It was 20 to 4 as I entered the Court to join Joe at counsel table.  I noticed a frenzy of activity amongst our team in the front row, a few feet from where Joe was shuffling through some papers.  As I approached the group for one last huddle before the hearing, David Bronner, in his discreet manner, advised, "I think Joe needs you up there."  I crossed into the land of "lawyers only" and discovered at our counsel table copies of 2 mid-1990 cases that DEA counsel had just sprung on us.  This had never happened to either Joe or myself.  After 20 minutes of confusion, we concluded that, more than anything, this was a smoke screen: a final attempt by DEA to knock us off our center...for this was our game to lose. 

Joe set the distraction aside, strode to the podium at about 10 after 4, and before 20 of his words echoed through the marble laden chamber, Judge Alex Kozinski (the Polish born conservative libertarian judge appointed by Reagan who wrote the 2 paragraph dissent in the Court’s June 30^th opinion granting our 1^st Petition, now being referred to as Hemp I) began challenging Joe in a not so threatening matter. Basically, he wanted Joe to articulate why DEA had to go through a scheduling action to ban hemp foods. Joe succinctly articulated why: because Congress clearly exempted hemp stalk, seed and oil from the definition of Marijuana when it passed the Marijuana Tax Act in 1937. It was at about 4:20 that Kozinski posed the hypothetical, “what if they found a plant in the Amazon that was full of THC, would that be covered under the Controlled Substances Act under THC?” Joe calmly answered, “No, a scheduling action would be required because DEA would be adding a new substance to the CSA.” During Joe’s presentation, the 2 other judges on the panel, both women appointed by Carter (Shroeder, the Chief Justice, and Fletcher, the drafter of the majority opinion in Hemp I), remained silent, all the while shaking their heads at times in response to some of Kozinski’s questions.

After reserving 5 minutes of rebuttal time, Joe yielded the podium to DEA counsel Dormont. Kozinski let him have it. Virtually all of his 20 minutes was spent fending off Kozinski who was just not persuaded that Congress in ’37 failed to clearly exempt hemp seed and oil from marijuana’s definition. At one point he remarked, “You might be clear, but you’re not persuasive.” On the other side, Dormont was hit by Fletcher who questioned the DEA’s policy reasons for wanting to ban items that are clearly harmless…she referred to DEA as being “disingenuous.” Knowing that he couldn’t assert the true policy reason— being that hemp foods need to be banned because their legitimization is the first step towards growing cannabis legally in this country (see ONDCP April 10, 2000 memo to DEA)—and while conceding that hemp foods were not dangerous, Dormont argued that THC could be extracted from stalks and this hypothetical wasn’t covered under the definition of marijuana. Kozinski would have none of it, and went onto the poppy seed exception carved out by Congress, referring to his morning poppy seed bagel. Dormont just couldn’t overcome the absurdity of what DEA is trying to do. Before letting Dormont sit down, Kozinski pleaded him, “How are you going to save the bagel?”

While listening to Dormont struggle, I keyed Joe into an important point to assert on rebuttal that would hammer the proverbial nail in the coffin: in 1937, Congress wasn’t aware that THC is the component in cannabis that is the so-called narcotic element. Thus, they referred to the “narcotic element” generically as “resin.” This point drove the stake through Dormont’s attempt to distinguish between resin scraped from the bud of the plant and THC extracted from the stalk. Joe delivered on the point and the gavel soon resounded throughout the chamber, the prelude to the 3 black robes vanishing behind the rear door.

Within seconds, Dormont was over our table grinning, asking for a bet that we would have the same split of the judges. I shrugged my shoulders, grinned back and said, “I don’t know, I think we might’ve gotten Kozinski…I think I’ll take that bet.”

By Patrick D. Goggin

Local Counsel in HIA, et al. v. DEA, et al., (Hemp II) Ninth Circuit Case Nos. 03-71366/71603