Note: The government's opposition to my motion
medical marijuana to keep me alive while awaiting trial was essentially 37 pages
of the government saying, "Marijuana is illegal under federal law, as
detailed in the Controlled Substances Act (CSA), so he can't have it and this
court can't let him have it, and if he dies, he dies." This is my response:
I. THIS COURT’S DECISION IN U.S. v. OAKLAND CANNABIS
BUYERS CLUB IS CONTROLLING ON THE ISSUE OF THE AVAILABILITY OF MARIJUANA TO
INDIVIDUALS WHO NEED IT FOR MEDICAL PURPOSES
In U.S. v. Oakland Cannabis Buyer’s Club, _ F.3d _ 1999 WL 705099
(9th Cir. 1999) decided on September 13, 1999, a three judge panel of this court
[T]he district court is instructed to reconsider the appellants' request
for a modification that would exempt from the injunction distribution to
seriously ill individuals who need cannabis for medical purposes. In
particular, the district court is instructed to consider, in light of our
decision in United States v. Aguilar, 883 F.2d 662, 692 (9th Cir.
1989), the criteria for . . . a medical necessity exemption, and, should it
modify the injunction, to set forth those criteria in the modification
Id. at *17. Despite this court’s clear instruction to the district
court to conduct an analysis based on considerations of medical necessity,
counsel for the government in its Opposition to Defendant’s Motion for Review
of the District Court’s Order Denying Modification of Conditions of Release
Pending Trial ("Government’s Opposition") continues to advance the
arguments that were rejected by this court in OCBC.
The government argues, based on an unsupported quote taken from the text of
Lefave & Scott and two state court decisions, that considerations of medical
necessity are irrelevant to analysis of any federal action involving marijuana
because marijuana is a controlled substance listed in Schedule I of the
Controlled Substances Act ("CSA"). Government Opposition 7, 22, 24-28.
[Footnote 1: The
government argues that this court’s decision in OCBC is inapplicable in
the instant case because the former concerned a civil matter.
However, this court’s analysis of medical necessity was based on its
earlier ruling in United States v. Aguilar, 883 F.2d 662, 692 (9th Cir.
1989), a criminal case. It is inconceivable that this court would order a district
court to modify an injunction to permit activities that are indefensible under
federal criminal law.]
This rationale reflects a fundamental misunderstanding of the legal
availability of marijuana based on medical necessity. These very issues were
briefed in the OCBC case and this court refused to adopt what it termed
the government’s "erroneous argument." OCBC, at *16.
Mr. McWilliams agrees with this court that the medical necessity defense is
a "legally cognizable defense that likely would pertain" in a federal
prosecution involving the medical use of marijuana. OCBC, at *11. Mr.
McWilliams further maintains that consideration of his request for modification
of his conditions of release must take place in the context of medical
necessity. The medical necessity defense does not provide Mr. McWilliams with
any relief if he does not survive long enough to advance it at trial. The discretionary
conditions of release imposed on Mr. McWilliams that prevent him from using the
medical marijuana that is a necessary component of his life-saving
pharmaceutical AIDS treatment regimen have already driven him to advanced stages
of that illness from which his doctor fears he may not recover. This court’s
intervention is necessary if Mr. McWilliams is to have the opportunity to
vindicate himself at trial.
By including information about marijuana’s scheduling in his motion, Mr.
McWilliams is not, as the government claims, asking this court to reschedule
marijuana. He is merely providing the court with sufficient evidence and
information to conclude that marijuana is improperly listed in Schedule I of the
CSA and to shed light on the reasons why Congress has been so slow to adjust to
changing scientific and medical evidence regarding marijuana. Mr. McWilliams
expects that Congress will ultimately reconsider the placement of marijuana in
Schedule I in light of the scientific and medical information now available.
