Does the Controlled Substances Act Mean What It Says?

Section 885(d) of the federal Controlled Substances Act entitles undercover police officers to obtain, handle, and sell illicit drugs. It states that “no civil or criminal liability shall be imposed” on any “authorized officer… who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” Section 885(d) applies to officers employed by cities, counties, and states, as well as to federal agents.

In January, 1998, the Clinton Administration sought an injunction to close the Oakland Cannabis Buyers Co-operative and five other dispensaries for violating provisions of the Controlled Substances Act. An astute defense specialist named Amitai Schwartz suggested to OCBC director Jeff Jones and attorney Robert Raich, that Section 885(d) might afford protection. On July 28, 1998, the city council agreed by a unanimous vote to authorize cannabis distribution through the OCBC, citing 885(d) as authority.

At trial before U.S. District Judge Charles Breyer on August 31, 1998, Raich tried to make his 885(d) argument. Several Oakland officials, including an assistant city attorney, were prepared to testify that they believed their cannabis distribution program was legal under 885(d). But Breyer ruled that it would violate the blatant prohibitionist purpose of the Controlled Substances Act to interpret Section 885(d) as protection for cannabis providers. Breyer calls his interpretation “the common-sense reading of the statute.” But the Raich/Oakland reading is the literal one, and statutes are supposed to mean what they say.

Raich has now made the 885(d) argument four times in connection with the OCBC case (which is now back in the Ninth Circuit Court of Appeal pipeline), “and not once,” he says, “has a judge shown great interest in it. So it was very gratifying to see two judges on the Ninth Circuit panel that is hearing Ed Rosenthal’s appeal ask detailed questions about 885(d), and indicate that they were giving it very serious attention.”

Rosenthal’s appeal is being handled by Dennis Riordan and Joe Elford. They argue that 885(d) applies because Rosenthal was authorized by Jeff Jones to grow clones (starter plants) for distribution through the OCBC program. A three-judge panel heard oral arguments Sept. 13. Betty Fletcher and Marsha Berzon showed positive interest when Riordan and Elford made their points. Judge John Gibson, a visitor from the 8th Circuit, showed sympathy for the prosecution.

Riordan is considered an ace appeals specialist. Among his many triumphs was getting Marjorie Knoller’s sentence reduced from murder to manslaughter in San Francisco’s infamous “dog-mauling”case. He and Elford told the Ninth Circuit panel there were several reversible errors in the record of the Rosenthal trial (which also had been presided over by Charles Breyer), in addition to the decision to exclude the 885(d) argument.

Breyer had not allowed the jury to hear that Rosenthal thought he was acting legally. “If the jury got to hear that,” according to Riordan, “they could have decided Ed was acting in good faith and acquitted him. He was denied the right to present a mental-state defense to the jury.”

Rosenthal’s lawyers also challenged the propriety of Assistant U.S. Attorney George Bevan’s dialog with the grand jury that produced the initial indictment. Members of the grand jury had asked repeatedly if the government’s goal was to close down cannabis clubs and Bevan repeatedly denied it. Only days before, the DEA had cleaned out the Harm Reduction Center and padlocked its door.

Also being appealed is Breyer’s ruling that the conduct of jurors Marney Craig and Pam Klarkowski did not constitute grounds for a mistrial. Craig had asked a lawyer of her acquaintance if she could vote her conscience whether or not it clashed with the judge’s instructions. The lawyer/friend’s answer had been an unequivocal, “No. You must obey the judge.” He added that she could get into “bigtrouble” if she did not. Craig relayed this information to Klarkowski as they drove to court on the morning deliberations were to begin. Under the relevant federal rule of evidence, 606 (b), the improper influencing of jurors during the course of a trial can be grounds for dismissal.

Prosecutor Amber Rosen seemed to be going through the motions. She failed to counter so many assertions and arguments made by Rosenthal’s lawyers that Judge Gibson felt impelled to ask, as she closed, if she was sure she didn’t have anything more to add.

The government is arguing that Breyer didn’t have the authority to give Rosenthal such a light sentence (one day, time served). Rosenthal’s lawyers are confident that Breyer did have the authority, but like their client, they are not expressing any gratitude. The one-day sentence represented a dramatic capitulation on Breyer’s part. At the outset of the proceedings he had expressed skepticism that Ed Rosenthal was unaware of his previous ruling in the OCBC case that Oakland’s distribution program was illegal under federal law. But after Rosenthal’s trial, influenced perhaps by editorials in the San Francisco Chronicle and the New York Times, Breyer found that Ed had a “reasonable belief” that he had been properly authorized to cultivate by the city of Oakland.

