Drug Enforcement Admin

Carl Olsen v. Michael Mukasey

Carl Olsen — Tue, 18 Nov 2008 15:55:23 GMT

The United States has filed a Motion to Dismiss my federal civil complaint that marijuana no longer fits the definition for Schedule I ("no accepted medical use in treatment in the United States"). See my Civil Complaint and Memorandum of Law at http://www.iowamedicalmarijuana.org/petitions/dea.aspx.

United States v. Dejay Monson

Carl Olsen — Tue, 18 Nov 2008 15:42:48 GMT

It's been a while since I've had time to add any new blog entries. I've been busing working on a criminal case, United States v. Dejay Monson, No. 8:08-cr-00388, United States District Court, District of Nebraska. I've prepared a Motion to Dismiss and Memorandum of Law that I'm hoping the federal public defender will file for Mr. Monson.

Olsen files in U.S. District Court

Carl Olsen — Tue, 16 Sep 2008 18:19:23 GMT

I filed a civil complaint in U.S. District Court yesterday, Olsen v. Mukasey, et al, No. 4-08-CV-370. Both the complaint and the memorandum of law can be downloaded at http://www.iowamedicalmarijuana.org/petitions/dea.aspx as well as all 31 exhibits.

Misunderstanding Gonzales v. Raich

Carl Olsen — Wed, 03 Sep 2008 13:39:43 GMT

Since the U.S. Supreme Court did such a poor job of chronicling the history of DEA marijuana rescheduling efforts in Gonzales v. Raich, 545 U.S. 1, 15 n.23 (2005), I have posted the relevant cases at: http://www.iowamedicalmarijuana.org/documents/young.aspx

Starting in 1972, the National Organization for the Reform of Marijuana Laws (NORML) began its campaign to reclassify marijuana. Grinspoon & Bakalar 13-17. After some fleeting success in 1988 when an Administrative Law Judge (ALJ) declared that the DEA would be acting in an "unreasonable, arbitrary, and capricious" manner if it continued to deny marijuana access to seriously ill patients, and concluded that it should be reclassified as a Schedule III substance, Grinspoon v. DEA, 828 F.2d 881, 883-884 (CA1 1987), the campaign has proved unsuccessful. The DEA Administrator did not endorse the ALJ's findings, 54 Fed. Reg. 53767 (1989), and since that time has routinely denied petitions to reschedule the drug, most recently in 2001. 66 Fed. Reg. 20038 (2001). The Court of Appeals for the District of Columbia Circuit has reviewed the petition to reschedule marijuana on five separate occasions over the course of 30 years, ultimately upholding the Administrator's final order. See Alliance for Cannabis Therapeutics v. DEA, 304 U.S. App. D.C. 400, 15 F.3d 1131, 1133 (1994).

It is extremely interesting to note that the Supreme Court recognized that marijuana was in the wrong schedule of the Controlled Substances Act and none of the parties to the case picked up on it. Gonzales v. Raich, 545 U.S. 1, 28 n.37 (2005):

We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I. See, e.g., Institute of Medicine, Marijuana and Medicine: Assessing the Science Base 179 (J. Joy, S. Watson, & J. Benson eds. 1999) (recognizing that "[s]cientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC [Tetrahydrocannabinol] for pain relief, control of nausea and vomiting, and appetite stimulation"); see also Conant v. Walters, 309 F.3d 629, 640-643 (CA9 2002) (Kozinski, J., concurring) (chronicling medical studies recognizing valid medical uses for marijuana and its derivatives). But the possibility that the drug may be reclassified in the future has no relevance to the question whether Congress now has the power to regulate its production and distribution. Respondents' submission, if accepted, would place all homegrown medical substances beyond the reach of Congress' regulatory jurisdiction.

