motion to dismiss...will be denied his fundamental right to due process and to a fair trial unless...
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MOTION TO DISMISS -1-
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Law Offices of Eric D. Shevin Eric D. Shevin, Esq. (State Bar No. 160103) Stephen J. Fisch, Esq. (State Bar No. 240774) Meital Manzuri, Esq. (State Bar No. 258256) 15260 Ventura Blvd., Suite 1050 Sherman Oaks, CA 91403 Telephone: (818) 784-2700 Facsimile: (818) 784-2411 Attorneys for Defendant STEELE SMITH
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
THE UNITED STATES OF AMERICA,
Plaintiff,
vs. STEELE SMITH
Defendant.
Case No. 07 - 264 - CJC NOTICE OF MOTION AND MOTION TO DISMISS FOR VIOLATION OF DUE PROCESS AND STATE SOVEREIGNTY
TO THE HONORABLE COURT AND THE U.S. ATTORNEY OR HIS REPRESENTATIVE:
PLEASE TAKE NOTICE that, STEELE SMITH through counsel of record, ERIC D.
SHEVIN will, and hereby does, move to dismiss the charges against him because his right to Due
Process has been violated. This motion is made pursuant to the Fifth Amendment, the Eighth
Amendment, the Ninth Amendment and the Tenth Amendment to the United States Constitution.
This motion is made on the grounds that the current charges against STEELE SMITH are a
result of federal agents’ unconstitutional commandeering of state officials to enforce the Controlled
Substances Act. Moreover, Due Process bars cruel and unusual punishment. Allowing this
prosecution to continue would violate the interests of justice and fundamental fairness.
Said motion to dismiss is based on this Notice of Motion, the attached Memorandum of Points
and Authorities, such supplemental pleadings that may be filed in the course of this motion, the
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documents and records on file in this action and on any evidence and argument to be presented at the
hearing on this motion.
Respectfully submitted,
DATED: /s/ Eric D. Shevin . Eric D. Shevin: Ca State Bar 160103
Attorney for STEELE SMITH
MOTION TO DISMISS
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
In the instant case, the proceedings against Defendant Steele Smith1 are in direct conflict with
the Fifth, Ninth, and Tenth Amendments to the United States Constitution. The subject matter of this
case involves allegations of cultivating marijuana in violation of federal law. Mr. Smith, however
acted at all times with direct knowledge that his conduct was authorized by the expressed language of
the Compassionate Use Act, codified as California Health & Safety 11362.5, et. seq. As a result of
the divergence of state, constitutional, and federal law on the issue of medical marijuana, Mr. Smith
will be denied his fundamental right to Due Process and to a fair trial unless this Court resolves the
issues presented in this motion and Mr. Smith’s additional pre-trial motions filed concurrently
herewith. Undersigned counsel represents that the instant case is one of first impression and that the
District Court is empowered to act in order to preserve Mr. Smith’s rights as set forth herein.
The Fundamental Right to Due Process represents the principle that the government must
respect all of the legal rights that are owed to a person according to the law of the land. Murray v.
Hoboken Land, 59 U.S. 272, 276 (1855). In order to protect an individual’s right to Due Process, this
Court is empowered to place limitations on laws and legal proceedings, in order to define and
guarantee fundamental fairness, justice, and liberty. Id. at 277. In order to ascertain whether a
process involves the right to Due Process, the first step is to “examine the constitution itself, to see
whether this process be in conflict with any of its provisions . . .” Id.
In the instant case, the proceedings against Mr. Smith are in conflict with the Fifth, the
Eighth, the Ninth, and the Tenth Amendments to the U.S. Constitution. The Fifth Amendment 1 The owner of a medical marijuana collective in strict compliance with California Health & Safety Code §11362.5
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requires both Procedural and Substantive Due Process. See Hamdi v. Rusmfeld 542 U.S. 507 (2004)
[quoting In Re Winship, 397 U.S. 507, (1970)]. As discussed in Mr. Smith’s motion to present a
complete defense, filed concurrently herewith, Procedural Due Process requires Steele Smith be
afforded the opportunity to be heard and present a defense based on medical grounds. Moreover, the
punishment involved here violates Procedural Due Process in conjunction with the Eighth
Amendment. Under the Eighth Amendment, a person may not be subject to cruel and unusual
punishment, and such subjection would violate Procedural Due Process. See e.g., Simmons v. South
Carolina, 512 U.S. 154, 161 (1994). Here, strict compliance with a valid state law requires a
mandatory minimum of ten years’ federal imprisonment, and it is cruel and unusual and a violation of
fundamental fairness that one’s lawful actions can result in such a harsh punishment by the federal
government.
