No. 00-151 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

OAKLAND CANNABIS BUYERS’ COOPERATIVE AND 
JEFFREY JONES 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

APPENDIX TO THE 
PETITION FOR A WRIT OF CERTIORARI 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

LISA SCHIAVO BLATT 

Assistant to the Solicitor 

General 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

TABLE OF CONTENTS 

Page 

Appendix A (Opinion of the Ninth Circuit 

Court of Appeals, Sept. 13, 1999) .............................. 

1a 

Appendix B (Order of the United States District 

Court for the Northern District of California, 
July 17, 2000) ................................................................. 

12a 
Appendix C (Amended Preliminary Injunction 

Order of the United States District Court for 
the Northern District of California, July 17, 
2000) ................................................................................ 15a 

Appendix D (Order in Case No. 98-00088 of the 

United States District Court for the Northern 
District of California, Oct. 16, 1998) ......................... 

18a 

Appendix E (Memorandum and Order re: 

Motions in Limine and Order to Show Cause 
in Case No. 98-00088 of the United States 
District Court for the Northern District of 
California, Oct. 13, 1998) ............................................. 

20a 
Appendix F (Preliminary Injunction Order 

of the United States District Court for the 
Northern District of California, May 19, 
1998) ................................................................................ 39a 

Appendix G (Memorandum and Order of the 

United States District Court for the Northern 
District of California, May 13, 1998) ......................... 

41a 

Appendix H (Order of the Ninth Circuit Court 
of Appeals denying rehearing and rehearing 
en banc, Feb. 29, 2000) ................................................ 

82a 

Appendix I (Statutory provisions) .............................. 83a 

(I) 

APPENDIX A 

UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

Nos. 98-16950, 98-17044 and 98-17137 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE 

v. 

OAKLAND CANNABIS BUYERS’ COOPERATIVE; 
JEFFREY JONES, DEFENDANTS-APPELLANTS 

Appeal from the United States District Court 
For the Northern District of California 

[Argued and Submitted: April 13, 1999 

Decided: Sept. 13, 1999] 

Before: SCHROEDER, REINHARDT and SILVERMAN, 
Circuit Judges. 

PER CURIAM: 

This interlocutory appeal involves a preliminary in- 
junction entered at the United States’ request, to stop 
the distribution of cannabis in the wake of California’s 
initiative supporting the medical use of marijuana. The 
district court held that the distribution of marijuana by 
certain cannabis clubs and their agents, including 
appellant, Oakland Cannabis Buyers’ Cooperative and 
Jeffrey Jones (collectively “OCBC”), likely violates the 

(1a) 

2a 

Comprehensive Drug Abuse Prevention and Control 
Act of 1970 (the “Controlled Substances Act”), 21 
U.S.C. § 841(a)(1). See United States v. Cannabis 
Cultivators Club, 5 F.Supp.2d 1086, 1105 (N.D. Cal. 
1998). The district court also indicated that it would 
consider in subsequent contempt proceedings a defense 
that a particular distribution was justified by a medical 
necessity. Id. at 1102. OCBC did not appeal the district 
court’s order enjoining the distribution of marijuana by 
cannabis clubs. Instead, OCBC seeks to appeal three 
subsequent orders: (a) an order denying OCBC’s mo- 
tion to dismiss the complaint on the ground that an 
Oakland City ordinance makes it immune from liability 
under 21 U.S.C. § 885(d); (b) an order subsequently 
purged and vacated that found OCBC in contempt of 
the injunction; and (c) an order denying OCBC’s motion 
to modify the injunction to permit cannabis distribution 
to persons having a doctor’s certificate that marijuana 
is a medical necessity for them. 

We lack jurisdiction over the appeal from the denial 
of the motion to dismiss and from the contempt order 
that has been purged. We have jurisdiction over the 
appeal from the denial of the motion to modify. We do 
not vacate the injunction, but remand for the district 
court to consider modifying the order. 

Denial of the Motion to Dismiss 

The district court denied the defendants’ motion to 
dismiss that was grounded in the Oakland City Coun- 
cil’s attempt to immunize OCBC under the Controlled 
Substances Act. The district court held that section 
885(d) of the Controlled Substances Act is intended to 
protect state law enforcement officials when they en- 

3a 

gage in undercover drug operations, and these defen- 
dants do not engage in such activities. 

We lack jurisdiction of the appeal because the denial 
of a motion to dismiss is generally not appealable. See 
28 U.S.C. §§ 1291 & 1292 (granting appellate juris- 
diction over final orders and limited interlocutory 
orders). The denial of the motion to dismiss is not one 
of the interlocutory orders that can be appealed under 
§ 1292, and it is not a final judgment under § 1291. 

See, 
e.g., Credit Suisse v. United States Dist. Ct., 130 F.3d 
1342, 1345-46 (9th Cir. 1997). 

OCBC contends we have jurisdiction under 28 U.S.C. 
§ 1292(a)(1) authorizing, inter alia, appellate juris- 
diction over an interlocutory order “continuing . . . or 
refusing to dissolve or modify injunctions.” OCBC asks 
us to treat the district court’s denial of the motion to 
dismiss as, in effect, a continuance of the injunction and 
a refusal to dissolve it. OCBC relies upon Jung Hyun 
Sook v. Great Pacific Shipping Co., 632 F.2d 100, 102 n. 
4 (9th Cir. 1980). 

The motion to dismiss in Jung Hyun Sook, however, 
was not a motion to dismiss the action in its entirety, 
but a motion intended specifically to dissolve an injunc- 
tion. There the district court had enjoined the further 
prosecution of a Jones Act suit pending the deter- 
mination of a petition to limit liability. Id. at 102. The 
district court’s denial of the motion to dismiss the limi- 
tation of liability petition was appealable because its 
denial continued in effect the injunction against further 
prosecution of the Jones Act suit. The purpose of the 
motion to dismiss in that case was not to decide the 
merits of the litigation, but only to dissolve the injun- 
ction. See 16 Wright, Miller & Cooper, Federal Practice 

4a 

and Procedure, § 3924.2, at 198-99 n.6 (2d ed. 1996). The 
motion to dismiss in this case was intended to resolve 
the entire dispute on the merits. While one effect of 
granting OCBC’s motion to dismiss in this case would 
have been to dissolve the preliminary injunction, the 
broader purpose was to resolve the case in defendants’ 
favor. The general rule barring appeals from the denial 
of motions to dismiss, therefore, must apply. See Credit 
Suisse, 130 F.3d at 1345-46 (“The district court’s denial 
of [defendants’] motion to dismiss is not a ‘final decision’ 
within the meaning of 28 U.S.C. § 1291, and it is there- 
fore not immediately reviewable.”). 

Nor did the district court’s denial of the motion to 
dismiss constitute an order “continuing” the injunction 
within the meaning of 28 U.S.C. § 1292(a)(1). An order 
that “continues” an injunction under that statute is an 
order that extends the duration of the injunction that 
would otherwise have dissolved by its own terms. See 
16 Wright, Miller & Cooper, supra, at 196; see also 
Public Serv. Co. of Colorado v. Batt, 67 F.3d 234, 236-37 
(9th Cir. 1995); In re Fugazy Express, Inc., 982 F.2d 
769, 777 (2d Cir. 1992). 

OCBC also argues that the denial of the motion to 
dismiss is appealable as a “collateral order” under the 
theory of the Supreme Court’s decision in Mitchell v. 
Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L.Ed.2d 411 
(1985). Mitchell permits appeal from orders denying 
immunity from suit to government officials on damage 
claims for violations of federal rights. Such orders are 
immediately reviewable because the immunity at stake 
is not merely an immunity from liability but an “im- 
munity from suit” that is effectively lost if a case goes 
to trial. See id. at 526, 105 S. Ct. 2806. Section 885(d) is 

5a 

not such an immunity from suit, but is on its face simply 
an immunity from liability. It provides that “no civil or 
criminal liability will be imposed” upon law enforce- 
ment officers who engage in drug activity as part of 
their duties. 21 U.S.C. § 885(d). Thus, OCBC can ob- 
tain effective review of its liability (or immunity) under 
the Controlled Substances Act after the district court 
has rendered a final judgment. 

In addition, the order being appealed is not a “col- 
lateral order” involving an important issue separate 
from the merits of the lawsuit. See Cohen v. Beneficial 
Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 93 
L.Ed. 1528 (1949). The merits of the government’s suit 
depend squarely upon whether or not OCBC is immune 
from liability under § 885(d). 

The Contempt Order 

OCBC appeals the district court’s order finding it in 
contempt and modifying the preliminary injunction so 
as to empower the U.S. Marshal to seize OCBC’s 
offices. The court neither fined nor jailed members of 
OCBC as a result of the contempt. The district court 
subsequently vacated this modification to the injunction 
on October 30, 1998 after OCBC told the court that it 
would comply with the injunction. Consequently, 
OCBC was permitted to re-enter its offices. 

The government argues that this appeal is moot be- 
cause the modification order was vacated and the con- 
tempt purged. “A long line of precedent holds that once 
a civil contempt order is purged, no live case or con- 
troversy remains for adjudication.” 

Thomassen v. 
United States, 835 F.2d 727, 731 (9th Cir. 1987); accord 
In re Campbell, 628 F.2d 1260, 1261 (9th Cir. 1980). 

6a 

However, a party asserting that an issue is moot must 
demonstrate that there is no reasonable expectation 
that the violation will recur. See County of Los Angeles 

v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L.Ed.2d 
642 (1979); Campbell, 628 F.2d at 1261. 

This court has held that a purged contempt order is 
moot unless there is “near certainty” that the violation 
will recur. Campbell, 628 F.2d at 1262. That is not the 
case here. In its reply brief, OCBC reiterates that it 
has promised the district court that it will comply with 
the injunction. The only way for the violation to recur 
is if OCBC breaks its promise. Clearly, it is not a “near 
certainty” that OCBC will do so. Moreover, although 
the purged contempt order at issue in Campbell was 
not moot, the court explicitly limited its result to the 
facts of that case: “We emphasize that were it not for 
the statement of the grand jury foreman [informing the 
witness that he would be required to testify again in 
the future], we would be inclined to find that the purg- 
ing of the contempt orders mooted the present ap- 
peals.” Id. at 1261. 

OCBC also contends that the appeal of the contempt 
order is not moot because it is “capable of repetition, 
yet evading review.” An issue may evade review be- 
cause of an inherent limit in the duration of a chal- 
lenged action that prevents full litigation before it ends. 
See Phoenix Newspapers, Inc. v. United States Dist. 
Ct., 156 F.3d 940, 945 (9th Cir. 1998). However, nothing 
inherently limited the duration of OCBC’s contempt 
other than its own decision to purge. The appeal is now 
moot because OCBC voluntarily purged the contempt 
by declaring that it would comply with the injunction. 
Had OCBC chosen to remain in contempt to this day, 

7a 

the appeal would not be moot because this court could 
have provided a remedy. 

OCBC argues that even if the denial of the motion to 
dismiss and the modification order are not in and of 
themselves appealable, the court should assert pendent 
appellate jurisdiction because they are “inextricably in- 
tertwined” with the denial of the motion to modify the 
injunction, which is appealable. See Swint v. Chambers 
County Comm’n, 514 U.S. 35, 51, 115 S. Ct. 1203, 131 
L.Ed.2d 60 (1995). We have held that the “inextricably 
intertwined” doctrine should be narrowly construed; 
more is required than that separate issues rest on com- 
mon facts. See California v. Campbell, 138 F.3d 772, 
778 (9th Cir.), cert. denied, 525 U.S. 822, 119 S. Ct. 64, 
142 L.Ed.2d 51 (1998). The legal theories on which the 
motion to dismiss, the contempt order, and the motion 
to modify are independent of each other. Each required 
application of different legal principles. They are not 
therefore so “intertwined” as to necessitate simultane- 
ous review. 

Denial of the Motion to Modify 

OCBC contends that the district court abused its 
discretion by refusing to modify its injunction to permit 
cannabis distribution to patients for whom it is a medi- 
cal necessity. A few days after the district court issued 
its contempt citation instructing the Marshals to 
padlock its premises, OCBC asked the district judge to 
modify the injunction to allow continuing cannabis dis- 
tribution to patients whose physicians certify that (1) 
the patient suffers from a serious medical condition; (2) 
if the patient does not have access to cannabis, the 
patient will suffer imminent harm; (3) cannabis is nec- 
essary for the treatment of the patient’s medical con- 

8a 

dition or cannabis will alleviate the medical condition or 
symptoms associated with it; (4) there is no legal alter- 
native to cannabis for the effective treatment of the 
patient’s medical condition because the patient has 
tried other legal alternatives to cannabis and has found 
them ineffective in treating his or her condition or has 
found that such alternatives result in intolerable side 
effects. These factors were modeled on this court’s 
recognition of a necessity defense to violations of fed- 
eral law in United States v. Aguilar, 883 F.2d 662, 692 
(9th Cir. 1989). 

The denial of a motion to modify an injunction is inde- 
pendently appealable under § 1292(a)(1) as one of the 
appealable interlocutory orders denominated in that 
section. Therefore, we have jurisdiction to review the 
order denying OCBC’s motion for modification. 

The district court summarily denied OCBC’s motion, 
saying that it lacked the power to make the requested 
modification because “its equitable powers do not per- 
mit it to ignore federal law.” In doing so, the district 
court misapprehended the issue. The court was not 
being asked to ignore the law. It was being asked to 
take into account a legally cognizable defense that 
likely would pertain in the circumstances. 

The government did not need to get an injunction to 
enforce the federal marijuana laws. If it wanted to, it 
could have proceeded in the usual way, by arresting 
and prosecuting those it believed had committed a 
crime. Had the government proceeded in that fashion, 
the defendants would have been able to litigate their 
necessity defense under Aguilar in due course. How- 
ever, since the government chose to deal with potential 
violations on an anticipatory basis instead of prosecut- 

9a 

ing them afterward, the government invited an inquiry 
into whether the injunction should also anticipate likely 
exceptions. This gives rise to a drafting issue—crafting 
an injunction that is broad enough to prohibit illegal 
conduct, but narrow enough to exclude conduct that 
likely would be legally privileged or justified. 

In Northern Cheyenne Tribe v. Hodel, we held that 
courts retain broad equitable discretion when it comes 
to injunctions against violations of federal statutes 
unless Congress has clearly and explicitly demon- 
strated that it has balanced the equities and mandated 
an injunction. 851 F.2d 1152, 1156 (9th Cir. 1988). 
Here, although the government may be entitled to its 
requested injunction, there is no evidence that Con- 
gress intended to divest the district court of its broad 
equitable discretion to formulate appropriate relief 
when and if injunctions are sought. Further, there is no 
indication that the “ underlying substantive policy” of 
the Act mandates a limitation on the district court’s 
equitable powers. Id. at 1156. 

The district court erred in another respect as well. In 
deciding whether to issue an injunction in which the 
public interest would be affected, or whether to modify 
such an injunction once issued, a district court must 
expressly consider the public interest on the record. 
The failure to do so constitutes an abuse of discretion. 
Northern Cheyenne Tribe, 851 F.2d at 1156; American 
Motorcyclist Association v. Watt, 714 F.2d 962, 965 (9th 
Cir. 1983); Caribbean Marine Serv. Co. v. Baldrige, 844 
F.2d 668, 678 (9th Cir. 1988). OCBC has identified a 
strong public interest in the availability of a doctor- 
prescribed treatment that would help ameliorate the 

10a 

condition and relieve the pain and suffering of a large 
group of persons with serious or fatal illnesses. Indeed, 
the City of Oakland has declared a public health emer- 
gency in response to the district court’s refusal to grant 
the modification under appeal here. Materials submit- 
ted in support of OCBC’s motion to modify the injunc- 
tion show that the proposed amendment to the injunc- 
tion clearly related to a matter affecting the public in- 
terest. Because the district court believed that it had 
no discretion to issue an injunction that was more 
limited in scope than the Controlled Substances Act 
itself, it summarily denied the requested modification 
without weighing or considering the public interest. 