However, he also acknowledges that until Congress makes such an adjustment, the
only legal mechanism to protect his right to life is the principled application
of considerations of medical necessity. A future adjustment of marijuana’s
scheduling will provide little solace to Mr. McWilliams’ or his family if he
is the last man ground to death by the wheels of bureaucracy that move so slowly
on this issue. At this point, only the courts can move fast enough to save Mr.
II. MR. McWILLIAMS IS A MEMBER OF THE CLASS OF PERSONS
"WHO WILL SUFFER SERIOUS HARM IF THEY ARE DENIED CANNABIS" RECOGNIZED
BY THIS COURT IN U.S. v. OAKLAND CANNABIS BUYER’S CLUB
This court in OCBC found that,
[T]here is a class of people with serious medical conditions for whom
the use of cannabis is necessary in order to treat or alleviate those
conditions or their symptoms; who will suffer serious harm if they are
denied cannabis; and for whom there is no legal alternative to cannabis for
the effective treatment of their medical conditions because they have tried
other alternatives and have found that they are ineffective, or that they
result in intolerable side effects.
OCBC, at * 15, 16. Mr. McWilliams is just such a person. He is suffering
from full-blown AIDS, not merely HIV infection, as the government repeatedly
states throughout its Opposition. Mr. McWilliams is in the later stages of AIDS
and due to his inability to assimilate his pharmaceutical medication, which he
cannot keep down due to nausea, he is susceptible to a host of opportunistic
illnesses such as cancer (which he survived in 1996) or pneumonia.
Mr. McWilliams and his physicians know precisely how to alleviate his
current suffering, yet Mr. McWilliams is precluded from doing so by the threat
that if he does, his elderly, disabled mother will lose her home, his brother
will lose his home and Mr. McWilliams will be incarcerated until trial. The
government’s "offered stipulation," essentially that it would remove
the marijuana testing component for Mr. McWilliams neither removes the present
threat of forfeiture and incarceration, nor gives Mr. McWilliams any legal basis
for defense should an ambitious federal agent decide to search his home—which
can happen at any time. Indeed, by agreeing to such a stipulation, Mr.
McWilliams would be telegraphing that he is in possession of marijuana, a
violation of his conditions of release not covered by the stipulation.
Moreover, analysis of Mr. McWilliams’ conditions of release under the
factors of the medical necessity defense is appropriate because, as in the
injunction in OCBC, here the government is acting "on an
anticipatory basis" through utilization of discretionary factors in the
Bail Reform Act. OCBC at *12. Given Mr. McWilliams demonstrated need for
medical marijuana, then the exercise of the district court’s "broad
discretion to apply conditions of release that are appropriate to the situation
and/or the defendant" (Government Opposition p12), should, as this court
ordered in OCBC, involve "inquiry into whether [the conditions]
should also anticipate likely exceptions." OCBC at *12. Mr.
McWilliams does not dispute that this presents a drafting challenge—be it to
this court or to the district court—however, he maintains that the Bail Reform
Act provides a framework "broad enough to prohibit illegal conduct, but
narrow enough to exclude conduct that likely would be legally privileged or
To the extent Mr. McWilliams is precluded from using medical marijuana due
to discretionary conditions of release imposed by the district court,
those conditions should be removed.
[Footnote 2: 18
U.S.C. § 3142 (c)(B) directs the district court to release defendants:
The government’s concern that such removal would undermine the intended
purpose of the Bail Reform Act by granting Mr. McWilliams "transactional
immunity" for violations of federal statutory law is alleviated by the
medical necessity defense itself. Government’s Opposition, p 10. Once the
discretionary conditions of Mr. McWilliams’ release are removed, if the
government obtains evidence that Mr. McWilliams is using or possessing
marijuana, then it is free to prosecute him in a criminal trial wherein Mr.
McWilliams would be entitled to defend his actions on the grounds of medical
necessity. Such an arrangement, consistent with this court’s ruling in OCBC,
ensures the integrity of the Bail Reform Act and at the same time guarantees to
Mr. McWilliams the due process necessary to protect his most fundamental right
to life. In contrast, under the present circumstances, if Mr. McWilliams is
found to use or possess medical marijuana, then he faces the specter of
forfeiture of his bond and incarceration without the right to a trial by jury.