Rosenthal wants to get his felony conviction overturned and to win a political victory for the medical marijuana movement/industry. A ruling is expected this month. The biggest victory would be recognition by the Ninth Circuit that 885(d) applies to city- or state-sanctioned cannabis operations. Then the Oakland model almost certainly would be adopted by cities and counties throughout California. The Bush Administration almost certainly would appeal to the U.S. Supreme Court, forcing Chief Justice Roberts and other so-called “conservatives” to abandon their allegiance to local control. Congress almost certainly would move to reword the Controlled Substances Act, opening up discussion of marijuana’s status as a Schedule-1 drug (dangerous, with np medical utility). Things could get interesting.

And if the Ninth Circuit panel denies or doesn’t address the 885(d)
argument, it will be raised again by Robert Raich on behalf of Jeff Jones in the OCBC case.
“Duke” Schmidt’s Fate

Shortly after the Rosenthal case U.S. District Judge Charles Breyer presided over the prosecution of Robert “Duke” Schmidt, who received a 41-month sentence for cultivation. Duke Schmidt’s belief that the government had given him a green light to grow marijuana for medical purposes was at least as sincere as Ed Rosenthal’s. Although the circumstances of their cases differed, the sentencing discrepancy can be seen as a function of class. Ed, by dint of his status as a writer/publisher, and his connections (overlapping Judge Breyer’s social circle), and his fundraising ability, and his attractive family and extensive support system, had unique resources to bring to his court fight. Also, he was a nonviolent first offender, somebody about whom jurors could declare, “Ed Rosenthal is not a criminal.” Duke, on the other hand, had done time for bringing marijuana into New Orleans by sea in the early 1970s.

Schmidt was supposed to start serving his sentence last month, but he’s still at liberty because the government hasn’t returned a sword collection and other personal property seized from Schmidt’s residence. He will be in court October 5 in connection with his return-of-property motion. Schmidt’s doctor, Tod Mikuriya, is outraged that the government won’t allow him to medicate with Marinol, let alone cannabis. This is Schmidt’s punishment for attempting to wrestle the rifle away from an agent who had awakened him with a prod of the barrel on the morning of the bust. “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.”

Schmidt’s belief that he had a go-ahead from the feds is based primarily on his filing of DEA Form 225, an application to manufacture controlled
substances. He says the DEA not only cashed his checks ($850 annually,
starting in 1999) but sent him a control number.
DEA Snatches Steve Tuck

Steve Tuck is a Gulf War vet with a damaged spine who grew and distributed medicinal cannabis in Humboldt County after the passage of Prop 215. His stated goal was to develop strains suited to treating various medical conditions. After being busted for cultivation in 2002, he moved to Canada.

On Thursday, reports Richard Cowan:

“Steve Tuck was taken in handcuffs by Canadian Border Services Enforcement officers out of his emergency room bed and driven to the US border. He was in great pain this morning, and was partially sedated, but he was aware of what was happening to him. The great risk is that he will be taken into federal custody (in the U.S.), which he might not survive because they will not let him have cannabis under any circumstances.

“The essence of Tuck’s refugee appeal was that he would be happy to return to the US, if he only faced state charges for growing medical cannabis in Humboldt County. Canada refused to show any interest in finding the answer to that simple question. If Steve is taken into federal custody, it will be obvious that Canada knew the answer, but withheld it from Tuck. If he is not taken into Federal custody, Immigration Canada will have wasted vast sums of Canadian taxpayers’ money by not getting an answer to a fair question.”

FRED GARDNER can be reached at:










We published an article entitled “A Saudiless Arabia” by Wayne Madsen dated October 22, 2002 (the “Article”), on the website of the Institute for the Advancement of Journalistic Clarity, CounterPunch, (the “Website”).

Although it was not our intention, counsel for Mohammed Hussein Al Amoudi has advised us the Article suggests, or could be read as suggesting, that Mr Al Amoudi has funded, supported, or is in some way associated with, the terrorist activities of Osama bin Laden and the Al Qaeda terrorist network.

We do not have any evidence connecting Mr Al Amoudi with terrorism.

As a result of an exchange of communications with Mr Al Amoudi’s lawyers, we have removed the Article from the Website.

We are pleased to clarify the position.

August 17, 2005


Fred Gardner is the managing editor of O’Shaughnessy’s. He can be reached at