United States v. White

597 F.Supp.3d 554

UNITED STATES of America,

v.Franklin WHITE, Defendant.

1:20-mj-01174(JJM)

United States District Court, W.D. New York.

Signed April 8, 2022

Misha A. Coulson, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.

Brian P. Comerford, Public Defender, Federal Public Defender, Buffalo, NY, for Defendant.

DECISION AND ORDER

JEREMIAH J. MCCARTHY, United States Magistrate Judge

Defendant Franklin White is charged in a March 25, 2022 Violation Report [50]¹ with violating the conditions of his pretrial release by repeatedly smoking marijuana, a Schedule I controlled substance. Pretrial Services asks that "his bail be revoked pending the outcome of the case". For the following reasons, I reluctantly agree that unless he stops using or possessing marijuana, his bail must be revoked.

BACKGROUND

On February 9, 2021 District Judge Lawrence J. Vilardo released White from pretrial custody on various conditions which were spelled out in an "Order Setting Conditions of Release", Form AO 199A [24]. Condition 1 provides that he "shall not commit any offense in violation of federal, state or local law", and Condition 8(r) prohibits the "use or unlawful possession of a narcotic drug and other controlled substances as defined in 21 U.S.C. § 802, unless prescribed by a licensed medical practitioner".

The Order further provides that "[a] violation of any of the foregoing conditions of release may result in ... a revocation of release [and] an order of detention". Id. at 3. White executed an Acknowledgment which stated that "I am aware of the conditions of release. I promise to obey all conditions of release .... I am aware of the penalties and sanctions set forth above". Id.

At his appearance before me on March 30, 2022 [48], White waived a violation hearing, admitted the facts alleged in the Report, including the allegation that he "admitted to smoking marijuana [and] stated that he has no plans on stopping as he has been issued a medical marijuana card for pain management" ([50] at 2), and produced an "Official New York State Medical Cannabis Patient Certification" [49], which states that he "is likely to receive therapeutic or palliative benefit from the primary or adjunctive treatment with medical cannabis".

White notes that he "has a long history of medical issues, including substantial pain from past accidents where he suffered severe spinal injuries and a broken neck. Additionally, [he] suffered a stroke last year and has been diagnosed with anxiety .... [D]octors have offered to prescribe him narcotics for his ongoing back and neck pain, but that he will not take narcotics because of his history. He prefers medical marijuana and is seeking the Court's permission to use medical marijuana while on pretrial release." White's Memorandum [51] at 1.

DISCUSSION

21 U.S.C. § 844(a) states that "[i]t shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice". White argues that he has "produced [a] prescription for ‘medical cannabis’ from Dr. Brian Kessler", which "falls within the exception provided for in both the conditions of release and 21 U.S.C. § 844". White's Memorandum [51] at 1, 2.

I disagree. White's "Medical Cannabis Patient Certification", even if valid,² is not a "prescription". See Dobson v. McClennen, 238 Ariz. 389, 361 P.3d 374, 377 (2015) ("[m]edical marijuana used pursuant to ‘written certifications’ ... is not ‘prescribed’ "). In fact, at the present time no prescription can legally be made for the use of marijuana, either under New York State or federal law. "Whereas some other drugs can be dispensed and prescribed for medical use ... the same is not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has no currently accepted medical use at all." United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 491, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001). Therefore, "the CSA does not permit practitioners to prescribe Schedule I drugs such as marijuana". United States v. Harvey, 794 F. Supp. 2d 1103, 1106 (S.D. Cal.), aff'd, 659 F.3d 1272 (9th Cir. 2011) ; 10 N.Y.C.R.R. § 80.66 ("No prescriptions shall be made or filled for controlled substances in schedule I").

While I would grant White's request to use marijuana if I could, I am not free to "override Congress’ policy choice ... as to what behavior should be prohibited". Buyers’ Cooperative, 532 U.S. at 497, 121 S.Ct. 1711. 21 U.S.C. § 844(a) clearly prohibits the use or possession of a controlled substance absent a prescription, which White does not have, and cannot currently obtain. "Congress may of course amend the law at any time. In the meantime, the Court is constrained to apply the law as enacted." Barton v. Barr, ––– U.S. ––––, 140 S. Ct. 1442, 1454, 206 L.Ed.2d 682 (2020).³

18 U.S.C. § 3148(b) provides that I "shall enter an order of revocation and detention" if I find "probable cause to believe that the person has committed a Federal, State, or local crime while on release", and that he "is unlikely to abide by any condition or combination of conditions of release". The word " ‘shall’ does not mean ‘may’ or ‘is permitted to’; ‘shall...