The Essentials of Cannabis Law
October 25, 2018
9:00 a.m. – 1:00 p.m.
CBA Law Center
New Britain, CT
CT Bar Institute Inc.
CT: 3.5 CLE Credits (General) NY: 4.0 CLE Credits (AOP)
No representation or warranty is made as to the accuracy of these materials. Readers should check primary sources where appropriate and use the traditional legal research techniques to make sure that the information has not been affected or changed by recent developments.
Page 1 of 330 Lawyers’ Principles of Professionalism
As a lawyer I must strive to make our system of justice work fairly and Where consistent with my client's interests, I will communicate with efficiently. In order to carry out that responsibility, not only will I comply opposing counsel in an effort to avoid litigation and to resolve litigation with the letter and spirit of the disciplinary standards applicable to all that has actually commenced; lawyers, but I will also conduct myself in accordance with the following Principles of Professionalism when dealing with my client, opposing I will withdraw voluntarily claims or defense when it becomes apparent parties, their counsel, the courts and the general public. that they do not have merit or are superfluous;
Civility and courtesy are the hallmarks of professionalism and should not I will not file frivolous motions; be equated with weakness;
I will endeavor to be courteous and civil, both in oral and in written I will make every effort to agree with other counsel, as early as possible, on communications; a voluntary exchange of information and on a plan for discovery;
I will not knowingly make statements of fact or of law that are untrue; I will attempt to resolve, by agreement, my objections to matters contained in my opponent's pleadings and discovery requests; I will agree to reasonable requests for extensions of time or for waiver of procedural formalities when the legitimate interests of my client will not be In civil matters, I will stipulate to facts as to which there is no genuine adversely affected; dispute;
I will refrain from causing unreasonable delays; I will endeavor to be punctual in attending court hearings, conferences, meetings and depositions; I will endeavor to consult with opposing counsel before scheduling depositions and meetings and before rescheduling hearings, and I will I will at all times be candid with the court and its personnel; cooperate with opposing counsel when scheduling changes are requested; I will remember that, in addition to commitment to my client's cause, my When scheduled hearings or depositions have to be canceled, I will notify responsibilities as a lawyer include a devotion to the public good; opposing counsel, and if appropriate, the court (or other tribunal) as early as possible; I will endeavor to keep myself current in the areas in which I practice and when necessary, will associate with, or refer my client to, counsel Before dates for hearings or trials are set, or if that is not feasible, knowledgeable in another field of practice; immediately after such dates have been set, I will attempt to verify the availability of key participants and witnesses so that I can promptly notify I will be mindful of the fact that, as a member of a self-regulating the court (or other tribunal) and opposing counsel of any likely problem in profession, it is incumbent on me to report violations by fellow lawyers as that regard; required by the Rules of Professional Conduct;
I will refrain from utilizing litigation or any other course of conduct to I will be mindful of the need to protect the image of the legal profession in harass the opposing party; the eyes of the public and will be so guided when considering methods and content of advertising; I will refrain from engaging in excessive and abusive discovery, and I will comply with all reasonable discovery requests; I will be mindful that the law is a learned profession and that among its desirable goals are devotion to public service, improvement of In depositions and other proceedings, and in negotiations, I will conduct administration of justice, and the contribution of uncompensated time and myself with dignity, avoid making groundless objections and refrain from civic influence on behalf of those persons who cannot afford adequate legal engaging I acts of rudeness or disrespect; assistance;
I will not serve motions and pleadings on the other party or counsel at such I will endeavor to ensure that all persons, regardless of race, age, gender, time or in such manner as will unfairly limit the other party’s opportunity disability, national origin, religion, sexual orientation, color, or creed to respond; receive fair and equal treatment under the law, and will always conduct myself in such a way as to promote equality and justice for all. In business transactions I will not quarrel over matters of form or style, but will concentrate on matters of substance and content; It is understood that nothing in these Principles shall be deemed to supersede, supplement or in any way amend the Rules of Professional Conduct, alter existing standards of conduct against which lawyer conduct I will be a vigorous and zealous advocate on behalf of my client, while might be judged or become a basis for the imposition of civil liability of recognizing, as an officer of the court, that excessive zeal may be any kind. detrimental to my client’s interests as well as to the proper functioning of our system of justice; --Adopted by the Connecticut Bar Association House of Delegates on June 6, 1994 While I must consider my client’s decision concerning the objectives of the representation, I nevertheless will counsel my client that a willingness to initiate or engage in settlement discussions is consistent with zealous and effective representation;
Page 2 of 330 Table of Contents Agenda ...... 4 Faculty Biographies ...... 5 Race Cannabis ...... 7 Memorandum of Law in Support of Defendant’s Motion to Dismiss ...... 45 Memorandum of Law in Opposition to Defendant’s Motion to Dismiss ...... 163 Defendant’s Reply to State’s Objection to Defendant’s Motion to Dismiss ...... 174 Memorandum of Decision Re: Defendant’s Motions to Dismiss ...... 183 Motion for Reconsideration ...... 212 Memorandum In Support of Sentencing ...... 219 Medical Marijuana ...... 255 Regulatory Standards in the Cannabis Industry ...... 304
Page 3 of 330 The Essentials of Cannabis Law Thursday, October 25, 2018 Agenda
9:00 a.m. – 10:00 a.m. Race Cannabis Speaker: Aaron J. Romano, Aaron J. Romano PC, Bloomfield 10:00 a.m. – 10:10 a.m. BREAK 10:10 a.m. – 11:10 a.m. State of Connecticut Medical Marijuana Program Speaker: April Arrasate, April & Associates LLC, Farmington 11:10 a.m. – 11:20 a.m. BREAK 11:20 a.m. – 12:20 p.m. Regulatory Standards in the Cannabis Industry Speaker: Jose A. Zavaleta, AltaSci Laboratories, New Britain 12:20 p.m. – 1:00 p.m. Q&A
Page 4 of 330 Faculty Biographies
Ms. April Arrasate is an attorney with a biochemistry background who has extensive entrepreneurial and executive experience in the commercial cultivation, processing, and manufacture of cannabinoid medicine in a highly-regulated environment. As founder, shareholder and Chief Operating Officer of one of only four grower/processors licensed in Connecticut, Ms. Arrasate wrote the Curaleaf application and, post-licensing, oversaw and orchestrated the completion of a 40,000-square foot indoor production facility from initial build out to full production in under six months. Her range of products included: CO2-extracted vaporization oils, concentrates, drops, tinctures, oromucosal sprays, capsules, raw flower, and edibles. Ms. Arrasate is well versed in all areas of the commercial production of cannabis-based medicine, including: facility build out, security, compliance, cultivation, harvest, processing, inventory tracking, testing, formulation, manufacture, packaging, delivery, fulfillment, product development, physician education, patient education, dispensary relations, public relations and overall branding. Ms. Arrasate is a Connecticut and South Carolina licensed attorney and is Of Counsel with The Nicolette Firm in Palm Beach, Florida. She is also Founder and Chair of the Connecticut Bar Association’s Medical Marijuana Committee. Prior to her legal and entrepreneurial career, April worked in the biotech industry. She has worked in the field of pharmaceutical synthesis with Genzyme and with Harvard Medical School’s Channing Laboratory. Ms. Arrasate Currently practices law and consults in the cannabis space through Arrasate Consulting. This practice harnesses Ms. Arrasate's legal, pharmaceutical and cannabis industry contacts and experience to pursue national and international business development opportunities in cannabinoid medicine, research, law and drug policy initiatives.
Aaron Romano After spending his youth in and out of the back of police cars, incredibly Aaron attended (and graduated!) from Bard College in New York with a Bachelor's Degree in Political Science and music. Inspired by his interactions with the law enforcement, he naturally gravitated toward a career as a criminal defense attorney. He then attended the University of Pennsylvania School of Law, where he was awarded the University of Pennsylvania Award for Public Service and was a recipient of the Equal Justice Foundation Fellowship. He was a law clerk for the Honorable Russell M. Nigro of the Pennsylvania Supreme Court. Attorney Romano was also the editor of the University's public interest journal, Hybrid: The University of Pennsylvania Journal of Law and Social Change, and a teacher for the Philadelphia Urban Law School Experience.
After law school, Attorney Romano joined Philadelphia’s prestigious Defender Association, renowned for producing top trial attorneys. After his tenure as an Assistant Public Defender, he moved to the Commonwealth of the Northern Mariana Islands and worked as an Assistant Attorney General prosecuting major crimes.
Attorney Romano has tried hundreds of cases and achieved outstanding results for his clients throughout his career. He has been a nationally recognized guest lecturer on trial advocacy and defeating cellular telephone tracking evidence at Continuing Legal Education courses across the country.
Aaron Romano is now a partner in the criminal defense firm of Romano & Fetterman, PC in Bloomfield, CT. He is a Lifetime Member of the National Association of Criminal Defense Lawyers, a Lifetime Member of the National Organization for the Reform of Marijuana Laws (NORML) Legal Committee, a member of the Connecticut Criminal Defense Lawyer's Association, a member of Law Enforcement Against Prohibition (LEAP) a member of the U.S. Virgin Island's Bar Association, and serves as legal counsel for the Connecticut NORML chapter. He is also on the Board of Directors for the Hartford County Farm Bureau and the Wintonbury Historical Society.