We have no doubt that the district court could have 
modified its injunction, had it determined to do so in the 
exercise of its equitable discretion. The evidence in the 
record is sufficient to justify the requested modifi- 
cation. OCBC submitted the declarations of many seri- 
ously ill individuals and their doctors who, despite their 
very real fears of criminal prosecution, came forward 
and attested to the need for cannabis in order to treat 
the debilitating and life threatening conditions. 

In short, OCBC presented evidence that there 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 be- 
cause they have tried other alternatives and have found 
that they are ineffective, or that they result in intoler- 
able side effects. 

11a 

The government, by contrast, has yet to identify any 
interest it may have in blocking the distribution of can- 
nabis to those with medical needs, relying exclusively 
on its general interest in enforcing its statutes. It has 
offered no evidence to rebut OCBC’s evidence that can- 
nabis is the only effective treatment for a large group of 
seriously ill individuals, and it confirmed at oral argu- 
ment that it sees no need to offer any. It simply rests on 
the erroneous argument that the district judge was 
compelled as a matter of law to issue an injunction that 
is coextensive with the facial scope of the statute. 

The district court, accepting the government’s argu- 
ment that it lacked the authority to grant the requested 
modification, failed to undertake the required analysis 
and summarily denied OCBC’s request. Accordingly, 
we reverse the order denying the modification and re- 
mand. On remand, the district court is instructed to re- 
consider the appellants’ request for a modification that 
would exempt from the injunction distribution to seri- 
ously ill individuals who need cannabis for medical pur- 
poses. 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 modifi- 
cation order. 

The panel will retain jurisdiction over any further 
appeals in this case. 

The case is REMANDED for further proceedings 
consistent with this opinion. 

12a 

APPENDIX B 

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 

No. C 98-00088 CRB 

UNITED STATES OF AMERICA, PLAINTIFF 

v. 

OAKLAND CANNABIS BUYERS’ COOPERATIVE, ET AL., 
DEFENDANTS 

[Filed: July 17, 2000] 

ORDER 

Now before the Court is defendants’ motion to mod- 
ify the injunction issued on May 19, 1998, or in the alter- 
native, to dissolve the injunction. After carefully con- 
sidering the papers filed by the parties, and having had 
the benefit of oral argument, the motion to modify the 
injunction is GRANTED. 

In United States v. Oakland Cannabis Buyers’ Coop- 
erative, 190 F.3d 1109 (9th Cir. 1999), the Ninth Circuit 
reversed the Court’s order denying defendants’ motion 
to modify the injunction and instructed the Court “to 
reconsider the [defendants’] request for a modification 
that would exempt from the injunction distribution to 
seriously ill individuals who need cannabis for medical 
purposes.” Id. at 1115. In doing so, the court held that 
this Court must consider the public interest, and that 

13a 

the evidence in the record “show[s] that the proposed 
amendment to the injunction clearly related to a matter 
affecting the public interest.” 

Id. at 1114. Significantly, 
the Ninth Circuit also held that the government had not 
“identif[ied] any interest it may have in blocking the 
distribution of cannabis to those with medical needs, 
relying exclusively on its general interest in enforcing 
its statutes.” 

Id. The court noted that the government 
“has offered 
no evidence to rebut OCBC’s evidence that 

cannabis is the only effective treatment for a large 
group of seriously ill individuals.” 

Id. 

On remand the government has still not offered any 
evidence to rebut defendants’ evidence that cannabis is 
medically necessary for a group of seriously ill indi- 
viduals. Instead, the government continues to press 
arguments which the Ninth Circuit rejected, including 
the argument that the Court must find that enjoining 
the distribution of cannabis to seriously ill individuals is 
in the public interest because Congress has prohibited 
such conduct in favor of the administrative process 
regulating the approval and distribution of drugs. As a 
result of the government’s failure to offer any new evi- 
dence in opposition to defendants’ motion, and in light 
of the Ninth Circuit’s opinion, the Court must conclude 
that modifying the injunction as requested is in the 
public interest and exercise its equitable discretion to 
do so. 

Accordingly, the injunction issued on May 19, 1998 
will be modified as follows: 

The foregoing injunction does not apply to the 
distribution of cannabis by the Oakland Cannabis 
Buyers’ Cooperative and Jeffrey Jones to patient- 
members who (1) suffer from a serious medical 

14a 

condition, (2) will suffer imminent harm if the 
patient-member does not have access to cannabis, 
(3) need cannabis for the treatment of the patient- 
member’s medical condition, or need cannabis to al- 
leviate the medical condition or symptoms associ- 
ated with the medical condition, and (4) have no 
reasonable legal alternative to cannabis for the ef- 
fective treatment or alleviation of the patient- 
member’s legal medical condition or symptoms 
associated with the medical condition because the 
patient-member has tried all other legal alterna- 
tives to cannabis and the alternatives have been 
ineffective in treating or alleviating the patient- 
member’s medical condition or symptoms associ- 
ated with the medical condition, or the alternatives 
result in side effects which the patient-member 
cannot reasonably tolerate. 

The Court DENIES defendants’ motion to dissolve 
the injunction. Nothing in the Ninth Circuit’s decision 
suggests that the Court should dissolve the injunction, 
especially in light of the above modification. 

IT IS SO ORDERED. 

Dated: July 17, 2000 

/s/ CHARLES R. BREYER 

CHARLES R. BREYER 
United States District Judge 

15a 

APPENDIX C 

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 

No. C 98-0088 CRB 

UNITED STATES OF AMERICA, PLAINTIFF 

v. 

OAKLAND CANNABIS BUYERS’ COOPERATIVE, ET AL., 
DEFENDANTS 

[Filed: July 17, 2000] 

AMENDED PRELIMINARY INJUNCTION ORDER 

For the reasons stated in its Memorandum and Order 
dated May 13, 1998 and its Order dated July 17, 2000, it 
is hereby ORDERED as follows: 

1. Defendants Oakland Cannabis Buyers’ Coopera- 
tive and Jeffrey Jones are hereby preliminarily en- 
joined, pending further order of the Court, from engag- 
ing in the manufacture or distribution of marijuana, or 
the possession of marijuana with the intent to manu- 
facture and distribute marijuana, in violation of 21 
U.S.C. § 841(a)(1); and 

2. Defendants Oakland Cannabis Buyers’ Coopera- 
tive and Jeffrey Jones are hereby preliminarily en- 
joined from using the premises of 1755 Broadway, Oak- 

16a 

land, California for the purposes of engaging in the 
manufacture and distribution of marijuana; and 

3. Defendant Jeffrey Jones is hereby preliminarily 
enjoined from conspiring to violate the Controlled Sub- 
stances Act, 21 U.S.C. § 841(a)(1) with respect to the 
manufacture or distribution of marijuana, or the pos- 
session of marijuana with the intent to manufacture and 
distribute marijuana. 

4. It shall not be a violation of this injunction for de- 
fendants to seek and obtain legal advice from their at- 
torneys. 

5. Pursuant to Federal Rule of Civil Procedure 
65(d), this injunction shall bind the defendants, their 
officers, agents, servants, employees, successors, and 
attorneys, and upon those persons in active concert or 
participation with them who receive notice of the order 
by personal service or otherwise. 

6. The foregoing injunction does not apply to the dis- 
tribution of cannabis by the Oakland Cannabis Buyers’ 
Cooperative and Jeffrey Jones to patient-members who 
(1) suffer from a serious medical condition, (2) will 
suffer imminent harm if the patient-member does not 
have access to cannabis, (3) need cannabis for the treat- 
ment of the patient-member’s medical condition, or 
need cannabis to alleviate the medical condition or 
symptoms associated with the medical condition, and (4) 
have no reasonable legal alternative to cannabis for the 
effective treatment or alleviation of the patient-mem- 
ber’s medical condition or symptoms associated with 
the medical condition because the patient-member has 
tried all other legal alternatives to cannabis and the 
alternatives have been ineffective in treating or allevia- 

17a 

ting the patient-member’s medical condition or symp- 
toms associated with the medical condition, or the alter- 
natives result in side effects which the patient-member 
cannot reasonably tolerate. 

IT IS SO ORDERED. 

Dated: July 17, 2000 

/s/ CHARLES R. BREYER 

CHARLES R. BREYER 
United States District Judge 

18a 

APPENDIX D 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

No. C 98-00085 CRB, C 98-00086 CRB, 
C 98-00087 CRB, C 98-00088 CRB, 
C 98-00245 CRB. 

UNITED STATES, PLAINTIFF 

v. 

CANNABIS CULTIVATORS CLUB, ET AL., DEFENDANTS 

AND RELATED CASES 

[Filed: Oct. 16, 1998] 

ORDER IN CASE NO. 98-00088 

(OAKLAND CANNABIS BUYERS’ COOPERATIVE) 

On October 13, 1998, the Court issued a Memoran- 
dum and Order modifying the preliminary injunction 
order issued on May 19, 1998 (“the October 13th 
Order”). The Court stayed the October 13th Order 
until 5:00 p.m. today. Now before the Court is de- 
fendants’ ex parte application for a further stay pend- 

19a 

ing appeal and for modification of the preliminary 
injunction order. 

Good cause appearing therefore, defendants’ request 
that the Court continue the stay of the October 13, 1998 
Order to permit defendants to file an emergency re- 
quest for a stay in the Ninth Circuit Court of Appeals is 
GRANTED. The Court hereby STAYS the October 
13th Order until 5:00 p.m. Monday, October 19, 1998, 
provided defendants file their request for an emergency 
stay with the Ninth Circuit Court of Appeals by the 
close of business today, Friday, October 16, 1998. All 
further requests for a stay must be directed to the 
Ninth Circuit Court of Appeals. 

Defendants’ request for a stay pending resolution of 
their appeal is DENIED. Defendants’ request to 
modify the preliminary injunction is also DENIED. 

IT IS SO ORDERED. 

Dated: October 16, 1998 

/s/ CHARLES R. BREYER 
CHARLES R. BREYER 
United States District Judge 

20a 

APPENDIX E 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

No. C 98-00085 CRB, C 98-00086 CRB, 
C 98-00087 CRB, C 98-00088 CRB, 
C 98-00245 CRB 

UNITED STATES, PLAINTIFF 

v. 

CANNABIS CULTIVATORS CLUB, ET AL., DEFENDANTS 

AND RELATED CASES 

[Filed: Oct. 13, 1998] 

MEMORANDUM AND ORDER RE: MOTIONS 

IN LIMINE AND ORDER TO SHOW CAUSE 

IN CASE NO. 98-00088 

(Oakland Cannabis Buyers’ Cooperative) 

Now before the Court are plaintiff’s motions in limine 
to exclude defendants’ affirmative defenses and the 
Court’s Order to Show Cause why defendants are not in 
contempt of the Court’s May 19, 1998 order. After 
carefully considering the papers and evidence sub- 

21a 

mitted by the parties, and having had the benefit of oral 
argument on October 5, 1998, plaintiff’s motions are 
GRANTED. The Court further finds that defendants 
have not offered any evidence to controvert plaintiff’s 
evidence that defendants’ violated the May 19, 1998 
preliminary injunction order. Thus, defendants are in 
contempt of the injunction. 

BACKGROUND 

On May 19, 1998, the Court issued an order pre- 
liminarily enjoining defendants Oakland Cannabis 
Buyers’ Cooperative (“OCBC”) and Jeffrey Jones, from, 
among other things, “engaging in the manufacture or 
distribution of marijuana, or the possession of mari- 
juana with the intent to manufacture or distribute 
marijuana, in violation of 21 U.S.C. § 841(a)(1),” and 
“using the premises of 1755 Broadway, Oakland, Cali- 
fornia for the purposes of engaging in the manufacture 
and distribution of marijuana.” Upon motion of the 
plaintiff, and after hearing oral argument and con- 
sidering the papers submitted by the parties, the Court 
ordered defendants to show cause “why they should not 
be held in civil contempt of the Court’s May 19, 1998 
Preliminary Injunction Order by distributing marijuana 
and by using the premises of 1755 Broadway, Oakland, 
California, for the purpose of distributing marijuana, on 
May 27, 1998.” The show cause order was based upon 
evidence submitted by plaintiff as follows: 

(1) On May 20, 1998, one day after the Court 
entered the injunction, defendants OCBC and Jeffrey 
Jones issued a press release entitled “Oakland Co- 
operative to Openly Dispense Medical Marijuana for 
First Time Since Preliminary Injunction – U.S. 

22a 

Attorney to be Notified: HIV, Multiple Sclerosis and 
Other Seriously Ill Patients to Receive Pot at 11:00 

a.m., Thursday May 21, Oakland Buyers Cannabis Co- 
operative, 1755 Broadway, Oakland.” 

(2) A declaration from Special Agent Peter Ott that 
on May 21, 1998, he entered the OCBC in an under- 
cover capacity and observed approximately fourteen 
sales or distributions of what appeared to be marijuana 
by persons associated with the OCBC, including Jeffrey 
Jones, several of which were made in front of news 
cameras. 

(3) Evidence that the World Wide Web site of the 
OCBC, which indicates that it was updated on June 1 
and August 12, 1998, states: “Currently, we are pro- 
viding medical cannabis and other services to over 1,300 
members.” 

(4) A declaration from Special Agent Bill Nyfeler 
that on May 27, 1998 he placed a recorded telephone call 
to the OCBC, at (510) 832-5346. The individual who 
answered the phone informed Special Agent Nyfeler 
that the OCBC was still open for business, and told 
Special Agent Nyfeler the club’s business hours. 

(5) A declaration from Special Agent Dean Arnold 
that on June 16, 1998 he placed a recorded telephone 
call to the OCBC, at (510) 843-5346. An unidentified 
male answered the telephone and informed Special 
Agent Arnold that the OCBC was open for business 
and was accepting new members. The unidentified 
male further informed Special Agent Arnold about the 
requirements of becoming an OCBC member, the hours 
that the club was open (11 a.m. - 1 p.m., and 5 p.m. - 7 

23a 

p.m.), and the location of the OCBC, at 1755 Broadway 
Avenue, in Oakland. 

(6) Evidence that in an article entitled Marijuana 
Clubs Defy Judge’s Order by Karyn Hunt, which 
appeared on May 22, 1998, in AP Online, defendant 
Jeffrey Jones is quoted as stating, “We are not closing 
down. We feel what we are doing is legal and a medical 
necessity and we’re going to take it to a jury to prove 
that.” 

The Court’s show cause order specifically advised 
defendants that their response to the order should 
include sworn declarations outlining the factual basis 
for any affirmative defenses which they wish to offer. 

In response to the show cause order, defendants 
argue (1) that plaintiff has not made a prima facie show- 
ing that defendants violated the Court’s injunction, and 
(2) in the alternative, that defendants have submitted 
evidence sufficient to support their affirmative defenses 
of “joint user,” “necessity,” and “substantive due pro- 
cess.” Defendants incorporate all declarations pre- 
viously filed in this case, and have submitted 12 new 
declarations, including declarations from eight OCBC 
patients. The patients testify as to their need for 
marijuana to alleviate the symptoms of their serious 
illnesses or disabilities. Of the eight patients, none 
states that he or she received marijuana from de- 
fendants on May 21, 1998, although four, Michael M. 
Alcalay, M.D., M.P.H., Albert Dunham, Kenneth Estes, 
and Yvonne Westbrook attest that they were present 
at the OCBC on that date. The other four do not 
declare that they were present at the OCBC on May 21. 

24a 

Several of the declarants, including Dr. Alcalay, the 
OCBC Medical Director, Laura A. Galli, R.N., an OCBC 
patient and volunteer nurse, and James D. McClelland, 
the OCBC Chief Financial Officer and an OCBC board 
member, testify as to the OCBC’s strict requirements 
for admission to the OCBC. In addition, defendants 
offer the expert testimony of Harvard physician Lester 
Grinspoon, M.D. and John P. Morgan, M.D., Professor 
of Pharmacology at City University of New York as to 
the medical benefits of marijuana and why other drugs, 
such as Marinol, are not a reasonable alternative for 
some patients. At defendants’ request, the Court also 
takes judicial notice of the physician declarations filed 
in Conant v. McCaffrey, 97-0139 FMS. 

