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>From: "Peter McWilliams" <peter@mcwilliams.com>
>Subject: My response to government
>Date: Thu, 28 Oct 1999 13:58:18 -0700
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>
>Note: The government's opposition to my motion requesting 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 (also online at http://www.petertrial.com/reply.htm  
The
>original motion is online at http://www.petertrial.com/motion.htm):
>
>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
>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.
>
>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 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:
>subject to THE LEAST RESTRICTIVE CONDITION, or COMBINATION OF CONDITIONS,
>that . . . will reasonably assure the appearance of the person . . . and 
the
>safety of . . . the community, which MAY include the condition that the
>person.. (ix) refrain from . . . any use of a narcotic drug or other
>controlled substances. (emphasis added).
>
>This statutory command is discretionary on its face and the courts are
>clearly vested with the power to evaluate defendants on a case-by-case
>basis.]
>
>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.
>
>CONCLUSION
>
>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
>
>
>
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