Jose A. Zavaleta is the lab director of AltaSci Laboratories in New Britain, Connecticut. He spearheaded the foundational work of equipping and developing all testing methods and protocols for AltaSci's innovative Page 5 of 330 laboratories, while developing the intellectual property that provides AltaSci with a tangible competitive advantage. He is now a cited expert in pharmaceutical cannabis analysis. Zavaleta has been featured in such publications as Public Source and News21. Mr. Zavaleta’s professional experience involved working in analytical and organic chemistry labs, molecular biology labs, and genetics. He previously conducted research for pharmaceutical and biotech companies, and served as an adjunct professor at Fullerton College in California. Mr. Zavaleta earned a M.S. degree in Analytical Chemistry from California State University Los Angeles and a B.S. in Chemistry from the University of California Irvine.
Page 6 of 330 WHY WE LOVE TO HATE CANNABIS
Page 7 of 330 Page 8 of 330 Page 9 of 330 Page 10 of 330 Page 11 of 330 Page 12 of 330 Page 13 of 330 Page 14 of 330 Page 15 of 330 Page 16 of 330 Page 17 of 330 EXODUS 30:24
Page 18 of 330 Page 19 of 330 Page 20 of 330 Page 21 of 330 Page 22 of 330 La Cucaracha
●Mexican Revolution from 1910-1920
●Lyrics reflect Villist anti-Huerta stanzas
La cucaracha, la cucaracha, The cockroach, the cockroach Ya no puede caminar Can't walk anymore Porque no tiene, porque le falta Because it doesn't have, because its lacking Marihuana que fumar Marijuana to smoke
Page 23 of 330 Page 24 of 330 Page 25 of 330 Page 26 of 330 Page 27 of 330 Page 28 of 330 Page 29 of 330 Page 30 of 330 Page 31 of 330 Page 32 of 330 March 28, 1939 Cannabis Prohibition in CT is Proposed to “conform to federal law”
Page 33 of 330 Page 34 of 330 Page 35 of 330 Page 36 of 330 Page 37 of 330 Page 38 of 330 Page 39 of 330 Page 40 of 330 Page 41 of 330 Page 42 of 330 Page 43 of 330 Contact Information
Law Office of Aaron J. Romano, P.C. 55 Woodland Avenue Bloomfield, Connecticut 06002 www.AttorneyAaronRomano.com (860) 286-9026 Fax: (860) 286-9028
©2018, Aaron J. Romano, PC
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STATE OF CONNECTICUT : JUDICIAL DISTRICT OF
VS. : MIDDLESEX AT MIDDLETOWN
WILLIAM BRADLEY : SEPTEMBER 25, 2017
STATE’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
I. Preliminary Statement
The defendant, William Bradley, has filed a Motion to Dismiss and an Amended
Memorandum of Law in Support of his Motion. Specifically, the defendant is seeking to dismiss his case asserting that Connecticut General Statutes §21a-277(b), which prohibits the possession of marijuana with intent to sell, is unconstitutional. For the reasons set forth below, the State opposes the granting of this Motion.
II. Facts
On October 13, 2016, the defendant plead no contest to the charge of Sale of a Controlled
Substance, namely: Marijuana, in violation of Connecticut General Statutes §21a-277(b). The factual basis for the plea involved the defendant utilizing a storage facility in the Town of
Chester to store a large quantity of marijuana, specifically 8.5 pounds. Members of the
Connecticut State Police later seized the marijuana which was discovered in the attic of the storage facility after receiving consent from the owner of the facility. The defendant had used
Page 163 of 330 duct tape to wrap the marijuana packages and when a DNA analysis was later performed on the duct tape by the State lab, the DNA on the duct tape matched the defendant’s profile.1
During the defendant’s canvass, the Court (Gold, J.) expressly asked the defendant, inter alia, if he understood that he was waiving any defenses to the charges, including any
Constitutional claims. (See attached plea transcript dated October 13, 2016, p. 7.) The defendant answered in the affirmative to that question. On December 20, 2016, the Court (Gold,
J.) imposed a sentence of seven years, execution suspended and three years’ probation. During its sentencing remarks, the Court noted that the defendant had previously been convicted three times of Possession of Marijuana. Later on, the Court stated the following:
“Mr. Bradley, I’m just troubled by the fact that despite repeated interventions by the criminal justice system, you just continued to violate the law. Now, you may not like the law, the law may be changing, it may change even more in the years ahead, but you know, the laws have to be enforced. Those who violate them are given sentences that hopefully will deter them from future violations, that didn’t happen.” (See attached sentencing transcript dated 12/20/16, pp. 16-17.)
The Court further noted that at the time the defendant violated the law, he knew what he was doing. (Tr. 12/20/16, p. 19.) The Court also noted that the defendant had a responsibility not to violate the law. The Court went on to admonish the defendant that he could not possess any illegal drugs or weapons, that he must submit to a search of his person, possessions and residence as deemed necessary by probation.
The defendant later signed the conditions of probation on January 4, 2017, and the Court entered an Order of Probation that the defendant could not violate any law in this State, any other
1 The Police obtained the defendant’s DNA utilizing a Search and Seizure Warrant.
Page 164 of 330 State or Federal Law on December 20, 2017. By signing the Conditions of Probation, the defendant expressly agreed to abide by them. (See attached Conditions of Probation document signed by the defendant.) Such document further noted that the defendant must abide by the special condition of probation not to possess any illicit drugs.
On January 13, 2017, just twenty-four days after he was sentenced by the Court, the defendant was arrested on the same charges of Possession of a Controlled Substance in violation of Connecticut General Statutes §21a-279(b) and Sale of or Intent to Sell a Controlled Substance in violation of Connecticut General Statues §21-277(b) following a scheduled home visit to the defendant’s residence.
During that search of his residence, two probation officers discovered a digital scale in plain sight upon opening the top dresser, and a container which contents appeared to be marijuana. A further search revealed the existence of six cellular phones. When the defendant was asked if there were additional amounts of marijuana inside the residence, he replied “not that I am aware of, at least I don’t think so.” The probation officers, however, discovered additional amounts of marijuana contained in multiple gallon size Ziploc bags as well as marijuana contained in a wood square case. The defendant later claimed that what was discovered was “old marijuana, somewhat molded marijuana” and that he did “not know if it’s good anymore.” There was also cash discovered in the amount of $3,980. When the defendant was asked how much his rent was per month, he indicated it was $725, while also stating that the total amount of disability he received per month was $730.
Page 165 of 330 The total amount seized was approximately thirty ounces. The defendant was arrested on
February 10, 2017, relative to a Violation of Probation Warrant charge.
III. Argument
a. The Defendant Cannot Establish that C.G.S. §21a-277(b) is Unconstitutional Beyond a Reasonable Doubt
In his brief, the defendant asserts that Connecticut General Statutes §21a-277(b) is
unconstitutional. The State begins its analysis by noting that it is axiomatic that one who
challenges the constitutionality of a statute bears the heavy burden of establishing that the
statute at issue is unconstitutional. See e.g. State v. Floyd, 217 Conn. 73, 79 (1991).
Additionally, courts indulge in every presumption in favor of the statute’s
Constitutionality. Id.
Over forty years ago our Supreme Court in State v. Rao, 171 Conn. 600 (1976)
concluded that there was at least a rational basis for the inclusion of marijuana among
controlled substances for penalty purposes. Id. at 607-608.
The defendant in the case at bar is not the first to challenge the constitutionality of
the prohibition of the sale and possession of marijuana statutes in this State. In
State v. Rao, supra, the defendant averred that Connecticut General Statutes §19-480
[now §21a-277(b)] was violative of the equal protection clause of both the State and
Federal Constitutions. Specifically, the defendant asserted that the General Assembly
had irrationally classified for penalty purposes marijuana with, inter alia, amphetamines
and barbiturates which are considered to be much more harmful to the individual than
Page 166 of 330 marijuana. The trial Court (Berdon, J.) agreed with the defendant’s claim and concluded
that such classification was violative of the equal protection clauses of both the State and
Federal Constitutions. The trial Court granted the State permission to appeal its decision
to the Connecticut Supreme Court.
In a unanimous decision, our Supreme Court reversed the trial Court and
remanded the case for further proceedings. In so doing, the Court in Rao expressly noted
that because possession for sale and trafficking in marijuana are not fundamental
Constitutional rights, the rational basis test is the one applicable in this case in addressing
the constitutionality of the statute.2 171 Conn. at 602. As previously noted, the Court
expressly stated that there is at least a rational basis for the inclusion of marijuana among
controlled drugs for penalty purposes. 171 Conn. at 607-608.
b. The Defendant’s Assertion that C.G.S. §21a-277(a) was Enacted with a Discriminatory Purpose, Even Implicitly, is Without Merit.