Finally, the federal government’s systemic plan to re-criminalize medical marijuana in
California violates the Ninth and Tenth Amendments. Under the Ninth Amendment, governmental
expansion should be denied if it violates the powers granted to the people or the states by the
Constitution. See U.S. Public Workers v. Mitchell, 330 U.S. 75 (1945). Here, the federal government
seeks to expand its powers without constitutional authority and in violation of the rights afforded to
the states under the Tenth Amendment. The Tenth Amendment has been construed to protect each
state’s authority to create its own laws under the police power. New York v. United States, 505 U.S.
144, 167 (1992). Under this authority, California and other states have passed laws allowing for the
compassionate use of medical marijuana. The federal government’s plan to re-criminalize medical
marijuana and the practice of commandeering state officials has been documented and is implicitly
obvious in the instant case. This plan and practice violates the Tenth Amendment and all that is
considered fundamental under states’ rights.
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Analyzing the current facts under all of these Amendments of the Constitution demonstrates
violations of Mr. Smith’s right to Due Process and fundamental fairness, as well as attempts by the
federal government to subvert state laws. Accordingly, Defense moves to dismiss the current
prosecution for such violations.
II.
STATEMENT OF FACTS
Beginning in 1981, Steele Smith ran a successful marketing business for twelve (12) years. His
success included two (2) U.S. patents, a U.S. trademark, an award for outstanding young American
from the US Junior Chamber of Commerce, and an award for Outstanding Young Californian. In
addition to his success and accolades, Mr. Smith owned his own home and was living the American
Dream.
In 2001, Steele Smith was diagnosed with a rare disease called Zollinger-Ellison (“Zollinger”)
syndrome. This is a disease of the gastro-intestinal system (stomach, intestines, etc.). A person with
Zollinger suffers from horrible ulcers that basically burn through the stomach. Symptoms of this
awful disease include a burning pain in the abdomen, nausea, vomiting, bleeding, weakness, and
fatigue. As a result of Zollinger, in the summer of 2001, Mr. Smith lost 60 lbs; he weighed 195lbs at
a height of 6’7”. In an attempt to relieve Mr. Smith of his symptoms, his doctors prescribed
morphine. As a result of long-term use, Mr. Smith became dependant on morphine to such an extent
that he could no longer operate his business. He lost contacts, credibility, and eventually his home.
Fortunately, through medical detoxification, Mr. Smith was finally able to beat the addiction.
Once Mr. Smith came off of morphine, however, he still suffered from the effects of the disease,
Zollinger, which has no cure. Afraid of further pain management drugs, he asked his doctor for an
alternative. It was then that his doctor recommended medical marijuana. He said it could help
stimulate digestion, abate nausea, and stimulate his appetite. Upon trying medical marijuana, the
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symptoms of Zollinger decreased significantly and Mr. Smith was able to eat and maintain a healthy
weight.
After his success as a patient, Mr. Smith began to research the medical marijuana laws in
California and read everything he could about proposition 215, Health & Safety Code 11362.5, and
USB 420. Since Mr. Smith had plenty of experience running a successful business prior to his
illness, he knew he could be successful in this emerging market. In setting up his collective,
California Compassionate Caregivers (“C3”), Mr. Smith consulted several attorneys, obtained
business licenses, and filed taxes. C3 was an immediate success. He hired employees, had an office
and provided many helpful services to people with illnesses. His services were not limited to medical
marijuana, he also provided walkers, crutches, wheelchairs, porta-potties, and other medical supplies
FREE of charge.
Mr. Smith helped several patients with real illnesses and was even compensated by their
insurance. For example, Jason Waters is a young man aged 25 with Cerebral Palsy. Jason Waters is
quadriplegic, has had several surgeries and was a recipient of a transplant. Steele Smith billed his
transplant company in Maryland and was paid by their insurance in full. In fact, Mr. Smith recovered
costs from different insurance companies several times for the services he provided. Similarly, Mr.
Smith provided an elderly woman, Dorothy Wretchko, aged 90, with numerous health services,
including a free walker. Accordingly, through C3, Mr. Smith was able to become a contributing
member of society once again and, as discussed in the motion to present a complete defense filed
concurrently herewith, did so completely within the California medical marijuana laws.
