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Hail Mary Jane: Defense Attorneys Argue Cannabis Classification Unconstitutional in High Profile Shasta County Marijuana Case

Dept. 24, Shasta County Superior Court, Oct. 7. Photo by R.V. Scheide

Believe it or not, people still go to prison for growing and selling marijuana in California. Consider the case of Heather Legault-Williams. She’s facing three years behind bars for allegedly maintaining a warehouse for the purpose of selling marijuana, which remains a felony in Shasta County, despite the passage of Prop. 64, The Adult Use of Marijuana Act, in 2016.

The felony charge results from an early 2020 California Highway Patrol investigation that led to the discovery of 138 pounds of processed marijuana, 332 marijuana plants, 30 grams of cocaine, two firearms and $59,000 cash in a warehouse located near the Highway 44/Old Oregon Trail interchange. The investigation was triggered by a citizen who reported suspicious activity at the warehouse.

The arrest of Legault-Williams, her husband Will Williams and Heather Hart in May 2020 in connection with the warehouse made waves locally in large part because Legault-Williams’ husband happened to be a Redding Police Department corporal with 18 years on the force. Nothing cues public outrage quite like a trusted cop (allegedly) flouting the very laws he’s supposed to be enforcing.

Former RPD corporal Will Williams entering courtroom Oct. 7.

“I am deeply disturbed by the arrest of Cpl. Will Williams for the cultivation of marijuana and possession of marijuana for sale,” then RPD Chief Bill Schueller told the Record Searchlight at the time. “This kind of criminal behavior, especially by a law enforcement officer sworn to uphold the law, cannot and will not be tolerated.”

Legault-Williams’ arrest caused a minor stir within Bethel Church circles; she shares three children with ex-husband Jason Vallotton—son of Bethel Church senior associate leader Kris Vallotton—whom she divorced more than a decade ago. Jason and Kris Vallotton published a cringe-inducing faith-based self-help book about the divorce titled the “Supernatural Power of Forgiveness” in 2011.

Heather Legault-Miller entering court Oct. 7.

By August 2020, Will Williams was no longer working for RPD. In May 2021, a year after the arrests, the Shasta County District Attorney’s office charged Heather Legault-Williams, Will Williams and Heather Hart each with a felony violation of state Health and Safety Code 11366, which applies to “every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance.”

In this case the controlled substance was cannabis as classified by the U.S. Food and Drug Administration’s Controlled Substances Act, which places marijuana on Schedule 1 of its five-tier ranking system. Schedule 1 is reserved for substances with a high potential for abuse, no known medical use and no standard for safe usage.

Schedule 1 includes opiates such as heroin and hallucinogens such as ecstasy and LSD—cannabis is classified as a hallucinogen. Interestingly, the scourge of rural America, fentanyl, the abuse of which has led to countless OD deaths, is ranked as Schedule 2 by the CSA because it has a known medical use and can legally be prescribed by a doctor.

The three defendants have also been charged with a slew of misdemeanors. Legault-Williams is charged with allegedly cultivating marijuana, possessing hashish for sale and possessing cocaine. Will Williams and Heather Hart are charged with allegedly cultivating marijuana and possessing hashish for sale.

Will Williams has been relying on court-appointed defense attorneys in the case; he’s currently represented by Melissa Fanoe. Heather Hart is represented by Bay Area-based defense attorney Panagioitis Prountzos. When the DA filed charges against her in 2021, Legault-Williams hired renowned marijuana defense attorney Joseph Tully to take the case.

Defense attorney Joseph Tully standing outside the Trinity County Superior Courthouse.

Back in 2021, Tully told the Redding Record Searchlight that Legault-Williams worked in the office in the front of the warehouse and was not involved in the marijuana grow. Neither was her husband.

“Will (Williams) would occasionally go by and visit his wife,” Tully said. “That was the extent of his involvement.”

From the defense’s point of view, that’s basically where the case stands today as it grinds toward its scheduled trial-by-jury date on January 28 of next year.

James Benno measuring up the harvest in 2016.

