Robert “Duke” Schmidt has been sentenced to 41 months in federal prison for growing and distributing marijuana. U.S. District Judge Charles Breyer meted out the terms in his San Francisco courtroom July 7. Schmidt reports to the Bureau of Prisons Sept. 1. He is one of about 30 West Coast medical-marijuana growers, distributors and/or users whose cases had been put on hold pending the U.S. Supreme Court’s ruling in Gonzales v. Raich.
Schmidt first appeared before Breyer in March 2003, soon after Ed Rosenthal’s widely publicized trial. Although Rosenthal had faced similar charges, he received a one-day sentence, time served. What was different about Schmidt’s case?
In 1999, Schmidt had founded a non-profit dispensary, Genesis 1:29, which he ran out of his home in Petaluma. As membership grew, he supplemented his homegrown with cannabis produced at other sites. Schmidt says his goal was to develop standardized plant strains with known cannabinoid contents and study their effects on patients with various conditions. As he put it in one of several applications filed with the U.S. Drug Enforcement Administration, “It is the intent of Genesis Research Group to develop well characterized drug substance and document patient input to develop efficacy correlations between the chemical components of the cannabis plant for different clinical indications.”
Schmidt was inspired to seek DEA approval after learning about Registration Form 225. “It’s an application to manufacture and distribute scheduled drugs,” explained Schmidt in a March 2003 interview. “I filed an application, and the DEA issued me a receipt.” Schmidt said he also informed the state Attorney General’s office of his activities. “For three seasons I told them in advance what I was going to plant, I updated them during the growing season, and I reported how much I harvested.”
The DEA raided Schmidt’s house in the early morning hours of Sept. 12, 2002. Schmidt, a small, wiry man in 50s, attempted to wrestle the rifle away from the agent who had awakened him with a prod of the barrel -for which he is also charged with assault on an officer in the line of duty. “My post-traumatic stress disorder is triggered by having guns pointed at me,” said Schmidt, “especially when I’m woke up with one in my face.” The DEA also confiscated 2,600 plants from a site Schmidt leased in Sebastopol.
The jury that found Ed Rosenthal guilty of cultivation (as well as conspiracy and maintaining a grow-op) determined the amount to be not 3,000+ plants, as alleged by the feds, but fewer than 100, which carried “only” a five-year mandatory minimum. Ed’s lawyers had challenged the number of rooted plants seized at his warehouse, and the definition of a viable plant. But whereas Ed was growing cloned seedlings, Schmidt was growing big, healthy outdoor plants. “The place looked like a Christmas tree farm,” he recalled with some pride. Ed, by dint of his savvy and status as a writer/publisher, and his connections, and his fundraising ability, and his family and extensive support system, had unique resources to bring to his court fight. Also, Ed was a nonviolent first offender, somebody about whom jurors could declare, “Ed Rosenthal is not a criminal.”
“Duke” Schmidt, however, did not have a middle-class aura or a private-sector lawyer, and he had, in fact, done time in federal prison. Schmidt was born and raised on Put In Island in Lake Erie. His father was a tugboat captain, then a boatbuilder. “Boats were second nature to me,” says Schmidt. “The sea, no matter how bad it got in a storm, I knew how to work a boat through it.” He was turned on to marijuana in the late ’60s by Midwest college students vacationing at Great Lakes resorts. He helped ferry a few of them to Canada (instead of Vietnam). Somebody suggested that his skills could be put to use bringing marijuana in from Colombia, and he eventually did, making regular runs to Florida and Louisiana. “It was a mistake of youth and I know it, and I’ve paid my debt to society,” said Schmidt in ’03. “All I can say in my own defense is that I was offered a lot of money to run guns, and more money to run cocaine, to run heroin, and I always turned it down. My interest was always marijuana.”
Schmidt remembers the Paraquat days: “In 1978 there was more than 12 million acres of land in South America growing the finest cannabis sativa. One morning when we were loading up and getting it ready for transport to the coast, we noticed a lot of American C-140 aircraft flying overhead. Then the sky became orange, the whole valley was orange with the defoliant they were dropping. We had a DC-3 there and the wings were so heavy with this spray that it would not lift off. We pulled our t-shirts over our heads, we grabbed what stuff we had baled up, and we made it to the coast. It took us four days overland. When I got back to the United States I asked, ‘When did we declare war on Colombia?’ Everybody was wondering what I was talking about… That area now is all heroin fields and coca fields.”
Schmidt pled guilty to bringing in 2,780,000 pounds of marijuana between 1973 and ’78. He did only two years at a federal penitentiary in Michigan because he could trade something the government wanted: knowledge of how he had avoided them on the high seas. (He had a scanner monitoring every Coast Guard cutter, and when they headed into port, he shot over their wake.)
Given his prior conviction and facing a mandatory minimum of 20 years, Schmidt accepted the federal public defender’s advice and pled guilty before Breyer to a charge of maintaining a place for the manufacture of marijuana, which carried a five-year maximum. The sentencing phase was put off until the Raich decision came down. Schmidt expresses no animosity towards Breyer. “I was hoping for less time, of course,” he said July 8, “but his hands were tied. Judges don’t have much leeway, even under the Booker decision.” Schmidt has no forgiveness for his prosecutors, who, he says, “made false allegations, including that I had children working for me.” Schmidt, a true believer, reiterates his original rationale for Genesis:129 -de facto approval from the DEA. “I registered with the federal government and they cashed my check for three years. This is what I get for complying with the law. This is an allowable issue, otherwise the University of Mississippi wouldn’t be growing marijuana and the University of Massachusetts wouldn’t be arguing for the right to do so with help from the ACLU. I was trying to run a bona fide research facility with 1500 patients. The federal government has seven patients left in their research program. Who had the broader platform?”
Among the defendants whose cases will move forward now that the Supreme Court has ruled on Raich are two growers who were released from prison pending the outcome, Bryan Epis and Keith Alden. Epis, who helped launch a dispensary in Chico after Prop 215 passed in 1996, was convicted in September ’02 of cultivating more than 1,000 plants. He was given a 53-month sentence by U.S. District Judge Frank Damrell. He served 22 months before the U.S. Ninth Circuit Court of Appeals directed that he be let out on bail. Epis will be re-sentenced bu Damrell August 1. The U.S. Attorney’s office is asking that the full sentence be re-imposed. Attorney Brenda Grantland is hoping that letters from people who know Epis will convince Damrell that her client “is not a typical commercial pot grower.” She’s also urging medical cannabis users who can give concrete examples of its efficacy to write The Honorable Frank C. Damrell, Jr., U.S. District Court, 501 I Street, Suite 4-200, Sacramento, CA 95814.
Keith Alden of Windsor (Sonoma County) served 20 months of a 44-month sentence for cultivation before being released on bail in April 2004. His sentence is on appeal before the 9th Circuit. Letters of support for Alden should go to Cathy Catterson, Clerk of the Court, U.S. Court of Appeals Ninth Circuit, P.O. Box 193939, San Francisco, CA 94119. Form letters are available at www.commonsenselaw.com
WAMM -the Wo/Men’s Alliance for Medical Marijuana, a Santa Cruz collective whose directors, Mike and Valerie Corral, were arrested by the DEA in September 2002- will hold a march July 16 as “a preemptive attempt to influence the perception of the federal government.” Supporters are invited to assemble at 11 a.m. at the corner of Pacific and Cathcart streets.
For details contact Mimi Hill (831) 425-0580 or visit www.wamm.org. WAMM is hoping for a serious show of support -1,000 people or more. Be there or be in DARE.
FRED GARDNER can be reached at firstname.lastname@example.org