Plaintiff has moved in limine to exclude defendants’ 
affirmative defenses and defendants have moved for an 
order granting use immunity to defendants Jeffrey 
Jones and other witnesses who are unwilling to testify 
in this action without such immunity. The Court heard 
oral argument on October 5, 1998, and thereafter took 
the matter under submission. 

DISCUSSION 

I. THE MOTIONS FOR IMMUNITY. 

District courts generally do not have the authority to 
confer use immunity for defense witnesses who invoke 
the Fifth Amendment privilege against self-incrimi- 
nation. See United States v. Baker, 10 F.3d 1374, 1414 
(9th Cir. 1993). In Simmons v. United States, 390 U.S. 
377 (1968), however, the Supreme Court held that 
“when a defendant testifies in support of a motion to 
suppress evidence on Fourth Amendment grounds, his 

25a 

testimony may not thereafter be admitted against him 
at trial on the issue of guilt unless he makes no 
objection.” Id. at 394 (“we find it unconscionable that 
one constitutional right should have to be surrendered 
in order to assert another”). The Third Circuit sub- 
sequently extended Simmons to a criminal defendant 
confronted with the dilemma of whether to offer 
favorable testimony at his bail hearing, which testi- 
mony was required because of a presumption of 
dangerousness arising under the Bail Reform Act, or 
safeguard his Fifth Amendment right not to testify. 
See United States v. Perry, 788 F.2d 100, 115-16 (3d Cir. 
1986). The Perry court held that the trial court should 
have granted the defendant use immunity because the 
defendant’s testimony at the bail hearing was “neces- 
sary to vindicate the most fundamental of all consti- 
tutional rights, the right of liberty from civil incar- 
ceration.” Id. at 116. 

Defendant Jones argues that he, too, is being forced 
to choose between his Fifth Amendment privilege and 
his right of liberty since he might be fined or even 
jailed as a sanction if he is found in contempt. Plaintiff, 
however, has represented that it is not seeking fines or 
incarceration to compel Jones to comply with the 
Court’s injunction and the Court will not consider such 
remedies. As Jones is not being forced to choose be- 
tween competing constitutional rights, Simmons and 
Perry are inapplicable even assuming they apply to 
defendants in a civil contempt proceeding. 

Defendants also argue that the Court can and should 
grant use immunity to defendants’ witnesses to protect 
defendants’ right to due process and a fair trial. In 
United States v. Lord, 711 F.2d 887, 890-92 (9th Cir. 

26a 

1983), and United States v. Westerdahl, 945 F.2d 1083, 
1085-87 (9th Cir. 1991), the Ninth Circuit recognized 
that a defendant may be denied a fair trial as a result of 
the government’s failure to provide use immunity to 
the testimony of a defense witness. Lord and Wester- 
dahl are inapplicable to these contempt proceedings for 
two reasons. 

First, both cases were criminal prosecutions where 
the defendant’s right to liberty was at stake. De- 
fendants have not cited any cases, and the Court is 
aware of none, in which the Lord and Westerdahl 
principle has been extended to civil cases. 

Second, the Ninth Circuit requires some prima facie 
evidence of prosecutorial misconduct before a grant of 
immunity may be given. See Baker, 10 F.3d at 1414; 
Westerdahl, 945 F.2d at 1086; Lord, 711 F.2d at 892. In 
Westerdahl, for example, the government had granted 
immunity to a key prosecution witness, but had refused 
to immunize defendant’s potentially exculpatory wit- 
ness. The court held that the district court should have 
held an evidentiary hearing to determine if the 
government “intentionally distorted the facts.” 

Id. at 
1087. Defendants have not made such a prima facie 
showing here. At best, all that defendants have shown 
is that plaintiff has refused to immunize defendants’ 
witnesses, forcing the witnesses to decide whether to 
testify in the contempt proceeding or potentially incri- 
minate themselves. Such a choice cannot in and of 
itself constitute misconduct since a defendant “has no 
absolute right not to be forced to choose between 
testifying in a civil matter and asserting his Fifth 
Amendment privilege.” 

Keating v. Office of Thrift 
Supervision, 45 F.3d 322, 326 (9th Cir. 1995). 

27a 

II. THE MOTIONS IN LIMINE. 

A. The Legal Standard. 

A defendant is entitled to have the judge instruct the 
jury on his theory of defense only if it is “ ‘supported by 
law and has some foundation in evidence.’ ” 

United 
States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir. 
1992). A district judge may preclude a party from 
offering evidence in support of a defense, including a 
necessity defense, by granting a motion in limine. See 
United States v. Aguilar, 883 F.2d 662, 692 (9th Cir. 
1989); United States v. Dorrell, 758 F.2d 427, 430 (9th 
Cir. 1985). “The sole question presented in such 
situations is whether the evidence, as described in the 
offer of proof, is insufficient as a matter of law to 
support the proffered defense.” 

Dorrell, 758 F.2d at 
430. “If it is, then the trial court should exclude the 
defense and the evidence offered in support.” 

Id. 

B. The “Joint User” Defense. 

In United States v. Swiderski, 548 F.2d 445 (2nd Cir. 
1977), defendants, husband and wife, were charged with 
violating 21 U.S.C. § 841(a) by possessing cocaine with 
intent to distribute. See id. at 447. The Second Circuit 
held that “a statutory ‘transfer’ could not occur be- 
tween two individuals in joint possession of a controlled 
substance simultaneously acquired for their own use.” 
United States v. Wright, 593 F.2d 105, 107 (9th Cir. 
1979) (discussing Swiderski). The court thus concluded 
that the trial judge erred by denying “the jury the 
opportunity to find that the defendants, who bought the 
drugs in each other’s physical presence, intended 

28a 

merely to share the drugs” and thus, not to distribute 
them. Id.; Swiderski, 548 F.2d at 450. 

Defendants here, unlike the defendants in Swiderski, 
have not offered any evidence of the literal joint pur- 
chase of the marijuana they are alleged to have distri- 
buted on May 27, 1998. Defendants contend nonethe- 
less that because the OCBC is operated as a coopera- 
tive, the marijuana is effectively purchased together by 
all its members and is consumed together by all its 
members since the marijuana is only distributed to 
members of the cooperative. Thus, defendants argue, 
they are entitled to a Swiderski instruction. 

The Court declines to extend Swiderski to the facts 
as presented by defendants’ proffer, namely a medical 
marijuana cooperative. As the Court has previously 
noted, Swiderski involved a simultaneous purchase 
by a husband and wife who testified they intended to 
use the controlled substance immediately. Applying 
Swiderski to a medical marijuana cooperative would 
extend Swiderski to a situation in which the controlled 
substance is not literally purchased simultaneously for 
immediate consumption. See United States v. Cannabis 
Cultivators Club, 5 F.Supp.2d 1086, 1101 (N.D. Cal. 
1998). In light of the fact that Swiderski has never been 
so extended, and in light of the fact that is has not been 
adopted by the Ninth Circuit, the Court concludes that 
such a defense is not available on the facts proffered by 
defendants as a matter of law. 

C. The Necessity Defense. 

To be entitled to a jury instruction on the defense of 
necessity, defendants must offer evidence (1) that they 

29a 

were faced with a choice of evils and chose the lesser 
evil; (2) they acted to prevent imminent harm; (3) they 
reasonably anticipated a direct causal relationship 
between their conduct and the harm to be averted; and 
(4) that there were no legal alternatives to violating the 
law. See United States v. Aguilar, 883 F.2d 662, 693 
(9th Cir. 1989). Defendants have produced evidence 
that marijuana has a medical benefit to many persons 
and that for some persons marijuana is the only drug 
that can alleviate their pain and other debilitating 
symptoms. They also have submitted evidence that 
they carefully screen their members to ensure that they 
have a physician’s recommendation for marijuana use. 
Further, the Court will assume, without deciding, that 
the four OCBC patients who have submitted declara- 
tions and admit to having been present at the OCBC on 
May 21, 1998, have submitted sufficient evidence as to 
their need for marijuana to permit a trier of fact to 
determine if they have a legal necessity for marijuana. 

Plaintiff argues that a necessity defense based upon a 
medical need for marijuana is never available under any 
circumstances as a defense to a violation of the Con- 
trolled Substances Act because Congress implicitly 
rejected such a defense by placing marijuana in 
Schedule I. The Court need not address this issue, 
however, because it concludes that defendants have not 
produced sufficient evidence in their offer of proof to 
permit a defense of necessity to the charge that they 
violated the injunction. 

In Aguilar, the Ninth Circuit considered a necessity 
defense offer of proof similar to that offered by de- 
fendants here. The Aguilar defendants were charged 
with violations of the immigration laws, arising from 

30a 

their providing sanctuary to Central American refu- 
gees. With respect to the specificity required of a 
necessity offer of proof, the court held: 

We also doubt the sufficiency of the proffer to 
establish imminent harm. The offer fails to specify 
that the particular aliens assisted were in danger of 
imminent harm. Instead, it refers to general atro- 
cities committed by Salvadoran, Guatemalan, and 
Mexican authorities. The only indication that appel- 
lants intended to show that the aliens involved in 
this action faced imminent harm was their proffer 
that they adopted a process to screen aliens in order 
to assure themselves that those helped actually 
were in danger. This allegation fails for lack of 
specificity. 

Id. at 692 n.28 (emphasis added). Defendants’ proffer 
here likewise fails to identify evidence that demon- 
strates that each of the particular persons to whom 
they distributed marijuana on May 21, 1998 was in 
danger of imminent harm. 

Plaintiff has submitted the declaration of a Special 
Agent Ott who testifies that he personally witnessed 
fourteen marijuana transactions on May 21, 1998. 
Moreover, defendants’ evidence suggests that they may 
have distributed marijuana to as many as 191 “visitors” 
to the OCBC on May 21, 1998. Defendants, however, 
have proffered evidence as to only four patients who 
admit to visiting the OCBC on May 21. Assuming that 
these four patients obtained marijuana from the OCBC 
on May 21, defendants have, at best, offered a necessity 
defense to only four of the fourteen transactions identi- 
fied by plaintiff, putting aside the fact that defendants’ 
own evidence suggests there were as many as 191 

31a 

marijuana transactions that day. Such a proffer does 
not meet the specificity requirements of Aguilar, 
namely, that defendants proffer evidence that the 
particular persons to whom they distributed marijuana 
were as a matter of fact in danger of imminent harm. 
As the Court stated before the injunction was issued, 
“for the defense of necessity to be available here, 
defendants would have to prove that each and every 
patient to whom it provides cannabis is in danger in 
imminent harm; that the cannabis will alleviate the 
harm for that particular patient; and that the patient 
had no other alternatives, for example, that no other 
legal drug could have reasonably averted the harm.” 
Cannabis Cultivators Club, 5 F. Supp.2d at 1102 (em- 
phasis added). Defendants have not done so in 
response to the show cause order, and they have not 
offered that they could do so at a jury trial. 

Moreover, under Aguilar, defendants’ evidence as to 
the OCBC’s stringent admission requirements and 
their evidence as to the medical benefits of marijuana 
generally, rather than to the particular persons to 
whom defendants distributed marijuana on May 21, is 
immaterial as a matter of law. The defendants must 
show that each person to whom they distributed mari- 
juana was actually in danger of imminent harm. It is not 
sufficient that defendants reasonably believed each 
person to be in such danger. 

Defendants contend that a jury should be allowed to 
consider their necessity defense because their evidence 
demonstrates that on May 21, 1998 they were in sub- 
stantial compliance with the Court’s injunction. Under 
defendants’ reasoning, however, a defendant would be 
excused from complying with the Controlled Sub- 

32a 

stances Act because some, but not all, of the people to 
whom they distributed marijuana had a legal necessity. 
No case of which this Court is aware has ever allowed 
such a blanket exemption to the criminal laws. 

Defendants argue in the alternative that their proffer 
could not be more specific because plaintiff failed to 
identify the specific persons to whom plaintiff alleges 
defendants distributed marijuana. The Order to Show 
Cause, however, was limited to a single day and the 
plaintiff’s evidence as to the government agent’s per- 
sonal observation of fourteen marijuana transactions 
in the OCBC—transactions which the defendants 
announced publicly in advance and invited the public, 
including the United States Attorney for the Northern 
District of California, to witness—occurred during a 
fifteen to twenty minute period. Plaintiff’s evidence 
thus places particular transactions at issue. If de- 
fendants did not distribute marijuana on May 21, 1998, 
they could offer evidence that they did not. If they did 
distribute marijuana that day, such distribution vio- 
lated the injunction. See Cannabis Cultivators Club, 5 
F. Supp.2d at 1100 (holding that the Controlled Sub- 
stances Act “does not exempt the distribution of mari- 
juana to seriously ill persons for their personal medical 
use”). If they believe their violations of the injunction 
are excused by the defense of necessity, it is incumbent 
upon defendants to come forward with the evidence to 
support their defense as to each violation. They have 
not done so for all, or even most, of the transactions at 
issue. Accordingly, their defense of necessity fails as a 
matter of law. 

33a 

D. Substantive Due Process. 

Defendants contend that they are not in contempt 
because the OCBC members have a fundamental right 
to “a demonstrated and effective treatment as recom- 
mended by their physician that can alleviate their 
agony, preserve their sight, and save their lives.” 
Assuming, without deciding, that such a fundamental 
right exists, the defense fails for the same reason their 
necessity defense fails; defendants have failed to proffer 
evidence that each and every person to whom they 
distributed marijuana needed the marijuana to protect 
such a fundamental right. See Cannabis Cultivators 
Club, 5 F. Supp.2d at 1103. To hold otherwise would 
mean that because defendants have a substantive due 
process defense to some of the marijuana distributions 
in which they engaged, they are excused from all of 
their violations of the injunction. Defendants have not 
cited any case law or legal principles that would permit 
such an exemption from the federal laws. 

II. THE CONTEMPT PROCEEDINGS. 

A. Whether Defendants Are In Contempt. 

The Court preliminarily enjoined defendants from 
violating the Controlled Substances Act pursuant to 21 
U.S.C. section 882(a). As this Court has previously 
noted, 21 U.S.C. section 882(b) provides that “[i]n case 
of an alleged violation of an injunction or restraining 
order issued under this section, trial shall, upon demand 
of the accused, be by jury in accordance with the 
Federal Rules of Civil Procedure.” The plaintiff none- 
theless argues that the Court should find defendants in 

34a 

contempt without a jury trial because plaintiff’s evi- 
dence of defendants’ violation of the Court’s injunction 
is uncontroverted. 

In the Ninth Circuit, a civil contempt proceeding is a 
trial within the meaning of Federal Rule of Civil Pro- 
cedure 43(a), rather than a hearing on a motion within 
the meaning of Rule 43(e). See Hoffman v. Beer 
Drivers and Salesmen’s Local Union No. 888, 536 F.2d 
1268, 1277 (9th Cir. 1976). A trial with live testimony, 
however, is not always required before contempt sanc- 
tions may be issued. In Peterson v. Highland Music, 
Inc., 140 F.3d 1313 (9th Cir. 1998), cert. pet. filed Sep. 
14, 1998, for example, the district court commenced 
contempt proceedings by issuing an order to show 
cause. The court then had the parties file affidavits and 
extensively brief the relevant issues. The court did not, 
however, hold an evidentiary hearing (or trial) with live 
testimony. Instead, the district court issued its con- 
tempt sanctions at the end of the hearing on the order 
to show cause. See id. at 1324. 

The Ninth Circuit affirmed the imposition of the con- 
tempt sanctions. The court held that while “ordinarily” 
a court should not impose contempt sanctions on the 
basis of affidavits, “ ‘[a] trial court may in a contempt 
proceeding narrow the issues by requiring that affi- 
davits on file by controverted by counter-affidavits and 
may thereafter treat as true the facts set forth in 
uncontroverted affidavits.’ ” 

Id. (quoting Hoffman, 536 
F.2d at 1277). The court concluded that such procedures 
do not violate due process. 