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III.
THE FEDERAL PROSECUTION OF MEDICAL MARIJUANA PATIENTS AND
SUBVERSION OF STATE LAW IS UNCONSTITUTIONAL UNDER THE TENTH
AMENDMENT.
Under the Tenth Amendment, “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” The Tenth Amendment was established to protect the people and the states from an
intrusive federal government. See New York v. U.S., 505 U.S. 144 (1992); Printz v. United States 538
U.S. 1036 (1997). Accordingly, the federal government has limited powers and can only assert
powers specifically granted by the US Constitution.
With this authority, the people of California passed the Compassionate Use Act and the
legislature subsequently passed the Medical Marijuana Program. Accordingly, the people of
California – supported by the legislature – have asserted the right conferred upon them by the US
Constitution and showed their majority approval of medical marijuana.
"The federal government may not compel the States to enact or enforce a federal regulatory
program." Printz v. United States 538 U.S. 1036 (1997). “Congress may not simply commandeer the
legislative process of the states by directly compelling them to enact and enforce a federal regulatory
program.” New York v. United States, 505 U.S. 144, 161 (1992). The Federal Government’s actions
constitute commandeering when it “requires state officials to assist in the enforcement of federal
statutes regulating private individuals.” Raich v. Gonzales, 500 F.3d 850 867 n.17 (9th Cir. 2007).
The manner in which the Controlled Substances Act is enforced can violate the Tenth Amendment.
Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) (Chief Judge Kozinsky’s concurring opinion); See
also County of Santa Cruz v. Gonzales, (Attached as Exhibit A) (Case number C 03-01802 JF, Order
granting in part and denying in part, defendants’ motion to dismiss, 2008). In this case, the evidence
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will show that the federal government has been subverting California medical marijuana laws in
violation of the Tenth Amendment, to the detriment of Mr. Steele Smith and others like him.
A.
Federal Agents Have Commandeered State Officials to Re-Criminalize Medical Marijuana in
Violation of the Tenth Amendment
The federal government has employed a consistent, long-standing practice and policy, to
undermine and render state medical marijuana laws unenforceable, and coerce California to re-
criminalize medical marijuana. First, the federal government selectively targeted its enforcement
efforts against physicians to undermine the state by incapacitating the mechanism the state chose for
separating what is legal from what is illegal under state law. Conant v. Walters, 309 F.3d 629 (9th
Cir. 2002). The Federal Policy of targeting physicians was enjoined in Conant v. Walters because
that policy violated physicians’ First Amendment Rights. Id. In his concurring opinion, Judge
Kozinksy observed that the policy also violated the Tenth Amendment. Id.
Enjoined from pursuing its policy of targeting physicians, the federal government has turned
to other means of selectively enforcing and threatening to enforce federal drug laws to force
California and other states to re-criminalize medical marijuana.
Illustrating this federal practice and policy of targeted investigation, enforcement, and
prosecution in order to sabotage and render unenforceable California’s medical marijuana
regulations, then-Administrator of the DEA Asa Hutchinson publicly confirmed that medical
marijuana raids were a part of the federal government’s commitment to disrupt implementation of the
Compassionate Use Act. Hutchinson reiterated the federal policy of disrupting implementation of the
state’s medical marijuana laws in a September 30, 2002 letter to California Attorney General Bill
Lockyer. Lockyer concluded, based on communication with federal officials, that federal
enforcement actions against cultivators and providers of medical marijuana (including defendant
herein) during his tenure were intended to be punitive and intimidating gestures, not aimed at
MOTION TO DISMISS
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enforcement of legitimate federal interests, but at interfering with implementation of California law.
As a further illustration of the far-reaching consequences, defense has attached, as Exhibit B, a non-
exhaustive list of federal prosecutions of defendants following state medical marijuana laws. Many
of these defendants suffered tremendously fighting for their freedom, most of whom lost.
Furthermore demonstrating this policy, attached as Exhibit C, is a letter written to the DEA by
the president of the California Police Chiefs’ Association (“CPCA”), which says:
What the CPCA is requesting is that DEA become more actively involved in working with local law enforcement to close these distribution centers, seize their profits and all marijuana . . .
