FOR IMMEDIATE RELEASE: July 28, 1999

Contact: Rachel Swain, Tommy McDonald, Dara Colwell, 415-255-1946

First Medical Marijuana Patient & Caregiver to be Convicted for Marijuana Possession and Cultivation Could Face Several Years in Prison After August 6 Sentencing

Woody Harrelson, Defense Lawyers to Call for Reduced Sentence for Patient & Caregiver B.E. Smith at 10:00A.M., July 29 Telephone Press Briefing

• What: Telephone Press Briefing
• When: Thursday, July 29, 1999,10:00 a.m. Pacific Time
• Who: B.E. Smith’s attorneys: Thomas J. Ballanco, David Michael; actor and witness in the trial, Woody Harrelson

(The media should call Communication Works for dial-in information, 415-255-1946)

SACRAMENTO, CA - Vietnam veteran B.E. Smith, the first medical marijuana patient and caregiver to face federal criminal prosecution for growing medical marijuana after the passage of the California Compassionate Use Act of 1996 (passed by 56 percent of voters), could be sentenced to several years in prison on August 6.

Smith was convicted May 21 of the manufacture and possession of marijuana.

His trial was marked by a decision by U.S. District Court Judge Garland E. Burrell Jr. to ban all defenses relating to medical marijuana, caregiving, or Proposition 215, and by an explosive appearance on the witness stand by Hollywood actor Woody Harrelson.

California’s Compassionate Use Act (Proposition 215), offers immunity from state prosecution to designated patients who have a valid doctors’ recommendations and their caregivers (persons who cultivate medical marijuana for distribution to specific patients).

As the California legislature seeks to carve out guidelines for the implementation of Proposition 215, Smith’s case could mark a new stage in the face-off between state and federal authorities over the law - the prosecution of selected ‘caregivers,’ and the silencing of any arguments relating to California’s medical marijuana statute.

Before the trial, the U.S. government filed a motion to outlaw defense arguments relating to Proposition 215, medical necessity, advice of counsel, substantive due process and entrapment by estoppel. U.S. District Court Judge Garland E. Burrell, Jr. granted all of the government’s motions, and as a result, the jury just heard one argument in Smith’s defense: Smith was of good character.

The jury was not permitted to hear that Smith grew only medical marijuana for himself and for patients for whom he was the designated caregiver, all of whom had doctors’ recommendations which were prominently displayed on a plywood board in the yard where his pot plants grew.

"It was insane. This man was following the letter of California law and growing medical marijuana for documented patients, including himself," said Thomas J. Ballanco, Smith’s attorney. "But when the judge placed severe limits on what we could say, we were left with next to nothing to defend our client."

The case gained media attention when sparks flew during Harrelson’s testimony. Judge Burrell threatened Harrelson with jail following a terse exchange where Harrelson pointedly asked the judge, "I’m just wondering why you’re keeping the truth from the jury.... How can you sleep at night?"

Smith, 52, suffers from severe Post Traumatic Stress Disorder after serving two tours of duty on the frontlines in the Vietnam War. After struggling with his condition for many years, Smith obtained a prescription for medical marijuana when Californians passed Proposition 215 in 1996.

Smith later established himself as caregiver to nine other patients - including a Sickle Cell patient from South Central Los Angeles, and at least one person with AIDS. A vocal proponent of Proposition 215, Smith told the media and local authorities about his intent to grow medical marijuana, and meticulously documented his activities for the benefit of local law enforcement.

Smith’s lawyers believe he was singled out for prosecution because he talked publicly about what he was doing.

Although Smith has no past convictions, Burrell revoked Smith’s bail and remanded him in custody until his Aug. 6 sentencing hearing. Smith’s attorneys say they have strong grounds for an appeal and a reduced sentence based on Smith’s intentions, his own medical history and the ‘skewed’ process of his trial.

"The picture that was presented during the trial was a strange distortion of what really happened," said Tim Zindel, a public defender who was present throughout the trial. "It was very unfortunate."

B.E. Smith: Compassionate Caregiver or Common Criminal?

This wasn’t a movie. Harrelson was testifying for a friend who was the defendant in a trial that was stranger than fiction.

