UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

TODD PATRICK McCORMICK, et al.,

Defendant.

No. CR-97-997-GHK

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MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION FOR REVIEW OF BOND

AND MODIFICATION OF CONDITIONS OF RELEASE

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DAVID M. MICHAEL

NICOLE DeFEVER

SERRA, LICHTER, DAAR, BUSTAMANTE, MICHAEL & WILSON

Pier 5 North

San Francisco CA 94111

Telephone: 415/986-5591

Attorneys for Defendant

TODD PATRICK McCORMICK

TABLE OF CONTENTS

Table of Authorities ii

Table of Exhibits iii

INTRODUCTION 1

STATEMENT OF THE CASE 1

STATEMENT OF THE FACTS 2

ARGUMENT

I THE COURT SHOULD GRANT A HEARING TO REVIEW THE BOND BECAUSE MATERIAL NEW INFORMATION HAS BEEN REVEALED THAT WAS NOT AVAILABLE AT THE LAST HEARING. 8

II ANALYSIS OF THE FACTORS OF THE BAIL REFORM ACT INDICATE DEFENDANT IS NOT A RISK TO THE COMMUNITY AND THAT PERSONAL RECOGNIZANCE OR A SMALL BOND AMOUNT IS THE LEAST NEEDED TO REASONABLY ENSURE HIS APPEARANCE AS REQUIRED IN LIGHT OF THE NEW MATERIAL INFORMATION PRESENTED. 9

III DEFENDANT SHOULD BE ALLOWED TO RESUME USE OF MEDICAL MARIJUANA TO RELIEVE CHRONIC NECK PAIN AS ALLOWED BY THE CALIFORNIA COMPASSIONATE USE ACT AND AS RECOMMENDED BY HIS DOCTORS. 19

CONCLUSION 25

TABLE OF AUTHORITIES

Cases

Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal. 1997) 20, 24

Stack v. Boyle, 342 U.S. 1 (1951) 12

United States v. Chen, 820 F.Supp. 1205 (N.D. Cal. 1992) 9, 10, 12
United States v. Gebro, 948 F.2d 1118 (9th Cir. 1991) 11
United States v. Ingrahm, 832 F.2d 229 (1st Cir. 1987)
cert. denied, 486 U.S. 1009 (1988) 10
United States v. Moore, 607 F.Supp. 489 (N.D. Cal. 1985) 11
United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985) 9, 10, 11
United States v. Parker, 848 F.2d 61 (5th Cir. 1988) 10
United States v. Salerno, 481 U.S. 739 (1987) 10, 12
United States v. Winsor, 785 F.2d 755 (9th Cir. 1986) 11

Codes and Statutes

Bail Reform Act of 1984, 18 U.S.C. 3142 8, 9, 10, 11
21 U.S.C. § 841 1, 12
18 U.S.C. § 2 1
The California Compassionate Use Act
(Proposition 215), Cal. Health & Safety Code
§11362.5 (West 1997) 5, 22, 23, 24

Exhibit A Bond Rehearing Transcript, No. CR 97-1724-TJH, Aug. 1, 1997 (hereafter "Bond Reh'g Tr.")

Exhibit B Tom Morganthau, The War Over Weed, Newsweek, Feb. 3, 1997, at 20-27; Geoffrey Wowley, Can Marijuana Be Medicine?, Newsweek, Feb. 3, 1997, at 22.

Exhibit C A Survey of State Marijuana-related Statutes; Medical Marijuana Initiatives Filed for 1998 in Maine, Colorado, 1 Legislative Bulletin 3, National Organization for the Reform of Marijuana Laws, Fall 1997, at 3.

Exhibit E Affidavit of Anthony James Zavacky, July 30, 1997.

Exhibit G Robert B. Gunnison, Lundgren Backs Medical Pot Study, S.F. Chron., Aug. 27, 1997, at A18.

Exhibit H Uncle Sam is the Pot Supplier for Sick Florida Stockbroker, S.F. Chron., Nov. 18, 1996, at A8.

Exhibit I Edward W. Lempinen, U.S. Drug Czar Eases Stand on Medical Marijuana, S.F. Chron., Jan. 14, 1997, at A13, A20; Sabin Russell, S.F. Study of Marijuana, AIDS Patients Is Approved, S.F. Chron., Oct. 9, 1997, at A1, A16.

Exhibit J Letter from Attorney Mary Kate Whalen, DEA Office of Chief Counsel, U.S. Department of Justice to Attorney Simone Monasebian, Dec. 19, 1997.

Exhibit K Letter from DEA Deputy Administrator Stephen Greene to Mr. J. Gettman, July 27, 1995.