Defendants contend that the Court must grant them 
a jury trial on the issue of contempt because “[f]act- 

35a 

finding is usually a function of the jury, and the trial 
court rarely rules on a defense as a matter of law.” 
United States v. Contento-Pachon, 723 F.2d 691, 693 
(9th Cir. 1984). Defendants also urge that a court 
should exclude evidence of a defense only if the evi- 
dence is insufficient as a matter of law to support the 
defense. See id. The Court agrees. Here, however, the 
Court has ruled that the evidence submitted by de- 
fendants is insufficient as a matter of law to support the 
defenses of “joint user,” “necessity,” and “substantive 
due process.” The question presented is thus whether 
there are any “facts” for a jury to decide. Defendants 
have offered no facts whatsoever to controvert plain- 
tiff ’s evidence that defendants distributed marijuana at 
the OCBC on May 21, 1998. Nor have they identified 
any evidence that they could present to a jury that they 
have not already presented that would create a dispute 
of fact. If there are no facts to be decided by a jury, 
there is no reason to have a jury trial. 

The Court has reviewed the statute conferring the 
right to a jury trial and concludes that its decision that 
defendants are entitled to a jury trial only if there is a 
material dispute of fact is not inconsistent with the 
statute. Congress provided defendants with a right to a 
jury trial “in accordance with the Federal Rules of Civil 
Procedure.” 21 U.S.C. § 882(b). Thus, this is not a 
criminal proceeding in which a defendant is entitled to a 
jury trial even if there are no disputes of fact. Compare 
21 U.S.C. § 882(b) 

with 18 U.S.C. § 3691 (“Whenever a 
contempt charged shall consist in willful disobedience of 
any lawful writ, process, order, rule, decree, or com- 
mand of any district court of the United States by doing 
or omitting any act or thing in violation thereof, and the 
act or thing done or omitted also constitutes a criminal 

36a 

offense under any Act of Congress, or under the laws of 
any state in which it was done or omitted, the accused, 
upon demand therefor, shall be entitled to trial by a 
jury, which shall conform as near as may be to the 
practice in other criminal cases”) (emphasis added). 
Moreover, since the trial is to be conducted in ac- 
cordance with the Rules of Civil Procedure, Rule 50 
with respect to “Judgment as a Matter of Law” applies. 
If the question of whether defendants violated the 
Court’s order on May 21, 1998 were tried to a jury, 
the Court would be obligated to grant judgment in 
accordance with Rule 50 since there is no dispute that 
defendants violated the injunction and the Court has 
concluded that defendants do not have a defense to 
their violations as a matter of law. 

Defendants also argue that plaintiff ’s evidence is 
insufficient to support a finding of contempt by clear 
and convincing evidence, even without considering 
defendants’ affirmative defenses. The Court disagrees. 
Plaintiff submitted uncontroverted evidence that de- 
fendants issued a press release announcing that they 
were going to distribute marijuana at the OCBC on 
May 21, 1998. Plaintiffs also produced uncontroverted 
evidence that a government agent visited the OCBC at 
the time defendants announced they were going to 
distribute marijuana and that the agent personally 
witnessed fourteen marijuana transactions. This un- 
controverted evidence is clear and convincing evidence 
that defendants violated the injunction and thus are in 
contempt of May 19, 1998 order. 

37a 

B. The Remedy For Defendants’ Contempt. 

Plaintiff asks the Court to compel defendants to 
comply with the injunction by modifying the May 19, 
1998 order to empower the United States Marshal to 
enforce the injunction. Plaintiff does not ask the Court 
to fine defendants or to incarcerate defendant Jeffrey 
Jones to compel compliance and the Court will not do 
so. The Court concludes that the remedy proposed by 
plaintiff is reasonable and designed to enforce 
compliance. 

The Court understands defendants’ argument that in 
this action the Court is sitting in equity and therefore 
must consider the human suffering that will be caused 
by plaintiff’s success in closing down the OCBC. While 
the Court is sitting in equity, however, its equitable 
powers to not permit it to ignore federal law. Federal 
law prohibits the distribution of marijuana to seriously 
ill persons for their personal medical use. See Cannabis 
Cultivators Club, 5 F. Supp.2d at 1100. The Court ac- 
cordingly proposes to modify its May 19, 1998 pre- 
liminary injunction in 98-00088 to provide as follows: 

The United States Marshal is empowered to enforce 
this Preliminary Injunction. In particular, the 
United States Marshal is authorized to enter the 
premises of the Oakland Cannabis Buyers’ Coopera- 
tive at 1755 Broadway, Oakland, California, at any 
time of the day or night, evict any and all tenants, 
inventory the premises, and padlock the doors, until 
such time that defendants can satisfy the Court that 
they are no longer in violation of the injunctive 
order and that they would in good faith thereafter 
comply with the terms of the order. 

38a 

The Court will stay the imposition of the modification to 
the injunction until 5:00 p.m. on Friday, October 16, 
1998 to give defendants the opportunity to seek interim 
appellate relief. 

CONCLUSION 

For the foregoing reasons, plaintiff’s motions to 
preclude defendants’ affirmative defenses of “joint 
user,” “necessity,” and “substantive due process,” are 
GRANTED. The Court concludes further that 
defendants have not offered any evidence to controvert 
plaintiff’s evidence that defendants’ [sic] distributed 
marijuana at the OCBC on May 21, 1998 in violation of 
the Court’s May 19, 1998 preliminary injunction order 
and therefore that there are no factual disputes to be 
tried to a jury. The Court accordingly finds defendants 
in contempt of its May 19, 1998 order. In order to 
compel defendants to comply with the injunction, the 
Court will modify the injunction to empower the United 
States Marshal to enforce the injunction order. 

IT IS SO ORDERED. 

Dated: October 13, 1998 

/s/ CHARLES R. BREYER 

CHARLES R. BREYER 
United States District Judge 

39a 

APPENDIX F 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

No. C 98-00088 CRB 

UNITED STATES OF AMERICA, PLAINTIFF 

v. 

OAKLAND CANNIBAS [sic] BUYERS’ COOPERATIVE 
AND JEFFREY JONES, DEFENDANTS 

[Filed: May 19, 1998] 

PRELIMINARY INJUNCTION ORDER 

For the reasons stated in its Memorandum and Order 
dated May 13, 1998, it is hereby ORDERED as follows: 

1. Defendants Oakland Cannibas [sic] Buyers’ Coop- 
erative and Jeffrey Jones are hereby preliminarily en- 
joined, pending further order of the Court, from en- 
gaging in the manufacture or distribution of marijuana, 
or the possession of marijuana with the intent to 
manufacture and distribute marijuana, in violation of 21 
U.S.C. § 841(a)(1); and 

2. Defendants Oakland Cannibas [sic] Buyers’ Coop- 
eration and Jeffrey Jones are hereby preliminarily en- 
joined from using the premises at 1755 Broadway, 

40a 

Oakland, California for the purposes of engaging in the 
manufacture and distribution of marijuana; and 

3. Defendant Jeffrey Jones is hereby preliminarily 
enjoined from conspiring to violate the Controlled Sub- 
stances Act, 21 U.S.C. § 841(a)(1) with respect to the 
manufacture or distribution of marijuana, or the pos- 
session of marijuana with the intent to manufacture and 
distribute marijuana. 

4. It shall not be a violation of this injunction for 
defendants to seek and obtain legal advice from their 
attorneys. 

5. Pursuant to Federal Rule of Civil Procedure 
65(d), this injunction shall bind the defendants, their 
officers, agents, servants, employees, successors, and 
attorneys, and those persons in active concert or 
participation with them who receive notice of the order 
by personal service or otherwise. 

IT IS SO ORDERED. 

Dated: May 19, 1998 

/s/ CHARLES R. BREYER 
CHARLES R. BREYER 
United States District Judge 

41a 

APPENDIX G 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

Nos. C 98-0085 CRB, C 98-0086 CRB, 
C 98-0087 CRB, C 98-0088 CRB, 
C 98-0089 CRB and C 98-0245 CRB. 

UNITED STATES OF AMERICA, PLAINTIFF 

v. 

CANNABIS CULTIVATORS CLUB; AND 
DENNIS PERON, DEFENDANTS 
AND RELATED ACTIONS 

[Filed: May 13, 1998] 

MEMORANDUM AND ORDER 

BREYER, District Judge. 

INTRODUCTION 

The issue presented by these related lawsuits is 
whether defendants’ admitted distribution of marijuana 
for use by seriously ill persons upon a physician’s re- 
commendation violates federal law, 21 U.S.C. § 841(a), 
and if so, whether defendants’ conduct in this regard 
should be enjoined pursuant to the injunctive relief 
provisions of the federal Controlled Substances Act. 

42a 

See 21 U.S.C. § 882(a). This is the 
only issue before the 

Court. These lawsuits, for example, do not challenge 
the constitutionality of Proposition 215, the medical 
marijuana initiative, as a whole. Nor do they reflect a 
decision on the part of the federal government to seek 
to enjoin a local governmental agency from carrying out 
the humanitarian mandate envisioned by the citizens of 
this State when they voted to approve this law. 

These cases also do not present the question of 
whether all conduct exempt from prosecution under the 
state drug laws by Proposition 215 violates federal law. 
For example, the Court is not deciding whether a 
seriously ill person who possesses marijuana for per- 
sonal use upon a physician’s recommendation is in 
violation of federal law. Rather, the sole issue here is 
whether defendants’ conduct, which may be lawful 
under state law, may nevertheless violate federal law 
and can thus be enjoined. 

Finding that there is a strong likelihood that de- 
fendants’ conduct violates the Controlled Substances 
Act, the Court concludes that the Supremacy Clause of 
the United States Constitution requires that the Court 
enjoin further violations of the Act. 

BACKGROUND 

A. Proposition 215 and the Federal Drug Laws. 

In November 1996, 56% of those participating in the 
state-wide election voted in favor of Proposition 215, 
the “Medical Use of Marijuana” initiative, known also 
as the “Compassionate Use Act” (the “Act”). The Act 
makes it legal under California law for seriously ill 

43a 

patients and their primary caregivers to possess and 
cultivate marijuana for use by the seriously ill patient if 
the patient’s physician recommends such treatment. In 
particular, it exempts a seriously ill patient, or the 
patient’s primary caregiver, from prosecution under 
California Health and Safety Code § 11357, relating to 
the possession of marijuana, and § 11358, relating to the 
cultivation of marijuana. See California Health & 
Safety Code § 11362.5(d). 

As a result of the passage of Proposition 215, several 
individuals, including defendants, organized “medical 
cannabis dispensaries” to meet the needs of seriously ill 
patients. These nonprofit dispensaries provide mari- 
juana to seriously ill patients upon a physician’s recom- 
mendation. According to defendants, these patients 
previously had to purchase marijuana, if they were able 
to purchase it at all, on the black market at exorbitant 
prices and of questionable quality. 

At the time that California’s voters approved the 
initiative, federal law—the Comprehensive Drug Abuse 
Prevention and Control Act of 1970 (the “Controlled 
Substances Act”)—did, and still does, strictly prohibit 
the manufacture and distribution of marijuana, and the 
possession of marijuana with the intent to manufacture 
or distribute. See 21 U.S.C. § 841(a)(1). In particular, 
the Controlled Substances Act established a compre- 
hensive regulatory scheme which placed controlled 
substances in one of five “Schedules” depending on each 
substance’s potential for abuse, the extent to which 
each may lead to psychological or physical dependence, 
and whether each has a currently accepted medical use 
in the United States. See 21 U.S.C. § 812(b). Congress 
determined that “Schedule I” substances have a “high 

44a 

potential for abuse,” “no currently accepted medical use 
in treatment in the United States,” and a lack of 
accepted “safety for use of the drug or substance under 
medical supervision.” 21 U.S.C. § 812(b)(1). Schedule I 
substances are strictly regulated; no physician may 
dispense any Schedule I controlled substance to any 
patient outside of a strictly controlled research project 
registered with the DEA, and approved by the Secre- 
tary of Health and Human Services, acting through the 
Food and Drug Administration (“FDA”). 

See 21 U.S.C. 
§ 823(f). Congress placed marijuana in Schedule I at the 
time it passed the Controlled Substances Act and its 
designation has not changed since then. See 21 U.S.C. 
§ 812(c)(c)(10) [ sic]. 

B. The California Courts and Proposition 215. 

In People v. Trippet, 56 Cal. App. 4th 1532, 66 
Cal.Rptr.2d 559 (1997), the California Court of Appeal, 
First District, interpreted Proposition 215 for the first 
time in a published decision. It held that although 
Proposition 215 does not exempt a seriously ill patient 
and her primary caregiver from Health and Safety 
Code § 11360, which prohibits the transportation of 
marijuana, a defendant in a criminal case might have a 
Proposition 215 defense to a charge of illegally trans- 
porting marijuana if “the quantity transported and the 
method, timing and distance of the transportation are 
reasonably related to the patient’s current medical 
needs.” Trippet, 56 Cal. App. 4th at 1550-51, 66 Cal. 
Rptr.2d 559. The court reasoned that Proposition 215 
would make no sense if a patient’s primary caregiver 
would be guilty of a crime for “carrying otherwise 
legally cultivated and possessed marijuana down a hall- 

45a 

way to the patient’s room.” 
Id. at 1550, 66 Cal.Rptr.2d 

559. 

Three months later, a different division of the same 
court decided People ex rel. Lungren v. Peron, 59 Cal. 
App. 4th 1383, 70 Cal.Rptr.2d 20 (1997). A unanimous 
court held that the defendants in that action, Dennis 
Peron and the San Francisco Cannabis Cultivators 
Club, both defendants here, are not primary caregivers 
within the meaning of the statute. A majority of that 
court disagreed with Trippet by also holding that while 
Proposition 215 exempts seriously ill patients and their 
caregivers from California law prohibiting the pos- 
session and cultivation of marijuana (Health & Safety 
Code § 11357, § 11358), it does not, under any circum- 
stances, exempt them from Health and Safety Code 
§ 11359 and § 11360, which prohibit the sale or giving 
away of marijuana. Id. at 1392, 70 Cal. Rptr.2d 20. The 
California Supreme Court denied review of that de- 
cision on February 25, 1998. 

C. The Federal Lawsuits. 

Less than a month after the Peron decision, and more 
than a year after California’s voters approved Pro- 
position 215, the United States filed six separate law- 
suits against six independent cannabis dispensaries and 
individuals associated with the management of the 
dispensaries.1 The federal government alleges that 

1 The defendants in the related actions are: Cannabis Culti- 
vators Club and Dennis Peron (98-0085); Marin Alliance for 
Medical Marijuana and Lynette Shaw (98-0086); Ukiah Cannabis 
Buyers’ Club, Cherrie Lovett, Marvin Leherman and Mildred 
Leherman (98-0087); Oakland Cannabis Buyers’ Cooperative and 
Jeffrey Jones (98-0088); Flower Therapy Medical Marijuana Club, 

46a 

defendants’ manufacture and distribution of marijuana, 
and possession with the intent to manufacture and 
distribute marijuana, violates 21 U.S.C. § 841(a)(1); 
defendants’ use of a facility (i.e., the locations of the 
dispensaries) for the purpose of manufacturing and 
distributing marijuana violates 21 U.S.C. § 856(a)(1); 
and that the individual defendants’ conspiracy to violate 
the Controlled Substances Act violates 21 U.S.C. § 846. 
The lawsuits seek to preliminarily and permanently 
enjoin defendants’ conduct pursuant to the statute 
which provides the federal district courts with juris- 
diction to enjoin violations of the Controlled Substances 
Act. See 21 U.S.C. § 882(a). 

On the same day the federal government filed its 
lawsuits, it filed motions for a preliminary injunction, 
permanent injunction and summary judgment in each 
action. In support of its motions, the government 
submitted the affidavits of several government agents 
who attest to their undercover purchases of marijuana 
from defendants at the various defendant dispensaries. 