It is the feeling of the CPCA, and our members, that a concentrated effort
sustained over a period of time would send a strong message to local and county government that “medical marijuana” is not allowed . . .
Moreover, in his concurring opinion, Chief Judge Kozinsky opined that the federal
government’s manner of enforcing the CSA had commandeered California’s legislative process.
Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). Kozinsky also said, “[As] much as the federal
government may prefer that California keep medical marijuana illegal, it cannot force the state to do
so . . . preventing the state from repealing an existing law is no different from forcing it to pass a new
one; in either case, the state is being forced to regulate conduct that it prefers unregulated. Id. at 645-
46 (Kozinski J., concurring).
Additionally, in an ongoing case, County of Santa Cruz v. Gonzales, Judge Jeremy Fogel in
the San Jose division of the District Court of Northern California, used Kozinsky’s concurring
opinion in Conant to deny the federal government’s motion to dismiss. (Order Attached as Exhibit
A) (Case number C 03-01802 JF, Order granting in part and denying in part, defendants’ motion to
dismiss, 2008). The Court there held that plaintiffs may be able to show that the federal government
is “deliberately seeking to frustrate the state’s ability to determine whether an individual’s use of
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medical marijuana is permissible under California law”. (Attached as Exhibit A) (Case number C 03-
01802 JF, Order granting in part and denying in part, defendants’ motion to dismiss, 2008).
Not only is there evidence that throughout California there has been a concerted plan to re-
criminalize marijuana, but it is also clear that in the instant case, the Fullerton Police were
commandeered to help enforce the CSA against Defendant Steele Smith. In February of 2007, Mr.
Smith was investigated thoroughly by the Fullerton Police. Mr. Smith allowed these officers to come
in and document the entire grow operation for Mr. Smith’s collective. After they thoroughly
documented the grow, Steele Smith never heard from the Fullerton Police again. Then, nine months
later, the Federal Government executed a raid. In his affidavit in support of a criminal complaint,
Special Agent Joseph Kolodzey admits that the raid in this case was instituted with the help of state
officials. (Attached as Exhibit E). Moreover, Mr. Smith is seeking full disclosure of the Federal
Government’s investigative materials to show the similarities in those materials with the evidence
obtained by the Fullerton Police, nine months earlier.
Collaboration between the Fullerton Police and federal agents falls directly in line with the
CPCA letter, the letter by Ms. Hutchinson, and letters from Congressman John Conyers and several
other politicians which ask the DEA to stop with the raids and specifically lists Steele Smith as a
target. (Attached as Exhibit D). On the mercy of this Court, Defense asks the Court not turn a blind
eye to the obvious practice of state police gathering evidence and turning it over to federal agents.
State Police acting as investigators and reporting to the DEA constitutes a clear example of
commandeering and violates the Tenth Amendment.
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B.
Raich Does not Control in this Case
Under the Commerce Clause, the Ninth Circuit upheld the Controlled Substances Act. Raich
v. Gonzales, 545 U.S. 1 (2005). Limiting the application of its decision, the Court also said, “state
acquiescence to federal regulation cannot expand the bounds of the Commerce Clause” Id. at 26.
[citing U.S. v. Morrison, 529 U.S. 598, 661-62 (2000)]. Using Raich in the instant case would exceed
its application because the current case does not involve the commerce clause, rather a violation of
the Tenth Amendment.
This case is further distinguishable from Raich because of the relief sought by Steele Smith. In
Raich, respondents sought relief in the form of an injunction against the federal government,
effectively asking the Court to invalidate the CSA as it applies to medical marijuana patients. Raich
at 1. Here, Mr. Smith does not ask this court to enjoin federal agents. Rather, he asks this Court to
recognize federal agents’ actions as unconstitutional. As a remedy, Defense asks this Court dismiss
the case and allow federal and state discrepancies be resolved by Congress or the Supreme Court.
In the alternative, Mr. Smith requests that he be allowed to present a defense based on compliance
with the Compassionate Use Act, set forth in Health & Safety Code §11362.5, §11362.765, and
§11362.775. These three provisions of the Health & Safety Code prohibit the criminal prosecution of
individuals who are qualified to possess and/or cultivate marijuana for medical purposes. The
Compassionate Use Act is set forth in §11362.5 and provides for the exemption of medical marijuana
patients from prosecution. Under §11362.765, “any individual who provides assistance to a qualified
patient” and/or “cultivates or administers marijuana for medical purposes to the qualified patient or
person” shall be exempt from criminal sanctions. Finally, §11362.775 specifically allows qualified
patients to associate within the state of California as collectives or cooperatives to cultivate marijuana
for medical purposes. Mr. Smith is a qualified patient and cultivated marijuana for his lawful
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collective. Under these provisions, therefore, he understood he was exempt from criminal
prosecution and should be allowed to present his reliance on valid California law as a defense.