Exhibit L Statement of the Federation of American Scientists, Medical Use of Whole Cannabis; Lisa M. Krieger, End Ban on Pot, Doctors Demand, S.F. Chron., Jan. 30, 1997, at A1, A14; Glen Martin, Medical Journal Blasts U.S. on Marijuana for the Sick, S.F. Chron., Jan. 30, 1997, at A1, A8.

Exhibit M Anthony Lewis, Medicine and Politics, N.Y. Times, Oct. 13, 1997, at

Exhibit N AMA Okays Doctor's Right to Discuss Medical Marijuana with Patients, Urges Research, Ongoing Briefing: A Publication of the National Organization for the Reform of Marijuana Laws, Dec. 1997, at 1, 2; Doctors Seek OK to Discuss Pot Use, L.A. Times, Dec. 10, 1997, at A17.

Exhibit O George J. Annas, Reefer Madness -- the Federal Response to California's Medical-Marijuana Law, 337 N. Eng. J. Med. 435-439 (Aug. 7, 1997).

Exhibit P Excerpts from Workshop on the Medical Utility of Marijuana, Report to the Director, National Institutes of Health, (1997)(hereafter "NIH Report")

Exhibit Q Robert Lee Hotz, Chemicals in Pot Cut Severe Pain, Study Says, L.A. Times, Oct. 27, 1997, at A1.

Exhibit R Aff. of Dr. William S. Eidelman; Aff. of Dr. John P. Morgan, Professor of Pharmacology, CUNY Medical School; Aff. of Dr. Lester Grinspoon, Harvard Medical School; Aff. of Dr. Tod H. Mikuriya; Aff. and prescription from Dr. R.T.H.K. Trossel.

INTRODUCTION

Defendant Todd McCormick respectfully requests that this Court review bond and enter an order reducing his bond to a personal recognizance bond or to a small bond amount. There is new material information, discussed in detail herein, which when considered by the court will reasonably assure the Court of Mr. McCormick's appearance and the safety of the community with a personal recognizance bond or small bond amount. The current bond of $500,000 was borrowed from a friend. This is a social burden on Mr. McCormick. Further, this large sum is also inhibiting his ability to raise funds for his legal defense.

Mr. McCormick also requests that he be permitted to receive his medical marijuana pursuant to his doctors recommendations to relieve his chronic pain. As set out below, the California Compassionate Use Act allows patients to use medical marijuana under a doctor's recommendation.

STATEMENT OF THE CASE

On July 29, 1997, Mr. McCormick was arrested on charges of cultivation and distribution of cannabis sativa. He was subsequently charged by complaint for a violation of 21 U.S.C. §841(a)(1) and 18 U.S.C. §2. All charges of distribution were dropped.

At the time of his arrest, Todd McCormick was growing over 1,000 plants for personal medical marijuana use and for research to use in a book he was writing. Mr. McCormick did and does have doctors recommendations for the use of medical marijuana, as required by California law.

On July 30, 1997, U.S. Magistrate Judge McMahon set bail at $100,000. The government made a request for detention, which was denied. The government immediately requested reconsideration by the Judge of his order and sought again to detain Mr. McCormick.

Magistrate Judge McMahon again denied the government's request, and instead followed the recommendation of Pretrial Services and ordered conditions of bond that were more than adequate to insure that Mr. McCormick would appear as required. Those conditions included the posting of a $100,000 bond, and restriction on travel to the Central Judicial District.

On August 1, 1997, there was a hastily arranged bail review rehearing before District Court Judge Terry Hatter. At this rehearing there were numerous inconsistencies and "sketchy" details upon which the court was forced to rely in making its decision. Pre-Trial Services had little notice, and was not prepared for the rehearing. Presiding Judge Hatter recognized these problems and said that he "would welcome a review" after further investigation. Exhibit A: Bond Rehearing Transcript, Aug. 1, 1997 at 29 (hereafter "Bond Reh'g Tr."). Given the information available, and the government’s erroneous representation to the court that Mr. McCormick was a drug distributor, bond was set at $500,000.

STATEMENT OF THE FACTS

repeated cancers and other ailments. He has openly used medical marijuana to relieve the symptoms of pain, nausea, loss of appetite, and other sufferings he has had to endure throughout his life. He was first diagnosed with cancer at age two. The cancer, histiocytosis x, was located in the first five vertebrae of his spine. This type of cancer causes tumors and an increase in the number of histiocyte cells in the blood. The tumors often form in the bones, and cause a punched-out appearance in bone x-rays. In rare, often fatal cases, histiocytosis x cancers also form in soft tissues.

As a result of this first cancer, Todd had his first surgery to remove the cancer and fuse the vertebrae in his neck. The result of this surgery has been lifelong chronic pain in his neck and back. The surgery was followed with chemotherapy and radiation treatments.