The six lawsuits were randomly assigned to various 
judges of this District. Pursuant to Local Rule 3-12, all 
six were reassigned to this Court as related cases. The 
Court held a status conference on January 30, 1998, to 
address defendants’ request for additional time to 
respond to the federal government’s motions. At the 
status conference, and in their papers in support of 
their request for a continuance, defendants advised the 
Court that they strenuously dispute the factual asser- 
tions in the affidavits with respect to the sale of 

John Hudson, Mary Palmer and Barbara Sweeney (98-0089); and 
Santa Cruz Cannabis Buyers Club (98-0245). 

47a 

marijuana to non-seriously ill persons and persons with- 
out a physician’s recommendation, and contend that 
much of the federal government’s evidence was ob- 
tained in violation of the fourth amendment. Over the 
federal government’s objection, the Court granted 
defendants an extension of time to respond. The Court 
further ordered that 

[f]or purposes of plaintiff’s motions, the parties shall 
assume that defendants’ alleged conduct falls 
squarely within that permitted by California Pro- 
position 215, California Health & Safety Code 
§ 11362.5. For example, the parties shall assume 
that all defendants are “primary caregivers” within 
the meaning of the statute, that all persons to whom 
defendants distribute or dispense marijuana are 
seriously ill, and that a physician has determined 
that the person’s health would benefit from the use 
of marijuana and has made an oral or written recom- 
mendation to that effect. Whether the government 
illegally obtained the evidence upon which it bases 
its motions shall not be addressed at this time. 

February 9, 1998 Order. By its Order, the Court sought 
to avoid a factual dispute as to whether Proposition 215 
applies to defendants’ conduct. 

Prior to the hearing on the federal government’s 
motions, defendants filed a motion to dismiss for lack of 
jurisdiction on the ground that Congress does not have 
authority under the Commerce Clause to regulate de- 
fendants’ conduct. Defendants also moved to dismiss on 
the ground that the Court should abstain pursuant to 
various abstention doctrines. 

48a 

The Court also received memoranda in opposition to 
the federal government’s motion from amici curiae 
City and County of San Francisco, as represented by 
the San Francisco District Attorney, and other cities in 
which defendant dispensaries are located. The City and 
County of San Francisco and the other cities urge the 
Court not to adopt the injunctive relief sought by the 
federal government because of the adverse conse- 
quences an injunction would have on the public health 
of their citizens. In particular, the San Francisco 
District Attorney asks the Court to limit any injunction 
so as not to exclude distribution to those patients for 
whom marijuana is a medical necessity, possibly by the 
City and County of San Francisco itself. See Memoran- 
dum of Amicus Curiae District Attorney of San 
Francisco at 11. 

The Court held a hearing on all pending motions on 
March 24, 1998. All parties, and amici curiae San 
Francisco District Attorney, argued at the hearing. 
The Court requested that the parties submit additional 
briefing on issues raised at the hearing and took the 
matter under submission on April 16, 1998. 

DISCUSSION 

The Supremacy Clause of Article VI of the United 
States Constitution mandates that federal law super- 
sede state law where there is an outright conflict 
between such laws. See Gibbons v. Ogden, 22 (9 Wheat) 
U.S. 1, 210, 6 L.Ed. 23 (1824); Free v. Bland, 369 U.S. 
663, 666, 82 S. Ct. 1089, 8 L.Ed.2d 180 (1962); Industrial 
Truck Ass’n, Inc. v. Henry, 125 F.3d 1305, 1309 (9th 
Cir. 1997) (state law is preempted “where it is impos- 
sible to comply with both state and federal require- 

49a 

ments, or where state law stands as an obstacle to the 
accomplishment and execution of the full purpose and 
objectives of Congress”). Recognizing this basic prin- 
ciple of constitutional law, defendants do not contend 
that Proposition 215 supersedes federal law, 21 U.S.C. 

§ 841(a). Indeed, Proposition 215 on its face purports 
only to exempt certain patients and their primary 
caregivers from prosecution under certain California 
drug laws—it does not purport to exempt those pa- 
tients and caregivers from the federal laws. One of the 
ballot arguments in favor of the initiative in fact states: 
“Proposition 215 allows patients to cultivate their own 
marijuana simply because federal law prevents the sale 
of marijuana and a state initiative cannot overrule those 
laws.” Peron, 59 Cal.App.4th at 1393, 70 Cal.Rptr.2d 20 
(quoting Ballot Pamphlet, Proposed Amends. to Cal. 
Const. with arguments to voters, Gen.Elec. (Nov. 5, 
1996 p. 60)). 

Defendants argue instead that the Court should 
dismiss the federal government’s actions on abstention 
grounds and on the ground that 21 USC § 841(a) ex- 
ceeds Congress’s authority under the Commerce 
Clause. Assuming that the Court has jurisdiction, 
defendants’ arguments fall into three categories: (1) 
defendants have not violated the federal law; (2) 
defendants have valid defenses to their violation of the 
law; and (3) equitable principles preclude injunctive 
relief. We now turn to each of these arguments. 

50a 

I. Jurisdiction. 

A. Abstention. 

We start with the proposition that the federal courts 
have an “unflagging obligation” to exercise their juris- 
diction. See Colorado River Water Conservation Dist. 

v. United States, 424 U.S. 800, 817, 96 S. Ct. 1236, 47 
L.Ed.2d 483 (1976); Miofsky v. Superior Court, 703 F.2d 
332, 338 (9th Cir. 1983). While the defendants have 
asked the Court to abstain, abstention is an “extra- 
ordinary and narrow exception to the duty of a district 
court to adjudicate a controversy properly before it.” 
Colorado River Water Conservation Dist., 424 U.S. at 
813, 96 S. Ct. 1236 (quoting County of Allegheny v. 
Frank Mashuda Co., 360 U.S. 185, 189, 79 S. Ct. 1060, 3 
L.Ed.2d 1163 (1959)). Defendants contend that the “ex- 
traordinary and narrow” exception to this duty exists 
here under Burford, Pullman or Colorado River, ab- 
stention doctrines. 

1. Burford Abstention. 

Burford abstention is based on comity. It may be 
appropriate if the lawsuit involves difficult questions of 
state law, resolution of which is a matter of substantial 
local concern transcending the result in the case at bar. 
Federal courts may abstain in such cases if federal 
adjudication would be disruptive of state efforts to 
establish a coherent policy with respect to the matter at 
issue. See New Orleans Public Service, Inc. v. City 
Council of New Orleans, 491 U.S. 350, 362, 109 S. Ct. 
2506, 105 L.Ed.2d 298 (1989); Burford v. Sun Oil Co., 
319 U.S. 315, 334, 63 S. Ct. 1098, 87 L.Ed. 1424 (1943). 
Burford abstention is appropriate only if the following 
factors are met: 

51a 

(1) that the state has concentrated suits involv- 
ing the local issue in a particular court; (2) the 
federal issues are not easily separable from compli- 
cated state law issues with which the state courts 
have special competence; and (3) that federal review 
might disrupt state efforts to establish a coherent 
policy. 

Tucker v. First Maryland Savings & Loan, Inc., 942 
F.2d 1401, 1404-05 (9th Cir. 1991). 

Defendants contend that questions of who is a “pri- 
mary caregiver” within the meaning of Health and 
Safety Code § 11362.5, and precisely what conduct is 
permitted by Proposition 215, are difficult and uncer- 
tain issues of state law. For example, defendants 
contend that there is a question whether Proposition 
215 exempts the transportation as well as cultivation 
and use of medical marijuana from California’s drug 
laws. Compare Peron, 59 Cal. App. 4th at 1393-95, 70 
Cal.Rptr.2d 20 with Trippet, 56 Cal. App. 4th at 1550- 
51, 66 Cal. Rptr.2d 559. They also assert that “medical 
marijuana” is “a policy problem of substantial import,” 
the importance of which transcends the result in this 
case. They assert that “[b]y potentially invalidating 
Proposition 215 on preemption grounds, this court 
would effectively halt California’s attempt to make 
section 11362.5 compatible with federal law.” De- 
fendants’ Memorandum in Support of Motion to Dismiss 
at 7. 

These lawsuits, however, are not appropriate candi- 
dates for Burford abstention. At a minimum, the 
second requirement for such abstention is not present. 
The federal issue—whether defendants’ conduct vio- 

52a 

lates federal law—is unrelated to the state questions 
identified by defendants, whether defendants’ conduct 
is legal under state law. Proposition 215 may exempt 
defendants’ conduct from prosecution under California’s 
criminal laws and, for purposes of the federal govern- 
ment’s motion, the Court has assumed that it does. But 
the only issue in these lawsuits is whether defendants’ 
conduct violates federal law. See New Orleans Public 
Service, Inc., 491 U.S. at 362, 109 S. Ct. 2506 (Burford 
abstention is inappropriate where federal issues con- 
trol). 

None of the cases cited by defendants in support of 
Burford abstention involved a lawsuit, such as these, 
where the resolution of the state law issues was im- 
material. In Fireman’s Fund Ins. Co. v. Quackenbush, 
87 F.3d 290 (9th Cir. 1996), for example, the Ninth Cir- 
cuit affirmed the district court’s application of Burford 
abstention to an action challenging the constitutionality 
of Proposition 103 (insurance rate rollback initiative) 
because the federal issues were “intimately conjoined” 
with difficult and unresolved issues of state law. Id. at 
297. Here, in contrast, the scope of Proposition 215 is 
not at issue since the constitutionality of the initiative is 
not being challenged. All that is at issue in these 
actions is whether defendants’ conduct violates federal 
law. The Court need not examine state law to answer 
that question. 

2. Pullman Abstention. 

Defendants’ opposition memorandum argued that 
abstention is appropriate under an additional doctrine, 
Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 
496, 61 S. Ct. 643, 85 L.Ed. 971 (1941). Under Pullman 

53a 

abstention a federal court may defer hearing a case 
when “ ‘a federal constitutional issue . . . might be 
mooted or presented in a different posture by a state 
court determination of pertinent state law.’ ” 

C-Y 
Development Co. v. City of Redlands, 703 F.2d 375, 377 
(9th Cir. 1983) (quoting County of Allegheny v. Frank 
Mashuda Co., 360 U.S. 185, 189, 79 S. Ct. 1060, 3 
L.Ed.2d 1163 (1959)). A lawsuit must meet three 
criteria for Pullman abstention to be appropriate: 

(1) the complaint must touch a sensitive area of 
social policy into which the federal courts should not 
enter unless there is no alternative to adjudication; 
(2) a definitive ruling on the state issues by a state 
court could obviate the need for constitutional 
adjudication by the federal court; and (3) the proper 
resolution of the potentially determinative state law 
issue is uncertain. 

Kollsman v. City of Los Angeles, 737 F.2d 830, 833 (9th 
Cir. 1984). Defendants submit that the Court should 
abstain until the California courts have had an op- 
portunity to define more clearly what state law permits 
in order to minimize any conflict between state and 
federal laws. 

Pullman abstention is nonetheless inappropriate be- 
cause the second criterion, and therefore the third, are 
inapplicable. As stated above, whether state law 
permits defendants’ conduct, and to what extent it 
permits defendants’ conduct, is immaterial. The issue 
here is whether that conduct is prohibited by federal 
law. Thus, a definitive ruling on the state issues, i.e., 
the scope of Proposition 215, will not obviate the need 
for deciding the constitutional issues presented by this 

54a 

lawsuit, including the alleged due process right to be 
free from pain. 

3. Colorado River Abstention. 

In the interest of “wise judicial administration,” 
federal courts may stay a case involving a question of 
federal law where a concurrent state action is pending 
in which substantially similar issues are raised. See 
Colorado River Water Conservation Dist. v. United 
States, 424 U.S. 800, 817, 96 S. Ct. 1236, 47 L.Ed.2d 483 
(1976). “[F]ederal abstention and deference to parallel 
state proceedings is appropriate under Colorado River 
even when none of the more established doctrines 
apply.” Fireman’s Fund, 87 F.3d at 297. While no one 
factor is determinative, the Supreme Court has listed a 
number of factors to consider in deciding whether such 
abstention is appropriate. These factors include, “the 
desireabilty of avoiding piecemeal litigation,” and “the 
order in which the jurisdiction was obtained by the con- 
current forums,” 

Colorado River, 424 U.S. at 818-19, 96 
S. Ct. 1236; whether the state court proceedings are 
adequate to “protect the federal litigant’s rights,” 
Moses H. Cone Memorial Hospital v. Mercury Con- 
struction Corp., 460 U.S. at 23, 103 S. Ct. 927; and the 
risk of conflicting results. See Colorado River, 424 U.S. 
at 818, 96 S. Ct. 1236. 

Defendants assert that the state proceeding in 
People v. Peron is substantially similar to these actions 
since it involves a challenge to the same conduct at 
issue here and seeks the same relief sought here—an 
injunction. 

55a 

The Court concludes, however, that the People v. 
Peron proceeding is not substantially similar. First, it 
does not involve all the parties to this lawsuit. Thus, 
the federal government’s interests in these actions with 
respect to the defendants who are not defendants in 
Peron may not be adequately represented by that 
proceeding. Second, the issues are different. In Peron, 
the State seeks to enjoin defendant Peron’s conduct on 
the ground that it violates state law; that is, that it does 
not fall within the conduct permitted by Proposition 
215. Here, in contrast, the federal government seeks to 
enjoin defendants’ conduct on the ground that it vio- 
lates federal law; it is immaterial whether that conduct 
falls within that permitted by Proposition 215. Since 
the issues are not similar there is no risk of conflicting 
results. None of the cases cited by defendants involved 
a situation like here, where the federal government 
seeks to enforce federal law in federal court. In such a 
situation, this Court is required to exercise its juris- 
diction. 

B. Interstate Commerce Clause. 

Since there is no basis for abstention, we now turn to 
the question of jurisdiction. Congress has the authority 
to regulate an activity pursuant to the Commerce 
Clause of the United States Constitution if the activity 
regulated falls into one of three categories: 

First, Congress may regulate the use of the chan- 
nels of interstate commerce. . . . Second, Con- 
gress is empowered to regulate and protect the in- 
strumentalities of interstate commerce, or persons 
or things interstate commerce, or persons or things 
in interstate commerce, even though the threat may 

56a 

come only from intrastate activities. . . . Finally 

Congress’ commerce authority includes the power 
to regulate those activities having a substantial 
relation to interstate commerce. 

United States v. Lopez, 514 U.S. 549, 558-59, 115 S. Ct. 
1624, 131 L.Ed.2d 626 (1995) (citations omitted). In 
Lopez, the Supreme Court held that the Gun-Free 
School Zones Act of 1990 (“School Zones Act”) exceeds 
Congress’s Commerce Clause authority. The School 
Zones Act made it a federal offense “for any individual 
knowingly to possess a firearm at a place that the 
individual knows, or has reasonable cause to believe, is 
a school zone.” 18 U.S.C. § 922(q)(1)(A)(1988 ed. Supp. 

V). The Court held that the School Zones Act “has 
nothing to do with ‘commerce’ or any sort of economic 
activity. . . . 

and is not an essential part of a larger 
regulation of economic activity, in which the regulatory 
scheme could be undercut unless the intrastate activity 
were regulated.” 

Id. at 561, 115 S. Ct. 1624. It noted 
that neither the statute nor the legislative history in- 
cluded any congressional findings regarding the effects 
of gun possession in a school zone on interstate com- 
merce, and rejected the government’s theories as to 
such effects. Id. at 562, 115 S. Ct. 1624. 

Defendants contend that this Court is without juris- 
diction to hear these related cases because Congress 
does not have the authority to regulate defendants’ 
conduct under the Commerce Clause, just as it does not 
have authority to regulate possession of a firearm in a 
school zone. They submit that all of their activities are 
purely intrastate; therefore, pursuant to Lopez, the 

57a 

Controlled Substances Act is unconstitutional as ap- 
plied to them. 

Congress has the power “to declare that an entire 
class of activities affects commerce.” 