C.
Recent Precedent Shows that Federal Law Acknowledges a State’s Medical Use of Marijuana.
“The Supremacy Clause unambiguously provides that if there is any conflict between federal and
state law, federal law shall prevail. Raich at 29. Notwithstanding its decision in Raich, the Supreme
Court showed its tacit approval of state medical marijuana laws by refusing to review City of Garden
Grove v. Superior Court of Orange County, Felix Kha, 157 Cal.App. 4th 355 (4th Dist. Ct of Appeal
2007). Defendant Kha was caught with a third of an ounce of marijuana and the case was dismissed
because the defendant was a medical marijuana patient. Id. The issue then became whether to return
his medical marijuana, a Schedule 1 controlled substance under Federal Law, or not. Id. The Fourth
District Court of Appeal ruled Defendant Kha was entitled to the return of his property. Id. at 390.
The city, representing the police department, appealed the ruling, ultimately seeking review by the
U.S. Supreme Court. Id. Since the California Supreme Court and the U.S. Supreme Court both
refused to review the decision the Kha decision stands as authority. Id. Similarly, the U.S. Supreme
Court recently refused to hear the appeals of two California Counties (San Diego and San
Bernardino) who object to California’s thirteen year old medical marijuana law and claimed it should
be struck down as violating the federal drug control act. The Supreme Court’s refusal to hear the
matter again shows tacit approval of California’s right to maintain medical marijuana laws. The
Supreme Court’s tacit approval, coupled with the Attorney General’s public press conference
statement that American Policy endorses California’s right to maintain medical marijuana laws shows
that the CSA does not apply when a defendant is following California’s medical marijuana laws.
Accordingly, as discuseed below, a hearing is required to establish Steele Smith’s compliance with
state law. If compliance is found, the case must be dismissed.
MOTION TO DISMISS
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Raich and Kha together demonstrate that the relationship of federal drug law and state medical
marijuana laws remains undefined. Here, the defendant does not ask this Court to legislate, rather
Defense appeals to this Court’s sense of fairness in applying a federal law which conflicts with a state
law in such an egregious manner, that the consequences could include a mandatory minimum of ten
years in federal prison.
Defense is hard pressed to find an analogous situation where state and federal laws directly
conflict, resulting in prosecutions of individuals who are complying with state laws. As a
consequence of such confusion, a man’s freedom is at stake. Counsel hesitantly compares our
instant situation to the tragic reality of slavery in the late 19th century. At that time, various states
had laws enforcing slavery while others outright banned it. In 1850, this conflict led to the federal
government passing the Fugitive Slave Law to try and regulate the confusion caused by differing
slave laws across states and with the Union itself. Under that law, Northerners were required to
return any slaves who escaped from the South to the North. Only then, did competing laws so
strongly implicate a man’s freedom. A runaway slave who was otherwise in a law abiding state was
still subject to have his freedom taken away by a different state based on their laws.
The glaring injustice implicated in the Fugitive Slave Law strikes a similarity with the glaring
injustice involved here. There, competing laws were so dire as to deprive a man of his freedom.
Accordingly, when a man’s freedom is at stake, justice requires a careful managing of this gray
area. As discussed above, the federal government has gone to great lengths to try and re-criminalize
medical marijuana in California. These efforts have forced state officials to acquiesce beyond the
requirements of the Commerce Clause and have thus operated in violation of the Tenth Amendment.
Defense accordingly urges this Court to dismiss this case.
MOTION TO DISMISS
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D.
Under the Current Administration, the DEA’s raid on Steele Smith, Which Resulted in the
Instant Prosecution, violated “American Policy”.