During his childhood, Todd McCormick endured eight more operations. His recurring cancer was treated again and again with chemotherapy and radiation. At the age of eight, cancer developed in his left hip. This time the doctors treated the cancer with intense radiation therapy. As a result he was wheelchair bound for about eight months. Weak, and in great pain, he relearned how to walk. But there was an unexpected side-effect - his left hip stopped growing. In later years this would result in his left hip being about two inches smaller than his right hip. This imbalance in his hips caused scoliosis of the spine.

Six months after Todd relearned how to walk, the cancer returned. Todd was nine years old. A lesion of histiocytosis x had formed between the left lung and the heart; it was the first occurrence of cancer in Todd's soft-tissue. His doctors gave him six months to live. They operated on the cancer, cutting open his chest cavity. Again, he was put on a regimen of chemotherapy and radiation.

It was at this time, in 1979, that Todd's dire prognosis required a critical decision that transcended the law. One of his physicians recommended to Todd's mother that marijuana would help ease the side-effects of his physically debilitating treatments. Like many parents and patients facing life-threatening diseases, they agreed to give this unusual recommendation a try. It worked. Todd's nausea subsided, his appetite increased, and the cancer went into remission.

After remission, Todd discontinued using marijuana, as well as all other treatments until, at age twelve, his neck pain grew intolerable. His doctors put him into physical therapy, but did not want to prescribe traditional pain medications because of their addictive properties, and because tolerance increases over time. Again, his physician recommended using marijuana. Again, it worked. Todd's neck pain was reduced and he was able to increase his lateral neck movement. He even began doing martial arts as a form of physical therapy.

Todd stopped using marijuana in early 1985. Then, at age fifteen, his cancer returned. This time it was in his left arm. Again, his doctors used radiation treatment. And again Todd found that medical marijuana helped to relieve the side effects of the radiation.

These years of devastating childhood cancer were the beginning of a life-long mission for Todd McCormick. After experiencing the healing powers of marijuana in a medical setting, and watching other hospital friends suffer and die, he began to do research on the medical uses of marijuana. His childhood illnesses severely limited any normal participation in public schools; much of his schooling occurred at the hospital. And yet, armed with only a G.E.D., Todd has now become a recognized lay authority on medical marijuana.

Over the last five years, Mr. McCormick has been very active in championing the beneficial uses of medical marijuana. In 1994 he was active in promoting the California Hemp and Health Initiative. He travelled to Washington D.C. for the National Medical Marijuana Day in November 1994. He engaged in public debate with Wayne Roques, South Eastern Quadrant Leader of the Drug Enforcement Agency at the University of Miami in February 1995. During 1996, he was Editor-in-Chief of Hemplife Magazine.

On November 6, 1996, California enacted the Compassionate Use Act, which allows a patient to possess and cultivate medical marijuana with a doctor's recommendation. Cal. Health & Safety Code §11362.5 (West 1997). Relieved to have legal access to the medicine that has saved his life, Todd began growing medical marijuana at his home. In his experience, different hybrids of cannabis had varying medical effectiveness. He decided to conduct personal research to find a variety that worked for him. He had multiple doctor's recommendations and felt he was within the law.

In 1997, Mr. McCormick began writing two books. One is tentatively titled "Born Poisoned" and discusses the problems of environmental pollution and the increase in childhood cancers. The other is a medical marijuana encyclopedia, which will give a history of the medical uses of marijuana, and will discuss the medical pros and cons of various hybrids of Cannabis sativa. Prior to the incident at issue, Mr. McCormick was planning to use the data from his research in his personal medical marijuana garden in the encyclopedia.

Then, on July 29, 1997, Mr. McCormick was arrested by local law enforcement officers on charges of cultivation and distribution of cannabis sativa while growing over 1,000 plants for his personal medical marijuana use and for researching the encyclopedia. At the time of his arrest, the Los Angeles County Sheriff’s Department officers ignored the fact that Mr. McCormick had a number of doctor recommendations for the use of medical marijuana. Further, the Sheriff's Department officer withheld this information from the state court issuing the search warrant. Because Mr. McCormick’s conduct was not punishable under state law (and was, in fact, condoned under California law), the case was transferred from state to federal jurisdiction and the Drug Enforcement Agency (DEA) seized Todd's numerous research log books and documents relating to cultivation techniques for medical marijuana, as well as much of his personal property.

At the bond hearing, the federal prosecutor characterized Mr. McCormick as "involved in a large scale commercial marijuana conspiracy." (Bond Reh'g Tr. at 5). However, the following Grand Jury investigation did not find any evidence of such a conspiracy or drug sales, and refused to indict Mr. McCormick for distribution.

