August 4 LA- Anna and Gary Barrett made a motion to dismiss the charges against them at the Los Angeles federal building in the courtroom of Judge Nora Manella. Anna and Gary face 5 counts: 3 counts of cultivation totaling 770 plants and 2 counts of maintaining a place where marijuana was cultivated. The motion was based on entrapment by estoppel, the notion that the Barrett's believed that what they were doing was legal under the law and medical necessity.

The estoppel defense was invoked because the couple had permission, pursuant to a plea agreement, from San Bernardino Co. to “cultivate any combination of indoor and outdoor plants not to exceed a yield of 7.1 pounds per patient.” Deputy D.A. Goss of San Bernardino, working under a federal grant, made the deal with them following an arrest and investigation from 2000. The judge said that although there may have been some federal funding  to the D.A.’s office, under those circumstances it was not reasonable to believe Goss was a federal agent speaking on behalf of the federal government, a major element of the estoppel defense. Since cultivation of marijuana is not a crime of intent it didn’t matter that the Barrett's thought what they were doing was legal.

“Ignorance is no excuse for the law,” said Judge Manella stating deliberately, citing extensive case law and appearing very thorough on the bench.

When the Barrett's’ attorney Daniel Halpern tried to argue medical necessity, the judge refused to consider it based upon the O.C.B.C. ruling by the Supreme Court in 2001. She was under the impression that the opinion stated the medical necessity defense did not apply to patients when in fact the opinion stated that it was the “club” that did not meet the standard for the defense (In other words no medical necessity defense for third party caregivers). The Supreme Court did clearly leave the door open for individual patients to attempt to use this defense in the future (in fact it is under consideration in the Raich appeal to the 9th circuit), but this judge was not buying it. Several medical marijuana patient supporters in the courtroom appeared frustrated by the judge’s apparent lack of understanding of the ruling.

In a move of solidarity, Eric Shevin from the law offices of Bruce Margolin in W. Hollywood who had come to the proceedings to observe, stood up to argue the issue of the “commerce clause” of the controlled substances act and the lack of jurisdiction that the federal government has over intra-state activities according to the 9th an 10th Amendments. This argument seemed to resonate with the judge and she granted another motions hearing on December 8th @ 1:30 pm to hear argument from the attorneys.

The judge granted the governments motions in limone to exclude all medical marijuana evidence as irrelevant (Surprise!). However, it didn’t appear to make the U.S. attorney feel any better as he sat with his hand on his forehead during Mr. Shevin’s arguments regarding jurisdiction.