Olsen gets denied in Santa Cruz

Carl Olsen — Mon, 01 Sep 2008 14:42:22 GMT

My Motion to File Amicus Curiae Brief was denied in Santa Cruz v. Gonzales on Thursday, August 28, 2008, following the Court's ORDER of Wednesday, August 20, 2008 allowing Santa Cruz to proceed with an argument that the federal government has exceeded it's powers under the Tenth Amendment. My objection was based on statutory law which prohibits the federal government from including anything in Schedule I of the Controlled Substances Act which has any accepted medical use. Obviously, California has a law which appears to accept the medical use of marijuana.

For a detailed examination of California's medical marijuana law, the following cases may be useful: People v. Kelly, California 2nd Appellate District (5/22/2008 - striking down quantity limits); San Diego v. NORML, California 4th Appellate District (7/31/2008 - explaining federal statute which allows states to enact medical marijuana laws).

The California Attorney General has just issued guidlines on medical use of marijuana in California: Medical Marijuana Guidelines, California Attorney General (August 2008)

Notice to DEA to Cease and Desist

Carl Olsen — Wed, 13 Aug 2008 13:16:28 GMT

On August 11, 2008 the DEA was served Notice to Cease and Desist enforcement of fraudulent federal marijuana regulations within 30 days or further action will be taken.

Clarifying the issues

Carl Olsen — Wed, 30 Jul 2008 22:37:29 GMT

The Iowa Legislature put marijuana into Schedule II in 1987. They also left it in Schedule I. They also said it had medical use only when the Board creates administrative rules. That is a complete deviation from the way any other substance is scheduled in Iowa or under federal law and regulations.

On the federal level, drugs are scheduled by the DEA because Congress set it up that way. Congress does not need to approve the scheduling. DEA picks one.

On the state level, drugs are scheduled by the Iowa Legislature after a recommendation by the Board. The Board makes a recommendation and the Iowa Legislature either accepts it or rejects it. Marijuana is the only exception to the normal process. The Iowa Legislature has put marijuana in two schedules and given the Board authority to move it between them at the Board's discretion.

This is where things breaks down. Congress did not tell the DEA to put marijuana into two schedules. Congress set the definitions for each schedule and the DEA has to pick one of them.

The Iowa Legislature has also set definitions, which are the same as the federal definitions. Apparently, the Iowa Legislature is saying those definitions don't mean anything when it comes to marijuana (because they say marijuana does have accepted medical use when it's used as a medicine, but marijuana does not have accepted medical use when it is not used as a medicine). This is complete nonsense. Cocaine is in Schedule II (both state and federal), because it has accepted medical use. Cocaine is a medicine no matter what it's being used for. It's illegal to possess cocaine without a prescription. Cocaine does not become a Schedule I drug when it's being abused. The definitions for Schedule I and Schedule II are based on whether a substance does or does not have medical use. To say something is in one or the other depending on whether it has medical use is just double talk. It doesn't add anything that isn't already there. It's a violation of due process because it only adds confusion (fixing something that isn't broken). Why do we need to say marijuana is in Schedule I if it has no medical use, when everything in Schedule I has no medical use? Why do we need to say marijuana is in Schedule II if it has medical use, when everything in Schedule II has medical use?

I would say the Iowa Legislature has a duty under Iowa law to pick one of the schedules and I would say it's the duty of the Board under Iowa law to recommend one of the schedules. That is what I'm saying, although I'm not limiting it to Schedule I and Schedule II. I'm telling them they have to pick Schedule I, Schedule II, Schedule III, Schedule IV, Schedule V, or no schedule at all (like alcohol and tobacco).

What they are doing is playing a game. They are saying the federal government is in control. However, the federal government does not put marijuana into two schedules, so they are not playing by the very rules they claim to be playing by. They are also not playing by the U.S. Supreme Court's interpretation of the federal drug laws in Gonzales v. Oregon, 546 U.S. 243 (2006), which says the states, and not the federal government, determine accepted medical practice.