The defendant’s averment that the Connecticut Statute prohibiting the sale and
possession of marijuana was enacted with a discriminatory purpose against both African-
Americans and Hispanics is without merit. Our Supreme Court in State v. Rao, supra,
expressly noted the following:
2 The defendant’s assertion in his Brief that this Court employ the strict scrutiny test when determining whether the statute passes Constitutional muster is without merit and is indeed contrary to our Supreme Court’s decision in State v. Rao where the Court employed the rational test in deciding whether the marijuana statute was Constitutional.
Page 167 of 330 “In view of the ongoing dispute regarding the potential effects of the use of marijuana, the magnitude of the current problems associated with the use of and traffic in illegal drugs, the obvious case with which the General Assembly relating to dependency producing drugs and the presumption of Constitutionality which applies to its enactment, we conclude that the trial Court erred in holding that §19-480(b) [now §21a-277(b)] is so irrational and unreasonable as to violate the equal protection clauses of the United States and Connecticut Constitutions.” 171 Conn. at 609.
Moreover, as far back as 1974, Judge Barber of the Superior Court in a written
decision expressly noted that the legislative history and policy of our General Assembly
have been to remedy the mischief of marijuana sales. He further noted that statements
made on the floor of the General Assembly are strong indications of legislative intent.
Judge Barber noted as much after expressly denying the defendant’s Motion to Dismiss
challenging the constitutionality of the sale of marijuana statute which had just been
amended at that time under Public Act 74-332 §2(b). Judge Barber specifically rejected the defendant’s assertion that Public Act 74-332 §2(b) was unconstitutionally vague and indefinite. Judge Barber further noted that a careful reading of Public Act 74-332 in its entirety revealed that the 1974 session of the General Assembly sought to amend
Chapter 359 of the General Statutes dealing with dependency producing drugs in order to
provide a more proper scale of penalties for various offenses. State v. Anonymous,
31 Conn. Sup. 130 (1974).
In 2011, our Legislature amended the Statute again by expressly stating that
anyone who possesses less than one-half ounce of marijuana for a first time offender
carries a civil penalty of $150 under Public Act 11-71[ now codified as Connecticut
Page 168 of 330 General Statutes Section 21-279a(a)]. Cf. State v. Menditto, 315 Conn. 863 (2015)
(holding that for purposes of §54-142d [erasure statute], Public Act 11-71 [now
§21a-279a] “decriminalized” possession of less than one-half of marijuana by making this an infraction subject to a relatively small fine. Stated another way, the Court concluded that changing the status of an illegal act from a crime to a minor civil violation constitutes decriminalization for the purposes of the erasure Statute.) Surely, the legislature had the opportunity during that time to go so far as to actually repeal the
Statutes involving the prohibition of marijuana itself if members of the legislature were of the opinion that it was originally enacted with a discriminatory purpose as the defendant has averred in the case at bar. That they did not certainly undermines the defendant’s assertion that it was enacted with such purpose. c. The Policy Arguments Advanced by the Defendant Extolling the “Virtues” of Marijuana Usage are Misguided.
The defendant devotes a significant portion of his brief extolling what he considers to be the virtues of marijuana usage in an effort to persuade this Court to declare the Statute at issue unconstitutional. Such policy arguments are both misguided and misplaced because they should be directed toward our Legislature rather than the
Judicial Branch. As our Supreme Court noted long ago in State v. Rao, supra, “a holding that a legislative enactment is invalid cannot rest upon a Judicial determination of a debatable medical issue.” 171 Conn. at 607.
Page 169 of 330 It is the State’s position that this Court respectfully defer such decisions to our
Legislature where such arguments may be debated on voted on after a full blown debate
on the floor of the House and Senate.
D. In any Event, the Defendant Waived any Claim Challenging the Constitutionality of Connecticut General Statutes §21a-277(b).
As noted previously, during the Court’s canvass of the defendant at the time of his
plea, the Court expressly asked the defendant if he understood that he was waiving any
defenses to the charges, including any Constitutional claims to which the defendant
responded in the affirmative. (Tr. 10/13/16, p. 7.) The defendant was obviously aware
the charge for which he entered a plea of No Contest was Possession of Marijuana with
Intent to Sell in violation of Connecticut General Statutes §21a-277(b). Moreover, at the
time the defendant was sentenced, the Court expressly stated to the defendant that
“[although] “you may not like the law, the law may be changing, it may change even
more in the years ahead, but you know the laws have to be enforced. Those who violate
them are given sentences that hopefully will deter them from future violations.”
(Tr. 12/20/16, pp. 16-17.) The Court further explicitly advised the defendant that he could not possess any illegal drugs or weapons, that he must submit to a search of his person, possessions and residence as deemed necessary by probation. The defendant later signed the Conditions of Probation and the Court entered an Order of Probation that the defendant could not violate any criminal law of the United States, this State or any other
Page 170 of 330 State or territory. Such document further noted that the defendant must abide by the
special condition of probation not to possess any illicit drugs.
Because the defendant here expressly agreed to abide by the conditions of
probation that he not violate any law of the United States, this State or any other State or
territory when he signed the Conditions of Probation, he has waived any challenge that he
did not have to abide by that condition of probation because he now claims that the
Statute for which he was on probation is now “unconstitutional.” Our Appellate Court’s
decision in State v. Klinger, 103 Conn. App. 163 (2007) is instructive by analogy on this
point. In Klinger, the defendant challenged the special condition of probation requiring
him to pay restitution to a certain bank. Specifically, the defendant averred that the
condition was improper because he had not been convicted of any crime related to that
institution. Our Appellate Court expressly refused to review that claim because the
defendant had acquiesced to that condition and failed to object to the Court’s imposition of that condition at the time of sentencing. In so doing, the Klinger Court explicitly
noted that “Connecticut Courts have consistently held that when a party fails to raise in
the trial court the Constitutional claim presented on appeal and affirmatively acquiesces to the trial Court’s Order, that party waives any such claim.” Id. at 171. Cf.
State v. Diaz, 109 Conn. App. 519 (2008)(By acquiescing in the trial Court’s ruling
regarding certain jury instructions that were given, the defendant has waived any claim
that such instruction was improper. It is fundamentally unfair to both the state and the
Page 171 of 330 Court, as well as inconsistent with the position the defendant took at trial, for the
defendant to raise the claim on appeal).
For the defendant to now assert in his brief that “even if cannabis was not in fact
legalized by federal law, [he] relied that it had been and thus relied on the misstatement
of the law” is flatly disingenuous. Presumably, the defendant’s argument that possession
of marijuana had been “legalized” predates both his sentencing and plea in this case.
Moreover, at the time of his plea on October 13, 2016, Judge Gold specifically asked the
defendant if he was aware that he was waiving any defenses to these charges including
any constitutional claims for which the defendant replied in the affirmative. (emphasis
added.) Indeed, the Court informed the defendant that he would not be able to assert a
Constitutional claim or defense by entering his plea [of no contest]. And when the Court
expressly asked the defendant if he understood that, he explicitly stated “I do” to that
question. Moreover, at no time during the Court’s imposition of the special condition
that he not possess any illegal drugs did the defendant ever voice an objection to the
Court. And when meeting with his Probation Officer, he again signed the conditions of
probation that he not violate any law in this State, any other State or Federal law and that
he agreed by signing the Conditions of Probation to abide by the special condition not to
possess and illegal drugs. Certainly, the law did not change from the time the Court imposed sentence on December 20, 2106, to the time he was arrested for the identical charge he was on probation for just 24 days later on January 13, 2017. It is also worth noting that our Supreme Court in State v. Indrisano, 228 Conn. 795 (1994) expressly
Page 172 of 330 stated that a defendant whose conduct falls within a statute’s unmistakable core of
prohibited conduct may not raise a facial vagueness challenge to the statute. Id. at 804.
IV. Conclusion
For the foregoing reasons, and any other the Court may consider just and proper, the
State respectfully requests that the defendant’s Motion to Dismiss be denied.
STATE OF CONNECTICUT
BY: ______RUSSELL C. ZENTNER Senior Assistant State’s Attorney
CERTIFICATION
I hereby certify that a copy of the above was mailed to Attorney Aaron Romano at
55 Woodland Avenue, Bloomfield, CT 06002 on September 25, 2017.
______RUSSELL C. ZENTNER Senior Assistant State’s Attorney
Page 173 of 330 AARON J. ROMANO, P.C. BY: Aaron J. Romano, Esquire Juris No.: 415829 55 Woodland Avenue Bloomfield, CT 06002 Tel: (860) 286-9026 Attorney for DEFENDANT ______DOCKET NO. M09M-CR17-0210994-S : SUPERIOR COURT
STATE OF CONNECTICUT : JUDICIAL DISTRICT OF MIDDLESEX
v. : AT MIDDLETOWN G.A. 9
WILLIAM BRADLEY : NOVEMBER 1, 2017 Defendant.
