10/5: 2:15pm S.F. Federal Court Support and witness for Robert "Duke" Schmidt

Robert "Duke" Schmidt has a hearing related to
Research materials seized by the DEA from his home at
the time of his arrest. Before and after Pictures from
his property:

http://genesis129.hempusflag.com/

He told me he had been seeking a patent on a method
for isolating the THC molecule from Cannabis. He
states at least part of the method is being used by
G&W Pharmaceuticals in England to produce Sativex.
Bayer has applied for distribution rights in the US.
Mr. Schmitd is seeking 3 to 5 thousand dollars to pay
his patent attorney to reapply for patent rights. You
may contact me (Richard Muller) for contact
information if interested in helping him establish
that patent.

http://www.gwpharm.com/sativex.asp

The materials seized by the DEA in part, are important
for the completion of his amended application for a
patent. Robert tried to establish standard strains
that would be condition specific for Medical Marijuana
Patients and the DEA seized these research materials,
(including seed stock that other Pharmaceutical
companies have already applied for patents on the same
particular strains of marijuana) and is keeping it
from being used. Please bear witness to his hearing
as he was one of the first to try to get the DEA to
allow clinical materials for many strains and in part
that is why he was targeted. I have a County dental
appointment at Highland (impossible to get). I usually
go to the events I mention; unfortunately I will be in
Oral surgery this time. I hope you will support
Robert, as he has tried to help and support patients
for many years. Below is a story by Fred Gardener that
describes the plight of many growers of Medicinal
Cannabis, the proud, the few, the punished. Now, he
is going to jail, for 41 months for trying to do the
right thing. It is his intention to file a motion
while at this hearing as described at:

http://commonsenselaw.com/


Attorney Allison Margolin's motion in U.S. v. Landa
to
Dismiss Charges for Lack of Agency Jurisdiction

The precedent upon which the federal government’s
ability to govern interstate commerce, Wickard v.
Filburn, 317 U.S. 111, is premised upon the fact that
the plaintiff in that case registered in a federal
program; because defendant never took advantage of a
federal program, and because there is no federal
program regulating medical marijuana, the Wickard
basis of jurisdiction is inapplicable here.

Wickard v. Filburn, 317 U.S. 111 (1942), is often
considered to be the controlling precedent upon which
Congress has relied to expand the definition of
interstate commerce. The common notion is that nearly
any aspect of commerce can be regulated if a piece of
wheat could be governed by the federal government. In
fact, in that case, the federal government had
developed a subsidy system to help farmers in a
particular field, that of wheat farming. One farmer,
the plaintiff in the Wickard, 317 U.S. 111, filed a
complaint asking to enjoin enforcement of the
Agricultural Enforcement Act. The Act set up quotas
for farmers and imposed penalties for farmers who
while taking advantage of the federal subsidies dolled
out by the agency, wanted to be immunized from the
penalties associated from not following the conditions
required to take advantage of these benefits.
There is no federal government organization regulating
medical marijuana. Therefore, the federal government
lacks the jurisdictional basis asserted in Wickard,
317 U.S. 111. As the Wickard court wrote,
acknowledging the role the plaintiff had in bringing
about federal jurisdiction over his activity, “We can
hardly find a denial of due process in these
circumstances, particularly since it is even doubtful
that appellee’s burdens under the program outweigh his
benefits. It is hardly lack of due process for the
Government to regulate that which it subsidizes.” 317
U.S. 111 at 130.

==================================================
July 9 / 10, 2005
Pot Shots
Sentencing Season

By FRED GARDNER

Robert "Duke" Schmidt has been sentenced to 41 months
in federal prison for growing and distributing
marijuana. U.S. District Judge Charles Breyer meted
out the terms in his San Francisco courtroom July 7.
Schmidt reports to the Bureau of Prisons Sept. 1. He
is one of about 30 West Coast medical-marijuana
growers, distributors and/or users whose cases had
been put on hold pending the U.S. Supreme Court's
ruling in Gonzales v. Raich.

Schmidt first appeared before Breyer in March 2003,
soon after Ed Rosenthal's widely publicized trial.
Although Rosenthal had faced similar charges, he
received a one-day sentence, time served. What was
different about Schmidt's case?

In 1999, Schmidt had founded a non-profit dispensary,
Genesis 1:29, which he ran out of his home in
Petaluma. As membership grew, he supplemented his
homegrown with cannabis produced at other sites.
Schmidt says his goal was to develop standardized
plant strains with known cannabinoid contents and
study their effects on patients with various
conditions. As he put it in one of several
applications filed with the U.S. Drug Enforcement
Administration, "It is the intent of Genesis Research
Group to develop well characterized drug substance and
document patient input to develop efficacy
correlations between the chemical components of the
cannabis plant for different clinical indications."

Schmidt was inspired to seek DEA approval after
learning about Registration Form 225. "It's an
application to manufacture and distribute scheduled
drugs," explained Schmidt in a March 2003 interview.
"I filed an application, and the DEA issued me a
receipt." Schmidt said he also informed the state
Attorney General's office of his activities. "For
three seasons I told them in advance what I was going
to plant, I updated them during the growing season,
and I reported how much I harvested."

The DEA raided Schmidt's house in the early morning
hours of Sept. 12, 2002. Schmidt, a small, wiry man in
50s, attempted to wrestle the rifle away from the
agent who had awakened him with a prod of the barrel
-for which he is also charged with assault on an
officer in the line of duty. "My post-traumatic stress
disorder is triggered by having guns pointed at me,"
said Schmidt, "especially when I'm woke up with one in
my face." The DEA also confiscated 2,600 plants from a
site Schmidt leased in Sebastopol.