Recently, in a press conference on February 24, 2009, U.S. Attorney General, Eric Holder,
announced that under the current administration, DEA raids in California are against “American
Policy”. 2 He stated, “You will be surprised to know that the Justice department will be acting in a
manner consistent with what [the president] said during the campaign”. Id. Similarly, on March 19,
2009, Eric Holder explained that under current American policy, the Justice Department would no
longer prosecute pot dispensaries operating legally under state laws in California or dozens of other
states.3
The American Policy on medical marijuana, as declared by President Barack Obama, is that
the “concept of medical marijuana” used and controlled in the same manner as other drugs prescribed
by doctors, is “entirely appropriate”. Id. At a campaign stop in New Hampshire, Obama was specific
about medical marijuana raids, “I would not have the justice department prosecution and raiding
medical marijuana users”. Id.
In this case, Mr. Smith was operating a medical marijuana collective in compliance with state
law. He met with attorneys and local law enforcement to ensure his compliance with state law. Yet,
the federal government continues with this prosecution in violation of federal policy.
Therefore, the current prosecution runs contrary to both federal and state law and should not
be allowed to continue.
2 Video Avail. at http://rawstory.com/news/2008/Justice_Department_will_stop_medical_marijuana_0226.html (Last visited 2/27/09) 3 http://www.latimes.com/news/local/la-me-medpot19-2009mar19,0,4987571.story (Last visited 3/27/09)
MOTION TO DISMISS
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IV.
THE CURRENT PROSECUTION CARRIES A MANDATORY MINIMUM SENTENCE OF
TEN YEARS, WHICH VIOLATES STEELE SMITH’S RIGHT TO DUE PROCESS UNDER
THE FIFTH AND EIGHTH AMENDMENTS.
A.
Procedural Due Process, in Conjunction with the Eighth Amendment, Bars the Current
Prosecution Because Steele Smith’s Conviction Would Result in Cruel and Unusual
Punishment.
In criminal cases, Due Process protections overlap with procedural protections provided by
the Eighth Amendment to the United States Constitution. See e.g., Simmons v. South Carolina, 512
U.S. 154, 161 (1994). The Eighth Amendment guarantees reliable procedures and protections against
cruel and unusual punishment. See Herrera v. Collins, 506 U.S. 390 (1993).
Moreover, punishments must not be excessive. Solem v. Helm, 463 U.S. 277 (1983). In
Solem, the Court ruled that incarceration constitutes cruel and unusual punishment if it is
“disproportionate to the crime”. Id. The Court further explained that a court's proportionality
analysis of a criminal sentence to determine the sentence's propriety under the Eighth Amendment
should be guided by objective criteria, including:
(1) The gravity of the offense and harshness of the penalty, (2) The sentences imposed for the commission of the same crime in the same jurisdiction, and (3) The sentences imposed for the commission of the same crime in other jurisdictions.
Id.
The gravity of the offense here is nonexistent as Mr. Smith’s conduct is lawful where the
underlying activities took place. Steele Smith is charged with conspiracy to cultivate marijuana. As
discussed, several states have legalized marijuana because it medically assists many who are in need.
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Moreover, despite marijuana’s scheduling under the CSA, most modern health studies show that
positive medical effects of marijuana exist and furthermore that potential for abuse is minimal. (See
motion to reschedule marijuana under the CSA, filed concurrently herewith). Since medical
marijuana is lawful in California and several other states, and its benefits are recognized, the gravity
of the crime is accordingly low. In contrast, Steele Smith is threatened with imprisonment, thus the
penalty involved here is extremely harsh to say the least. (21 U.S.C. §841 provides a mandatory
minimum sentence of ten years for cultivating 1000 plants).
There is little precedent for sentencing medical marijuana providers. Many of these types of
cases do not make it to trial, and of the ones that do, many judges have found mercy on Defendants
similarly situated to Steele Smith. For example, Ed Rosenthal was convicted of cultivation in the
Ninth Circuit, but the judge only sentenced him to one day in prison – time already served. U.S.A. v.
Rosenthal, 454 F.3d 943, (9th Cir. 2006). Similarly, Bryan Epis was sentenced to ten years in prison,
but he never served that time. See U.S.A. v. Epis, 373 F.3d 1383, (9th Cir. Cal. 2004). It is clear,
therefore, that other judges in this circuit have not found the punishment to be proportionate with the
crime.
As discussed throughout this motion, in the jurisdiction where the alleged crime was
committed, Mr. Smith’s conduct is not criminal and not prosecuted. Thus, in reviewing other
jurisdictions, it is clear that imprisonment for medical marijuana cultivation is not typical.