DEFENDANT’S REPLY TO STATE’S OBJECTION TO DEFENDANT’S MOTION TO DISMISS
Pursuant to the Fifth, Sixth and Fourteenth Amendments to the United States
Constitution and Article First Sections One, Eight, Nine, and Twenty of the Connecticut
Constitution, C.G.S. §54-56, P. B. §41-8, and the Defendant, Mr. William Bradley, hereby respectfully replies to the State’s Objection to the Defendant’s Motion to Dismiss. In support thereof, the Defendant avers as follows:
I. FACTS AND PROCEDURAL HISTORY
On or September 8, 2017, the Defendant, Mr. William Bradley, filed a Motion to
Dismiss the charges against him in the above-referenced matter based on the unconstitutionality of marijuana prohibition and his reasonable reliance on the repeal of that prohibition. On or about September 25, 2017, the State filed its Objection to the Motion to Dismiss. Mr. Bradley now timely replies to the same.
1
Page 174 of 330 II. ARGUMENT
A. Cannabis Prohibition was Racially Motivated
In its hurried reliance on State v. Rao, 171 Conn. 600 (1976), the State insists that the Defendant must establish that C.G.S. §21a-277(b) is unconstitutional beyond a reasonable doubt, and that “courts indulge in every presumption in favor of a statute’s
Constitutionality.” Objection at 4. To the contrary, the presumption in favor of a statute’s constitutionality in the face of a claim that a statute was enacted for a racially discriminatory purpose was explicitly rejected by the United States Supreme Court in Village of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-266 (1977):
Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the “dominant” or “primary” one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified. (Emphasis added).
The Defendant’s burden in this case is to prove that “discriminatory purpose was a motivating factor.” Id. at 270. “Once racial discrimination is shown to have been a
‘substantial’ or ‘motivating’ factor behind enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor.”
Hunter v. Underwood, 471 U.S. 222, 228 (1985).“Instead, courts must scrutinize the legislature’s actual non-racial motivations to determine whether they alone can justify the legislature's choices.” N.C. State Conf. of the NAACP v. McCrory, 831 F.3d 204, (4th Cir.
2016) citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287(1977); cf.
2
Page 175 of 330 Miss. Univ. for Women v. Hogan, 458 U.S. 718, 728, 102 S. Ct. 3331, 73 L. Ed. 2d 1090
(1982).
At issue in Rao, as the State recounts,1 was the defendant’s claim that he was denied equal protection “on the grounds that the General Assembly had irrationally classified, for penalty purposes, marihuana with, among other substances, amphetamines and barbiturates which are generally considered to be much more harmful to the individual
than marihuana.” Id. at 601. Conversely in this case, the defendant has alleged that the
criminalization of marijuana was based on a racially discriminatory purpose, which violates
equal protection, and is therefore, unconstitutional. This is why, contrary to the State’s
assertion, the “rational basis” test articulated in Rao is inapplicable to the present claim.
In Rao, the Connecticut Supreme Court opined: “Because the possession for sale and the
trafficking in marihuana are not fundamental constitutional rights, the rational basis test is
the one applicable in this case.” Id. at 602.
Here, the equal protection violation alleged- which is not based on a classification,
but on a racially discriminatory motivation for the statute itself- dictates that strict scrutiny
be employed. “...statutes are subject to strict scrutiny under the Equal Protection Clause
not just when they contain express racial classifications, but also when, though race neutral
on their face, they are motivated by a racial purpose or object.” Miller v. Johnson, 515 U.S.
900, 913 (1995). To satisfy strict scrutiny, the State must demonstrate that its legislation
“is narrowly tailored to achieve a compelling interest.” Id. at 920. Thus, the State’s
1 Objection at 4.
3
Page 176 of 330 asservation notwithstanding,2 it is not the subject of the statute that determines the level
of scrutiny, but the character of the equal protection violation. Consequently, the State’s
supposition that this Court must apply the rational basis test is without merit.
Mr. Bradley has established a prima facie case that race was a motivating factor in
the criminalization marijuana. Specifically, Mr. Bradley has provided this Court with legislative testimony demonstrating the statute’s racially discriminatory intent, and current statistics confirming the discriminatory purpose has been achieved.3 The burden now shifts to the State to demonstrate that marijuana would have been criminalized absent the racially discriminatory purpose. In doing so, the State’s proffered rationale remains subject to strict scrutiny. Consequently, the Connecticut Supreme Court’s language, as quoted by
the State, is not determinative of the Court’s analysis in this case. In Rao, the Connecticut
Supreme Court opined:
In view of the ongoing dispute regarding the potential effects of the use of marihuana, the magnitude of the current problems associated with the use of and traffic in illegal drugs, the obvious care with which the General Assembly has drafted and revised chapter 359 of the General Statutes relating to dependency-producing drugs and the presumption of constitutionality which applies to its enactments, we conclude that the trial court erred in holding that § 19-480 (b) is so irrational and unreasonable as to violate the equal protection clauses of the United States and Connecticut constitutions. Id. at 609.
2 Objection at 5, n. 2: “The defendant’s assertion in his Brief that this Court employ the strict scrutiny test when determining whether the statute passes Constitutional muster is without merit and is indeed contrary to our Supreme Court’s decision in State v. Rao where the Court employed the rational test in deciding whether the marijuana statute was Constitutional.”
3 See Exhibit F of the Defendant’s Amended Memorandum of Law in Support of his Motion to Dismiss, revealing that black people are four times more likely to be arrested in Connecticut for cannabis offenses than white people, despite white people having a higher rate of usage.
4
Page 177 of 330 The difficulties of simply transferring the Court’s findings in Rao to the case sub judice are apparent. Since Rao was decided in 1976, the Connecticut legislature, through decriminalization and legalization of medicinal marijuana, has recognized “the potential effects of the use of marihuana” include beneficial medicinal use. Indeed, this coincides with Dr. William C. Woodward, a representative of the American Medical Association, who specifically objected to the passage of the Marihuana Tax Act of 1937, citing the lack of scientific evidence linking marijuana and crime.
There is nothing in the medicinal use of Cannabis that has any relation to Cannabis addiction. I use the word “Cannabis” in preference to the word “marihuana,” because Cannabis is the correct term for describing the plant and its products. The term “marihuana” is a mongrel word that has crept into this country over the Mexican border and has no general meaning, except as it relates to the use of Cannabis preparations for smoking ... To say, however, as has been proposed here, that the use of the drug should be prevented by a prohibitive tax, loses sight of the fact that future investigation may show that there are substantial medical uses for Cannabis.4
The remainder of the Rao Court’s conclusions rests on generalities concerning drugs-
“current problems associated with the use of and traffic in illegal drugs,” “relating to dependency-producing drugs,” with no discussion of the Legislature’s specific decision to criminalize marijuana, and what role racial discrimination had in cannabis prohibition.
Again, the Court refers to the “ presumption of constitutionality,” which, as enumerated above, was rejected by the United States Supreme Court in Village of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 265-266 (1977). Ultimately, the Court’s holding that the statute was neither “so irrational and unreasonable as to violate the equal protection clauses of the United States and Connecticut constitutions,” is not responsive
4William C. Woodward, MD, Statement to the U.S. House of Representatives Committee on Ways and Means (May 4, 1937).
5
Page 178 of 330 to the question before this Court: whether in applying the strict scrutiny test, marijuana
would have been criminalized absent a racially discriminatory purpose as a motivating
factor. Notably, racial discrimination need not have been the sole motivation for the
passage of the prohibition in order to sustain an equal protection violation. Jurisprudence
“does not require a plaintiff to prove that the challenged action rested solely on racially
discriminatory purposes. Rarely can it be said that a legislature or administrative body
operating under a broad mandate made a decision motivated solely by a single concern,
or even that a particular purpose was the ‘dominant’ or ‘primary’ one.” Village of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1975).
Similarly, the State’s citation to State v. Anonymous, 31 Conn. Supp. 130 (1978) is
equally unavailing. While Judge Barber may have noted the legislative history in 1974,
marijuana was first regulated in Connecticut in 1935. In 1935, cannabis became regulated
by the Uniform State Narcotic Drug Act, prohibiting its possession and dispensation with
certain medical and academic exceptions. See Exh. B.5 As evidenced by the corresponding legislative history, the regulation of cannabis in Connecticut was in response
to the Federal activism of Harry Anslinger. Exh C. at 3. By 1939, marijuana was
criminalized entirely, without exception for medicinal or research purposes. Exh. D. The
legislative testimony plainly states that the purpose of the amendment was to make
Connecticut’s law “conform to the federal law.” Exh. E.
As the defendant detailed in his principal Motion, racial discrimination was the initial
impetus for the criminalization of marijuana. Nothing in the State’s objection addresses the
5 To the Defendant’s Amended Memorandum of Law in Support of his Motion to Dismiss
6
Page 179 of 330 unequivocal racial discrimination inherent in the prohibition of marijuana.
B. The Defendant has not Raised a Policy Argument
The State contends that Mr. Bradley is advancing a “policy argument” as a basis for dismissal. The State misconstrues the import of such “policy arguments” in an effort to obfuscate the defendant’s claims. The documented history and benefits of cannabis were presented by the defendant to demonstrate that prior to Harry Anslinger, the first commissioner of the United States Treasury Department’s Federal Bureau of Narcotics and his racially motivated campaign, cannabis was widely utilized and accepted in cultures for thousands of years across the globe. Connecticut’s own decriminalization and legalization of marijuana for medicinal purposes merely confirms that the initial criminalization of marijuana emanated from the normalized racially discriminatory purpose of the time, as opposed to legitimate criminal justice or medicinal concerns.
