September 12, 2011 - 6:03 pm
A district judge Monday tossed an indictment in a medical marijuana criminal case and called the state law governing distribution of the medicinal herb “mind boggling.”
Judge Donald Mosley said a grand jury should have been allowed to see certain evidence before returning an indictment against Leonard Schwingdorf, including paperwork filled out by an undercover police officer showing that the marijuana was not for sale and that a donation to the co-op was not necessary to obtain the herb.
Authorities have cracked down and eliminated nearly all the local entities distributing marijuana to state- registered patients because, they held, the cooperatives are receiving compensation in forms of donations, violating Nevada law.
Schwingdorf and more than a dozen other defendants under indictment for distributing medical marijuana have argued the Nevada law is paradoxical because it allows patients registered with the state to possess the herb, but makes it illegal to obtain it.
Mosley said the law regulating medical marijuana is confusing at best.
“Well why don’t they (the Legislature) make up their mind if they want to make it legal or not,” the judge said. “I’m looking at it thinking I can’t make any sense out of this law.”
One Nevada law allows medical marijuana cardholders to possess, deliver or produce certain amounts of marijuana for pain relief. However, other state and federal laws make it illegal to buy or sell marijuana.
“Are people supposed to give it away?” Mosley said. “I mean it just makes no sense.”
Schwingdorf and Nathan Hamilton were indicted on 11 counts, including sale of a controlled substance, when they gave marijuana to a Las Vegas police officer toting a medicinal marijuana registration card at Sin City Co-Op, 8221 W. Charleston Blvd.
Defense attorney Robert Draskovich argued for the indictment’s dismissal because prosecutors did not present four key pieces of evidence, including the paperwork filled out by the officer, that might have swayed the grand jury not to indict Schwingdorf.
Another piece of evidence was a medical marijuana registration card the officer used to gain entry to the cooperative Sin City Co-Op. Draskovich argued in his motion that the officer “manufactured the sale of marijuana” by presenting the card and choosing to make a donation, though the paperwork he filled out said a donation was not necessary.
Mosley agreed with Draskovich that the grand jury should have seen the vials the marijuana came in, which said not for sale. The judge said prosecutors should have told the grand jury that Sin City Co-Op is registered as a nonprofit.
Prosecutor Chris Laurent said Schwingdorf had an opportunity to present evidence to the grand jury but did not.
Mosley dismissed the indictment without prejudice meaning prosecutors could re-indict Schwingdorf at a later date.
Federal prosecutors also could take the case because any marijuana, including medical marijuana, is illegal under federal law. Federal prosecutors are prosecuting seven defendants from another Las Vegas co-op, Completely Legal, in a similar case.
In hearing set for Friday in a third medical marijuana case, District Judge Doug Smith will hear arguments from prosecutors and Draskovich about the vagueness of Nevada’s medical marijuana statutes.
Smith, like Mosley, also has said the law is difficult to understand.
Contact reporter Francis McCabe at firstname.lastname@example.org or 702-380-1039.