tenth Amendment, the people of
18
California passed the Compassionate Use Act. Therein, the people decided that the availability of
19
medical marijuana for those in medical need is part of maintaining the quality of life and the Pursuit
20
21 of Happiness.
22 The current prosecution violates Steele Smith’s right to the Pursuit of Happiness. Under this
23 fundamental right, Mr. Smith exercised all possible measures to organize C3 as a legitimate business,
24
followed the California Attorney General Guidelines, and consulted various attorneys to conduct such
25
business within the boundaries of Proposition 215 and the Medical Marijuana Program Act.
26
8
27 There, a woman was being kept alive by a feeding tube and her family wished to no longer delay the
inevitable. Id. at 262. The Court stated that a long recognized right is to sustain life and quality of
28 life. Id.
1 Here, the patients in Mr. Smith’s collective depended on him for their medical treatment,
2 which is fundamental to their quality of life. C3’s premises included a stockade of wheelchairs,
3
wheelchair racks for cars, walkers, crutches, porta-potties, all free for his patients. The current
4
prosecution against Steele Smith not only affects his freedom, his right to contract, and his right to
5
occupation, but also the availability of medicine for the people he cares for and thus their quality of
6
7 life.
8 Although the patients in his collective are not directly involved in this case and have surely
9 joined another collective, allowing this prosecution to continue sends a warning to other collectives to
10
cease operation. (Many of which are operating under the California Attorney General’s Guidelines.)
11
This type of effect or message perpetuated by the federal government’s enforcement undermines the
12
Compassionate Use Act, the Tenth Amendment, current “American Policy, and the right to the
13
Pursuit of Happiness. Accordingly, Defense urges this Court to dismiss and to allow the will of the
14
15 people of California to be carried out.
16 VI.
17 MR. SMITH REQUESTS AN EVIDENTIARY HEARING TO DEMONSTRATE HIS
18
COMPLIANCE WITH THE COMPASSIONATE USE ACT, THUS ESTABLISHING THE
19
CONSTITUTIONAL VIOLATION SET FORTH HEREIN AND THEREBY REMOVING
20
THE FEDERAL GOVERNMENT’S JURISDICTION.
21
22 Counsel concedes that Federal jurisdiction would be appropriate if Mr. Smith’s operations
23 were not in compliance with the CUA. Specifically, if his actions were not in compliance with the
24 Act, and he was simply a marijuana cultivator, not dissimilar to drug dealers who distribute
25 substances to people without a doctor’s recommendation, clearly he would be in violation of the law
26
and the federal government would have jurisdiction. In this case, Mr. Smith would like the
27
opportunity to show the Court that his conduct and his collective are highly distinguishable from a
28
1 common drug-dealer, because he took every precaution to comply with the CUA (as discussed in the
2 motion to present a complete defense, filed concurrently herewith). Such evidence is relevant for the
3
Court to preview his defense at trial and to consider whether the federal government overstepped its
4
role with the current prosecution. Accordingly, Mr. Smith would like the opportunity to have a
5
hearing to establish Mr. Smith’s compliance with California law so the Court can make an informed
6
7 decision before deciding how to proceed.
9 VII.
10
CONCLUSION
11
For the foregoing reasons, Defendant hereby respectfully requests this Court dismiss charges
12
against Steele Smith due to a violation of Due Process, or in the alternative allow for an evidentiary
13
hearing to show compliance with State law.
14
15
16
17
Respectfully submitted,
18
19
20 DATED: 11/24/2009 /s/ Eric D. Shevin .

Eric D. Shevin: Ca State Bar 160103
21 Attorney for STEELE SMITH
Law Offices of Eric D. Shevin
Sherman Oaks, Ca 91403
23 Telephone: 818-784-2700
Facsimile: 818-784-2411
24
25
26
27
28

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Case 8:07-cr-00264-CJC Document 166 Filed 11/25/09 Page 1 of 23 Page ID #:607

1 Law Offices of Eric D. Shevin

8 UNITED STATES DISTRICT COURT

11 THE UNITED STATES OF AMERICA, Case No. 07 - 264 - CJC

MOTION TO DISMISS -1-

15 actions can result in such a harsh punishment by the federal government.

16 Finally, the federal government’s systemic plan to re-criminalize medical marijuana in

22 the states under the Tenth Amendment.

7 prosecution for such violations.

17 Medical Marijuana Helped Steele Smith When He Was Very Ill.

15 California medical marijuana laws.

24 instituted with the help of state officials. (Attached as Exhibit C).

15 Constitution and showed their majority approval of medical marijuana.

MOTION TO DISMISS -9-

9 interests, but at interfering with implementation of California law.

15 with the help of state officials. (Attached as Exhibit C).

23 example of commandeering and violates the Tenth Amendment.

7 case where compliance with state law is claimed.

7 medical marijuana laws.

1 2. The Department of Justice’s memorandum endorses states’ authority to regulate medical

24 compliance is found, the case must be dismissed.

1 4. This is an Issue of First Impression.

7 minimum of ten years in federal prison.

22 with the Eighth Amendment, therefore, bars the current prosecution.

15 people of California to be carried out.

7 decision before deciding how to proceed.

20 DATED: 11/24/2009 /s/ Eric D. Shevin .

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