Maryland v. 
Wirtz, 392 U.S. 183, 192, 88 S. Ct. 2017, 20 L.Ed.2d 1020 
(1968). “The only question for the courts then is 
whether the class is within the reach of the federal 
power.” Id.; see also United States v. Darby, 312 U.S. 
100, 120-21, 61 S. Ct. 451, 85 L.Ed. 609 (1941) (where 
“Congress itself has said that a particular activity 
affects the commerce,” the only function of a court “[i]n 
passing on the validity of legislation . . . is to 
determine whether the particular activity regulated or 
prohibited is within the reach of the federal power”). 
“Where the class of activities is regulated and that class 
is within the reach of federal power, the courts have no 
power ‘to excise, as trivial, individual instances’ of the 
class.” Perez v. United States, 402 U.S. 146, 154, 91 S. 
Ct. 1357, 28 L.Ed.2d 686 (1971). 

Congress has made detailed findings that the intra- 
state manufacture, distribution, and possession of con- 
trolled substances, as a class of activities, “have a 
substantial and direct effect upon interstate com- 
merce.” 21 U.S.C. § 801(3). In particular, Congress 
found that, “after manufacture, many controlled sub- 
stances are transported in interstate commerce,” id. 

§ 801(3)(A); that “controlled substances distributed 
locally usually have been transported in interstate 
commerce immediately before their distribution,” id. 
§ 801(3)(B); that “controlled substances possessed com- 
monly flow through interstate commerce immediately 
prior to such possession,” id. § 801(4); that “[l]ocal 
distribution and possession of controlled substances 

58a 

contribute to swelling the interstate traffic in such 
substances,” id. § 801(4); and that “[c]ontrolled sub- 
stances manufactured and distributed intrastate cannot 
be differentiated from controlled substances manu- 
factured and distributed interstate,” id. § 801(5). 
Therefore, “[f]ederal control of the intrastate incidents 
of the traffic in controlled substances is essential to the 
effective control of the interstate incidents of such 
traffic.” Id. § 801(6). Since Lopez was decided, the 
Ninth Circuit has held that Congress’s enactment of the 
Controlled Substances Act is constitutionally permissi- 
ble under the Commerce Clause. See United States v. 
Bramble, 103 F.3d 1475, 1479-80 (9th Cir. 1996); United 
States v. Tisor, 96 F.3d 370, 373-75 (9th Cir. 1996), cert. 
denied, 519 U.S. 1140, 117 S. Ct. 1012, 136 L.Ed.2d 889 
(1997); United States v. Kim, 94 F.3d 1247, 1249-50 (9th 
Cir. 1996); United States v. Staples, 85 F.3d 461, 463 
(9th Cir.), cert. denied, 519 U.S. 938, 117 S. Ct. 318, 136 
L.Ed.2d 233 (1996). 

Defendants respond that the Ninth Circuit cases are 
inapplicable to the facts of these actions because those 
cases involved (1) conduct that was prohibited under 
state law; and (2) intrastate illicit drug trafficking 
activities in the same “class of activities” as those inter- 
state activities prohibited by the Controlled Substances 
Act. Here, in contrast, defendants argue that their 
conduct—the distribution of marijuana to seriously ill 
patients for the patient’s personal medical use—is not 
within that class of activities and does not substantially 
effect interstate commerce. 

There can be no debate that when Congress passed 
the Controlled Substances Act it was primarily con- 
cerned with traditional for-profit drug trafficking 

59a 

rather than the not-for-profit supply of medical 
marijuana to seriously patients in accordance with state 
law. Even assuming, however, that defendants’ 
activities are within a different “class of activities” from 
that which Congress expressly considered, their 
activities are not within a class that, by its nature, does 
not have a substantial effect on interstate commerce. 
Whereas defendants’ conduct in the particular in- 
stances at issue here may not have had any effect on 
intrastate commerce, and for purposes of the federal 
government’s motion the Court assumes that at an 
evidentiary hearing defendants could prove that all 
marijuana was cultivated locally, distributed locally, 
and consumed locally by California residents, it is not 
true that the class of activities within which defendants’ 
conduct falls—non-profit distribution of medical 
marijuana—necessarily does not affect interstate 
commerce. 

Medical marijuana may be grown locally, or out of the 
state or country, and there is nothing in the nature of 
medical marijuana that limits it to intrastate cultiva- 
tion. Similarly, it may be transported across state lines 
and consumed across state lines. In Lopez, in contrast, 
the class of activities prohibited—mere 

possession of a 
firearm near a school—does not have a substantial 
effect on interstate commerce. This case, unlike Lopez, 
is not about mere possession but rather about distri- 
bution, a class of activities that, even if done for the 
humanitarian purpose of serving the legitimate health 
care needs of seriously ill patients, can affect interstate 
commerce. 

To hold that the Controlled Substances Act is un- 
constitutional as applied here would mean that in every 

60a 

action in which a plaintiff seeks to prove a defendant 
violated federal law, an element of every case-in-chief 
would be that the defendant’s specific conduct at issue, 
based on facts proved at an evidentiary hearing or trial, 
substantially affected interstate commerce. No case so 
holds and the Court declines to do so for the first time 
here. Accordingly, the Court has jurisdiction to hear 
this matter. 

II. The Federal Government’s Motion. 

We now turn to the relief sought by the federal 
government and whether the federal government has 
met its burden. 

A. The Motion for a Preliminary Injunction is the 

Only Motion Before the Court. 

The federal government styled its moving papers as 
a motion for “preliminary injunction, permanent injunc- 
tion and summary judgment.” It filed this hybrid 
motion the same day it filed the six related lawsuits. 
Defendants correctly object to the motion for summary 
judgment on the ground that the Federal Rules of Civil 
Procedure permit a motion for summary judgment by a 
plaintiff “at any time after the expiration of 20 days 
from the commencement of the action.” Fed. R. Civ. P. 
56(a). The federal government’s motion for summary 
judgment was thus premature. The federal govern- 
ment contends that it orally renoticed the motions 
during the scheduling conference on January 30, 1998. 
The Court’s February 9, 1998 Order, however, set the 
briefing schedule for the federal government’s motion 
for preliminary injunction only; it made no mention of 
a motion for summary judgment. If the federal govern- 

61a 

ment believed the Court was in error, it had an obli- 
gation to so notify the Court and the defendants at that 
time. As it failed to do so, the only federal government 
motion pending is the motion for a preliminary 
injunction. 

B. Preliminary Injunction Standard. 

The general standards for a preliminary injunction 
are well-established. The court considers: (1) likelihood 
of success on merits; (2) possibility of irreparable harm 
to the moving party if the injunction is not granted; 
(3) the balance of hardships; and (4) in certain cases, 
whether the public interest will be advanced by grant- 
ing preliminary relief. See Miller v. California Pacific 
Medical Center, 19 F.3d 449, 456 (9th Cir. 1994); United 
States v. Odessa Union Warehouse Co-op, 833 F.2d 
172, 174 (9th Cir. 1987). The moving party must show 
“either (1) a combination of probable success on the 
merits and the possibility of irreparable harm, or (2) the 
existence of serious questions going to the merits, the 
balance of hardships tipping sharply in its favor, and at 
least a fair chance of success on the merits.” 

Miller, 19 
F.3d at 456 (quoting Senate of California v. Mosbacher, 
968 F.2d 974, 977 (9th Cir. 1992)). “These two formula- 
tions represent two points on a sliding scale in which 
the required degree of irreparable harm increases as 
the probability of success decreases.” 

Odessa Union, 
833 F.2d at 174. 

The standard is modified somewhat when the federal 
government seeks to enforce a statute: 

In statutory enforcement cases where the govern- 
ment has met the “probability of success prong” of 
the preliminary injunction test, we presume it has 

62a 

met the “possibility of irreparable injury” prong be- 
cause the passage of the statute is itself an implied 
finding by Congress that violations will harm the 
public. Therefore, further inquiry into irreparable 
injury is unnecessary. However, in statutory en- 
forcement cases where the government can make 
only a “colorable evidentiary showing” of a violation, 
the court must consider the possibility of irrepar- 
able injury. 

United States v. Nutri-cology, Inc., 982 F.2d 394, 398 
(9th Cir. 1992). Since this is an action by the federal 
government to enforce a statute, the injunction must be 
granted if the federal government establishes a pro- 
bability of success on the merits since, in such cases, the 
possibility of irreparable harm is presumed. 

Defendants argue that the Ninth Circuit has sug- 
gested that if the defendants do not concede a statutory 
violation, the presumption of irreparable harm does not 
apply. See Miller, 19 F.3d at 459 (noting that in Odessa 
Union “the traditional requirement of irreparable in- 
jury was inapplicable because the parties conceded that 
the federal statute involved was violated”). 

Miller, 
however, specifically held that the presumption applies 
if the defendant concedes the statutory violation or the 
government demonstrates “that it is likely to prevail on 
the merits.” 

Id. at 460. 
Defendants also contend that the presumption of 
irreparable harm, even if it may apply, is rebuttable. In 
Miller and Nutri-cology, however, the Ninth Circuit 
held that if the government establishes a likelihood of 
success on the merits, “further inquiry into irreparable 
harm is unnecessary.” Miller, 19 F.3d at 459; Nutri- 

63a 

cology, 982 F.2d at 398. Such a presumption is not 
unique to government statutory enforcement actions. 
In copyright actions, the party claiming infringement 
enjoys a similar presumption of irreparable harm upon 
a showing of likelihood of success on the merits. See, 

e.g., Apple Computer v. Formula Int’l Inc., 725 F.2d 
521, 525 (9th Cir. 1984). 

Thus, before deciding whether the presumption of 
irreparable injury applies in these cases, the Court 
must determine if the federal government has 
established a probability of success on the merits, or 
only a colorable evidentiary showing, or neither. 

C. Probability of Success on the Merits. 

Federal law prohibits the knowing or intentional 
manufacture, distribution, or possession with intent to 
manufacture or distribute a controlled substance. See 
21 U.S.C. § 841(a). It is undisputed that marijuana is a 
controlled substance within the meaning of § 841(a). It 
is equally undisputed that defendants distribute mari- 
juana. Defendants do not challenge the federal govern- 
ment’s evidence to the extent it establishes that de- 
fendants provide marijuana to seriously ill patients or 
their primary caregivers for personal use by the patient 
upon a physician’s recommendation. 

Defendants contend that the federal government has 
nonetheless not established a probability of success on 
the merits because it has not proved that federal law 
applies to defendants’ conduct. In particular, de- 
fendants submit that (1) federal law applies only to 
illicit or illegal distribution of marijuana, and not to 
medical marijuana which is legal under state law; (2) 

64a 

defendants are “joint users” and therefore cannot be 
guilty of “distribution”; and (3) defendants are exempt 
from the law as “ultimate users.” Defendants argue 
alternatively that even if the law applies to their con- 
duct, the common law defense of necessity justifies 
their conduct and, in any event, the statute as applied 
violates substantive due process. 

1. Whether Federal Law Reaches 

Defendants’ Conduct. 

a. Proposition 215 and Federal Law. 

Section 903 of the Controlled Substances Act pro- 
vides that no provision of the Act 

shall be construed as indicating an intent on the part 
of the Congress to occupy the field in which that 
provision operates, including criminal penalties, to 
the exclusion of any State law on the same subject 
matter which would otherwise be within the author- 
ity of the State, unless there is a positive conflict 
between that provision of this subchapter and that 
State law so that the two cannot consistently stand 
together. 

21 U.S.C. § 903. Defendants argue that this section 
places the burden on the federal government to prove 
that state law, Health and Safety Code § 11362.5, is in 
positive conflict with federal law, 21 U.S.C. § 841(a), 
and that there is no way the two can stand together. 
The federal government cannot meet that burden, they 
contend, because “[i]t is unreasonable to believe that 
use of medical marijuana by this discrete population for 
this limited purpose [medical treatment] will create a 
significant drug problem.” 

Conant v. McCaffrey, 172 
F.R.D. 681, 694 n. 5 (N.D. Cal. 1997). 

65a 

Defendants’ argument misapprehends the scope of 
Proposition 215, federal law, and these lawsuits. De- 
fendants are correct that Proposition 215 does not 
conflict with federal law, but not for the reasons ad- 
vanced by defendants, i.e., that medical marijuana is not 
illegal. Proposition 215 does not conflict with federal 
law because on its face it does not purport to make legal 
any conduct prohibited by federal law; it merely 
exempts certain conduct by certain persons from the 
California drug laws. Thus, whether defendants’ con- 
duct falls within the scope of Proposition 215 is im- 
material. Defendants do not argue, as they cannot, that 
simply because state law does not prohibit their con- 
duct federal law may not do so. See United States v. 
Rosenberg, 515 F.2d 190, 198 n. 14 (9th Cir. 1975). 

Notwithstanding the operative language of Pro- 
position 215, its declared purpose—“[t]o ensure that 
seriously ill Californians have the right to obtain and 
use marijuana for medical purposes.” “. . . and that 
such patients and their primary caregivers are not 
subject to criminal prosecution or sanction,” Health & 
Safety Code § 11362.5(A) & (B)—suggests that Cali- 
fornia’s voters want to exempt medical marijuana from 
prosecution under federal, as well as state law, even if 
that is not what they enacted. A state law which 
purports to legalize the distribution of marijuana for 
any purpose, however, even a laudable one, nonetheless 
directly conflicts with federal law, 21 U.S.C. § 841(a). 
Section 841 prohibits the distribution of marijuana 
except for use in an approved research project. It does 
not exempt the distribution of marijuana to seriously ill 
persons for their personal medical use. 

66a 

b. Joint Users Defense. 

In United States v. Swiderski, 548 F.2d 445 (2d Cir. 
1977), defendants, husband and wife, were charged with 
violating 21 U.S.C. § 841(a) by possessing cocaine with 
intent to distribute. See id. at 447. The Second Circuit 
held that “a statutory ‘transfer’ could not occur be- 
tween two individuals in joint possession of a controlled 
substance simultaneously acquired for their own use.” 
United States v. Wright, 593 F.2d 105, 107 (9th Cir. 
1979) (discussing Swiderski). The court thus concluded 
that the trial judge erred by denying “the jury the 
opportunity to find that the defendants, who bought 
the drugs in each other’s physical presence, intended 
merely to share the drugs” and thus, not to distribute 
them. Id.; Swiderski, 548 F.2d at 450. 

Defendants contend that like the defendants in 
Swiderski, they have not violated the federal law pro- 
hibiting the distribution of marijuana. At a trial on the 
merits they submit that they will prove that their 
control of medical marijuana is established “through a 
cooperative enterprise, shared equally among all of the 
members thereto, for the exclusive medicinal use of 
each of them, individually” and that no third parties are 
involved and “nor is anyone else brought into a ‘web’ of 
drug use.” They also contend that they “do not give 
money to others for the purposes of procuring drugs for 
recreational use,” rather, they “act in concert as co- 
operatives to ensure the safe and affordable access 
to cannabis for medicinal purposes for each of the 
members.” Defendants’ Opposition Memorandum at 21. 
For purposes of the federal government’s motion for 
preliminary injunction, the Court will assume that 

67a 

defendants could produce evidence to support their 
offer of proof. 

Swiderski, and the other cases cited by defendants, 
involved the question of whether the defendants in 
those actions were entitled to a “joint users” jury in- 
struction. The issue here, however, is whether the 
federal government has established that it is likely to 
prevail at trial in establishing that Swiderski does not 
apply to defendants’ conduct. The Court concludes that 
it has. Swiderski involved a simultaneous purchase 
by a husband and wife who testified they intended to 
use the controlled substance immediately. Applying 
Swiderski to a medical marijuana cooperative would 
extend Swiderski to a situation in which the controlled 
substance is not literally purchased simultaneously for 
immediate consumption. In light of the fact that 
Swiderski has never been so extended, and in light of 
the fact that it has not been adopted by the Ninth 
Circuit, the Court concludes that it is reasonably likely 
that such a defense would not prevail at a trial ad- 
dressing whether injunctive relief should be granted. 