Mr. Bradley is not asking this Court to make a “Judicial determination of a debatable medical issue.” Objection at 7. Rather, the “policy arguments” referred to by the State provide evidentiary support for the defendant’s claim that, absent a racially discriminatory purpose, cannabis would not have been criminalized. It is not, as the State suggests, an effort to circumvent the Legislative process. Rather, it is the imperative acknowledgment that it is often the function of the judiciary to remedy the unconstitutional acts of the
Legislature. See e.g. State v. Santiago, 318 Conn. 1 (2015)(Defendant's death sentence was reversed because following the enactment of 2012 Conn. Acts 5, capital punishment no longer measurably contributed to the legitimate penological goals of deterrence and retribution, and thus, capital punishment in Connecticut violated Conn. Const. art. 1, §§ 8
7
Page 180 of 330 and 9.); Loving v. Virginia, 388 U.S. 1 (1967)(State law banning interracial marriages was unconstitutional; equal application of law containing racial classifications did not remove law from proscription against invidious racial discrimination; there was no legitimate purpose for classification).
The Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches nothing....To that end they rested the structure of our central government on the system of checks and balances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity...The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593-594 (1952)(Frankfurter, J. concurring).
The Legislature’s unconstitutional act demands that the judiciary perform its function and strike down the law as unconstitutional.
C. Mr. Bradley has not Waived any Claims
The State’s insistence that Mr. Bradley’s guilty plea has waived his present claims reveals a fundamental misunderstanding of Mr. Bradley’s claims. Mr. Bradley is not, in this forum, contesting the validity of his underlying conviction in Docket No. MMX
-CR14-0204977-T. As explained in Mr. Bradley’s principal motion, Mr. Bradley is challenging his new arrest in Docket No. M09M-CR17-0210994-S. Consequently, the trial court’s canvas of Mr. Bradley at the time of Mr. Bradley’s plea in Docket No. MMX
-CR14-0204977-T has no prospective bearing on Mr. Bradley’s ability to challenge the charges pending against him. Mr. Bradley’s arrest in Docket No. M09M-CR17-0210994-S is the basis for the violation of probation in Docket No. MMX -CR14-0204977-T, and consequently subject to dismissal due to the statute’s unconstitutionality. Once this Court strikes down Connecticut’s cannabis prohibition, a fortori, the prosecution against Mr.
8
Page 181 of 330 Bradley for the violation of probation in Docket No. MMX -CR14-0204977-T must be dismissed.
III. CONCLUSION
Wherefore, for all the afore-stated reasons, the Defendant, Mr. William Bradley, respectfully requests that this Court overrule the State’s Objection, grant his Motion to
Dismiss the charges against him, and strike down any laws pertaining to cannabis prohibition as unconstitutional.
RESPECTFULLY SUBMITTED this 1st day of November, 2017 BY THE DEFENDANT, WILLIAM BRADLEY
By /s/ Aaron J. Romano Aaron J. Romano, Esq. Juris No. 415829 Aaron J. Romano, P.C. 55 Woodland Avenue Bloomfield, CT 06002 Tel: (860) 286-9026 Fax: (860) 286-9028 [email protected]
CERTIFICATION
Pursuant to Practice Book §§ 10-12 through 10-17, and 11-1, this 1st day of November 2017, the undersigned hereby certifies that this document complies with all format provisions and further certifies that a copy of the foregoing was delivered via email/facsimile/in-hand/via first-class US mail postage prepaid to all counsel of record: Russell Zentner, Esq., Office of the State’s Attorney, Middlesex J.D., One Court Street, Middletown, CT 06457. /s/ Aaron J. Romano Aaron J. Romano, Esq. Comm. of Superior Court
9
Page 182 of 330 Page 183 of 330 Page 184 of 330 Page 185 of 330 Page 186 of 330 Page 187 of 330 Page 188 of 330 Page 189 of 330 Page 190 of 330 Page 191 of 330 Page 192 of 330 Page 193 of 330 Page 194 of 330 Page 195 of 330 Page 196 of 330 Page 197 of 330 Page 198 of 330 Page 199 of 330 Page 200 of 330 Page 201 of 330 Page 202 of 330 Page 203 of 330 Page 204 of 330 Page 205 of 330 Page 206 of 330 Page 207 of 330 Page 208 of 330 Page 209 of 330 Page 210 of 330 Page 211 of 330 AARON J. ROMANO, P.C. BY: Aaron J. Romano, Esquire Firm Juris No.: 415829 55 Woodland Avenue Bloomfield, CT 06002 Tel: (860) 286-9026 Attorney for DEFENDANT ______DOCKET NO. M09M-CR17-0210994-S : SUPERIOR COURT OF CONNECTICUT
STATE OF CONNECTICUT : JUDICIAL DISTRICT OF MIDDLESEX
v. : AT GEOGRAPHICAL AREA 9
WILLIAM BRADLEY : JUNE 11, 2018 Defendant
MOTION FOR RECONSIDERATION
Pursuant to the Fifth, Sixth, Fourteenth Amendments to the United States
Constitution, Article I, Section 9 of the United States Constitution, Article First, Sections
Eight, Nine, Ten, and Twelve of the Connecticut Constitution, C.G.S. §52-466, Connecticut
Practice Book §§11-12,1 23-21 et seq., the Defendant, Mr. William Bradley, hereby
respectfully requests that this court (Keegan, J.) reconsider its denial of Mr. Bradley’s equal
protection claim. In support thereof, the Mr. Bradley respectfully avers as follows:
1 See e.g. Weinstein v. Weinstein, 275 Conn. 671, 699-700, n. 21 (2005) (analyzing a motion for reconsideration under § 11-12); Aaron Manor, Inc. v. Irving, 307 Conn. 608, 613 (2013); Mangiante v. Niemiec, 98 Conn. App. 567, 578 (2006): “Whether denominated as a motion for reargument or reconsideration, the motion filed by the plaintiff was a proper vehicle for the court to exercise its equitable discretion to reexamine its decision...”
Page 212 of 330 I. FACTS AND PROCEDURAL HISTORY
On or September 8, 2017, the Defendant, Mr. William Bradley, filed a Motion to
Dismiss the charges against him in the above-referenced matter based on the unconstitutionality of cannabis prohibition and his reasonable reliance on the repeal of that prohibition. On or about September 25, 2017, the State filed its Objection to the Motion to Dismiss. On or about November 1, 2017, Mr. Bradley replied to the same.
On or about November 15, 2017, a hearing on Mr. Bradley’s Motion to Dismiss was held before the Court (Keegan, J.) wherein Mr. Bradley presented expert testimony and oral argument was heard.
On or about January 26, 2018, pursuant to the Court’s request, Mr. Bradley filed a supplemental brief asserting his standing to bring those claims raised in his Motion to
Dismiss.
On or about June 1, 2018, the Court (Keegan, J.) issued its decision confirming that
Mr. Bradley had standing to pursue his Motion to Dismiss, but denying his claims on the merits. Mr. Bradley now respectfully requests that the Court reconsider his claim that the prohibition against cannabis violates the Equal Protection Clauses of the United States and
Connecticut Constitutions as it emanates from a racially discriminatory purpose.
2
Page 213 of 330 II. ARGUMENT
In denying Mr. Bradley’s claim, the Court postulated:
The defendant asserts that it was this activism by Anslinger that prompted the General Assembly to first criminalize the sale and possession of cannabis in 1935 when it enacted the Uniform State Narcotic Drug Act, Public Acts 1935, c. 283. Pointing to Anslinger’s alleged role in the passage of the act, the defendant argues that Connecticut’s criminalization of cannabis was racially motivated. Even assuming, arguendo, that a legislature that enacts legislation in response to lobbying necessarily adopts the discriminatory motivations of the lobbyist, the defendant’s argument must fail, for there is no evidence that Anslinger in any way influenced the passage of the act. Memorandum of Decision at 13.
Mr. Bradley now requests that the Court reconsider this finding. “The granting of a motion for reconsideration ... is within the sound discretion of the court.” (Internal citations and quotations omitted) Swanson v. City of Groton,116 Conn. App. 849, 866 (2009). “A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it.” (Internal citations and quotations omitted) Mangiante v. Niemiec, 98
Conn. App. 567, 577 (2006).
Mr. Bradley alleged in his Motion to Dismiss, Connecticut’s cannabis prohibition was the result of Anslinger’s racially discriminatory campaign. As further corroboration, Mr.
Bradley requests that the Court consider the attached articles.
The Drug Enforcement Administration’s own publication recounts:
The proposed Uniform State Narcotic Law, substantially as approved by the Conference [the National Conference of Commissioners on Uniform State Law], eventually would be enacted by almost every state in the Union.
3
Page 214 of 330 The Great Depression brought with it a deep sense of peril. From the American Southwest came reports of unrest and racial tension attributed by the press to the increasing presence of marihuana, which was suddenly recognized as a “Killer Drug” in the words of a widely distributed poster. The publicity, the Bureau noted in its annual report, “tends to magnify the extent of the problem and lends color to the inference that there is an alarming spread of the improper use of the drug, whereas the actual increase in such use may not be inordinately large.
