10 Pounds of Pot Puts Couple in Court, Spurs Prop. 215 Debate





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A case of two Berkeley residents facing felony charges for possession of marijuana is raising legal questions about the limits of medicinal pot use.

The preliminary hearing for 27-year-old Michael Fenili and his girlfriend, 24-year-old Celina Perez, was postponed in Berkeley Municipal Court Wednesday when a necessary prosecution witness was unavailable to testify.

In the meantime, supporters are claiming the defendants were delivering the marijuana to patients at an East Bay cannabis club.

Fenili and Perez were arrested near People's Park in late March when police searched Fenili's van, turning up more than 10 pounds of marijuana. Fenili is being charged with possession of marijuana with intent to sell.

An unnamed state expert, unavailable for testimony at Wednesday's hearing, was expected to testify as to whether or not there is reasonable cause to believe the marijuana was intended for sale, said Assistant District Attorney Colleen McMahon.

But leaders of First Hemp Bank, an Oakland-based marijuana distribution club, say Fenili was in the process of distributing the marijuana to critically ill patients. Lawyers for Fenili and his co-defendant argue that their clients are protected by Proposition 215, the 1996 Compassionate Use Act, which ensures that "seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate."

In what is being a called a bold move, First Hemp Bank co-founder David Clancy has intervened in the case to claim that the confiscated marijuana actually belongs to him and not to the defendants. The First Hemp Bank and its subsidiary, the Buzzy Linhart Medical Foundation, are organizations licensed by the city of Oakland to issue medical marijuana to their members.

"Fenili works for us as a horticulturist of medical healing herbs, one of which is cannabis," said D. Xeno Rasmusson, a health consultant for the foundation who has a doctorate in biopsychology and works as a health and science consultant for the foundation

The Buzzy Linhart Medical Foundation has 46 members, 30 of whom are patients suffering from cancer, AIDS and other illnesses that cause chronic pain. Fenili is one of the foundation's 16 care providers, the consultant said.

Jamie Elmer, Fenili's lawyer, said 22 members of the foundation had planned to use Wednesday's hearing to testify that the marijuana found in Fenili's possession was theirs.

"It is important for us to go into the superior court with this information part of the record so they know this is a case where witnesses are willing to come and put their names on the line as being medical marijuana users," Elmer said.

Rasmusson said this is the first time the foundation has stepped forward to testify in a court case.

"It is a bold move, but these are steps that must be taken to enact the new social policy created in 1996 by Proposition 215," he said.

Defense attorneys intend to prove that Fenili was serving as a "primary caregiver" under the Compassionate Use Act. Despite the fact that Californians overwhelmingly passed Proposition 215, its practical application has come up against strong resistance.

Proposition 215 is meant to "ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction."

But the proposition is less clear as to what exactly constitutes a "primary caregiver."

"That is the rope here - whether or not an organization can be designated primary caregiver," Elmer said. "And the statutes haven't looked too kindly on the marijuana distribution networks. Either everybody, by virtue of their relationship to the Hemp's network, is equally responsible - has an equal right to do all the things that go along with possession - and are therefore all primary caregivers or none of them are."

Elmer said that his client is not willing to engage in settlement discussions given the defense.

"The defense is pretty much all or nothing," he said. "They feel pretty strongly that this wasn't a crime and are willing to go to the mat, so to speak."

One of the points the defense will have to account for is the quantity of marijuana found. But Elmer said the quantity is irrelevant as long as patient numbers justify it.

"We have 10 pounds here and at least 22 patients," Fenili said. "I assume that this is a very major portion of their medical marijuana at that time which is why Mr. Clancy was so anxious to get it back."

Clancy filed a motion Wednesday to reclaim the confiscated marijuana "property" to distribute it to patients in the First Hemp network. In June, a similar motion was denied by the same judge that presided over Wednesday's hearing.

Local cannabis clubs have come up against severe criticism from federal law enforcement agencies since Proposition 215 passed. Oakland cannabis clubs were ordered to close by U.S. District Court Judge Charles Breyer in 1998.

But in July, Breyer reversed his earlier decision ruling that Oakland's Cannabis Buyers' Cooperative could once again distribute marijuana to patients for whom there is no better remedy.

Elmer acknowledged, however, that the case was tough given the law and the way the courts have been dealing with it.

"I am not sure how much (the ruling) is going to apply here, but certainly some of the federal decisions had been used to justify striking down the clubs on the state level," he said.

The preliminary hearing was rescheduled for Sept. 6 at 9 a.m.

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