The Court cautions, however, that it is not ruling that 
defendants are not entitled to such a defense at trial or 
in a contempt proceeding for violation of a preliminary 
or permanent injunction, or that defendants could not 
as a matter of law defeat a motion for summary judg- 
ment with evidence of mere possession. The Court’s 
ruling is narrow. Based on defendants’ offer of proof, 
which does not include any detailed factual allegations, 
the Court concludes that the federal government is 
likely to prevail at trial. 

68a 

c. Ultimate User Defense. 

Defendants contend that they have not violated the 
Controlled Substances Act because they are “ultimate 
users.” An “ultimate user” is “a person who has law- 
fully obtained, and who possesses, a controlled sub- 
stance for his own use or for the use of a member of his 
household.” 21 U.S.C. § 802(25). Defendants are not 
ultimate users because they have not lawfully obtained 
the marijuana at issue. As stated above, the fact that it 
may be lawful under state law for defendants to culti- 
vate and possess marijuana for medical purposes, does 
not make it lawful under federal law—the only law at 
issue here. At present, the only way in which mari- 
juana may be lawfully obtained is in a controlled re- 
search setting conducted pursuant to a FDA approved 
protocol, and where the researcher has been registered 
with the DEA. See 21 U.S.C. § 823(f); 21 C.F.R. 

§ 1301.13(e). 

2. The Medical Necessity Defense. 

Defendants argue that even if the Controlled Sub- 
stances Act prohibits their conduct, the injunction must 
nevertheless be denied because they are entitled to the 
common law defense of necessity. To invoke the de- 
fense, defendants must prove (1) that they were faced 
with a choice of evils and chose the lesser evil; (2) they 
acted to prevent imminent harm; (3) they reasonably 
anticipated a direct causal relationship between their 
conduct and the harm to be averted; and (4) that there 
were no legal alternatives to violating the law. See 
United States v. Aguilar, 883 F.2d 662, 693 (9th Cir. 
1989). Several state courts have recognized the appli- 
cability of the necessity defense in marijuana criminal 

69a 

prosecutions. See, e.g., State v. Hastings, 118 Idaho 854, 
801 P.2d 563 (1990); State v. Diana, 24 Wash. App. 908, 
604 P.2d 1312 (1979); State v. Bachman, 61 Haw. 71, 595 
P.2d 287 (1979). 

Defendants submit that they can prove each element 
of the defense. First, their members will die, go blind, 
or suffer severe pain without cannabis; yet, obtaining 
cannabis “is, for many difficult or impossible to obtain.” 
Thus, defendants contend, they are faced with two 
evils, letting their members die, go blind or suffer 
severe pain, or risk running afoul of federal law and 
that they have chosen the lesser evil. They can 
meet the second and third requirements, they argue, 
because the harm to be averted is imminent and life- 
threatening and supplying cannabis to their members is 
necessary to prevent that harm. Finally, they assert 
they have no reasonable alternative; for many people 
legal drugs simply do not work in treating their symp- 
toms and they have no legal or safe alternative to 
obtaining marijuana. 

The federal government responds that defendants do 
have a legal and reasonable alternative—a petition to 
reschedule marijuana from a Schedule I to a Schedule 
II controlled substance. See 21 U.S.C. § 811(a). Re- 
scheduling to Schedule II would permit physicians to 
prescribe marijuana for therapeutic purposes. The 
Court doubts whether a rescheduling petition is a rea- 
sonable alternative for all seriously ill patients whose 
physicians have recommended marijuana for therapeu- 
tic purposes. For example, such a petition was filed in 
1972 and did not receive a final ruling from the Admin- 
istrator of the Drug Enforcement Agency until 1992, 
and a final decision on appeal until 1994. See Alliance 

70a 

for Cannabis Therapeutics v. Drug Enforcement Ad- 
ministrator, 15 F.3d 1131 (D.C. Cir. 1994). Needless to 
say, it hardly seems reasonable to require an AIDS, 
glaucoma, or cancer patient to wait twenty years if the 
patient requires marijuana to alleviate a current medi- 
cal problem. 

The Court, however, need not dispositively decide 
whether a reasonable alternative exists. The Court 
concludes that the federal government is likely to pre- 
vail at trial on its claim that the defense of necessity 
does not preclude the granting of the injunctive relief 
sought here. As the federal government points out, the 
defense of necessity has never been allowed to exempt 
a defendant from the criminal laws on a blanket basis. 
To put it another way, for the defense to be available 
here, defendants would have to prove that each and 
every patient to whom it provides cannabis is in danger 
of imminent harm; that the cannabis will alleviate the 
harm for that particular patient; and that the patient 
had no other alternatives, for example, that no other 
legal drug could have reasonably averted the harm. 
Defendants do not contend that they could offer such 
proof. For example, they state that they could offer 
evidence that “for many” people, legal drugs are not 
effective. That is not the same as saying that for each 
of every person to whom they provide, and will provide, 
marijuana, legal drugs are not effective such that mari- 
juana is a necessity. 

The Court is not ruling, however, that the defense of 
necessity is wholly inapplicable to these lawsuits. If a 
preliminary or permanent injunction is granted, and the 
federal government alleges that defendants have vio- 
lated the injunction, there will be specific facts and 

71a 

circumstances before the Court from which the Court 
can determine if the jury should be given a necessity 
instruction as a defense to the alleged violation of the 
injunction. As such facts are not presently before the 
Court, it is premature for the Court to decide whether 
such a defense is available. 

By concluding that medical necessity is not an ap- 
propriate defense to the issuance of an injunction, the 
Court is not placing defendants in the difficult position 
of deciding whether to go forward with their conduct, 
which they sincerely believe is absolutely necessary, 
or abiding by the injunction. As defendants point 
out, with or without the injunction they must decide 
whether to violate federal law; they are bound by 
federal law even in the absence of an injunction. 

3. Substantive Due Process. 

The Due Process Clause of the United States Consti- 
tution “provides heightened protection against govern- 
ment interference with certain fundamental rights and 
liberty interests.” 

Washington v. Glucksberg, 521U.S. 
702, ——, 117 S. Ct. 2258, 2267, 138 L.Ed.2d 772 (1997). 
Where a “fundamental liberty interest” is involved, 
government action restricting that interest must be 
“narrowly tailored to serve a compelling [federal 
government] interest.” 

Id. 117 S. Ct. at 2268; see also 
id. (“the Fourteenth Amendment ‘forbids the govern- 
ment to infringe . . . “fundamental” liberty interests 
at all, no matter what process is provided, unless the 
infringement is narrowly tailored to serve a compelling 
state interest’ ” (citation omitted)). A fundamental li- 
berty interest must be “ ‘deeply rooted in this Nation’s 
history and tradition,’ ” and “ ‘implicit in our concept of 

72a 

ordered liberty,’ such that ‘neither liberty nor justice 
would exist if they were sacrificed.’ ” Id. (citation 
omitted). The right must also be “carefully described.” 
Id. 

Defendants contend that the preliminary injunction 
should be denied because the relief sought—an order 
enjoining defendants from the manufacture or distri- 
bution, or possession with intent to distribute mari- 
juana, or conspiring to do the same—violates their 
substantive due process rights. In particular, de- 
fendants assert that such an injunction would infringe 
their fundamental right to be free from unnecessary 
pain, to receive palliative treatment for a painful medi- 
cal condition, to care for oneself, and to preserve one’s 
own life. See generally Washington v. Glucksberg, 521 
U.S. 702, 117 S. Ct. 2258, 138 L.Ed.2d 772; DeShaney v. 
Winnebago Cty. Dept. of Social Serv., 489 U.S. 189, 200, 
109 S. Ct. 998, 103 L.Ed.2d 249 (1989). They argue that 
they are not asserting a constitutional right to the 
medical drug of their choice, even if the drug had not 
been proved effective, as was the case in the actions 
challenging federal government’s restrictions on lae- 
trile, see, e.g., Rutherford v. United States, 616 F.2d 455 
(10th Cir. 1980); Carnohan v. United States, 616 F.2d 
1120 (9th Cir. 1980), but rather that they have a right to 
“a demonstrated and effective treatment as recom- 
mended by their physician that can alleviate their 
agony, preserve their sight, and save their lives.” De- 
fendants’ Supplemental Opposition Memorandum at 9. 

The Court concludes that the federal government is 
likely to prevail at trial on the issue of whether de- 
fendants have a fundamental right to medical mari- 
juana. The Court, however, is not ruling as a matter of 

73a 

law that no such right exists. It holds that on the 
record presently before the Court, defendants have not 
established that the right to such treatment is “so 
rooted in the traditions and conscience of our people as 
to be ranked as fundamental.” 

Washington v. Glucks- 
berg, 521 U.S. at ——, 117 S. Ct. at 2268 (quoting 
Palko 
v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L.Ed. 
288 (1937)). Nor have defendants established that they 
have standing to assert such a defense as to their 
distribution of marijuana to seriously ill persons other 
than themselves. 

Moreover, the Court need not dispositively resolve 
this constitutional issue because even assuming de- 
fendants had established that such a fundamental right 
exists, and that they have standing to assert such a 
right, this defense, like the defense of necessity, is 
inapplicable to this injunction action. Defendants are 
asking the Court to deny the injunction and, in effect, 
exempt their conduct from the federal laws as a whole. 
In order for the Court to conclude that defendants have 
a substantive due process defense to an injunction 
barring them from violating federal law, the Court 
would have to find that the substantive due process 
right of each and every patient to whom the defendants 
will dispense marijuana in the future will be violated if 
the government prevents defendants from doing so. 
Such a defense may be available in a contempt pro- 
ceeding where the trier of fact is presented with a 
particular transaction to a particular patient under a 
particular set of facts. See Washington v. Glucksberg, 
521 U.S. at——n. 24, 117 S. Ct. at 2275 n. 24 (holding 
that Washington State’s ban on assisted suicide is not 
unconstitutional as applied to terminally ill patients 
generally, but that the Court’s decision does not “fore- 

74a 

close the possibility that an individual plaintiff seeking 
to hasten her death, or a doctor whose assistance was 
sought, could prevail in a more particularized chal- 
lenge”). It is not available, however, to exempt 
generally the distribution of medical marijuana from 
the federal drug laws. 

D. Whether the Preliminary Injunction Should Be 

Granted. 

For the foregoing reasons, the Court concludes that 
the federal government has established that it is likely 
to prevail on the merits of its claim that defendants are 
in violation of federal law. As set forth above, in a 
statutory enforcement action brought by the federal 
government, irreparable harm is presumed if the 
government establishes that it is likely to prevail on the 
merits. Nutri-cology, 982 F.2d at 398 (“further inquiry 
into irreparable injury is unnecessary”); see also id. 
(“the passage of the statute is itself an implied finding 
by Congress that violations will harm the public”). 

Defendants argue that injunctive relief is nonetheless 
unwarranted because this Court is sitting as a court of 
equity and must therefore consider the traditional de- 
fenses to the granting of equitable relief, including the 
unclean hands of the moving party. They contend that 
these principles, plus the fact that the federal govern- 
ment is seeking injunctive relief at all, require the 
denial of injunctive relief. 

1. The Propriety of Seeking Injunctive Relief. 

The government rarely seeks injunctions pursuant to 
21 U.S.C. § 882(a). The Court has located only five 

75a 

published opinions in which the federal government 
sought relief based on the statute. See, e.g., United 
States v. Leasehold Interest in 121 Nostrand Avenue, 
760 F. Supp. 1015, 1035 (E.D.N.Y. 1991); United States 

v. Williams, 416 F. Supp. 611, 614 (D.D.C. 1976). At 
oral argument, and in their supplemental memoranda, 
defendants insist that the federal government has 
chosen to bring a civil injunctive action rather than 
charge defendants with a violation of the criminal laws, 
in order to deprive defendants of the same right to a 
jury trial to which they would be entitled in a criminal 
action. 

Defendants do not contend that the government is 
attempting to deprive them of a right to a jury in 
general. 21 U.S.C. § 882(b) provides that “[i]n case of 
an alleged violation of an injunction or restraining order 
issued under this section, trial shall, upon demand of 
the accused, be by a jury in accordance with the 
Federal Rules of Civil Procedure.” 21 U.S.C. § 882(b) 
(emphasis added). If the Court issues an injunction, 
defendants have a right to a jury in any proceeding in 
which it is alleged that they have violated the injunc- 
tion. Defendants instead contend that a jury trial in 
accordance with the Federal Rules of Civil Procedure 
will provide them with fewer procedural protections 
than a criminal trial. For example, in civil proceedings 
a party may make a motion for summary judgment; no 
such procedure, however, is available in a criminal trial; 
and in a civil proceeding, under Federal Rule of Civil 
Procedure 48, a jury may be composed of six persons, 
whereas in a criminal trial a defendant is guaranteed a 
trial by a jury of twelve. 

76a 

These procedural differences do not compel a con- 
clusion that the federal government is acting in bad 
faith. First, in any contempt proceeding, the Court will 
determine the appropriate number of jurors, up to 
twelve, which still must return a unanimous verdict. 
See Fed. R. Civ. P. 48 (“[u]nless the parties otherwise 
stipulate, (1) the verdict shall be unanimous”). Second, 
even assuming that the federal government could 
bring a motion for summary judgment in a contempt 
proceeding—and it is not clear from the plain language 
of section 882(b) that it could—summary judgment may 
be granted, and a party denied the fight to a jury, only 
if no reasonable jury could find for the nonmoving 
party. See Matsushita Elec. Ind. Co. v. Zenith Radio, 
475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). 

a. Unclean Hands 

The “clean hands” doctrine 

insists that one who seeks equity must come to the 
court without blemish. . . . This maxim “is a self- 
imposed ordinance that closes the doors of a court of 
equity to one tainted with an inequitableness or bad 
faith relative to the matter in which he seeks relief, 
however improper may have been the behavior of 
the defendant.” . . . This rule applies to the 
government as well as to private litigants . . . 

Equal Employment Opportunity Comm’n v. Recruit 
U.S.A., 939 F.2d 746, 752 (9th Cir. 1991) (citations 
omitted). Defendants contend that the federal govern- 
ment comes before this Court with unclean hands 
because it refuses to acknowledge that marijuana has a 
medical use and reschedule it as a Schedule II con- 

77a 

trolled substance which would permit seriously ill 
patients to be treated with marijuana. 

The federal government’s conduct is “unclean,” 
defendants assert, because the federal government 
itself has commissioned studies which have established 
marijuana’s medical efficacy and then ignored these 
studies. Defendants highlight the fact that while the 
federal government continues to maintain that there 
are no medically accepted uses for marijuana, the DEA 
is simultaneously distributing marijuana to eight people 
under the Investigative New Drug program for medical 
purposes. Those eight people were enrolled years ago, 
defendants submit, before the “war on drugs,” and the 
DEA has refused to enroll any more patients, not 
because of concerns as to the safety of marijuana, but 
for political reasons. Defendants also point out that in 
1970, Congress appropriated a million dollars for a com- 
mission to recommend appropriate marijuana legisla- 
tion. Public Law 91-513, § 601(e) (Oct. 27, 1970). The 
commission, known as the “Shafer Commission,” re- 
commended decriminalizing possession and casual dis- 
tribution of small amounts of marijuana. See Mari- 
huana: A Signal of Misunderstanding; First Report of 
the National Commission on Marihuana and Drug 
Abuse, 152 (1972). Congress, however, refused to re- 
schedule marijuana. Finally, defendants argue that the 
DEA ignored the recommendation of its own Admini- 
strative Law Judge that marijuana be changed to a 
Schedule II controlled substance[.] See Defendants’ 
Supplemental Opposition Memorandum at 23. 

The federal government disputes that the Shafer 
Commission recommended decriminalizing marijuana. 
Rather, it contends the Commission merely recom- 

78a 

mended increased support for studies to evaluate the 
efficacy of medical marijuana. See First Report, supra, 
at 176. 