...Mr. Anslinger proposed to regulate marihuana control to an optional provision in the Uniform State Narcotic Law. In 1933, however, the annual report noted: “A disturbing development in quite a number of states is found in the apparently increasing use of marihuana by the younger element in the younger cities.” Exh. A at 17.
Indeed, Anslinger crafted the legislation with the intention that it be adopted by every state.
“During his first year as commissioner of narcotics, Mr. Anslinger secured from the National
Conference of Commissioners on Uniform Drug Laws the draft of a ‘Uniform Narcotics Act,’ designed for adoption by state legislatures.” Exh. B at 1.
Commissioner Anslinger’s report for 1935 noted: “In the absence of Federal legislation on the subject, the States and cities should rightfully assume the responsibility for providing vigorous measures for the extinction of this lethal weed, and it is therefore hoped that all public-spirited citizens will earnestly enlist in the movement urged by the Treasury Department to adjure intensified enforcement of marijuana laws.” Exh. B at 2.
Anslinger believed, “State law was either inadequate or non-existent, to impose a sentence equal to those which were imposed in Federal courts in cases of greater magnitude and where the offense was a felony.” Exh. C. at 3. Anslinger himself opined: “The demand for uniform state legislation on this subject was very extensive. It was argued that the traffic in narcotic drugs should have the same safeguards and the same regulation in all of the
4
Page 215 of 330 states. This act is recommended to the states for that purpose.” Exh. D at 3.
Certainly, at the time the Connecticut legislature criminalized cannabis completely,
the stated purpose of the amendments to Connecticut’s law were “to make the act uniform
with the Narcotic law and the laws of the other states...the amendments are those which
were necessary to make our law conform to the federal law.” Exh. E.2
Thus, as Mr. Bradley alleged, Anslinger’s campaign to criminalize cannabis had a
racially discriminatory purpose. Furthermore, in Anslinger’s own words, the Uniform
Narcotic Drug Act (the State legislation crafted by Anslinger) was designed to mirror
Federal prohibition of cannabis within the individual states. Finally, as the legislative
history demonstrates, Connecticut adopted the Uniform Narcotic Drug Act in its entirety in
1939, with the specifically stated purpose of conforming with Federal law. Consequently,
Mr. Bradley respectfully requests that this Court reconsider its finding to the contrary.
“[T]he purpose of a reargument is ... to demonstrate to the court that there is some
decision or some principle of law which would have a controlling effect, and which has
been overlooked, or that there has been a misapprehension of facts....” (Internal citations
2 See Defendant’s Amended Memorandum of Law at 28-29: “In 1930, unlike cocaine, opium, morphine, heroin, and codeine, cannabis remained unregulated in Connecticut...Then in 1935, cannabis became regulated by the Uniform State Narcotic Drug Act, prohibiting its possession and dispensation with certain medical and academic exceptions...As evidenced by the corresponding legislative history, the regulation of cannabis in Connecticut was in response to the Federal activism of Harry Anslinger...By 1939, marijuana was criminalized entirely, without exception for medicinal or research purposes.”
5
Page 216 of 330 and quotations omitted) Marquand v. Administrator, Unemployment Compensation Act,
124 Conn. App. 75, 80 (2010).
III. CONCLUSION
WHEREFORE, for all the afore-stated reasons, the Defendant, Mr. William Bradley, respectfully requests that the Court reconsider its decision and grant Mr. Bradley’s Motion to Dismiss.
Respectfully submitted, WILLIAM BRADLEY, the Defendant BY: /s/ Aaron J. Romano Aaron J. Romano, Esq. AARON J. ROMANO, P.C. Juris No. 415829 55 Woodland Avenue Bloomfield, CT 06002 Tel: (860) 286-9026 Fax: (860) 286-9028 [email protected]
CERTIFICATION
Pursuant to Practice Book §§ 10-12 through 10-17, and 11-1, this 11th day of June 2018, the undersigned hereby certifies that this document complies with all format provisions and further certifies that a copy of the foregoing was delivered via first class United States mail, via facsimile, or delivered in hand to opposing counsel: Mr. Russell Zentner, Esq., Office of the State’s Attorney, One Court Street, Middletown, CT 06457-3377. F: (860) 343-6427.
/s/Aaron J. Romano Aaron J. Romano, Esq. Comm. of Superior Court
6
Page 217 of 330 DOCKET NO. M09M-CR17-0210994-S : SUPERIOR COURT OF CONNECTICUT
STATE OF CONNECTICUT : JUDICIAL DISTRICT OF MIDDLESEX
v. : AT GEOGRAPHICAL AREA 9
WILLIAM BRADLEY : Defendant
O R D E R
AND NOW, to wit, this day of , 2018, it is hereby ORDERED AND
DECREED that Defendant’s Motion for Reconsideration is GRANTED/DENIED.
BY THE COURT:
______J.
Page 218 of 330 Page 219 of 330 Page 220 of 330 Page 221 of 330 Page 222 of 330 Page 223 of 330 Page 224 of 330 Page 225 of 330 Page 226 of 330 Page 227 of 330 Page 228 of 330 Page 229 of 330 Page 230 of 330 Page 231 of 330 Page 232 of 330 Page 233 of 330 Page 234 of 330 Page 235 of 330 Page 236 of 330 Page 237 of 330 Page 238 of 330 Page 239 of 330 Page 240 of 330 Page 241 of 330 Page 242 of 330 Page 243 of 330 Page 244 of 330 Page 245 of 330 Page 246 of 330 Page 247 of 330 Page 248 of 330 Page 249 of 330 Page 250 of 330 Page 251 of 330 Page 252 of 330 Page 253 of 330 Page 254 of 330 Medical Marijuana
I: Cannabinoid Science II: Federal Issues III: CT Program: A Pharmaceutical Approach III: The Opportunities
Page 255 of 330 Speaker Disclosure • A Founder and an owner of Curaleaf, one of the four licensed cultivators of Cannabis in the state of CT. • Founder and Chair of the Medical Marijuana Committee of the CT Bar Association.
Page 256 of 330 Prologue
“Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.” – DEA Admin. Law Judge Francis Young. 1988 – Holding that a petition to reschedule marijuana should be granted. – Not binding. – Rejected by DEA administrator. – Marijuana remains a schedule I controlled substance defined as having no medical value.
Page 257 of 330 I: CANNABIS VOCABULARY
• CANNABINOID • ENDOCANNABINOID SYSTEM • TETRAHYDROCANNABINOL (THC) • CANNABIDIOL (CBD)
Page 258 of 330 Cannabinoid
• Cannabinoids: Chemical compounds that interact with the body’s Endocannabinoid System. – Endocannabinoids: In the body – Phytocannabinoids: In plants – Synthetic Cannabinoids
Page 259 of 330 The Endocannabinoid System
Page 260 of 330 Endocannabinoids: Anandamide
The “Bliss” molecule is an endogenous neurotransmitter that transmits a signal from one neuron across the synapse to another neuron. First isolated by Raphael Mechoulam in 1992 at the Hebrew University of Jerusalem. Effects taste, pleasure and memory through interaction with the CB1 and CB2 receptors.
Page 261 of 330 THC: delta‐9 tetrahydrocannabinol PSYCHOACTIVE!
Effects thinking, memory, pleasure, coordination and time perception. Viscous and not water soluble making it difficult to work with. One of only three cannabinoids scheduled by the Convention on Psychotropic Substances, a 1971 United Nations Treaty. Content (less than .3%) used to define Industrial Hemp in the US Farm Bill.
Page 262 of 330 CBD: Cannabidiol
Non‐Psychoactive Mitigates Effects of THC
Page 263 of 330 Synthetic Cannabinoids: Marinol
“Dronabinol”‐ Made by Unimed
1985‐ Approved by the FDA in Schedule II
1999‐ Administratively rescheduled by DEA to Schedule III in response to a petition by Unimed.
Isolated THC criticized because it lacks the “Entourage Effect” created by the presence of other cannabinoids, terpenes and flavinoids.
Page 264 of 330 Synthetic Cannabinoids: Spice & K2
“Cannabimimetic Agents”: CB1 agonist mimics THC
Sprayed onto herbal products to create illusion that the herbs contain the compounds
Monikers: K2, Spice, JWH cannabinoids (named for John W. Huffman whose NIDA funded research led to their creation.
Synthetic Drug Abuse Prevention Act, part of the FDA Safety and Innovation Act of 2012 permanently places 26 types of synthetic cannabinoids into Schedule I of the CSA. It also doubled the maximum period of time that the DEA can administratively schedule substances under its emergency scheduling authority, from 18 to 36 months.