Accordingly, all three proportionality considerations discussed by the Court weigh heavily in
favor of a finding that the ten-year mandatory minimum involved here is disproportionate to the
offense and thus constitutes cruel and unusual punishment.
MOTION TO DISMISS
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V.
THE CURRENT PROSECUTION VIOLATES STEELE SMITH’S SUBSTANTIVE DUE PROCESS RIGHT TO THE PURSUIT OF HAPPINESS
Substantive Due Process is violated “If a practice or rule offends some principle of justice so
rooted in the traditions and conscience of our people as to be ranked as fundamental”. Snyder v.
Massachusetts, 291 U.S. 97, 105 (1934). Under the Declaration of Independence, Americans have
the right to life, liberty and the Pursuit of Happiness. (U.S. Declaration Ind.) A difficult term to
define, the Pursuit of Happiness is a fundamental right founded on the idea that people have the right
“to be left alone by government” and to define their own concept of existence. See Winston v. Lee
470 U.S. 753 (1985).
Under the right to be left alone by government, and empowered by the Tenth Amendment, the
people of California passed the Compassionate Use Act. Therein, the people decided that the
availability of medical marijuana for those in medical need is part of maintaining the quality of life
and the Pursuit of Happiness.
The current prosecution violates Steele Smith’s right to the Pursuit of Happiness. “Without
doubt, [the Pursuit of Happiness] denotes . . . the right of the individual to contract, to engage in any
of the common occupations of life . . . as essential to the orderly Pursuit of Happiness by free men”.
Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Under this fundamental right, Mr. Smith researched
the emerging market in medical marijuana under California’s Compassionate Use Act and USB 420.
Previously, Mr. Smith attended law school for two years and thus possesses a basic knowledge of
how to research and gather information and understand the law. Mr. Smith read everything discussed
he could about the laws and, as discussed in the motion to present a complete defense filed
concurrently herewith, Mr. Smith consulted various attorneys, and made educated, well though-out
and commonsense inferences about the effect of federal law in that area. After researching, he started
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a lawful collective where he pursued a sense of fulfillment and happiness by opening a successful
business and providing medical assistance to those in need.
In setting up a lawful collective, Mr. Smith followed established rules and regulations,
consulted several attorneys, and researched the law thoroughly (as discussed in the motion to present
a complete defense filed concurrently herewith). Most recently, Attorney General Brown detailed
these rules in guidelines published in August 2008. The guidelines contain four pages of instructions
for lawful cultivation and distribution and a reasonable interpretation of Health & Safety code
§11362.7 65 and §11362.775.
Mr. Smith set his collective up as a legitimate business. He had an office with a business
license on the wall, was set up as a non-profit corporation, obtained business licenses both from the
city of Anaheim and the city of Garden Grove. Moreover, he had employees, with goals and duties,
forklifts bringing in deliveries, and credit lines with different companies, including the Orange Co.
Farm Supply. Accordingly, Steele Smith’s pursuit of happiness included a legitimate business.
Moreover, privileges long recognized as fundamental to the Pursuit of Happiness include the
right to quality of life. See Cruzan v. Dir. Mo. Dep't of Health, 497 U.S. 261. There, a woman was
being kept alive by a feeding tube and her family wished to no longer delay the inevitable. Id. at 262.
The Court stated that a long recognized right is to sustain life and quality of life. Id. Here, the people
in Mr. Smith’s collective depend on him for their medical treatment, which is fundamental to the
quality of life. Mr. Smith’s premise included a stockade of wheelchairs, wheelchair racks for cars,
walkers, crutches, porta-potties, all FREE for his patients. The current prosecution against Steele
Smith not only affects his freedom, his right to contract, and his right to occupation, but also the
availability of medicine for the people he cares for and thus their quality of life.
Although the patients in his collective are not directly involved in this case and have surely
joined another collective, allowing this prosecution to continue sends a warning to other collectives to
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cease operation. (Many of which are operating under the Attorney General of California’s
guidelines.) This type of effect or message perpetuated by the federal government’s enforcement
undermines the Compassionate Use Act, the Tenth Amendment, and the right to the Pursuit of
Happiness. Accordingly, Defense urges this Court to dismiss and to allow the will of the people of
California to be carried out.
VI.
MR. SMITH REQUESTS AN EVIDENTIARY HEARING TO DEMONSTRATE HIS
COMPLIANCE WITH THE COMPASSIONATE USE ACT, THUS ESTABLISHING THE
CONSTITUTIONAL VIOLATION SET FORTH HEREIN AND THEREBY OBVIATING
THE FEDERAL GOVERNMENT’S JURISDICTION.
