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LITIGATION

  • by David Holland, Executive Director of Empire State NORML April 2, 2020

    Marijuana LawsJohn Knock, now 72 years old, has been in custody and already served 24 years towards his interminable bit of two life sentences plus twenty years for his first offense and involvement in a non-violent marijuana distribution conspiracy.  Those draconian sentences were handed down in the year 2000 by the District Court of the Northern District of Florida. Since those harsh sentences were handed down, 33 states have legalized the sale of cannabis in some form and 11 states and the District of Columbia have legalized it’s adult-use.

    In a recent motion filed by Empire State NORML Executive Director and NLC member, David C. Holland, Esq., relief for Knock is being sought from the federal sentencing District Court under the First Step Act. You can find the materials here: www.hollandlitigation.com/resources/

    This motion was filed after the Warden’s untimely rejection of John’s request for compassionate release based on his age, deteriorating health, and changes in the enforcement of the federal Controlled Substances Act and modern sentencing trends.

    Holland argues that Knock’s extreme sentences were the result of the “trial penalty” or sentencing enhancement for having forced the Government to go to trial to prove its jurisdiction over the case and the quality of the co-conspirator/cooperating witness evidence against him. Others charged in the same conspiracy, who pled guilty rather than proceed to trial, were released with sentences as low as 3 years. Knock’s motion argues that the sentences were driven by a vindictive government and the inflexibility of the mandatory federal Sentencing Guidelines which militated life sentences. Holland further argues that since that time, the Sentencing Guidelines have become advisory and that federal sentencing policies have become far more lenient due to state based commercial albeit federally illegal marijuana distribution programs. Graphs and charts developed by the U.S. Sentencing Commission readily demonstrate that modern day first time offenders receive average sentences below 10 years – which is nearly 2 ½ times less than Knock has already been behind bars.

    The motion also charts out that notorious marijuana dealers involved in other distribution conspiracies, including Howard “Mr. Nice” Marx, faced or actually received moderate sentences of 10 years or less for pleading guilty to charges despite being dubbed “the world’s largest distributor” or having engaged in the “world’s biggest” conspiracies.

    Knock’s First Step Act motion argues that the time has come for District Courts to immediately reduce the sentences of lifers like him in order to reverse the ‘trial penalty’ and to fall into line with modern sentencing trends.  In Knock’s, he seeks to be resentenced to time served.  Given the government’s modern tolerance of state cannabis programs, more lenient sentencing trends, and empowerment of the federal District Court’s to entertain such humanitarian motions after all other post-conviction and administrative remedies has failed should prompt the Northern District of Florida to grant the motion and release John Knock before COVID-19 becomes a serious threat and causes his untimely and unnecessary demise.

    This motion echoes the words of Michael Kennedy, John’s trial counsel: “No one should do life for pot!” Hopefully the District Court will finally hear them.

  • by Paul Armentano, NORML Deputy Director January 14, 2020

    The New Jersey Superior Court has affirmed that an employee is eligible to have his medical marijuana costs reimbursed by his employer.

    Justices rejected the contention that cannabis is ineligible for reimbursement under the state’s workers’ compensation laws because it is illegal federally, opining, “Because we conclude the order does not require [employers] to possess, manufacture or distribute marijuana, but only to reimburse petitioner for his purchase of medical marijuana, we discern no conflict between the CSA (federal Controlled Substances Act) and MMA (the New Jersey Compassionate Use Medical Marijuana Act).” They further argued that the plaintiff’s use of medical cannabis to treat his chronic pain arising from a work-related injury was both “reasonable and necessary.”

    The New Hampshire Supreme Court issued a similar ruling last year, as have lower courts in several other states, including Connecticut, Maine, Minnesota, and New Mexico.

    The case is Hager v. M&K Constriction, Docket No. A-0102-18T3. The decision is online here.

  • by Paul Armentano, NORML Deputy Director August 2, 2019

    Marijuana Indoor GrowingA federal court has ordered the Drug Enforcement Administration to respond to a lawsuit charging the agency with failing to move forward with a 2016 policy to expand the total number of federally licensed marijuana cultivators.

    In August 2016, Drug Enforcement Administration officials adopted a policy “to increase the number of entities registered under the Controlled Substances Act (CSA) to grow marijuana to supply legitimate researchers in the United States.” To date, however, the agency has neither affirmed or denied any of the 26 applicants that have sought the DEA’s permission for a federal cultivation license.