Page 265 of 330 REVIEW: CANNABIS VOCABULARY
• CANNABINOID: Chemical compounds that interact with the ECS • ENDOCANNABINOID SYSTEM: System of Receptors within the body that effects feelings of pleasure, memory and taste. • THC: Psychoactive, mimics Anandamide • CBD: Non‐psychoactive
Page 266 of 330 Federal Issues
Page 267 of 330 1970 ‐ The Controlled Substances Act
The Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91‐513, 84 Stat. 1236 (Oct. 27, 1970):
• Creates “schedules” on the basis of drugs’ potential for abuse, accepted medical use, and safety. • Schedule I have a high potential for abuse, no recognized medical use, and are unsafe. • Schedules II to V, substances decrease in potential for abuse. • Some drugs in Schedule V do not require a prescription. • Title II, the Controlled Substances Act (CSA), is the legal foundation for the “war on drugs.” Consolidation of numerous laws regulating the manufacture and distribution of narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and chemicals used in the illicit production of controlled substances.
Page 268 of 330 2009: Ogden Memorandum
Memorandum from Deputy U.S. Attorney General David W. Ogden, Oct. 19, 2009: Pursuit of priorities under Controlled Substances Act “should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” http://tinyurl.com/nry8vtv (emphasis added)
Page 269 of 330 2011: Cole Memorandum
Memorandum from Deputy Attorney General James M. Cole, June 29, 2011: “The Department's view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed.” http://tinyurl.com/oqg2owq
Sets Forth Federal Priorities of Preventing: •Sale to minors •Revenue that supports other criminal enterprises •Diversion to states where marijuana is illegal •Conduct that is a pretext for other illegal activity •Violence or use of firearms •Adverse health effects such as drugged driving •Growth on public land •Possession or use on federal property
Page 270 of 330 2014: Hinchey‐Rohrabacher amendment
Codifies the Ogden and Cole memoranda, passed as part of the 2015 Appropriations Act in December, 2014.
Appropriations Act, Sec. 538: None of the funds made available in this Act to the Department of Justice may be used, with respect to the States …to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
P.L. 113‐235, § 538 (2014)
Page 271 of 330 New Administration Concerns
February 2017 Administration’s Announcement • Enforce federal marijuana laws when they come into conflict with states where recreational use of the drug is permitted • Careful to distinguish between medical programs and recreational programs
Sessions’ May 2017 Memo on Charging and Sentencing • Charge and pursue the most readily provable offense
18
Page 272 of 330 Three Avenues to Change
• Executive – Obama blew it – Trump who knows • Judicial – Gonzales v Reich – Kettle Falls Five (WA) DOJ prosecution, 2012 raid. – Nebraska et al v CO: Denied Cert to Nebraska and Oklahoma against Colorado's regulated sales of marijuana for recreational use. • Legislative – Rohrbacher‐Farr Amnd: • Included in congressional budget bill (Cromnibus) • Defunds DOJ from enforcement against state abiding programs. – CARERS did not pass – Gardner (CO)/Warren(MA) bill
Page 273 of 330 Legislative
Page 274 of 330 Gardner/Warren
• Amends CSA • Protects those in compliance with state or tribal law • Compliant transactions not considered trafficking • Removes industrial hemp from the CSA • Specifically reinforces 10th amnd. (Hmmm…)
Page 275 of 330 International Treaties
• FDA is asking for public comment re “abuse potential, actual abuse, medical usefulness, trafficking and impact of scheduling changes on availability for medical use.” • Signatories of drug control treaties are not supposed to legalize a schedule I. (Uruguay and Canada?) • Comments will be considered in preparing a response from the US to the WHO regarding abuse liability and diversion. • WHO Expert Committee on Drug Dependence to consider the classification of cannabis.
Page 276 of 330 RESCHEDULING
• Formally acknowledges that marijuana has an acceptable medical use acknowledging the 120,00 peer reviewed papers written between 1965 and today on cannabis and cannabinoids.
Page 277 of 330 What could go Wrong??
Page 278 of 330 The Big Dogs
Page 279 of 330 Botanical Drugs according to the FDA
• Botanical drug products often have unique features, for example, complex mixtures, lack of a distinct active ingredient, and substantial prior human use. • A botanical drug's special features require consideration and adjustment during the FDA review process. CDER issued a Guidance for Industry‐Botanical Drug Products • The Botanical Guidance applies to only botanical products intended to be developed and used as drugs. • To date, one botanical product that fulfills the Botanical Guidance definition of a botanical drug product has been approved for marketing as a prescription drug (sinecatechins, Veregen®). Green Tea leaf extract for use in genital and perianal warts.
Page 280 of 330 What could go MORE wrong…
Page 281 of 330 II THE CONNECTICUT PROGRAM
Page 282 of 330 Connecticut Law • Tightly regulated and medically focused program • Public Act 12‐55 (Conn Gen Stat 21a‐408, et seq.): An Act Concerning the Palliative Use of Marijuana • Regulations of Connecticut State Agencies, Section 21a‐408‐1, et seq.
• Public Act 16‐23 (effective Oct. 2016)
• Collectively, these laws and regulations create a new pharmaceutical industry for Connecticut
29
Page 283 of 330 The CT Program
• 4 Producers • 9 Dispensaries • Controlled environment • Independent Testing
• Monthly limit: 2.5oz • Not covered by Insurance • Must be “certified” by a physician • Must register with the State • Currently just over 7000 registered patients.
• CT has rescheduled Marijuana to schedule II
Page 284 of 330 Qualifying Conditions (Adults)
• Cancer • Glaucoma • Positive Status for Human Immunodeficiency Virus or Acquired Immune Deficiency Syndrome • Parkinson's Disease • Multiple Sclerosis • Damage to the Nervous Tissue of the Spinal Cord with Objective Neurological Indication of Intractable Spasticity • Epilepsy • Cachexia • Wasting Syndrome • Crohn's Disease • Post‐Traumatic Stress Disorder • Sickle Cell Disease • Post Laminectomy Syndrome with Chronic Radiculopathy • Severe Psoriasis and Psoriatic Arthritis • Amyotrophic Lateral Sclerosis • Ulcerative Colitis • Complex Regional Pain Syndrome • Cerebral Palsy • Cystic Fibrosis • Irreversible Spinal Cord Injury with Objective Neurological Indication of Intractable Spasticity • Terminal Illness Requiring End‐Of‐Life Care • Uncontrolled Intractable Seizure Disorder
Page 285 of 330 Qualifying Conditions (Under 18) • Cerebral Palsy • Cystic Fibrosis • Irreversible Spinal Cord Injury with Objective Neurological Indication of Intractable Spasticity • Severe Epilepsy • Terminal Illness Requiring End‐Of‐Life Care • Uncontrolled Intractable Seizure Disorder
Page 286 of 330 Forms of Administration
• Flower • Edible • Vape • Concentrate – Oil – Wax – Shatter – Hash
Page 287 of 330 Page 288 of 330 Challenges to Connecticut’s Palliative Use of Marijuana Laws
Noffsinger v. SSN Operating Company, LLC d/b/a Bride Brook Health & Rehabilitation Center
PUMA has a unique provision in comparison to many other state programs that offers specific protections against discrimination to students, tenants, and employees who are registered with the program. While it was unclear whether that provision would confer a private cause of action, the United States District Court for the District of Connecticut has answered the question in favor of the medical marijuana patient.
In Noffsinger, U.S. District Court Judge Meyer ruled on the question of whether the Controlled Substances Act preempts the CT PUMA provision that prohibits an employer from taking adverse action against an employee on the basis of the employees otherwise state authorized use of marijuana. The plaintiff in the case was a registered Post Traumatic Stress Disorder patient with PUMA who was utilizing THC in the form of an evening Marinol pill. Following a failed drug test, the defendant withdrew the plaintiff's offer of employment the day before the start date. Not only did the court rule that the provision is not preempted, but also that the specific protection in the Connecticut statute confers a private cause of action. This is the first court case to interpret PUMA and is the first case in the country to uphold a private cause of action under a medical marijuana statute. This implies that the protections afforded students and tenants will carry the same rights.
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Page 289 of 330 Connecticut Has a Strong and Effective Regulatory System that reduces Federal Risk • Limited List of Debilitating Medical Conditions • Physicians are the Gatekeepers • Patients and Caregivers Must Meet Strict Requirements and Act Responsibly • Producers and Dispensaries are Tightly Controlled • Products Treated Like Other Controlled Substances
• Continually monitor the marketplace and adjust enforcement protocols as necessary to reduce threat to federal priorities
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Page 290 of 330 III. Opportunities: Feeling the Rush
Page 291 of 330 Intellectual Property
Cannabis Patent Considerations • Patents allowed on Cannabis – plant varieties, equipment, formulations, or processes • Consider filing patents in a holding company to avoid having your operating company involved in lawsuits • If your products or packaging have a unique design, consider design patents Cannabis Copyright Considerations
• Mark your website © MyCompany 2017 • File a copyright registration on your logo • File a copyright registration on any unique content you develop
Page 292 of 330 Branding and Marketing are Impacted
Page 293 of 330 What is 280(e)?
Edmonson v Commissioner
• In 1974, small time Minneapolis drug dealer Jeffrey Edmondson was busted. • 100 pounds of MMJ, 13 ounces of coke and 1.1m amphetamines… incurring significant logistical expenses • “He drove his automobile 29,000 miles, of which two‐ thirds of such mileage was attributable to business use.” Edmondson wrote off a trips to San Diego, food, entertainment, airfare, telephone calls, rent on his place of business — his apartment — and $50 for a scale.” • In 1982, Congress created 280E to prevent other drug dealers from following suit. It states that no deductions should be allowed on any amount “in carrying on any trade or business if such trade or business consists of trafficking in controlled substances.”
