by Punch & Jurists

In Bey, District Judge Mark Kearney of the E.D.Pa., presented a timely review of a the growing reluctance of many Federal judges to a hardline approach in the rapidly escalating conflict between state laws (many of which authorize the use of medical marijuana) and Federal laws (which still treat marijuana possession and use as a significant crime). Here Judge Kearney cited the Defendant’s “demonstrated confusion” and the “absence of [any] clear direction” from the Pennsylvania courts as his reasons for declining the Government’s request for a harsher punishment of a Defendant who openly admitted to using medical marijuana in violation of the conditions of his supervised release.

U.S. v. Bey, 341 F.Supp.3d 528 (E.D.Pa. Oct. 25, 2018) (District Judge Mark A. Kearney)

This decision is a concise and up-to-date summary of the conflicting state of the law for anyone charged in Federal courts with using medical marijuana in states where such use is lawful.

In U.S. v. Oakland Cannabis Buyer’s Cooperative, 532 U.S. 483 (2001), the Supreme Court held, by a vote of 8-to-0, that the Federal Controlled Substances Act (“CSA”) (21 U.S.C. § 801 et seq.) does not allow a “medical necessity” defense for violations of the Federal prohibitions against the manufacturing, distribution and use of marijuana. Pennsylvania (and a growing number of other states) allows medical providers to prescribe marijuana as a pain treatment. As evidenced by the instant decision, despite the growing conflict between state and Federal law over the use of medical marijuana, the Oakland Cannabis rule remains the law of the land—even if somewhat grudgingly in the eyes of a lot of Federal judges.

The Defendant in the instant case, Dawud Bey, pled guilty in 2005 to conspiracy to manufacture and distribute cocaine; and he was sentenced to 120 months in prison, followed by five years of supervised release. The terms of his supervised release prohibited him from “unlawfully possessing a controlled substance” or “purchasing, possessing, using, distributing, or administering any controlled substance . . . except as prescribed by a physician.” (Id., at 529) (Emphasis added).”

In April 2018, more than three years into his five-year term of supervised release, Bey reported to the U.S. Probation Office smelling of marijuana. The Probation Officer asked Mr. Bey if he has used marijuana, and Bey admitted he had for medical purposes. When Bey returned to the Probation Office on June 5, 2018, he presented the Probation Officer with a medical marijuana prescription he had obtained shortly before the meeting. Bey submitted urine specimens to the Probation Office on June 5, September 4, and September 26, 2018. Each tested positive for marijuana.

Mr. Bey swore he used medical marijuana as pain management to relieve chronic pain suffered over the past few years. He testified trying other analgesics but said they exhausted him or otherwise affected his other prescriptions.

Based on those facts, the Government sought to modify—rather than not revoke— Bey’s terms of supervised release to require he “submit to home detention for a period of 30 days, and comply with the [l]ocation [m]onitoring requirements as directed by the U.S. Probation Office.”

Bey requested a hearing to contest the petition for modification. He did not dispute that he used marijuana or that he had provided three urine samples testing positive for marijuana. But he maintained that he had acted on the advice of his doctor and attorney, who counseled him that “under the Pennsylvania Marijuana Program it was ok for him to use marijuana for pain management. He also claimed that the differing enforcement by local, state and Federal authorities about the use of medical marijuana confused him.

Although the Government expressed doubts regarding the credibility of Bey’s confusion, the Court found him credible, “particularly after the advice of two professionals who should know better under federal law.” Nevertheless, citing Oakland Cannabis, the Court concluded that Bey “may not use medical marijuana under federal law. A Pennsylvania statute or policy to the contrary cannot override a conflicting federal statute, as ‘[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail’.” (Id., at 531).

Nevertheless, the Court also declined to permanently modify Bey’s supervised release, as the Government requested. After citing numerous cases that have shown a similar concern about the growing conflict between state and Federal law over the use of medical marijuana, Judge Kearney danced a narrow line to give relief to the Defendant without openly bucking the primacy of the rigid Federal laws that still don’t recognize the use of medical marijuana. He wrote: “[G]iven his demonstrated confusion and absence of clear direction from a Pennsylvania federal court in the criminal context after the Commonwealth permitted doctors to prescribe medical marijuana, we will defer the home detention for a period of thirty days to allow Mr. Bey to prove he no longer uses a controlled substance and allow a doctor to prescribe him a pain management protocol which does not involve marijuana or any other controlled substance. While he may claim confusion before today, Mr. Bey—and others released from their prison terms but subject to our terms of supervised release—cannot do so from now on.” (Id., at 533). 

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This article originally appeared in the March 25, 2019 issue of Punch & Jurists and is reprinted with permission. Copyright, Punch & Jurists, Ltd.

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