Perils grow in battle for medical pot / Laws in conflict -- environment dicey for patients, dealers

A decade after Californians approved the medical use of marijuana, the state's battle with the federal government over the use of marijuana still is being fought hard, with contradictory results.

In the past five years, the number of medical marijuana clubs -- stores authorized under state law where people can buy cannabis with a doctor's approval -- has tripled in the state, to more than 300. But club operators and pot growers are increasingly subject to federal arrests, seizures and prosecution.

Across California, smoking pot remains a gamble. Decisions over who gets busted and who doesn't affect large numbers of medical pioneers, average smokers and make-a-buck dope dealers alike.

Last week, two federal court rulings in San Francisco gave contrasting victories in the dispute over whether the medical use of marijuana, approved by California voters, should be prosecuted or permitted.

On March 13, a federal judge gave a win to the medical marijuana forces, tossing out most of the U.S. charges against cannabis activist and writer Ed Rosenthal, saying a five-year campaign to put him behind bars gave "the appearance of vindictiveness."

On the same day, however, another federal court ruled against Angel Raich, a severely ill Oakland woman who smokes marijuana to ease her chronic pain and had challenged U.S. laws against medical cannabis.

Federal seizures of California marijuana have risen steadily. Last year, Drug Enforcement Administration agents arrested 594 people in the state on marijuana charges and confiscated 3 million marijuana plants, up from 359 people and 880,000 plants in 2001, according to official statistics.

Yet the number of medical cannabis dispensaries -- authorized by Proposition 215, a 1996 state referendum allowing seriously ill adults to use marijuana with their doctor's approval -- has soared from about 100 to more than 300 throughout the state.

Federal and local authorities are at loggerheads over the issue.

"The priorities of the federal government are a bit misplaced in putting large amounts of resources into going after people for this," said San Francisco District Attorney Kamala Harris. "The vast majority of Californians and certainly San Franciscans believe that marijuana has medicinal purposes."

Javier Pena, head of the DEA's Northern California division, says state voters have no say over this matter. "Marijuana is still marijuana, and it's still against federal statutes," he said.

Pena declined to explain how his agency decides whom to bust and whom to leave alone. "We go after anyone who grows or cultivates or distributes," he said, adding: "I can't get into the criteria for operational procedures."

Several blocks from Pena's office in San Francisco, enforcement of the law is notably erratic. Inside HopeNet Cooperative, a modest-looking establishment on Ninth Street, customers line up quietly to examine the varieties of glistening marijuana buds for sale.

On the walls are official placards from the California Senate and the San Francisco Board of Supervisors commending HopeNet for its role in treating impoverished sick people.

On Dec. 20, 2005, HopeNet was raided by rifle-toting DEA agents who confiscated $20,000 in cash as well as 15 pounds of pot and dozens of marijuana seedlings. No charges were filed, however, leaving HopeNet's proprietors to continue with their business while wondering whether they will get raided again.

"They can bust us like they did -- come in with a whole SWAT team and steal everything and then not file any charges -- just because they're the DEA and no one's stopping them," said Kathy Smith, who runs HopeNet with her husband, Steve.

"But then they let us alone. Go figure."

Rosenthal has been a high-profile marijuana advocate since the 1970s, the author of a syndicated "Ask Ed" column, which gives how-to advice on growing marijuana, as well as a dozen glossy picture books with titles such as "The Big Book of Buds," volumes I, II and III -- "porn for potheads," he jokingly calls them.

Rosenthal was convicted of marijuana growing in 2003 but was sentenced to only one day in jail. An appeals court overturned the conviction.

Rather than giving up, federal prosecutors piled on more charges, including four counts of money laundering and five counts of filing false tax returns. U.S. District Court Judge Charles Breyer tossed those charges last week, leaving only the previous marijuana charges. If the government proceeds to trial, it cannot seek jail time beyond the one day Rosenthal has already served.

In the somewhat ramshackle East Oakland house where he writes his articles and books, surrounded by gardens of flowers -- but no marijuana plants -- Rosenthal says his case is political.

"This is drug war politics," he said. "It's the government's crazy obsession with fighting marijuana use at all costs."

Pena, the local DEA chief, describes medical marijuana as a subterfuge for drug traffickers. Some of the clubs "are making millions and millions of dollars, and they're hiding behind Proposition 215," he said.

Some club owners grudgingly admit that Pena's broad-brush accusations fit a few of their colleagues in the trade all too well. Some in the medical marijuana business adopt a flashy, drug-dealer style; others hold to a politically correct ethos of giving deep discounts to poor patients and closely monitoring sales to ensure that the pot they sell is not later resold on the streets or in schools.

One especially controversial figure is Sparky Rose, leader of San Francisco's New Remedies Cooperative, who was arrested along with 14 others in a federal raid Oct. 3. Rose's Porsche Carrera sports coupe was among the four cars seized in the raid, along with $125,000 in cash and 13,000 marijuana plants. Investigators say bank records show that $2.3 million had been deposited in a New Remedies bank account over eight months starting in December 2005.

Rose was freed on $1 million bail and is awaiting trial on federal charges of conspiracy to grow and distribute marijuana and of money laundering.

"He's everything we don't want to be," said HopeNet's Kathy Smith, referring to Rose's high-flying style.

Nanci Clarence, the San Francisco attorney representing Rose, declined to comment on the case.

Medical cannabis clubs have been controversial in some areas of San Francisco, where some neighborhood residents complain that the clubs are spawning pot sales on the streets nearby and lead to disorderly street scenes.

Responding to the complaints, the city's Board of Supervisors in November adopted the nation's first-ever set of comprehensive regulations for pot clubs. Smith's dispensary, HopeNet, was the first to receive a provisional license under the regulations, which include a ban on new clubs in residential areas or within 1,000 feet of schools.

Robert MacCoun, a professor at UC Berkeley's Goldman School of Public Policy and Boalt Hall School of Law who is an expert on drug policy, says the debate over medical marijuana no longer is a hot button for Americans. Smoking pot is not as rampant as in its heyday of the 1970s, but it has become part of an established niche in society, he noted.

But the war over its use in American society continues.

In the Bush administration "Medical marijuana is seen as a Trojan horse for sneaking the legalization of marijuana through the gates, and many activists see medical marijuana as a great strategy for trying to soften marijuana laws overall," said MacCoun. "Both sides are trying to fight a battle that has little to do with medical marijuana."