A News Café readers first met Tully in 2017, in this reporter’s coverage of the never ending trials of James Benno. Benno was a local medical marijuana grower and advocate who was raided by the Shasta County Sheriff’s Office, which gave him a rifle butt to the head, hauled all of his plants to the dump and threw him and his sons in jail.

But Benno fought the law and Benno won, hiring Tully and instructing the attorney to push California’s medical and recreational marijuana laws to the limit.

Benno never wavered and Tully persevered through two jury trials that ultimately concluded with Benno’s exoneration on all charges. The sheriff’s office was even forced by court order to return Benno’s 30-round capacity assault rifle magazines.

Tully & Weiss senior associate attorney Ashley Bargenquast celebrates victory with James Benno and sons in 2018.

Benno, who passed away last year, was a self-taught expert in medicinal cannabis who supplied thousands of northern California patients with medicine, often at no cost. He knew which strains to breed together to create more effective new strains. His knowledge of marijuana law, from the Controlled Substances Act of 1970 to Prop 215, the Compassionate Use Act of 1994, to Prop 64, the Adult Use of Marijuana Act of 2016, was formidable.

Like many medical marijuana advocates, Benno was a proponent of what might be called the holy grail of cannabis law, the theory that marijuana’s placement on Schedule 1 of the Controlled Substances Act is unconstitutional. According to the theory, that’s because cannabis doesn’t meet the CSA’s own requirements for a Schedule 1 substance:

· The drug or other substance has a high potential for abuse.

· The drug or other substance has no currently accepted medical use in treatment in the United States.

· There is a lack of accepted safety for use of the drug or other substance under medical supervision.

As we shall see, now more than ever, cannabis doesn’t meet any of those requirements. When Tully contacted me recently to inform me he had filed a motion to dismiss Legault-Williams’ felony charge based on a Schedule 1 argument, Benno immediately crossed my mind.

“I think I can checkmate the whole federal system and its unconstitutional classification of cannabis as a Schedule 1 narcotic,” Tully said in an email. “I think I have them beat using a California case to bring the whole federal classification down. I don’t see a way out of this [for the prosecution].”

With Tully’s 21-page motion to dismiss Legault-Williams’ felony charge that was filed on Sept. 23, the holy grail appears to be at hand. The defense attorney makes a persuasive argument that marijuana’s classification as a Schedule 1 controlled substance violates constitutional equal protection and due process provisions in federal and state law.

Was Tully throwing a hail “Mary Jane” pass designed at the very least to postpone the trial date yet again? Or was he firing a shot across the court’s bow signaling a more vigorous defense was in the offing? Would the motion to dismiss pass muster with Shasta County Superior Court Judge Daniel Flynn, not to mention the DA?

The only way to find out was to attend the motion to dismiss hearing, which was held last Monday morning Oct. 7 in Dept. 24 of the new Shasta County Superior Courthouse.

Tully & Weiss senior associate attorney Ashley Bargenquast in court Oct. 7.

Last Monday morning, Tully was busy with a jury trial in Siskiyou County so Tully & Weiss senior associate attorney Ashley Bargenquast appeared in Dept. 24 to argue for the motion to dismiss the felony charge against Legault-Williams.

Heather Legault-Williams and Will Williams sat together near the front on the left side of the courtroom; Heather Hart sat on the right side in the rear corner.

Shasta County Deputy District Attorney Terry Powell represented the people of the state of California. Prior to the hearing, Powell filed an 8-page opposition to the motion to dismiss. Combined with Tully’s 28-page motion to dismiss, the two documents provided a blueprint for the legal arguments that were about to unfold in Judge Daniel Flynn’s courtroom.

Citing the Equal Protection clause of the 14th Amendment as well as parallel state legislation, Tully begins by claiming the federal classification of cannabis as a Schedule 1 substance violates equal protection provisions because there’s no rational basis for the classification, which leads to similarly situated individuals being treating differently by the law.

Without the Schedule 1 classification, Tully suggests, Heather-Legault is no different than any other botanical medicine purveyor, your vendors of ginseng, willow bark and oregano, wherever they may be. It sounds a little silly until you find out just how arbitrary the cannabis classification is.

Tully & Weiss senior associate attorney Ashley Bargenquast in court Oct. 7.

