Draft In Progress: Motion To Dismiss Marijuana Charges For Having “Currently Accepted Medical Use In The United States” by Jason Karimi

“Malcolm brother Malcolm, there’s an X upon my door tonight

I wish you were here to teach this generation how to fight.”

— Nahko Bear and Medicine for the People

Here is a draft in progress on a motion to dismiss against criminal charges for marijuana possession in Nebraska. This draft is the result of 15 years of admittedly compulsive legal research on my part, and the sole reason for this blog existing. Posting here for a heads up for followers of this blog.

Motion to dismiss draft – Schedule One nullified as a matter of law and not science. 

A critical case ,Case number A-22-851232-W CANNABIS EQUITY AND INCLUSION COMMUNITY (CEIC), a domestic nonprofit corporation; ANTOINE POOLE, an individual,Petitioners/Plaintiffs,vs.STATE OF NEVADA ex rel. BOARD OF PHARMACY, a public entity of the State of Nevada, updated at the ACLU website at this URL, https://www.aclu.org/cases/cannabis-equity-inclusion-community-v-nevada-board-of-pharmacy, is summarized as follows and is critical for understanding why Nebraska’s schedule one classification of cannabis is nullified as a matter of law. 

Jason Karimi, defendant, is among millions of Nebraska citizens – or non-citizens in the state for work like Mr. Karimi – who are harmed by the failure of the Nebraska Board of Pharmacy to remove cannabis from Schedule One. In order for Nebraska to properly and without impropriety classify cannabis or any other substance as a Schedule One substance, those schedule one substances must have, as a matter of law, “no currently accepted medical use in the United States.” 

In the ACLU sponsored case out of Nevada, Nevada’s constitution expressly defines marijuana as medicine, nullifying Nebraska’s statutory requirement that cannabis have “no accepted medical use in the United States” to be included in Schedule one classifications. Nevada’s constitutional definition of cannabis having “accepted medical use in the United States” is not the only statute or constitutional provision in the United States defining cannabis as having “accepted medical use.” See citations in footnote HERE and cite to all state statutes in the footnote defining cannabis as medicine

More critically and timely, as of Friday, January 12th, the FDA and HHS released it’s fully unredacted findings determining that cannabis has accepted medical use in the United States in a massive and detailed 252 page ruling. I will provide a page by page breakdown in this footnote HERE courtesy of JD SUPRA LINK 

However, it must be noted two fold: chevron deference to administrative agencies rulings like FDA and HHS is under review and may be scaled back, returning power to the judiciary to interpret and enforce the rule of law instead of agencies; and two, in Grinspoon vs DEA 1988 case CITE HERE, federal administrators cannot overrule state medical laws. See also Gonzales vs Oregon; see further footnote on page 29 of Gonzalez vs Raich 2005 CITE HERE:

QUOTE FROM RAICH HERE CONCERNING DUE PROCESS FOR REMOVAL OF SCHEDULE ONE 

19 years ago, the SCOTUS court told a medical cannabis patient – and personal acquaintance and friend of Jason Karimi – how to resolve the lack of accepted medical use in the United States as a matter of law issue, which was to initiate proceedings with HHS and FDA to review the classification. This advice from SCOTUS 19 years ago has now not only been followed but has resulted in the expected justifiable and proper outcome: a new finding, based on the most recent evidence since HHS last ruled on this issue in 2016, that cannabis has “accepted medical use in the United States” as a matter of science. This is an inferior argument, and is only persuasive evidence, inferior to Karimi’s pointing out that the statutory requirement of cannabis in Nebraska needing to have zero “accepted medical use in the United States” is no longer objectively met due to not only Nevada’s constitution defining cannabis as medicine, nor Karimi’s home state of South Dakota statutorily defining cannabis as medicine, and FDA and HHS now saying cannabis is accepted for medical use in the United States.

Therefore, this motion to dismiss the charge of a miniscule personal amount of cannabis in the state of Nebraska is brought with full force and intent to enforce the law as written on the book – NAMELY THAT CANNABIS MUST BE FOUND BY THIS COURT TO HAVE accepted medical use in the united states. 

For further evidence, please note Mr. Karimi has a medical cannabis card, and so does his girlfriend and partner, whose cannabis was left in the car Mr. Karimi was pulled over in, without Mr. Karimi’s knowledge. 

ARGUMENT

In the Nevada ACLU case CITE HERE, the last update was November 17, 2023. From the aclu URL above:

            “Cannabis Equity & Inclusion Community (CEIC) and Antoine Poole are among those Nevadans harmed by the Board’s scheduling determination for cannabis. They sued the Board in Nevada state court, seeking a writ of mandamus requiring the Board to remove its designation of marijuana as a Schedule I substance, along with declaratory and injunctive relief. The Eighth Judicial District Court of Clark County granted relief. It concluded that the Board’s scheduling designation, which rested on the Board’s conclusion that marijuana has no accepted medical value, was inconsistent with the Nevada Constitution, which expressly recognizes marijuana’s medical use. Further, the court concluded that the statutory regime created by voters when they legalized recreational marijuana use had displaced any authority the Board once had to regulate marijuana. The Board appealed.”

This case has completed it’s briefings. A date for argument has not been yet set. The FDA and HHS ruling that cannabis has “accepted medical use in the United States” will certainly influence the court’s determinations in the Nevada case. 