III. THERE IS NO DOUBT THAT MR. McWILLIAMS’
FDA-APPROVED AIDS TREATMENT REGIMEN
REQUIRES THE USE OF MEDICAL MARIJUANA
Despite the government’s disingenuous characterizations, Mr. McWilliams’
situation is not at all analogous to that presented by cancer patients seeking
access to laetrile. See, Government’s Opposition pp 33-35. Mr.
McWilliams is not rejecting "conventional therapy in favor of a drug with
no demonstrable curative properties." United States v. Rutherford,
442 U.S. 544, 556 (1979). Rather, his body is rejecting the state-of-the-art,
pharmaceutical AIDS treatment therapy approved by the Food and Drug
Administration ("FDA"). Mr. McWilliams is simply asking the courts to
acknowledge that such conventional therapy is wholly unavailable to him unless
he is able to utilize medical marijuana for its anti-nausea effects. There is no
other solution that allows Mr. McWilliams’ to avail himself of the only
FDA-approved treatment for AIDS.
[Footnote 3: Counsel
for the government is well aware that Mr. McWilliams has sought every
conceivable legal alternative to alleviate his suffering including a petition
for rescheduling to the Drug Enforcement Administration (rejected).
The government’s suggestion that Mr. McWilliams failed to avail himself
of all available legal alternatives because he did not attempt to participate in
Dr. Donald Abrams’ study, the only marijuana research project approved by DEA
in over fifteen years, is absolutely baseless.
Participation in the double-blind, placebo-controlled Abrams’ study
would require Mr. McWilliams to relocate to a hospital in San Francisco and
cause him to forego his current use of Marinol®, the only anti-nausea
medication besides medical marijuana that produces any noticeable effect, in the
hopes that he would be one of the randomly selected research subjects who
receives medical marijuana. It is
noteworthy that the Abrams’ study is only for the purposes of assessing the
potential harm caused by smoking medical marijuana.
The absurdity of the government’s suggestion underscores the lack of
available alternatives for Mr. McWilliams.
Refusal to acknowledge the reality of Mr. McWilliams’ medical situation
amounts to a sentence of death.
The government has not offered any evidence to counter the assertions of Mr.
McWilliams and his physician that medical marijuana is the only anti-nausea
medication that controls his vomiting and allows him to assimilate his
life-saving AIDS medication because there is no contrary evidence. This is the
fundamental difference between Mr. McWilliams’ situation and that presented by
the cancer patients in the laetrile cases.
Laetrile was an unproven, experimental therapy that patients were utilizing
in place of conventional FDA-approved cancer treatments. Medical marijuana, on
the other hand, has demonstrated effectiveness in Mr. McWilliams’ situation
and for thousands of others as an effective anti-nausea medication as discussed
in the National Academy of Science Institute of Medicine Report Marijuana As
Medicine: Assessing the Science Base. Mr. McWilliams cannot avail himself of
the benefits of his conventional FDA-approved pharmaceutical therapy without
also using medical marijuana.
Indeed, it is the absence of medical marijuana in this case, as it
was the presence of laetrile in Rutherford, that will lead to the
"irreversible consequences" contemplated by Justice Marshall. Rutherford,
442 U.S. at 556.
Considering the equities at stake in this situation—Mr. McWilliams’ life
versus the government’s "general interest in enforcing its statutes"—
Mr. McWilliams urges this court to err on the side of his survival.
For the foregoing reasons, Mr. McWilliams respectfully urges this court to
enter an order exempting him from the conditions of his release that prevent him
from using medical marijuana or instruct the district court to enter same.
Dated: October 28, 1999 Respectfully submitted,
THOMAS J. BALLANCO
Attorney for Defendant/Appellant