The jury that found Ed Rosenthal guilty of cultivation
(as well as conspiracy and maintaining a grow-op)
determined the amount to be not 3,000+ plants, as
alleged by the feds, but fewer than 100, which carried
"only" a five-year mandatory minimum. Ed's lawyers had
challenged the number of rooted plants seized at his
warehouse, and the definition of a viable plant. But
whereas Ed was growing cloned seedlings, Schmidt was
growing big, healthy outdoor plants. "The place looked
like a Christmas tree farm," he recalled with some
pride. Ed, by dint of his savvy and status as a
writer/publisher, and his connections, and his
fundraising ability, and his family and extensive
support system, had unique resources to bring to his
court fight. Also, Ed was a nonviolent first offender,
somebody about whom jurors could declare, "Ed
Rosenthal is not a criminal."

"Duke" Schmidt, however, did not have a middle-class
aura or a private-sector lawyer, and he had, in fact,
done time in federal prison. Schmidt was born and
raised on Put In Island in Lake Erie. His father was a
tugboat captain, then a boatbuilder. "Boats were
second nature to me," says Schmidt. "The sea, no
matter how bad it got in a storm, I knew how to work a
boat through it." He was turned on to marijuana in the
late '60s by Midwest college students vacationing at
Great Lakes resorts. He helped ferry a few of them to
Canada (instead of Vietnam). Somebody suggested that
his skills could be put to use bringing marijuana in
from Colombia, and he eventually did, making regular
runs to Florida and Louisiana. "It was a mistake of
youth and I know it, and I've paid my debt to
society," said Schmidt in '03. "All I can say in my
own defense is that I was offered a lot of money to
run guns, and more money to run cocaine, to run
heroin, and I always turned it down. My interest was
always marijuana."

Schmidt remembers the Paraquat days: "In 1978 there
was more than 12 million acres of land in South
America growing the finest cannabis sativa. One
morning when we were loading up and getting it ready
for transport to the coast, we noticed a lot of
American C-140 aircraft flying overhead. Then the sky
became orange, the whole valley was orange with the
defoliant they were dropping. We had a DC-3 there and
the wings were so heavy with this spray that it would
not lift off. We pulled our t-shirts over our heads,
we grabbed what stuff we had baled up, and we made it
to the coast. It took us four days overland. When I
got back to the United States I asked, 'When did we
declare war on Colombia?' Everybody was wondering what
I was talking about... That area now is all heroin
fields and coca fields."

Schmidt pled guilty to bringing in 2,780,000 pounds of
marijuana between 1973 and '78. He did only two years
at a federal penitentiary in Michigan because he could
trade something the government wanted: knowledge of
how he had avoided them on the high seas. (He had a
scanner monitoring every Coast Guard cutter, and when
they headed into port, he shot over their wake.)

Given his prior conviction and facing a mandatory
minimum of 20 years, Schmidt accepted the federal
public defender's advice and pled guilty before Breyer
to a charge of maintaining a place for the manufacture
of marijuana, which carried a five-year maximum. The
sentencing phase was put off until the Raich decision
came down. Schmidt expresses no animosity towards
Breyer. "I was hoping for less time, of course," he
said July 8, "but his hands were tied. Judges don't
have much leeway, even under the Booker decision."
Schmidt has no forgiveness for his prosecutors, who,
he says, "made false allegations, including that I had
children working for me." Schmidt, a true believer,
reiterates his original rationale for Genesis:129 -de
facto approval from the DEA. "I registered with the
federal government and they cashed my check for three
years. This is what I get for complying with the law.
This is an allowable issue, otherwise the University
of Mississippi wouldn't be growing marijuana and the
University of Massachusetts wouldn't be arguing for
the right to do so with help from the ACLU. I was
trying to run a bona fide research facility with 1500
patients. The federal government has seven patients
left in their research program. Who had the broader
platform?"



Support Requested

Among the defendants whose cases will move forward now
that the Supreme Court has ruled on Raich are two
growers who were released from prison pending the
outcome, Bryan Epis and Keith Alden. Epis, who helped
launch a dispensary in Chico after Prop 215 passed in
1996, was convicted in September '02 of cultivating
more than 1,000 plants. He was given a 53-month
sentence by U.S. District Judge Frank Damrell. He
served 22 months before the U.S. Ninth Circuit Court
of Appeals directed that he be let out on bail. Epis
will be re-sentenced bu Damrell August 1. The U.S.
Attorney's office is asking that the full sentence be
re-imposed. Attorney Brenda Grantland is hoping that
letters from people who know Epis will convince
Damrell that her client "is not a typical commercial
pot grower." She's also urging medical cannabis users
who can give concrete examples of its efficacy to
write The Honorable Frank C. Damrell, Jr., U.S.
District Court, 501 I Street, Suite 4-200, Sacramento,
CA 95814.

Keith Alden of Windsor (Sonoma County) served 20
months of a 44-month sentence for cultivation before
being released on bail in April 2004. His sentence is
on appeal before the 9th Circuit. Letters of support
for Alden should go to Cathy Catterson, Clerk of the
Court, U.S. Court of Appeals Ninth Circuit, P.O. Box
193939, San Francisco, CA 94119. Form letters are
available at http://www.commonsenselaw.com

WAMM -the Wo/Men's Alliance for Medical Marijuana, a
Santa Cruz collective whose directors, Mike and
Valerie Corral, were arrested by the DEA in September
2002- will hold a march July 16 as "a preemptive
attempt to influence the perception of the federal
government." Supporters are invited to assemble at 11
a.m. at the corner of Pacific and Cathcart streets.

For details contact Mimi Hill (831) 425-0580 or visit
http://www.wamm.org. WAMM is hoping for a serious show of
support -1,000 people or more. Be there or be in DARE.

Fred Gardner can be reached at journal [at] ccrmg.org


http://www.counterpunch.org/gardner07092005.html