Despite the government's biased portrayal, Mr. McCormick has been and is a champion for the acceptance of medical marijuana, and nothing more. In 1995 he founded the San Diego Cannabis Compassion Club. This organization grew medical marijuana and gave it away freely to patients in need. There was no charge. He made no profits. While he has been detained and arrested on a number of occasions, all related to his support for medical marijuana, there has never been any violence nor weapons. There have been no stockpiles of cash. There have never been any indicia of a commercial drug operation.

For example, the DEA states that typical commercial marijuana cultivators "usually conceal their gardens in remote areas that are not easily accessible to the public." Exhibit E: Affidavit of Anthony James Zavacky, July 30, 1997, at pg. 2. In contrast, in this case the marijuana plants were visible from the street and neighboring houses. Many were grown on the patio. This further illustrates that Mr. McCormick was not a commercial grower, since he was open about his cultivation of medical marijuana.

Mr. McCormick is an advocate for medical marijuana, and that is all. His medical history clearly demonstrates his motivations for the cause and his serious concern for the quality of his own life. His work in the field of medical marijuana for the last five years illustrates that this is a long-term commitment, not a shallow use of a new law. The facts of this arrest show no evidence of distribution, and the grand jury's refusal to indict him on a distribution count is clear evidence that Todd McCormick was, in fact, growing his marijuana for his own personal medical use and academic research.

ARGUMENT

I. THE COURT SHOULD GRANT A HEARING TO REVIEW THE BOND BECAUSE MATERIAL NEW INFORMATION HAS BEEN REVEALED THAT WAS NOT AVAILABLE AT THE LAST HEARING.

Pursuant to the Bail Reform Act, a bond hearing may be reopened at any time before trial if information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue. Bail Reform Act of 1984, 18 U.S.C. §3142 (f)(2)(B). Due to the new material information presented below, as well as Judge Hatter's statement that his decision was necessarily based on "sketchy" and inconsistent facts, the court should reopen the bond hearing.

On July 29, 1997, Mr. McCormick was arrested on charges of cultivation and distribution of cannabis sativa. On July 30, 1997, U.S. Magistrate McMahon set bail at $100,000. The next day, August 1, 1997, there was a hastily arranged bail review rehearing before District Court Judge Terry Hatter. At this rehearing there were numerous discrepancies in the evidence presented to the court. The rehearing was a "surprise" for Pre-Trial Services, which only had about a half hour of notice. (Bond Reh'g Tr. at 21.) Presiding Judge Hatter, recognized these problems and stated that "given the details that I have, and they're still somewhat sketchy subject to change with more investigation by both sides I would think, I would welcome or to whomever this case is assigned I'm sure would welcome a review of it further." (Bond Reh'g Tr. at 28-29.)

Since the last bond rehearing on August 1, 1997, new information has been revealed which has a material bearing on this case. First, and most important, all charges relating to distribution of marijuana have been dropped. Second, there is new material information regarding Mr. McCormick's salary, lost passport, and his length of residence in and ties to the community. As a result, Mr. McCormick requests that the court reopen the issue for further examination.

II. ANALYSIS OF THE FACTORS OF THE BAIL REFORM ACT INDICATE DEFENDANT IS NOT A RISK TO THE COMMUNITY AND THAT PERSONAL RECOGNIZANCE OR A SMALL BOND AMOUNT IS THE LEAST NEEDED TO REASONABLY ENSURE HIS APPEARANCE AS REQUIRED IN LIGHT OF THE NEW MATERIAL INFORMATION PRESENTED.

In evaluating bond, the burdens of proof are initially upon the prosecution. In United States v. Motamedi, the court stated:

Under the 1984 Bail Act, a finding that a person presents a danger to the community must be supported by clear and convincing evidence. The burden of proof governing a finding of flight risk is preponderance of the evidence.

767 F.2d 1403 (9th Cir. 1985).

When a person is charged with a drug offense that is punishable by a sentence of ten years of more, a rebuttable presumption arises that no combination of release conditions will reasonably assure the appearance of the person or the safety of the community. 18 U.S.C. § 3142(e). However, the presumption merely shifts the burden of production to the defendant to come forward with some rebutting evidence and this burden is small. United States v. Chen, 820 F.Supp. 1205, 1207 (N.D. Cal. 1992) (citations omitted). Moreover, it must be stressed that the government retains the ultimate burden of persuasion. Id. Thus, once the defendant produces some credible evidence required by the Bail Reform Act, the burden shifts to the government to persuade the court by clear and convincing evidence that the defendant is a danger to the community or by a preponderance of the evidence that the defendant is likely to flee. United States v. Salerno, 481 U.S. 739 (1987); Chen, 820 F.Supp. at 1208.

Here, both Magistrate Judge McMahon and District Court Judge Terry Hatter determined that Mr. McCormick should be released under appropriate conditions. In this rehearing, the above stated burdens remain on the government in opposing this modification request.

