Medical marijuana use could be used as defense, federal judge rules

March 22, 2004

Laura Wides, Associated Press

LOS ANGELES – A federal judge ruled Monday that evidence of medical marijuana use could be considered by a jury as a defense in a criminal drug trial.

The decision by U.S. District Court Judge Nora M. Manella comes in the wake of a December ruling by the 9th U.S. Circuit Court of Appeals that a congressional act outlawing marijuana may not apply to sick people with a doctor's recommendation in states that have approved medical marijuana laws.

The case of Anna Barrett, 32, and her husband Gary, 35, of Los Angeles, who were charged with manufacturing and conspiring to manufacture marijuana marks the first time that the 9th Circuit ruling, which was made in a civil case, was argued before a judge in a criminal trial.

The judge set the trial date for Aug. 31. The couple must return to court July 19 to outline the grounds for their defense.

'I'm still overwhelmed,' Anna Barrett, said after the hearing. 'I'm really grateful to Judge Manella that she's even allowing us to show our case.'

Defense lawyers wanted the charges dismissed based on the appellate court's ruling, but Manella ruled that the government had enough evidence the couple may have been growing their marijuana for a 'commercial operation,' allowing the case to go to trial.

But she warned Assistant U.S. Attorney Thomas Loeser that if the government can't show the couple was growing the marijuana with the intent to distribute it, it will likely have a weak case.

'If a jury believes they were growing marijuana solely for themselves and not for distribution, why would they not be entitled to an acquittal?' she asked.

Attorney Daniel Halpern said he was pleased with the judge's decision.

'What came out was a good thing in the big picture,' Halpern said.

Steph Sherer, head of the nonprofit medical marijuana advocacy group, Americans for Safe Access, who uses medical marijuana, said she was buoyed by the decision.

'Before now people like me would have to either go to trial and basically offer no defense, because we couldn't mention medical marijuana, or plead and depend on the judge's discretion in sentencing,' Sherer said.

The Barretts pleaded guilty in 2000 to growing marijuana and were allowed to grow 34 adult-flowering plants and keep up to 7.1 pounds of marijuana under a plea agreement. Both had doctors' recommendations, but federal agents found hundreds of dormant clones of the plants during a May 13, 2003 raid. They also discovered the couple were running a Web site with information on medical marijuana and charging people $100 to become members.

The two are also wanted in Oregon on marijuana charges.

U.S. Deputy Public Defender Angel Navarro said the couple were afraid to return to Oregon before the federal trial because a state conviction could add years to any potential sentence.

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