The case of B.E. Smith marked the first criminal prosecution of an individual who claimed to be a ‘caregiver’ under California’s Compassionate Use Act. B.E, Smith grew marijuana for 10 patients - all of whom had doctor’s recommendations.

But the jurors who convicted him never heard that. They only knew that B.E. grew pot. The reason? B.E. Smith’s defense attorneys were never allowed to make their case.

On May 21, 1999, B.E. was convicted in federal court of marijuana possession and cultivation and could face up to nine years in jail. Before he is sentenced on August 6, the full story of United States vs. B.E. Smith deserves to be told.

Who is B.E. Smith?

The story that led to B.E.’s conviction began more than 30 years ago - in Vietnam. Just 17 years old when he volunteered for two tours of combat duty with the 25^th Infantry Division, B.E. rose swiftly through the ranks. But when he returned to the U.S. as a decorated veteran, Platoon Sergeant Smith was suffering from Post-Traumatic Stress Disorder.

With his wife, Mary, B.E. settled in Denny, a remote forest outpost in Northern California’s Trinity County. He worked for a while as a logger, did a stint as a talk-show host, and later, carved out a life as publisher of a ‘constitutionalist’ newspaper. B.E. often complained that big government was trampling on Americans’ individual rights.

For a while, B.E. drank to blot out the pain and nightmares that haunted his sleep, but in 1972, he discovered a more effective alternative - medical marijuana. So in 1996, when California voters passed Proposition 215, and legalized medical marijuana, B.E.’s chiropractor wrote him a prescription for pot - and that’s where the next chapter in B.E.’s life began.

Why was B.E. growing medical marijuana, and for whom?

None of them told him it was a bad idea.

As B.E. talked to the media about his one-man mission to enforce the Compassionate Use Act, his vocal campaigning drew the attention of federal officials. It also brought B.E. some unlikely new friends.

Sister Samaya, a Sickle Cell patient from South Central L.A., wrote B.E. as soon as she heard about him. Samaya, who endured severe cramps and pains as a symptom of her condition, wanted to know if B.E. would become her caregiver. Samaya had a doctor’s recommendation to use medical marijuana. But, in South Central, there was nowhere to grow it.
(Marijuananews note: Sister Samaya is a plaintiff in the medical marijuana class action suit.)

B.E. consented - and in time expanded his caregiving responsibilities to include nine other patients, including one person with AIDS.

As his pot farm grew to include 87 plants, B.E. meticulously documented his activities. A large plywood board in his front yard proclaimed Medical Marijuana Garden: Armed Response Call Trinity County Sheriff’s Office. Pinned to it were the doctor’s recommendations that explained the purpose of every pot seedling on his one-acre yard.

Why was B.E. prosecuted?

As B.E. tended to his plants, U.S. Forest Service Officers, tipped off by the local D.A., skulked in the woods near his home, camcorders at the ready. For three months, they watched B.E.’s yard, gathering evidence against him and a dossier of his statements about medical marijuana. The surveillance operation cost tens of thousands of taxpayer dollars, but still, no officers advised B.E. that what he was doing might be illegal.

On September 24, 1997, the government pounced. Federal Officers tore through B.E.’s house, searching his property and destroying his plants. Two months later, U.S. Attorney Nancy Simpson indicted B.E. Smith and his landlord, Martin Lederer, for conspiracy, manufacturing and possession of marijuana.

B.E.’s defense attorneys were sure that B.E. was singled out because of his public statements. Citing a law that forbids the selective prosecution of someone based on that person’s execution of a constitutional right, they filed a motion to force the government to hand over the documentation on their decision to prosecute.

The defense also believed that B.E. was picked because of where he lived. A Sacramento jury would be more likely to convict a marijuana-growing caregiver than a San Francisco jury - and this was the first case they could remember of someone in Northern California being prosecuted under federal law for under 100 plants. They were sure B.E. was being made an example of because of who he was.

Their motion was granted by a U.S. Magistrate.