So, I'm saying the Board has a duty to recommend one schedule, or none at all, to the Iowa Legislature. I'm also saying the Iowa Legislature has to pick one schedule, or none at all. I'm also saying Iowa does not have the authority, either the Board or the Iowa Legislature, to say marijuana does not have accepted medical use in the United States, because twelve states say it does have accepted medical use and federal law gives those twelve states the right to make that determination and federal law does not have a definition for accepted medical use.

Anyone who doesn't understand this has not read the statutes, the 1972 Marihuana Commission reports, the 1988 Marijuana Rescheduling Petition rulings, or the case law. If you have not read those things, you are going to have a difficult time following along. The cases are: NORML v. Ingersoll, 497 F.2d 654(D.C. Cir. 1974); NORML v. DEA, 559 F.2d 735 (D.C. Cir. 1977); Grinspoon v. DEA, 828 F.2d 881 (1st Cir. 1987); ACT v. DEA, 930 F.2d 936 (D.C. Cir. 1991); and ACT v. DEA, 15 F.3d 1131 (D.C. Cir. 1994). You also want to read United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483 (2001); Gonazales v. Raich, 545 U.S. 1 (2005); and Gonzales v. Oregon, 546 U.S. 243; along with Oregon v. Ashcroft, 192 F. Supp. 2d 1077 (D. Or., 2002), affirmed, 368 F.3d 1118 (9th Cir. 2004) (both district court and appeal court decisions).

Board says it is just an arm of the federal government

Carl Olsen — Tue, 29 Jul 2008 22:34:50 GMT

Today's hearing with the Iowa Board of Pharmacy was a demonstration of spineless bureacrats selling out the people of Iowa. The Board listened to what George and I had to say but said they were bound by federal scheduling, which is untrue. According to 21 U.S.C. § 903, as interpreted by the U.S. Supreme Court in Gonzales v. Oregon, 546 U.S. 243 (2006), the state has complete authority to make an independent finding on accepted medical use. So, the Board completely shirked its responsibility to make an independent determination on state scheduling. The Iowa Code allows the Board to adopt federal scheduling, but only when federal scheduling is lawful. The Board has complete, independent authority to deviate from federal scheduling, which is obvious from that fact that marijuana has been recognized as having medical use in Iowa since 1979 (federal regulations do not recognize any medical use of marijuana) and marijuana was placed in both Schedule I and Schedule II here in Iowa in 1987 (federal regulations classify marijuana only in Schedule I). See State of Iowa v. Lloyd Dean Bonjour, 694 N.W.2d 511, 515-516 (Iowa 2005) (Wiggins, J., dissenting). So, the Board just exposed itself as an agent of the federal government rather than a servant to the people of the state of Iowa, which it is statorily bound by law to do (by both state and federal statutes).

Motion docketed in U.S. v. Lynch

Carl Olsen — Fri, 25 Jul 2008 01:46:09 GMT

My motion was added to the docket today but postdated back to July 21 the day it was actually delivered to the court. My name was also added to the list of parties as a "movant." I've started a new section of the web site to track the activities, at: http://www.iowamedicalmarijuana.org/lynch/

Olsen files appearance in Lynch case

Carl Olsen — Mon, 21 Jul 2008 17:39:17 GMT

Carl Olsen has filed a motion to appear as amicus curiae in United States v. Charles C. Lynch, No. CR 07-689-GW, United States District Court for the Central District of California at Los Angeles. Trial is scheduled for Tuesday, July 22, 2008.

The Marijuana Policy Project has a couple of recent articles about Charles Lynch on it's web site: Toke On Down! and Law suit against county and sheriff, as well as Americans for Safe Access Drew Carey on DEA Raids & Medical Marijuana Use by Minors

Reason.TV has a nice video narrated by Drew Carey Raiding California: Medical Marijuana and Minors.

The Federal Public Defender indicates that his client, Charles Lynch, will join in Mr. Olsen's motion