In 1972, the federal Controlled Substances Act was adopted wholesale by the California Legislature and folded into Health and Safety Code 11053-11059. That includes the Schedule 1 classification of cannabis and the CSA’s test requirements for inclusion on each of the five schedules.

Tully takes on the CSA’s three requirements for Schedule 1 substance one at a time. For any given substance to be classified as Schedule 1, all three requirements must be met.

Does cannabis have a high potential for abuse? Tully suggests there’s no evidence that marijuana has a higher potential for abuse than nicotine or alcohol, which aren’t even listed in the CSA. He notes that current “research around cannabis abuse and addiction is highly contested.”

Compared to Schedule 1 substances such as heroin and Schedule 2 substances such as fentanyl and methamphetamine, marijuana causes considerably less harm.

Strike one.

Requirement No. 2: Does marijuana have no currently accepted medical uses? As Tully notes, it’s hard to argue it doesn’t when 47 states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands all permit marijuana for medical use.

In addition, the Federal Drug Administration has approved two drug products containing THC, the primary active ingredient in cannabis. The U.S. Department of Health and Human Services approves the use of cannabis to treat anorexia, nausea and vomiting for chemotherapy patients.

Strike two.

Defense attorney Joseph Tully is a frequent expert guest on TV and talk radio.

Finally, CSA requirement No. 3: Is there a lack of accepted safety for the use of cannabis under medical supervision?

“Here the fact that 47 states and the DHHS has acknowledged an accepted medical use of cannabis shows there is no rational basis to believe there is an accepted lack of safety,” Tully claims.

Strike 3—and keep in mind, a substance has to meet all three of these test requirements to be classified as Schedule 1. Marijuana, Tully argues, doesn’t meet any of them.

“Using only official government statements as sources, an individual of common intelligence would see that despite being classified as a Schedule 1 substance cannabis does not meet the characteristics of Schedule 1 substance according to the statute,” he contends. “Thus the classification of cannabis as Schedule 1 lacks a rational basis.”

In Tully’s view, this makes the CSA’s Schedule 1 classification of cannabis “unconstitutionally vague,” depriving citizens of their due process rights. “Marijuana has no medical use or accepted safe use,” as the federal statute states, can’t be reconciled in the real world where marijuana has widely accepted medical and recreational uses.

“Either the CSA is unconstitutionally vague or marijuana cannot be found to be a Schedule 1 substance,” Tully concludes.

If Legault-Williams prevails, cannabis and THC will be removed completely from the CSA. Not only would Legault-Williams, Will Williams and Heather Hart’s felony charges go away, anyone charged with violating HSC 11366 would be cleared of wrongdoing.

Shasta County Deputy District Attorney Terry Powell in court Oct. 7.

In his 8-page opposition to the Legault-Williams’ motion to dismiss her felony charge, Deputy DA Powell rejected claims that Legault-Williams’ due process and equal protection rights were violated. In Powell’s view, there is a rational basis for prohibiting the cultivation and selling of marijuana. He states:

“Health and Safety Code 11366 which prohibits a person from opening and maintaining a place for the purpose of unlawfully selling, giving away, or using any controlled substances which are specifically listed in the statute, including cannabis, is on its face rationally related to ensure that our neighborhoods, businesses and cities are not overrun with drug houses and the violence associated with those activities.”

I asked Ashley Bargenquast to comment on Powell’s contention.

“The argument that HSC 11366 has a rational basis as a law is irrelevant to the constitutional challenge of cannabis being considered a Schedule I controlled substance,” Bargenquast said. “While it is the charging of HSC 11366 that makes the scheduling of cannabis under California law relevant to Mrs. Legalut-Williams, our motion did not challenge the rational basis of 11366.”

Instead, the motion to dismiss targets the constitutionality of marijuana’s inclusion in the CSA, including its use in California’s copy-cat statute.

“The motion challenged the rational basis of placing cannabis in a category of substances that have a high potential for abuse, no currently accepted medical use in treatment, and a lack of accepted safety for use under medical supervision,” Bargenquast continued. “Since cannabis does not meet any of these criteria under California law, the inclusion of it in Schedule I is based on an outdated and irrational federal statute that is unconstitutional.”