Enter U.S. District Judge Garland E. Burrell Jr. When the government appealed the disclosure motion, it went to Burrell, who would later preside over the trial. The Judge overturned the ruling and to this day, the documentation on the federal government’s decision to prosecute remains under wraps.

This was just the start. From then on, defense attorneys say, Judge Burrell, at the government’s behest, systematically quashed every argument B.E.’s defense team had - before they could bring them before the jury.

What were the defenses that were never heard?

B.E.’s attorneys had prepared what they thought was a strong defense for their client. They reasoned that B.E. could end up going to jail - but that his story would resonate with the jury and the Californian public. As the first medical marijuana patient and caregiver to face criminal prosecution, they figured, B.E. would put a human face on the growing struggle between state and federal sovereigns over medical marijuana. They also wanted to have the chance to show the jury that B.E.’s medical marijuana relieved pain and suffering.

But B.E.’s place in history depended on these key defenses being heard:

• Medical Necessity: The team wanted to argue that it is necessary for the people whom B.E. served as caregiver to have access to medical marijuana because it is the only medicine that alleviates their suffering, or keeps them alive.
• Substantive Due Process: This invokes the patients’ constitutional rights, arguing that their right to treat their own illness with a medicine that works overrides other laws prohibiting their use.
• Entrapment by Estoppel: If a defendant ‘reasonably’ relies upon the authority of a government official before doing something that would normally be illegal, that creates an absolute defense by removing criminal intent. Silence of a government authority who knows that someone plans to do something illegal, is normally considered grounds for an Entrapment by Estoppel defense. B.E. told numerous local officials, including the Trinity County District Attorney, who also serves as a federal official, of his intent to become a caregiver. None of them advised him that he could face prosecution.
• Reliance on Advice of Counsel: When an attorney has advised a defendant that what he plans to do could be legal under federal law, and the defendant has no reason not to believe their attorney, there are usually grounds to argue Advice of Counsel - another absolute defense.

Why wasn’t the defense able to make its case?

Before trial began, government attorneys filed a motion to outlaw any defenses relating to Proposition 215. Their argument was simple: Since this is a federal case, and federal law does not recognize that marijuana has medicinal value, those defenses are inadmissible.

No one doubted that the prosecution had a case. But the U.S. Attorneys went one step further - they made a motion to exclude any evidence offered by the defendants relating to Prop. 215. Their intent? To bar the terms ‘medical’, or ‘medicinal marijuana,’ ‘Proposition 215’, and ‘caregiver,’ from the courtroom.

Judge Burrell could have allowed the defense to make its case and instructed the jury that federal law trumps California law. Instead, he granted the government motion, thereby erasing any mention of medical marijuana or B.E.’s intentions from the trial. In a move that surprised the defense attorneys and other lawyers who followed the case, Judge Burrell also declined to allow the jury to hear the Entrapment by Estoppel and Reliance on Advice of Counsel defenses.

For the jury, this historic case was reduced to a simple question: Did B.E. manufacture and possess marijuana, or not? The evidence that he did was overwhelming. The defense was reduced to one simple argument: B.E. is a nice guy who shouldn’t go to jail.

The jury never heard about Sister Samaya’s struggle with Sickle Cell, the patient with AIDS, or B.E.’s plywood sign with its doctors’ recommendations flapping in the breeze.

Who are the key players in this courtroom drama?

• The Judge: A Bush appointee, and the first African American Judge in the 34-county Eastern California district, U.S. District Court Judge Garland E. Burrell Jr. is generally regarded as conservative, deliberate and fair. But Burrell’s pet hate is marijuana. After denying bail to B.E Smith, Burrell railed against marijuana, calling it an ‘evil’ gateway to "violence, gangs and the destruction of families and communities."
• The Prosecutor

U.S. Attorney R. Steven Lapham took over the trial after Nancy Simpson fell ill. Lapham, who hit the national spotlight when he convicted Unabomber Theodore Kaczynski, has worked as a federal prosecutor in Sacramento since 1987. Lapham has been described as confident, calm and unflappable - a prosecutor with an impressive track record of convictions and "a lot of common sense."