    (Read NORML’s new op-ed, “Three years ago the DEA said they would remove roadblocks to cannabis research — they still haven’t, here.)

    In June, one of those applicants – the Scottsdale Research Institute – filed a petition in the US Court of Appeals for the District of Columbia for a writ of mandamus to order the DEA to comply with its 2016 policy, arguing that the agency has engaged in unreasonable delays. On July 29, the Appellate Court ordered the DEA to provide a written response to the filing within 30 days.

    “While most states recognize that cannabis has medical value, the DEA says otherwise, pointing to the absence of clinical research. But at the same time, government regulations and bureaucracy prevent researchers like SRI from ever doing the clinical research the DEA has overtly demanded,” SRI Principal Investigator Dr. Sue Sisley said. “[This filing is] asking the court for an order compelling the DEA to process our application. We hope that this … encourages the DEA not only to process our application, but to process the applications of others, so that we can all continue to do important research into the safety and efficacy of cannabis for treatment resistant illnesses.”

    Since 1968, the agency has only licensed the University of Mississippi to engage in the growing of cannabis for FDA-approved clinical research. Scientists familiar with the product have consistently said that it is of inferior quality and fails to accurately reflect the types of marijuana varieties commercially available in legal states.

    Additional information regarding the SRI petition is available online here.

  • by Paul Armentano, NORML Deputy Director April 26, 2019

    Marijuana LawsThe warrantless search of a passenger’s personal property during a traffic stop is unconstitutional, according to a ruling by the Michigan Supreme Court. The judgement overturns a 2007 decision that barred passengers from challenging similar searches by members of law enforcement.

    Justices unanimously opined that the driver’s voluntary consent to allow the police to search her vehicle did not extend to the passenger’s personal belongings. They determined: “In this case, defendant had a legitimate expectation of privacy in his backpack. Defendant asserted a clear possessory interest in his backpack by clutching it in his lap, and the officer believed that the backpack belonged to defendant because of the way defendant was holding it. Therefore, although defendant had no (and claimed no) legitimate expectation of privacy in the interior of the driver’s vehicle, he had a legitimate expectation of privacy in his backpack that society is willing to recognize as reasonable.”

    Justices concluded, “A passenger’s personal property is not subsumed by the vehicle that carries it for Fourth Amendment purposes.”

    The defendant’s backpack held marijuana and methamphetamine. He had already served nearly three years in prison for the offenses prior to this week’s verdict.

    The case is People v. Mead. A summary of the opinion is online here.

  • by Paul Armentano, NORML Deputy Director May 2, 2018

    A three judge panel for the Ninth Circuit Court of Appeals has denied a petition filed by the Hemp Industries Association challenging the DEA’s authority to establish a new administrative drug code specifically for marijuana extracts. The DEA first announced the proposed rule change in 2011, but did not enact the new policy until January 13, 2017.

    In a decision filed on April 30, the Court rejected petitioners’ arguments – opining the DEA’s classification of marijuana extracts does not conflict with the provisions of either the Agricultural Act of 2014 (aka the ‘Farm Bill) or the Consolidated Appropriations Act, which limits the Justice Department from spending federal dollars to intervene in state-sanctioned activities involving marijuana or industrial hemp. The Court also dismissed petitioners’ argument that the rule substantively amended the federal Controlled Substances Act. Justices opined that such extract products, including those containing primarily CBD, were already classified under federal law as schedule I controlled substances.

    The DEA has long contended that it possesses broad regulatory authority over “all parts of the plant Cannabis sativa L.,” including “the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.” The agency includes among this definition products containing cannabidiol or any other non-THC cannabinoids derived from the marijuana plant. It further states, “[T]he Agricultural Act of 2014 does not permit entities [who are not registered with the DEA] … to produce non-FDA-approved drug products made from cannabis.”

    Over a dozen states have enacted legislation in recent years exempting certain persons who possess extracts high in cannabinoid from criminal prosecution. Legislation to approve the retail sale of CBD extracts to adults in Kansas is awaiting gubernatorial action. Indiana lawmakers approved a similar law in April. Several pieces of legislation seeking to exclude CBD from the federal definition of marijuana are pending in Congress. In 2015, Nora Volkow, the Director of the US National Institute on Drug Abuse, publicly acknowledged that CBD is “a safe drug with no addictive effects.”

    Petitioners say that they intend to appeal the ruling.

    The case is Hemp Industries Association et al., v. US Drug Enforcement Administration et al., (No. 17-70162).

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