Will This Pot Case Get Weeded Out?

The change from Bush to Obama allows an OC couple to use Prop. 215 as a defense against federal drug charges

For the first time in the 14 years since state voters legalized marijuana for medical use, California defendants—in this case, a couple facing 10 years in federal prison for growing marijuana—will be allowed to mention two crucial words at trial: “Proposition 215.” Assuming the case actually goes to trial, a jury will finally have the opportunity to decide whether to tell Uncle Sam to stop wasting taxpayer money going after people who aren’t breaking the law.

The case in question involves Theresa and Steele Smith, owners of a nonprofit collective called C-3 (short for California Compassionate Caregivers) whose lives were turned upside-down on Nov. 1, 2007, when the U.S. Drug Enforcement Administration (DEA) arrested them for growing more than 1,600 marijuana plants at two grow houses in Garden Grove. Together with a disabled patient and a homeless person who happened to be staying with them during the raid, the Smiths spent several months at the Metropolitan Detention Center (MDC) in Los Angeles before being released on bail.

If convicted at trial, scheduled to begin July 27 at the Ronald Reagan Federal Courthouse in Santa Ana, they will spend another decade behind bars, thanks to mandatory-minimum-sentencing rules.

That’s the bad news. The good news? In March, Attorney General Eric Holder announced that the Obama administration would no longer seek to prosecute medical-marijuana providers who obey state law, and in the three years since the Smiths were first indicted, no evidence has surfaced that they were doing anything but strictly following California law.

“We were indicted under [George W.] Bush,” says Steele. “We are the only holdover case on Eric Holder and [President Barack] Obama’s desk. We’re remnant business from a holdover administration, and it’d be easy for them to dismiss our case.”

The journey that brought the Smiths into the crosshairs of the federal government’s war on weed began in July 2001, when Steele was diagnosed with a rare but debilitating disease called Zollinger-Ellison syndrome, which caused 11 bleeding ulcers in his small intestine, resulting in severe pain, nausea and an inability to eat. Steele, who stands more than 6 feet, 6 inches tall, dropped 60 pounds as doctors prescribed him antacids and morphine to kill the pain. Before long, Steele was addicted to the painkillers.

“They handed it out like it was candy,” Theresa says. “There were times they were giving it to him when they knew he was jonesing and they’d give it to him anyway. He was so bad he became a crazed lunatic, an evil person.”

In 2004, Steele underwent the first of a series of detoxification treatments. “It took about two months, and he was clean,” she says. “But he still had pain and couldn’t eat. We researched medical marijuana and went to some dispensaries in LA. After talking to a lot of other patients in Orange County who wanted safe access, we wanted to open one here.”

The nonprofit the Steeles operated began in the dining room of their house in Fullerton in 2005, but C-3 rapidly grew to include 3,000 patients. “We were helping people from all over Southern California,” Theresa says. “We had patients from LA to San Diego, and we had all these people traipsing through our house. We loved our patients, and it was very cathartic to help them, but after your doorbell keeps ringing, you have to get an office.”

The following year, the Smiths moved to an apartment in Placentia, established two indoor cannabis farms at a pair of locations in Garden Grove (one of which was actually the garage below their apartment) and opened an administrative office at a medical building in the city. They hired an accountant, paid taxes and, as caregivers, even received reimbursement from their patients’ insurance companies, all of which, they say, demonstrated their transparent efforts to obey state law.

But in May 2007, Steele and a friend accidentally left their garage door open. “They had just watered the plants, and the door was open 2 feet,” Theresa says. “This was gang territory, and there was a cop doing surveillance in the alley. The next thing we knew, they were up in our apartment.”

The police confiscated 18 marijuana plants, various business records and $1100 in cash, but when they called the Orange County district attorney’s office, the cops were told to not make any arrests. Steele spent 10 hours at the jail thanks to an outstanding traffic ticket, but no charges were filed. In June, after Placentia police refused to return their property, the Smiths filed a $5 million claim against the city.

That same month, a federal grand jury began hearing evidence against the Smiths, who believe the Placentia police called the DEA to investigate them so that the couple, once indicted, would lose their legal right to sue the city. (The DEA’s November 2007 complaint against the Smiths simply states that a confidential informant had told the agency about the couple’s activities, and Thom Mrozek, a spokesman for the U.S. Attorney’s office in Los Angeles, said his agency does not comment on pending cases.) The DEA arrested the Smiths, who immediately lost their legal standing to sue for their confiscated property and went straight to the federal lockup in downtown LA. “It was terrible,” Steele recalls. “The DEA busted down both our doors. They kicked them in, carrying automatic rifles with laser sights and used a fire extinguisher to fog our rooms. We had two Shar Pei [dogs], and one was really old and died. They rousted us from bed and interviewed us on the sofa. We didn’t have much to say other than that we were a medical-marijuana collective and grew for patients.”

Although the DEA’s search warrant states that evidence would be seized proving not only marijuana cultivation, but also sales and money laundering, the Smiths were only charged with growing 1289 marijuana plants. Steele believes this fact bodes well for their trial. “Not only can we mention Proposition 215 in our defense, but this is purely about cultivation,” he says. “It’s a difficult sell for the government to tell the jury we are public enemy No. 1.”

At the advice of their attorneys, they’ve already rejected a plea agreement that would have cut their decade-long sentence in half, and they firmly believe the feds will drop the case rather than risk a costly trial that could backfire.

Defense attorney Eric Shevin agrees with that sentiment but says he’d love to get this case in front of a jury. “This is the first time a judge has even allowed a defendant to use the words ‘medical marijuana,’” he says. “Once the jury understand what’s going on, they can nix the case. My clients were completely in compliance with state law even before the [California] attorney general’s guidelines were released [in 2008] for Senate Bill 420 [the 2003 state medical-marijuana law], which called for an effective plan for affordable distribution. The evolution of the law gives us the advantage. Right now, we are not guilty, and I like being not guilty.”

nschou@ocweekly.com

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