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AGGARWAL V. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, No. 22-1718 (9th Cir. 2023)

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The federal government has also long recognized that cannabis has some level of accepted medical use in the United States. Mr. Karimi is Executive Director of Iowa Patients for Medical Marijuana representing roughly 20,000 medical cannabis patients in his childhood state of Iowa. Two Iowans have received for decades 300 marijuana cigarettes by mail from the federal government as part of a federal IND compassion program that was ended by Bush Sr. They were grandfathered in. Mr. Karimi witnessed personally one of these patients, George McMahon, smoke this marijuana on the news in 2009. This witnessing greatly impacted Mr. Karimi’s sense of justice and fairness – if two Iowans get medical cannabis, on the federal government’s dime, why can’t the other 20,000 Iowans? Mr. Karimi then spent 15 years attending paralegal classes, researching this issue, and trying to find a resolution to the law’s clearly contradictory classification of cannabis as a schedule one drug. Sacrifices were made, including removal as a top ten referee of soccer in his home state being forced on him when forced to choose between doing the right thing – fixing schedule one misclassification – or traveling the country refereeing soccer. No other citizen in any jurisdiction has brought this argument Mr. Karimi is presenting to the court today in any criminal case excepting one case in Michigan with lawyer Neil Rockind, a case Mr. Karimi is unable to locate today and a case that resulted in dismissal of marijuana charges, the argument of which Neil Rockind personally called Mr. Karimi and also credited Mr. Karimi’s Iowa work in being where Neil Rockind came up with the successful criminal defense case  – however, Mr. Karimi’s argument is featured on the National Organization for the Reform of Marijuana Laws, an organization of lawyers, here at this URL: https://norml.org/wp-content/uploads/pdf_files/brief_bank/Carl_Olsen_v_DEA.pdf 

The argument in the Olsen vs. DEA case presented years ago, and presented prior to the FDA and HHS ruling of January 12th, 2024, was this:

“Whether the Drug Enforcement Agency (“DEA”) may lawfully conclude that marijuana has “no currently accepted medical use in treatment in the United States” under the federal Controlled Substances Act, 21 U.S.C §§ 801-904 (“CSA”), when marijuana’s medical use is currently accepted by 20 states and the District of Columbia?”

Mr. Karimi personally served a lawsuit in 2011 on the state of Iowa addressing this question and documented his efforts on his personal blog at this URL :  https://weedpress.wordpress.com/2011/06/07/lawsuit-filed-against-state-of-iowa-yesterday-weed-all-about-it/ 

Although the Nebraska Legislature does not have to listen to the FDA and HHS  expert medical opinion, law controls, not science. The state prosecutor can ignore the FDA and HHS science, but not the law. The law requires that marijuana be removed from schedule I, even if the FDA and HHS had found that marijuana had no medical efficacy whatsoever.

The totality of these arguments has increased in importance as marijuana has been increasingly found to have accepted medical use in the majority of states in the United States. Additionally, 2.3 million marijuana convictions have been expunged – and the current Biden administration has instructed and advised Governors throughout the country to not only take note, but do the right thing and stop perverting the law. While the United States has the highest rate of incarceration in the world, a deep dive into the actual crime statistics shows the United States actually UNDER incarcerates violent criminals compared to other so-called developed economies. Thomas Sowell, an exceptional economist worth reading and studying by all citizens of all backgrounds, points out this issue in his writings. Prosecutors, more interested in padding career wins and grabbing easy financial revenue for their impoverished counties, have been incentivized to attack non-violent citizens, subcontractors, business owners, and sick people, ripping apart families, while letting violent criminals off the hook as those cases aren’t as financially rewarding and much harder to pursue, arrest, investigate and prosecute. The result is a reduction in the respect for the rule of law in this country, as evidenced by the riots of 2020 and the ongoing crime wave of youths looting stores throughout the country that is common knowledge to anyone paying even a modicum of attention to the latest news reports.

This is a tragedy. 

Even with this extremely persuasive argument of HHS and FDA ruling marijuana now has “accepted medical use in the United States,” a recent case, AGGARWAL V. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, No. 22-1718 (9th Cir. 2023), clarifies that the “accepted medical use in the United States” statutory law requirement is not dependent on the opinion of FDA or HHS. As the court stated on page four, footnote 1 and 2 of the case:

“1 Moreover, the denial letter’s statement that “[a] prerequisite to transferring a substance from schedule I to schedule II under theCSA is for the Food and DrugAdministration (FDA) to determine that a substance has a currently accepted medical use in treatment in theUnited States” is contrary to 21 U.S.C.§ 812(b)(2)(B), which sets as a prerequisite to transfer to schedule II either “currently accepted medical use in treatment in the United States”or “a currently accepted medical use with severe restrictions.” Footnote 2 We therefore do not decide whether the five-part test for “currently accepted medical use” is a lawful interpretation of 21 U.S.C. § 812(b)(2)(B).

Mr. Karimi wishes to emphasize here that “currently accepted medical use” was defined years before the five-part test; therefore, the “currently accepted medical use” finding which Karimi urges the Nebraska court to find here today is not at all dependent on the five-part test.

If the federal government were allowed to overrule state findings that marijuana has “currently accepted medical use in the United States” it would be contrary to the guidance found in grinspoon vs dea, 1986, on a mdma petition. 

FDA isn’t part of schedule one requirements.  Neither is dea five factor test.

Rather than invest our resources in protecting families, communities, and business owners, our judicial system is instead ripping apart families for marijuana crimes in some jurisdictions, and expunging records for marijuana crimes in other jurisdictions. This was addressed by Justice Clarence Thomas in THIS CASE CITE HERE:

QUOTE THOMAS HALF IN HALF OUT