In seeking bail, a defendant is not required to prove his innocence of the charged crime. Instead, he "may focus his evidence on other factors that are unrelated to the alleged offense, such as his character, employment history, family status, and community ties." United States v. Parker, 848 F.2d 61, 63 (5th Cir. 1988); 18 U.S.C. 3142(g)(3); United States v. Ingrahm, 832 F.2d 229, 238 (1st Cir. 1987).

In determining the appropriate bond the Bail Reform Act specifies that the court shall take into account various factors to reasonably assure the appearance of that person and the safety of the community. These factors are: (1) The nature and circumstances of the offense charged; (2) the weight of the evidence against the person; (3) the defendant's history, character, physical and mental condition, family and community ties, employment, financial resources, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; (4) whether the person was on probation, on parole, or on other release pending further legal action; and (5) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. 18 U.S.C. § 3142(g); Motamedi, 767 F.2d at 1407. Each of these factors as applied to Mr. McCormick warrant that he be granted release on personal recognizance or on a greatly reduced cash bond.

The Bail Reform Act of 1984 requires the release of a person facing trial under the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required and the safety of the community. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991); Motamedi, 767 F.2d at 1405. Conditions for release need not guarantee the defendant's appearance, but need only "reasonably assure" it. 18 U.S.C. § 3142 (e); Chen, 820 F.Supp. at 1205.

Bail is excessive under the Eighth Amendment if it is "set at a figure higher than an amount reasonably calculated" to assure defendant's presence at trial. Stack v. Boyle, 342 U.S. 1, 5 (1951); United States v. Salerno, 481 U.S. 739, 752 (1987). Thus, when the government's "only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more. Salerno, 481 U.S. at 754 (emphasis added), citing Stack v. Boyle, supra.

At the bond rehearing before Judge Hatter, the court relied upon information which is no longer accurate. During the bond rehearing there was confusion on the issue of whether Mr. McCormick was distributing marijuana, and Judge Hatter may have relied upon erroneous information from the prosecution and from police officers regarding evidence of distribution. There was also confusion regarding Mr. McCormick's salary, passport, and length of residence in and ties to the community.

This new material information, discussed in detail below, shows that Mr. McCormick is not a danger to the community and is not a flight risk. Therefore, bond should be reset and a personal recognizance bond is appropriate as the least restrictive condition that will reasonably assure Mr. McCormick's appearance.

A. Distribution:

Originally, Mr. McCormick was charged in a criminal complaint with both cultivation and distribution of marijuana, in violation of 21 U.S.C. § 841(a)(1). However, following a grand jury investigation, the grand jury itself refused to indict Mr. McCormick for the distribution count. This is because the grand jury did not find any evidence showing distribution. The elimination of the charge of distribution is a significant and material difference from the facts used by Judge Hatter in setting the bond amount.

Judge Hatter set the bond at $500,000, in part because of the prosecution's heavy and constant recital of allegations that Todd McCormick was a distributor of drugs. For example, the government mischaracterized Todd, saying that "he is suspected of being involved in a large scale commercial marijuana production conspiracy." (Bond Reh'g Tr. at 5). The government also represented to the court that Mr. McCormick acquired his personal possessions and paid his bill with drug money (Bond Reh’g Tr. at 7)("the money for all these assets derive from distribution of marijuana"). Further, the prosecution alleged distribution because baggies and a scale were found in the search of Mr. McCormick's home. (Bond Reh'g Tr. at 28). However, the baggies found were ordinary kitchen baggies and the scale was a small kitchen scale which does not have the accuracy to weigh the amounts normally used by drug dealers. Both the baggies and scale were found in the kitchen. These serious allegations were taken into consideration by Judge Hatter in setting bond. However, as the grand jury concluded, there was no evidence of distribution.

Furthermore, there is evidence that a detective involved in the case deceived the court issuing the state search warrant by failing to advise the court that Mr. McCormick was actively involved in the medical use of marijuana. Exhibit D, supra.

Judge Hatter did not know the details or shallowness of the allegations of distribution, nor did he know that the grand jury would refuse to indict for distribution. Finally, Judge Hatter did not know of the detective's failure to properly advise the state court regarding their prior knowledge of Mr. McCormick's medical use of marijuana.

Clearly there was incorrect information presented that influenced Judge Hatter's decision in setting bond. However, new material evidence indicates that there is no evidence of marijuana distribution. Most important, all charges of distribution have been dropped. These material changes in information should result in a new evaluation of bond, and in the setting of bond at personal recognizance or an appropriate small bond amount.

Besides the issue of distribution, there was also factual confusion during the bond rehearing concerning Mr. McCormick's salary, his passport, and his length of residence in the community. The government attempted to represent that Todd McCormick had a large salary, would flee using his passport, and had only lived in the area a short time. Further investigation, as suggested by Judge Hatter in reconsidering Todd's bond, has confirmed facts that illustrate that none of the above is true, and that Todd McCormick is a low flight risk.

