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Drug Regulation



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




[Filed: Oct. 13, 1998]

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 submitted 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.


On May 19, 1998, the Court issued an order preliminarily 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, California for the purposes of engaging in the manufacture and distribution of marijuana." Upon motion of the plaintiff, and after hearing oral argument and considering 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 Cooperative to Openly Dispense Medical Marijuana for First Time Since Preliminary Injunction - U.S. 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 Cooperative, 1755 Broadway, Oakland."

(2) A declaration from Special Agent Peter Ott that on May 21, 1998, he entered the OCBC in an undercover 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 providing 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 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 showing 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 process." Defendants incorporate all declarations previously 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 defendants 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.

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.



District courts generally do not have the authority to confer use immunity for defense witnesses who invoke the Fifth Amendment privilege against self-incrimination. 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 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 subsequently extended Simmons to a criminal defendant confronted with the dilemma of whether to offer favorable testimony at his bail hearing, which testimony 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 "necessary to vindicate the most fundamental of all constitutional rights, the right of liberty from civil incarceration." 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 between 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. 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 Westerdahl 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. Defendants 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 witness. 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 incriminate 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).


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 between 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 here, unlike the defendants in Swiderski, have not offered any evidence of the literal joint purchase of the marijuana they are alleged to have distributed on May 27, 1998. Defendants contend nonetheless that because the OCBC is operated as a cooperative, 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 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 declarations 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 Controlled 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 defendants here. The Aguilar defendants were charged with violations of the immigration laws, arising from their providing sanctuary to Central American refugees. 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 atrocities committed by Salvadoran, Guatemalan, and Mexican authorities. The only indication that appellants 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 demonstrates 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 identified by plaintiff, putting aside the fact that defendants' own evidence suggests there were as many as 191 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 (emphasis 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 marijuana 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 substantial compliance with the Court's injunction. Under defendants' reasoning, however, a defendant would be excused from complying with the Controlled Substances 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 personal 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 defendants 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 violated the injunction. See Cannabis Cultivators Club, 5 F. Supp.2d at 1100 (holding that the Controlled Substances Act "does not exempt the distribution of marijuana 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.

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 recommended 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.


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 nonetheless argues that the Court should find defendants in contempt without a jury trial because plaintiff's evidence 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 Procedure 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 sanctions 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 contempt 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 contempt 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 affidavits 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]actfinding 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 evidence 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 defendants 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 plaintiff'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 command 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 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 accordance 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 defendants 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 uncontroverted evidence is clear and convincing evidence that defendants violated the injunction and thus are in contempt of May 19, 1998 order.

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 accordingly proposes to modify its May 19, 1998 preliminary 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' Cooperative 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.

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.


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.


Dated: October 13, 1998

United States District Judge


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