Use of Rare Rule in Pot Case Helps County Pair

April 13, 2004

David Rosenzweig, Los Angeles Times

Invoking a rarely used doctrine that says a defendant may commit a crime to avoid a perceived greater harm, a federal judge granted reduced sentences Tuesday to a Ventura County couple who grew marijuana for a now defunct West Hollywood cannabis club. U.S. District Judge A. Howard Matz sentenced Judy Osburn, 50, to one year of probation for maintaining a place for the manufacture of marijuana. She could have received as much as 37 months in prison.

'You are a principled person,' Matz told the defendant. 'I don't consider you to be a threat or menace to society. But however salutary your purpose,' he added, 'the ends do not justify the means.'

Osburn's husband, Lynn, 54, received a one-year prison sentence because it was found that he had kept weapons at their ranch, despite a previous conviction that barred him from possessing guns.

The couple pleaded guilty in October after the judge ruled that they could not tell a jury why they were growing marijuana or that they were doing so with the understanding and support of West Hollywood city officials and the Los Angeles County Sheriff's Department.

Judy Osburn was a director of the Los Angeles Cannabis Resource Center, which was established after California legalized marijuana for medical use in 1996. The center dispensed marijuana to about 960 patients, mostly victims of HIV-AIDS or cancer who presented physician prescriptions.

In October 2001, agents from the federal Drug Enforcement Administration raided the group's facility and shut it down. Three of its officers were indicted on charges of maintaining an establishment for the purpose of possessing, distributing and manufacturing illegal drugs. They were sentenced by Matz last year to probation under the same legal doctrine he applied Tuesday to the Osburns.

Matz justified the sentence under the 'lesser harm doctrine,' under which the defendants can be justified in committing a crime in order to avoid the perceived harm of the greater suffering of patients.

Federal prosecutors opposed leniency for the couple, contending that they were not entitled to it, partly because they had realized a handsome profit from their marijuana sales to the West Hollywood center. Federal probation authorities said the couple had reported a net profit of $67,000 in 1998, $160,000 in 1999 and $65,000 in 2000.

The prosecution also contended that the Osburns did not have permission from Ventura County authorities to grow marijuana and that weapons were found in their house.

Matz said there was no evidence of any connection between the guns and the marijuana growing. He also observed that Judy Osburn had met with the Ventura County Board of Supervisors to discuss the marijuana operation.

Matz said it was possible to be altruistic and make money at the same time and that he did not consider the Osburns to be 'major profiteers.'

Both sides plan appeals to the U.S. 9th Circuit Court of Appeals. Lynn Osburn's sentence was stayed by mutual agreement pending the outcome of an appeal.

Despite state laws permitting marijuana use in certain circumstances, the U.S. Supreme Court has ruled that federal law banning the possession and distribution of marijuana trumps them. Besides California, eight other states — Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington — have such laws.

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