Page 294 of 330 Effects of 280(e)
Page 295 of 330 Avoid 280(e): Sell Pickaxes to Gold Miners • Growing supplies • Pharmaceutical supplies • Lights • Facilities design and • Lab Equipment engineering • Packaging • Security • Delivery • Hemp • Paraphernalia and devices • Software and technology • Testing labs • Real Estate • Media and Events • Professional Services • Payment services
Page 296 of 330 Applications!
• Connecticut • Florida • Pennsylavania • Arkanasas • Ohio • Massachesetts • New Jersey • Colorado
Page 297 of 330 10/17/18: Canada Goes Rec! Canopy Growth Embarks on Major Greenhouse Expansion to 1 Million Square Feet—Sep 2017
Aurora Begins Supplying German Medical Cannabis Market—Sep 19 2017
Construction underway on 800K square‐foot cannabis facility near Edmonton airport—June 16 2017
Page 298 of 330 IPO, Reverse Merger
• Curaleaf • Acreage
Page 299 of 330 Economic Empowerment The request for certification as an Economic empowerment Priority Applicant shall be evaluated by the Commission pursuant to 935 CMR 500.102(A)(2) where an applicant meets two or more of the following criteria:
• A majority of ownership belongs to people who have lived for 5 of the preceding 10 years in an area of disproportionate impact, as determined by the Commission; • A majority of ownership has held one or more previous positions where the primary population served were disproportionately impacted, or where primary responsibilities included economic education, resource provision or empowerment to disproportionately impacted individuals or communities; • At least 51% of current employees or subcontractors reside in areas of disproportionate impact and by the first day of business, the ratio will meet or exceed 75%; • At least 51% or employees or subcontractors have drug‐related CORI and are otherwise legally employable in cannabis enterprises; • Other significant articulable demonstration of past experience in or business practices that promote economic empowerment in areas of disproportionate impact.
Page 300 of 330 Civil Forfeiture: MedWest Distributors
• In January 2016, the DEA raided a San Diego marijuana biz called MEdWest distributors, on suspicion that they were manufacturing concentrates using solvents not permitted under California law. Charges were not filed, but the assets of the business, including over $300000 in cash, and of the owner, James Slatic, , including assets of his family, like a child’s college fund, another $100,000. A not for profit advocacy group came to their rescue and the group’s attorney, r, Jessica McElfresh, who went to court and won—the court ordered the San Diego District Attorney to return $100,000 in seized assets. The DA then filed felony charges against Slatic attorney McElfresh, on the groudns that McElfresh helped Slatic cover up the manufacturing operation. McElfresh’s home was raided by a SWAT team and she was arrested. • Critics, of which there were are many, accused the DA of vindictive prosecution, that she was embarrassed that McElfresh won the civil forfeiture case., and that she was sending a chilling message to lawyers not to represent cannabis clients. So that case is winding its way through the courts, the DA is challenging Slatic and McElfresh;s claim to attorney‐client privledge, and it goes on. I don’t know the truth of it, but you don’t really see cases like this in other industries. • In the end, the charges were dropped, but the fact is, any business at any time in a regulated business can be found to be in at least technical violation of some reg. So a motivated prosecutor, motivated by ideology, or by corrupt reasons, can cause havoc.
Page 301 of 330 #1 RULE
Stay out of Federal Prison.
Page 302 of 330 Contact Information
April A Arrasate Email: [email protected]
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Page 303 of 330 AltaSci Laboratories Jose A. Zavaleta Lab Director
Our Promise To Our Customers Is Grounded in Science
Page 304 of 330 Outline • Why? • Background • Testing Services • Quality Management System • Questions
Page 305 of 330 2 Mission Statement
“Our mission is to deliver accurate and expeditious results to our customers by applying hi-tech analytical tools and technologies, employing highly qualified personnel, and focusing on patient safety, customer service, research, and education.”
Page 306 of 330 3 Why?
Page 307 of 330 4 Problem
As states legalized cannabis use for medicinal and personal use, they also mandated that all cannabis products must undergo intensive quality control (QC) to ensure product safety, efficacy, and proper dosage however…
• Federal Government prohibits marijuana usage, therefore, states could not turn to the FDA for guidance in setting up rules and regulations for QC labs. – All DEA licensed pharmaceutical and/or toxicology laboratories are barred from servicing the marijuana market
• The few “licensed” third-party labs in existence are having difficulty working with states to set “harmonized” testing standards. – Most laboratories are not equipped with suitable testing methods to meet quality control (QC) state regulations
• Leaves public vulnerable to low quality and unsafe marijuana products
Page 308 of 330 5 Background
Page 309 of 330 6 Connecticut Testing Regulations • Lab employee must conduct sampling • Product must be homogenized • Before product is packaged for sale, it must be quarantine (“segregated”) until deemed passing Quality Control specifications (microbiology, pesticides, heavy metals, mycotoxins) • Producers must make available to dispensary test results.
Page 310 of 330 7 Background (continued)
• Various Product Lines Available • Usable Flower • Concentrates • Tinctures • Edibles • Pharmaceutical Grade • Third Party Tested • Testing Standards • USP, FDA, EPA
Page 311 of 330 8 Background (continued) • Tests Include: • Microbiology • Mycotoxins • Heavy Metals • Cannabinoid Profiling (Potency) • Terpene Profiling • Pesticides • Water Activity and pH
Page 312 of 330 9 Workflow
Production Facility ASL team member Samples are logged requests sample pick conducts sampling into inventory up at Production Facility
Analyst performs Samples get Production Facility testing and gathers distributed among receives results data labs for testing
Page 313 of 330 10 Benefits of Quality Management System (QA/QC)
• Quality Compliance – Patient Safety • Validation of methods • Data integrity • Results- “Right the First Time” • Holding employees accountable • Customer Service
Page 314 of 330 11 Testing Services
Page 315 of 330 12 Microbiology Testing
P. aeruginosa S. aureus A. brasiliensis
• Skin Infections • Respiratory Infections • Blood stream infections • Urinary Tract Infections • Pneumonia • Gastroenteritis • Bone and Joint Infections • Kidney Failure
Page 316 of 330 13 Microbiology Laboratory
• BSL 2 • Total Aerobic Microbial Count • Total Yeast and Mold • Specific Organisms • Pseudomonas. aeruginosa • Staph. aureus • Gram Negatives (E. coli) • Salmonella • Aflatoxin B1, B2, G1, G2 • Ochratoxin A
Page 317 of 330 14 Microbiology Lab (continued)
• Product Quality • Reducing Microbial Content • Preventative Maintenance • Environmental Monitoring • Air sampling • Swabbing • In process samples • Localize contaminants
Page 318 of 330 15 Microbiology Lab (continued)
• Sample Type and Bacterial Content • Does sample type matter? • Does the manner in which a product is harvested affect bacteria/mold? • How do environmental conditions affect these results?
Page 319 of 330 16 Mycotoxins • Aflatoxin • Aflatoxin B1, B2, G1, and G2 • Produced from Aspergillus mold species • Ochratoxin • Ochratoxin A • Produced from Aspergillus and Penicillium mold species
• Carcinogenic • Affect kidneys • Cause respiratory ailments Page 320 of 330 17 Inorganic Chemistry Laboratory
• Inductively Coupled Plasma Mass Spectrometry (ICP-MS) • Heavy Metal Contamination • Cadmium • Lead • Mercury • Arsenic • Water Activity and pH Testing • Refrigeration of edible products
Page 321 of 330 18 Organic Chemistry Laboratory
– High Performance Liquid Chromatography (HPLC) • Cannabinoid Profiling (Potency) • Gas Chromatography Mass Spectrometry (GC-MS) – Terpene Profiling – Residual Solvent • Tandem Mass Spectrometry (MS/MS) – Pesticide Testing
Page 322 of 330 19 More than just QC testing
• Research and Development – New Product Development – Validation – Process Improvement – Preventative Maintenance – Product Quality
Page 323 of 330 20 Resources
• University of California, Irvine Law School – Center for the Study of Cannabis • University of California, San Diego – Center for Medicinal Cannabis Research • Dr. Gerald (Gerry) Berkowitz, Agricultural Biotechnology Laboratory at UCONN • Dr. David Meiri, PhD, Technion Integrated Cancer Center (TICC), Isreal
Page 324 of 330 21 Page 325 of 330 22 Our Team Members
• Lorena Tamayo; Microbiology • Gabriel Nager; Microbiology • Hillary Galanos; QA Manger/Organic Chemistry • Ewelina Pliszka; Lab Supervisor/Inorganic Chemistry • Jennifer Beaty; Administrative Assistant • Alexa Andrzejewski; Organic Chemistry • Armen Paronyan; CEO and Operations
Page 326 of 330 23 Page 327 of 330 24 Page 328 of 330 25 Page 329 of 330 26 Questions?
Our Promise To Our Customers Is Grounded in Science
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