B. Salary and Assets:

There is material new information regarding Mr. McCormick's salary. At the time of his arrest, Todd was employed as a writer. He was working on two books and was receiving advances from his publisher, Prelude Press, for work in progress. At the bond rehearing, the court was informed that Mr. McCormick earned $250,000 per year. This would have been his salary had he been able to meet the publisher's deadlines for writing the book. However, that was a one time, one year advance on the expected profits from his book. Yet, following his arrest, and as will be shown at the hearing on this motion, Mr. McCormick has been unable to meet his publishers deadlines, and thus has not been receiving his advances. This new material information shows that Mr. McCormick does not have a large salary, and thus is unlikely to flee the court's jurisdiction with a reduced bond.

Besides not having accurate information on Todd's salary, Judge Hatter was presented with repeated misportrayals by the government concerning Mr. McCormick's assets. For example, the prosecution stated that "the government believes that a $100,000 bond won't even be a blip on the radar screen for the defendant and that as soon as he is released on that amount of bond the defendant will flee . . . ." (Bond Reh'g Tr. at 9-10). But, the government knew that Todd McCormick had few assets. At the time of his arrest, he only had $40 on his person and about $640 in his savings account.

Continuing its misportrayal, the prosecution speculated that, because Todd paid high rent and utility bills, "[w]e believe that the money for all these assets derives from distribution of marijuana." (Bond Reh'g Tr. at 7). The grand jury believed otherwise and, as will be shown at hearing on this motion, Mr. McCormick was paying these bills from his publisher's advances.

Contrary to the government's outrageous and unsupported claim that $100,000 is not even a blip on the radar, it is a vast amount of money to Todd McCormick. The posting of the current $500,000 bond is an extremely heavy burden upon him. Even though the amount has been met, that fact is not determinative of whether bail is excessive. If the amount of bail is not proportional to the government's interest in preventing danger to the community or risk of flight, then bail is excessive. Salerno, 481 U.S. at 754. A defendant's ability to meet bail is irrelevant to that equation. The $500,000 bond is not proportional to the government's interest, and exceeds the amount necessary to reassure Mr. McCormick's appearance before the court. The unchanged fact is that, because Mr. McCormick does not have a large amount of income or assets, he is extremely unlikely to flee the court's jurisdiction if released on personal recognizance or a small bond amount.

C. Passport:

There is material new information regarding Mr. McCormick's passport. Since the hearing before Judge Hatter, Todd gave a sworn statement on the loss of his passport. The passport had been lost for several months prior to his arrest, and still has not been found. Mr. McCormick has stated that he has no intentions of leaving the country or the court's jurisdiction. Furthermore, he has been released on bond for over four months and has not fled this court's jurisdiction. Mr. McCormick would also be willing to execute any other document to satisfy the court's concern regarding the status of his passport. D. Length of Residence and Community Ties:

There is new material information relating to Mr. McCormick's length of residence and ties to the community. There was confusion at the bond rehearing regarding how long the defendant had lived in the community. (Bond Reh'g Tr. at 6.) Further research shows that Mr. McCormick has actually been living at his current address since February 1997. Before that he resided in San Diego from 1992 to 1995. Although at one time he stayed in the Netherlands working as an editor and doing research, he has a substantial length of residence in this community.

Mr. McCormick also has numerous relatives in Southern California, including his great-uncle and aunt, and cousins. This is new material information that was not available to Judge Hatter at the time of the rehearing, and further indicates that Mr. McCormick is a low flight risk.

E. Other Relevant Factors

Other factors also indicate that a personal recognizance bond or small bond amount will reasonably assure the defendant's appearance as required. These other factors include the fact that Mr. McCormick has no criminal convictions. Prior to the current incident, Mr. McCormick was not on probation or parole. He has no other pending trials or litigation.

Of additional great significance to this court's deliberation is Mr. McCormick's strong character and sense of purpose. Todd McCormick is dedicated to the cause of medical marijuana. He has not tried to hide his support for medical marijuana. He did not hide it here. Rather, he told the officer before and after being mirandized that he is an advocate for medical marijuana. The reason Mr. McCormick is so dedicated is clearly illustrated by his own personal medical history, involving years of cancer, with its attendant pain and suffering. As a result, Mr. McCormick is dedicated to staying here to continue to battle in support of his personal beliefs.

F. The Government’s Burden of Proof

The burden is on the government to prove that Mr. McCormick is a risk to the community by clear and convincing evidence. This burden cannot be met. Mr. McCormick is not a danger to society. He was not distributing marijuana. He was only growing and researching medical marijuana for his own needs. There was no violence at his arrest. No weapons were found.

