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 unanimously ruled:

[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 order.

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. McWilliams’ life.

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 justified." Id.

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.

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

PETER McWILLIAMS