• The Defense Attorney

Thomas J. Ballanco graduated from the United State Military Academy at West Point in 1989. After the Persian Gulf War he left the military to explore how the U.S. might avoid future wars over natural resources. Ballanco discovered the potential of industrial hemp, and soon enrolled in law school, where he drafted the first Colorado Industrial Hemp Production Act. Ballanco also studied the legislative history of marijuana, and now specializes in defending medical marijuana cases.

• The Co-Defendant’s Attorney

Tim Zindel was assigned to defend B.E.’s landlord, Martin Lederer, who pled guilty to possession and manufacture of marijuana (Lederer never claimed to be growing marijuana for medical use). Zindel watched B.E.’s trial from the gallery, and observed the growing friction between the hamstrung defense and the increasingly angry Judge. Zindel describes the trial as "extremely painful to witness."

• The Legal Expert and Defense Attorney

David Michael is a partner with San Francisco-based Serra,Lichter, Daar, Bustamante, Michael & Wilson, the leading medical marijuana defense firm in the country. Michael has represented numerous medical marijuana defendants, and is currently representing Todd McCormick in the largest federal medical marijuana prosecution in the country. Michael previously litigated a leading drug forfeiture case up to the U.S. Supreme Court. Michael was prepared to act as a legal expert for B.E. Smith’s Advice of Counsel defense, and has pending before another federal court the argument that medical marijuana is not subject to prosecution under federal law. Michael was limited by the court to merely providing character testimony for Smith, and has now joined his defense team.

Where does Woody Harrelson fit in?

Hollywood actor Woody Harrelson met former logger B.E. Smith at an environmental rally in 1997. The two clicked almost immediately. Both men who cared about the planet, common law, and individual rights, they talked at length about the constitution and governmental power.

So when Harrelson heard about B.E.’s trial, he stepped forward as a character witness. Like B.E.’s friends, family and defense team, Harrelson was dismayed by what he saw as a skewed portrayal of his friend as a common criminal. On the stand, Harrelson tried to talk about medical marijuana - but the Judge gagged him. This stop-start process led to fireworks on the stand. "I’m wondering why you won’t let the jury hear the truth?" asked Harrelson, as Burrell threatened to jail him for contempt of court. "How can you sleep at night?" he shot back at the judge as he stepped off the witness stand.

Why is this case so important?

This is the first federal criminal prosecution of an individual caregiver who claimed to be cultivating and distributing cannabis in compliance with California’s Compassionate Care and Medical Use Act. The only marijuana that B.E. grew was medical marijuana that he says was for himself and other documented medical patients.

As well as marking a new stage in the face-off between state and federal authorities on medical marijuana, this case could set a legal precedent.

It raises some important legal and ethical questions, including:

• Should someone be sent to a federal prison for growing medical marijuana for qualified patients in compliance with the laws of their state?
• Should that person be convicted if law enforcement authorities had led them to believe that their actions were not illegal?
• And, above all, does such a person have the right to have a jury hear their defense?

How is this case different from the cannabis clubs?

The federal prosecution of the cannabis clubs were civil cases. The government sought injunctive relief by forcing clubs to close, arguing that they constituted a public nuisance. No criminal charges were brought against the individuals who distributed or purchased cannabis at California’s clubs. Distribution through cannabis clubs is not generally recognized under California medical marijuana law.

What’s next for B.E. Smith?

B.E. Smith, now 52, was convicted of manufacture and possession of marijuana on May 21, 1999. In a surprise move that highlights the tension between the Judge and the defense, Burrell revoked B.E.’s bail, and remanded him in custody until his sentencing hearing on August 6, 1999.

Under sentencing guidelines, B.E. is likely to face between ten months and two and a half years in prison. If Judge Burrell grants the government’s request to adjust his sentence upward - which the defense attorneys fear may happen given the Judge’s apparent antipathy toward their client -B.E. could face as many as eight or nine years behind bars.

B.E.’s attorneys will argue on August 6 that B.E.’s intent to implement Proposition 215, as well as his psychological health, should be considered during sentencing. They will argue that B.E. should receive a reduced sentence because he never sought to profit from marijuana, but only to provide medicine to himself and to other patients in accordance with state law. They are also preparing to file an appeal.