The burden is also on the government to prove a risk of flight by a preponderance of the evidence. This burden cannot be met. Mr. McCormick is an extremely low flight risk. He has been out on bond for over four months, and has not tried to flee. Significant charges of distribution have been dropped. He currently has little income or assets. He has resided in this community for a significant period of time, and has a large number of family and friends who also live here. Mr. McCormick is dedicated to the cause of medical marijuana, and to persuading this court that his conduct is of great benefit to society and the lives of people who suffer and should be neither condemned nor punished.

Therefore, it is respectfully requested that this court modify Mr. McCormick's conditions of release and allow him to be released on personal recognizance or on a greatly reduced bond, the least amount which will reasonably assure his appearance in court as required.

III. DEFENDANT SHOULD BE ALLOWED TO RESUME USE OF MEDICAL MARIJUANA TO RELIEVE CHRONIC NECK PAIN AND OTHER DANGEROUS SYMPTOMS AFFECTING HIS HEALTH, AS ALLOWED BY THE CALIFORNIA COMPASSIONATE USE ACT AND AS RECOMMENDED BY HIS DOCTORS.

For a very short period of time in the history of this country, marijuana has been falsely maligned as a drug with no verifiable medical benefits. It was considered a drug for radicals and hippies, leaving them in a euphoric state. However, many doctors have long recognized that marijuana has numerous beneficial medical uses. Exhibit F: Hearings on H.R. 1782 (Medical Use of Marijuana Act) Before the Crime Subcomm. of the H.R. Judiciary Comm., 105th Cong., 1st Sess. (Oct. 1, 1997)(testimony of Dr. Lester Grinspoon, Associate Professor of Psychiatry, Harvard Medical School); Dr. Lester Grinspoon, Others Testify before Congress in Favor of Medical Marijuana, Legislative Bulletin, National Organization for the Reform of Marijuana Laws, Fall 1997, 1:3, at 1, 4; Marcus Conant, M.D., This is Smart Medicine, Newsweek, Feb. 3, 1997, at 26.

Recently, the general public has also become informed of the medical value of marijuana. Now, former skeptics and even die-hard opponents are finally recognizing the true benefits medical marijuana can provide.

Despite the so called "war on drugs," the federal government has recognized the medicinal value of marijuana at least since 1976, when it began supplying medical marijuana to its first patient. Over time, the federal government is beginning to show more support for medical marijuana through court and agency actions. Exhibit I: Edward W. Lempinen, U.S. Drug Czar Eases Stand on Medical Marijuana, S.F. Chron., Jan. 14, 1997, at A13; Sabin Russell, S.F. Study of Marijuana, AIDS Patients is Approved, S.F. Chron., Oct. 9, 1997, at A1, A16. For example, a federal district court recently upheld the ability of doctors to discuss medical marijuana with their patients. This decision by District Court Judge Fern Smith also prohibited the government from prosecuting doctors for recommending medical marijuana to their patients. Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal. 1997).

The Drug Enforcement Agency (DEA) itself has recently admitted through its actions that marijuana has medical value. On December 19, 1997, the DEA formally asked the Department of Health and Human Services (HHS) to conduct "a scientific and medical evaluation of the available data and provide a scheduling recommendation" for marijuana. Exhibit J: Letter from Attorney Mary Kate Whalen, DEA Office of Chief Counsel, U.S. Department of Justice to Attorney Simone Monasebian, Dec. 19, 1997. Significantly, the DEA can only request HHS's advice after making its own internal finding that sufficient grounds exist to remove marijuana from Schedule I. Exhibit K: Letter from DEA Deputy Administrator Stephen Greene to Mr. J. Gettman, July 27, 1995.

Previously, the DEA had claimed that marijuana has "no currently accepted medical use in treatment in the United States." 57 Fed. Reg. 10,499 (1992). Ironically, this claim was made while the federal government was simultaneously supplying numerous patients with medical marijuana. Obviously, the recent petition to HHS is a historic change in the DEA's position on the value of marijuana.

Others have long advocated the beneficial uses of medical marijuana. Nationally recognized medical organizations have found a scientific basis for medical uses of marijuana and are calling for more research on its use. Exhibit L: Statement of the Federation of American Scientists, Medical Use of Whole Cannabis; Lisa M. Krieger, End Ban on Pot, Doctors Demand, S.F. Chron., Jan. 30, 1997, at A1, A14; Glen Martin, Medical Journal Blasts U.S. on Marijuana for the Sick, S.F. Chron., Jan. 30, 1997, at A1, A8.