The fact remains, however, that medical marijuana 
advocates have been unsuccessful in convincing the 
federal government decision makers that marijuana 
should be reclassified as a Schedule II controlled sub- 
stance and thus made available to seriously ill patients 
upon a physician’s recommendation. That does not 
mean that the federal government has acted with 
unclean hands. Indeed, as late as 1994, a federal court of 
appeal affirmed the Drug Enforcement Agency Admini- 
strator’s decision not to reschedule. See Alliance for 
Cannabis Therapeutics v. Drug Enforcement Admini- 
stration, 15 F.3d 1131 (D.C. Cir. 1994). 

The federal government has advised the Court that a 
petition for reclassification has been filed and that on 
December 17, 1997, the DEA referred the petition to 
the Secretary of Health and Human Services (“HHS”) 
upon determining that the petition raised scientific and 
medical issues that had not previously been evaluated 
by HHS as part of any prior scheduling action. See 
Federal Government’s Post-Hearing Memorandum at 

13. One would expect the Secretary to act expedi- 
tiously on the petition in light of the expressed concerns 
of the citizens of California. 

CONCLUSION 

Because of the Supremacy Clause of the United 
States Constitution, the only issue before the Court is 
whether defendants’ conduct violates federal law. The 
Court concludes that the federal government has 

79a 

established that it is likely that it does. As these 
lawsuits are brought to enforce a statute, namely, the 
Controlled Substances Act, irreparable harm is pre- 
sumed and the injunction must be granted. 

Once again, however, the Court must caution as to 
what this decision does not do. The Court has not 
declared Proposition 215 unconstitutional. Nor has it 
enjoined the possession of marijuana by a seriously ill 
patient for the patient’s personal medical use upon a 
physician’s recommendation. Nor has the Court fore- 
closed the possibility of a medical necessity or consti- 
tutional defense in any proceeding in which it is alleged 
a defendant has violated the injunction issued herein. 

Finally, the San Francisco District Attorney has 
raised the issue of possible local governmental distri- 
bution of medical marijuana. Such a question is not 
before the Court and, in any event, is purely specu- 
lative as it is uncertain whether the federal government 
would even seek to enjoin such conduct by a local 
government entity under strictly controlled conditions. 
For example, as the San Francisco District Attorney 
mentioned at oral argument, the distribution of clean 
needles to heroin addicts violates federal law, see 21 
U.S.C. § 863, yet the federal government has not filed 
suit to enjoin the City and County of San Francisco’s 
distribution of such needles. Indeed, HHS recently 
stated that community programs promoting the distri- 
bution of clean needles reduces the spread of AIDS and 
does not encourage drug use. See Health and Human 
Services Press Release, “ Research Shows Needle Ex- 
change Programs Reduce HIV Infections Without 
Increasing Drug Use” (April 20, 1998). From this 
publicly stated position, one could conclude that the 

80a 

federal government will not enforce the drug para- 
phernalia statute in light of local community efforts to 
prevent the spread of AIDS. The Court recognizes that 
local governmental distribution of medical marijuana to 
seriously ill patients raises political issues which may 
not require judicial intervention. 

Attached to this Memorandum and Order is a pro- 
posed form of preliminary injunction in 98-00085. The 
injunction in each case will be identical except for the 
name of the defendants and the location of the dis- 
pensary. The parties are directed to file a written sub- 
mission with this Court by 5:00 p.m. on Monday, May 
18, 1998 as to the form of the order. The Court will 
issue the preliminary injunction shortly thereafter. 

IT IS SO ORDERED. 

[PROPOSED] ORDER 

For the reasons stated in its Memorandum and Order 
dated May 13, 1998, is hereby ORDERED as follows: 

1. Defendants Cannabis Cultivators Club and 
Dennis Peron are hereby preliminarily enjoined, pend- 
ing further order of the Court, from engaging in the 
manufacture or distribution of marijuana, or the pos- 
session of marijuana with the intent to manufacture 
and distribute marijuana, in violation of 21 U.S.C. 

§ 841(a)(1); and 

2. Defendants Cannabis Cultivators Club and 
Dennis Peron are hereby preliminarily enjoined from 
using the premises of 1444 Market Street, San 

81a 

Francisco, California for the purposes of engaging in 
the manufacture and distribution of marijuana; and 

3. Defendant Dennis Peron is hereby preliminarily 
enjoined from conspiring to violate the Controlled Sub- 
stances Act, 21 U.S.C. § 841(a)(1) with respect to the 
manufacture or distribution of marijuana, or the pos- 
session of marijuana with the intent to manufacture and 
distribute marijuana. 

4. It shall not be a violation of this injunction for 
defendant Dennis Peron to seek and obtain legal advice 
from his attorneys. 

IT IS SO ORDERED. 

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APPENDIX H 

UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

Nos. 98-16950, 98-17044, 98-17137 
D.C. No. (C98-00088-CRB (Northern California)) 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE 

v. 

OAKLAND CANNABIS BUYERS’ COOPERATIVE; 
JEFFREY JONES, DEFENDANTS-APPELLANTS 

[Filed: Feb. 29, 2000] 

ORDER 

Before: SCHROEDER, REINHARDT, and SILVERMAN, 
Circuit Judges. 

The panel as constituted above has voted to deny the 
Petition for Rehearing and to deny the Petition for Re- 
hearing En Banc. 

The full court was advised of the petition for re- 
hearing en banc and no judge of the court has requested 
to vote on the petition for rehearing en banc. Fed. R. 
App. P. 35. 

The petition for rehearing and the petition for 
rehearing en banc are denied. 

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APPENDIX I 

1. Section 811 of Title 21 of the United States Code 
states in relevant part as follows: 

Authority and criteria for classification of substances 

(a) Rules and regulations of Attorney General; hearing 

The Attorney General shall apply the provisions of 
this subchapter to the controlled substances listed in 
the schedules established by section 812 of this title and 
to any other drug or other substance added to such 
schedules under this subchapter. Except as provided in 
subsections (d) and (e) of this section, the Attorney 
General may by rule— 

(1) add to such a schedule or transfer between 
such schedules any drug or other substance if he— 

(A) finds that such drug or other sub- 
stance has a potential for abuse, and 
(B) makes with respect to such drug or 
other substance the findings prescribed by sub- 
section (b) of section 812 of this title for the 
schedule in which such drug is to be placed; or 

(2) remove any drug or other substance from the 
schedules if he finds that the drug or other sub- 
stance does not meet the requirements for inclusion 
in any schedule. 

Rules of the Attorney General under this subsection 
shall be made on the record after opportunity for a 
hearing pursuant to the rulemaking procedures pre- 
scribed by subchapter II of chapter 5 of title 5. Pro- 
ceedings for the issuance, amendment, or repeal of such 

84a 

rules may be initiated by the Attorney General (1) on 
his own motion, (2) at the request of the Secretary, or 
(3) on the petition of any interested party. 

(b) Evaluation of drugs and other substances 

The Attorney General shall, before initiating pro- 
ceedings under subsection (a) of this section to control a 
drug or other substance or to remove a drug or other 
substance entirely from the schedules, and after 
gathering the necessary data, request from the 
Secretary a scientific and medical evaluation, and his 
recommendations, as to whether such drug or other 
substance should be so controlled or removed as a 
controlled substance. In making such evaluation and 
recommendations, the Secretary shall consider the 
factors listed in paragraphs (2), (3), (6), (7), and (8) of 
subsection (c) of this section and any scientific or 
medical considerations involved in paragraphs (1), (4), 
and (5) of such subsection. The recommendations of the 
Secretary shall include recommendations with respect 
to the appropriate schedule, if any, under which such 
drug or other substance should be listed. The evalua- 
tion and the recommendations of the Secretary shall be 
made in writing and submitted to the Attorney General 
within a reasonable time. The recommendations of the 
Secretary to the Attorney General shall be binding on 
the Attorney General as to such scientific and medical 
matters, and if the Secretary recommends that a drug 
or other substance not be controlled, the Attorney 
General shall not control the drug or other substance. 
If the Attorney General determines that these facts and 
all other relevant data constitute substantial evidence 
of potential for abuse such as to warrant control or 
substantial evidence that the drug or other substance 

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should be removed entirely from the schedules, he shall 
initiate proceedings for control or removal, as the case 
may be, under subsection (a) of this section. 

(c) Factors determinative of control or removal from 

schedules 

In making any finding under subsection (a) of this 
section or under subsection (b) of section 812 of this 
title, the Attorney General shall consider the following 
factors with respect to each drug or other substance 
proposed to be controlled or removed from the sched- 
ules: 

(1) Its actual or relative potential for abuse. 

(2) Scientific evidence of its pharmacological ef- 
fect, if known. 

(3) The state of current scientific knowledge re- 
garding the drug or other substance. 

(4) Its history and current pattern of abuse. 

(5) The scope, duration, and significance of abuse. 

(6) What, if any, risk there is to the public health. 

(7) Its psychic or physiological dependence li- 
ability. 

(8) Whether the substance is an immediate pre- 
cursor of a substance already controlled under this 
subchapter. 

* * * * * 

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2. Section 812(b)(1) of Title 21 of the United States 
Code states as follows: 

(b) Placement on schedules; findings required 

Except where control is required by United States 
obligations under an international treaty, convention, 
or protocol, in effect on October 27, 1970, and except in 
the case of an immediate precursor, a drug or other 
substance may not be placed in any schedule unless the 
findings required for such schedule are made with 
respect to such drug or other substance. The findings 
required for each of the schedules are as follows: 

(1) SCHEDULE I.— 

(A) The drug or other substance has a high 
potential for abuse. 

(B) The drug or other substance has no 
currently accepted medical use in treatment in 
the United States. 

(C) There is a lack of accepted safety for use 
of the drug or other substance under medical 
supervision. 

87a 

3. Section 823(f) of Title 21 of the United States 
Code states as follows: 

(f) Research by practitioners; pharmacies; research 

applications; construction of Article 7 of the Con- 
vention on Psychotropic Substances 

The Attorney General shall register practitioners 
(including pharmacies, as distinguished from phar- 
macists) to dispense, or conduct research with, con- 
trolled substances in schedule II, III, IV, or V, if the 
applicant is authorized to dispense, or conduct research 
with respect to, controlled substances under the laws of 
the State in which he practices. The Attorney General 
may deny an application for such registration if he 
determines that the issuance of such registration would 
be inconsistent with the public interest. In determining 
the public interest, the following factors shall be 
considered: 

(1) The recommendation of the appropriate State 
licensing board or professional disciplinary author- 
ity. 

(2) The applicant’s experience in dispensing, or 
conducting research with respect to controlled sub- 
stances. 

(3) The applicant’s conviction record under 
Federal or State laws relating to the manufacture, 
distribution, or dispensing of controlled substances. 

(4) Compliance with applicable State, Federal, or 
local laws relating to controlled substances. 

(5) Such other conduct which may threaten the 
public health and safety. 

88a 

Separate registration under this part for practitioners 
engaging in research with controlled substances in 
schedule II, III, IV, or V, who are already registered 
under this part in another capacity, shall not be 
required. Registration applications by practitioners 
wishing to conduct research with controlled substances 
in schedule I shall be referred to the Secretary, who 
shall determine the qualifications and competency of 
each practitioner requesting registration, as well as the 
merits of the research protocol. The Secretary, in 
determining the merits of each research protocol, shall 
consult with the Attorney General as to effective pro- 
cedures to adequately safeguard against diversion of 
such controlled substances from legitimate medical or 
scientific use. Registration for the purpose of bona fide 
research with controlled substances in schedule I by a 
practitioner deemed qualified by the Secretary may be 
denied by the Attorney General only on a ground 
specified in section 824(a) of this title. Article 7 of the 
Convention on Psychotropic Substances shall not be 
construed to prohibit, or impose additional restrictions 
upon, research involving drugs or other substances 
scheduled under the convention which is conducted in 
conformity with this subsection and other applicable 
provisions of this subchapter. 

4. Section 841(a) of Title 21 of the United States 
Code states as follows: 

Prohibited acts A 

(a) Unlawful acts 

Except as authorized by this subchapter, it shall 
be unlawful for any person knowingly or intentionally— 

89a 

(1) to manufacture, distribute, or dispense, or 
possess with intent to manufacture, distribute, or 
dispense, a controlled substance; or 

(2) to create, distribute, or dispense, or possess 
with intent to distribute or dispense, a counterfeit 
substance. 

5. Section 882(a) of Title 21 of the United States 
Code states as follows: 

Injunctions 

(a) Jurisdiction 

The district courts of the United States and all 
courts exercising general jurisdiction in the territories 
and possessions of the United States shall have 
jurisdiction in proceedings in accordance with the 
Federal Rules of Civil Procedure to enjoin violations of 
this subchapter. 

5. Pub. L. 105-277, Div. F, 112 Stat. 2681, 760-761, 
105th Cong., 2d Sess., (1998) states as follows: 

DIVISION F—NOT LEGALIZING MARIJUANA FOR 

MEDICINAL USE 

It is the sense of the Congress that– 

(1) certain drugs are listed on Schedule I of the Con- 
trolled Substances Act if they have a high potential for 
abuse, lack any currently accepted medical use in 
treatment, and are unsafe, even under medical super- 
vision; 

90a 

(2) the consequences of illegal use of Schedule I 
drugs are well documented, particularly with regard to 
physical health, highway safety, and criminal activity; 

(3) pursuant to section 401 of the Controlled Sub- 
stances Act, it is illegal to manufacture, distribute, or 
dispense marijuana, heroin, LSD, and more than 100 
other Schedule I drugs; 

(4) pursuant to section 505 of the Federal Food, 
Drug and Cosmetic Act, before any drug can be ap- 
proved as a medication in the United States, it must 
meet extensive scientific and medical standards 
established by the Food and Drug Administration to 
ensure it is safe and effective; 

(5) marijuana and other Schedule I drugs have not 
been approved by the Food and Drug Administration to 
treat any disease or condition; 

(6) the Federal Food, Drug and Cosmetic Act 
already prohibits the sale of any unapproved drug, 
including marijuana, that has not been proven safe and 
effective for medical purposes and grants the Food and 
Drug Administration the authority to enforce this pro- 
hibition through seizure and other civil action, as well 
as through criminal penalties; 

(7) marijuana use by children in grades 8 through 
12 declined steadily from 1980 to 1992, but, from 1992 to 
1996, has dramatically increased by 253 percent among 
8th graders, 151 percent among 10th graders, and 84 
percent among 12th graders, and the average age of 
first-time use of marijuana is now younger than it has 
ever been; 

91a 

(8) according to the 1997 survey by the Center on 
Addition and Substance Abuse at Columbia University, 
500,000 8th graders began using marijuana in the 6th 
and 7th grades; 

(9) according to that same 1997 survey, youths 
between the ages of 12 and 17 who use marijuana are 85 
times more likely to use cocaine than those who abstain 
from marijuana, and 60 percent of adolescents who use 
marijuana before the age of 15 will later use cocaine; 
and 

(10) the rate of illegal drug use among youth is 
linked to their perceptions of the health and safety risks 
of those drugs, and the ambiguous cultural messages 
about marijuana use are contributing to a growing 
acceptance of marijuana use among children and 
teenagers; 

(11) Congress continues to support the existing 
Federal legal process for determining the safety and 
efficacy of drugs and opposes efforts to circumvent this 
process by legalizing marijuana, and other Schedule I 
drugs, for medicinal use without valid scientific evi- 
dence and the approval of the Food and Drug Admini- 
stration; and 

(12) not later than 90 days after the date of the 
enactment of this Act– 

(A) the Attorney General shall submit to the 
Committees on the Judiciary of the House of Repre- 
sentatives and the Senate a report on– 

92a 

(i) the total quantity of marijuana eradi- 
cated in the United States during the period from 
1992 through 1997; and 

(ii) the annual number of arrests and pro- 
secutions for Federal marijuana offenses during 
the period described in clause (i); and 

(B) the Commissioner of Foods and Drugs shall 
submit to the Committee on Commerce of the 
House of Representatives and the Committee on 
Labor and Human Resources of the Senate a report 
on the specific efforts underway to enforce sections 
304 and 505 of the Federal Food, Drug and Cos- 
metic Act with respect to marijuana and other 
Schedule I drugs.