Counsel concedes that Federal jurisdiction would be appropriate if Mr. Smith’s operations
were not in compliance with the CUA. Specifically, if his actions were not in compliance with the
Act, and he was simply a marijuana cultivator, not dissimilar to drug dealers who distribute
substances to people without a doctor’s recommendation, clearly he would be in violation of the law
and the federal government would have jurisdiction. In this case, Mr. Smith would like the
opportunity to show the Court that his conduct and his collective are highly distinguishable from a
common drug-dealer, because he took every precaution to comply with the CUA (as discussed in the
motion to present a complete defense, filed concurrently herewith). Such evidence is relevant for the
Court to preview his defense at trial and to consider whether the federal government overstepped its
role with the current prosecution. Accordingly, defense would like the opportunity to have a hearing
to establish Mr. Smith’s compliance with California law so the Court can make an informed decision
before deciding how to proceed.
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VII.
CONCLUSION
For the foregoing reasons, Defendant hereby respectfully requests this Court dismiss charges
against Steele Smith due to a violation of Due Process, or in the alternative allow for an evidentiary
hearing to show compliance with State law.
Respectfully submitted,
DATED: /s/ Eric D. Shevin . Eric D. Shevin: Ca State Bar 160103
Attorney for STEELE SMITH Law Offices of Eric D. Shevin 15260 Ventura Blvd., Suite 1050 Sherman Oaks, Ca 91403 Telephone: 818-784-2700 Facsimile: 818-784-2411
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STEELE SMITH DECLARES AS FOLLOWS: I, Steele Smith, State:
1. Beginning in 1981, I ran a successful marketing business for twelve (12) years. 2. My success included two (2) U.S. patents, a U.S. trademark, an award for outstanding young
American from the US Junior Chamber of Commerce, and an award for Outstanding Young Californian.
3. I owned my own home and was living the American Dream.
4. In 2001, I was diagnosed with a rare disease called Zollinger-Ellison (“Zollinger”) syndrome.
This is a disease of the gastro-intestinal system (stomach, intestines, etc.). I suffered from horrible ulcers, burning pain in the abdomen, nausea, vomiting, bleeding, weakness, and fatigue.
5. As a result of Zollinger, in the summer of 2001, I lost 60 lbs. At a height of 6’7”, I weighed
195 lbs.
6. In an attempt to relieve me of my symptoms, my doctors prescribed morphine. As a result of long-term use, I became addicted to morphine to such an extent that I could no longer operate my business. I lost contacts, credibility, and eventually my home.
7. Fortunately, through medical detoxification, I beat the addiction.
8. Once I came off of morphine, however, I still suffered from the effects of the disease,
Zollinger, which has no cure. Afraid of further pain management drugs, I asked my doctor for an alternative. It was then that my doctor recommended medical marijuana. My doctor said it could help stimulate digestion, abate nausea, and stimulate my appetite.
9. Upon trying medical marijuana, the symptoms of Zollinger decreased significantly and I was
able to eat and maintain a healthy weight.
10. After my success as a patient, I researched medical marijuana laws in California and read everything I could about proposition 215, Health & Safety Code 11367.5, and USB 420.
11. In setting up my collective, California Compassionate Caregivers (“C3”), I consulted several
attorneys, obtained business licenses, and filed taxes. I hired employees, had an office and provided many helpful services to people with illnesses.
12. My services were not limited to medical marijuana, I also provided walkers, crutches,
wheelchairs, porta-potties, and other medical supplies FREE of charge.
13. I helped several patients with real illnesses and was compensated by their insurance. For example, Jason Waters is a young man aged 25 with Cerebral Palsy. Jason Waters is quadriplegic, has had several surgeries and was a recipient of a transplant. I billed his transplant company in Maryland and was paid by their insurance in full. I recovered costs from different insurance companies several times for the services he provided.
14. I also provided an elderly woman, Dorothy Wretchko, aged 90, with numerous health
services, including a free walker.
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15. In February of 2007, I was investigated thoroughly by the Fullerton Police. I allowed these officers to come in and document the entire grow operation for my collective. Then, nine months later, the Federal Government executed a raid.
Executed this 31st day of March 2009, at Sherman Oaks, California.
Steele Smith