For example, the National Institutes of Health (NIH) has issued a report calling for NIH tests of marijuana's efficacy in four medical areas. Exhibit M: Anthony Lewis, Medicine and Politics, New York Times, Oct. 13, 1997, at A15. NIH Committee Chair William Beaver, Professor of Pharmacology and Anesthesia at Georgetown University School of Medicine stated that "marijuana looks promising enough to recommend that there be controlled studies." Id. The American Medical Association agrees with this conclusion, and issued a report that recommends that the federal government expedite medicinal marijuana research. Exhibit N: AMA Okays Doctor's Right to Discuss Medical Marijuana with Patients, Urges Research, Ongoing Briefing: A Publication of the National Organization for the Reform of Marijuana Laws, Dec. 1997, at 1; Doctors Seek OK to Discuss Pot Use, L.A. Times, Dec. 10, 1997, at A17.

The medical value of marijuana is already accepted by many physicians. For example, a scientific survey of over 2,000 oncologists found that over 44 percent had recommended the use of marijuana for the control of nausea and vomiting to at least one cancer patient. Doblin R., Kleiman, M., Marijuana as antiemetic medicine: A Survey of Oncologists' Experiences and Attitudes, J. Clin. Oncology, 9:7, 1314-1319 (1991). The nationally respected New England Journal of Medicine has recently published an article supporting medical marijuana. Exhibit O: George J. Annas, Reefer Madness -- the Federal Response to California's Medical-Marijuana Law, 337 N. Eng. J. Med. 435-439 (Aug. 7, 1997).

A review of the above literature and studies reveals that there are many valuable medical uses for marijuana. One of these is to control pain, such as the chronic neck and back pain suffered by Mr. McCormick due to multiple surgeries, five fused vertebrae, and scoliosis of the spine. Scientific studies on the analgesic value of medical marijuana are conflicting, but overall indicate that medical marijuana has an analgesic effect in humans. Exhibit P: Excerpts from the Workshop on the Medical Utility of Marijuana, Report to the Director, National Institutes of Health, (1997) (hereafter "NIH Report"). Two studies using orally administered delta-9-tetrahydrocannabinol (THC), a component of marijuana, indicate it possesses analgesic value in humans suffering from pain. These studies are described as "well-controlled clinical trials" that used randomized, double- blind, and cross-over comparisons. NIH Report at 20. The NIH has recommended further study on this topic. Id. Furthermore, recent animal studies at the University of California at San Francisco, the University of Michigan, and Brown University show that cannabinoids, "the active ingredient in marijuana, relieve several kinds of pain, including ... severe forms of chronic pain." Exhibit Q: Robert Lee Hotz, Chemicals in Pot Cut Severe Pain, Study Says, L.A. Times, Oct. 27, 1997, at A1.

The State of California, where Mr. McCormick lives, has also legalized the medical use of marijuana. The California Compassionate Use Act provides that: seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

Cal. Health & Safety Code §11362.5(a)(West 1997). Under the Act, patients may not be punished or denied any right or privilege for conduct relating to medical use of marijuana. §11362.5(b)(1)(B) and 11362.5(d); Conant v. McCaffrey, 172 F.R.D. at 686. Mr. McCormick suffers from chronic pain. Therefore, the Act gives him the right to use marijuana for medical purposes under California law.

To ensure that a person's use of marijuana is legitimately intended for medical purposes, the California Compassionate Use Act also requires that the patient secure the recommendation of a physician. Mr. McCormick has the recommendations of four highly respected United States physicians, as well as a prescription from a Netherlands physician. He has had documentation of these and similar recommendations at least since 1995. Exhibit R: Aff. of Dr. William S. Eidelman; Aff. of Dr. John P. Morgan, Professor of Pharmacology, CUNY Medical School; Aff. of Dr. Lester Grinspoon, Harvard Medical School; Aff. of Dr. Tod H. Mikuriya; Aff. and prescription from Dr. R.T.H.K. Trossel. However, the physicians who made recommendations to him and his mother during his childhood did not document their recommendations for fear of legal repercussions at that time. Mr. McCormick finds that using marijuana reduces his chronic pain. Without his medication he suffers from daily neck pain, and from nightly insomnia because the pain is so great that movement in his sleep will cause him to wake up.

At this point, without his medical marijuana, Mr. McCormick is suffering chronic neck pain, insomnia, depression, and lack of appetite. The medication is legal under California law. Therefore, Mr. McCormick respectfully requests that this court allow him relief from his chronic pain through the use of his medically recommended marijuana.

CONCLUSION

For all the reasons set forth, defendant Mr. McCormick respectfully urges this court to order his release on personal recognizance or a greatly reduced bond, and modify the conditions of his release to eliminate any restraint on Mr. McCormick's use of medical marijuana as prescribed by his doctors.

Dated: February 9, 1998

Respectfully submitted,

by: DAVID MICHAEL

NICOLE DeFEVER

SERRA, LICHTER, DAAR, BUSTAMANTE, MICHAEL & WILSON

Attorneys for Defendant

TODD McCORMICK