Shasta County Deputy District Attorney Terry Powell in court Oct. 7.

Deputy DA Powell wasn’t buying the notion that Legault-Williams was similarly situated with would be ginseng, willow bark and oregano vendors.

“Generally, offenders who commit different crimes are not similarly situated,” Powell maintained in his opposition to the motion. “In the case at bar, the defendant argues that individuals opening and maintaining a place to sell, give away, or use cannabis are similarly situated to those who would sell, give away or use ginseng, willow bark or oregano. This assertion is baseless and without merit.”

Again I turned to Bargenquast for a response to Powell’s assertion.

“I disagree,” she said. “Federal law has long treated cannabis as a substance akin to bath salts rather than the medicinal botanical that it is. California has legally recognized the medicinal value of cannabis since 1996 with the passage of the Compassionate Use Act. Cannabis is also a legal adult-use substance that requires no prescription or supervision for adults over the age of 21 to enjoy. The contradictions within California law around cannabis are why the constitutional challenge was brought.”

As Judge Flynn took the bench it appeared a long morning of interesting jurisprudence was set to begin. Bargenquast went first, laying out the case that marijuana’s classification as a Schedule 1 substance is arbitrary and doesn’t meet the three requirements set by the Controlled Substance Act for Schedule 1 substances.

She explained that marijuana’s inclusion on Schedule 1 is unconstitutional because it violates due process and equal protection provisions in both the federal and state constitutions. She offered to bring in experts when Judge Flynn questioned the evidence, some of which he deemed hearsay.

That suited Powell, who objected to the evidence presented in the motion to dismiss, suggesting the issue of federal classification should be taken up by legislators not courts. Judge Flynn said the people’s objection was well-taken.

“The motion is denied,” Flynn said. “I appreciated the motion, but I’m denying it. It’s a very interesting motion.”

Attorneys shifting during a break at Dept. 24 on Oct. 7.

The hearing was over in less than 15 minutes. Later, I asked Bargenquast if she intended to file a stay as she mentioned she might in court.

“I believe that the constitutional challenges that we have brought here are meritorious and timely,” she said. “A stay is a commonly requested aspect of an appeal or writ and whether they are granted rests primarily on the review given to the underlying request. I believe it is high time that the judiciary in California recognized that the law speaks out of both sides of its mouth about cannabis, which is a violation of Equal Protection and Due Process, as well as an improper amendment to voter adopted propositions.

“We hope that any chosen review is carefully considered by the judiciary rather than summarily dismissed because it is a problem that could be solved by proper legislative efforts,” she concluded. “Most unconstitutional law could be fixed by legislative amendment, but that does not mean that it cannot or should not be responded to by the judiciary when it violates constitutional rights.”

Meanwhile, Heather Legault-Williams, her husband Will Williams and Heather Hart face a trial by jury Jan. 28 on felony charges of maintaining a warehouse to grow and sell marijuana.

There’s no doubt we’ll be hearing more about marijuana’s status as a Schedule 1 controlled substance, perhaps sooner than you think.

Last May, the U.S. Justice Dept. submitted a proposal to switch cannabis from Schedule 1 to the more relaxed Schedule 3. Could President Joe Biden be working on an October Surprise for Vice President Kamala Harris to spring on former President Donald Trump?

De-scheduling marijuana might prove to be just the boost Harris needs to attract more young male voters. It might also clear Legault-Williams and her two co-defendants of those felony charges. Does it matter if her accused husband is an ex-cop?

Not if classifying marijuana as Schedule 1 is deemed unconstitutional. It doesn’t matter at all.

If you appreciate R.V. Scheide’s investigative journalism, please consider a contribution to A News Cafe to help us continue our reporting on local issues. Thank you!

R.V. Scheide

R.V. Scheide is an award winning journalist who has worked in Northern California for more than 30 years. Beginning as an intern at the Tenderloin Times in San Francisco in the late 1980s, R.V. served as a writer and an editor at the Sacramento News & Review, the Reno News & Review and the North Bay Bohemian. R.V. has written for A News Cafe for 10 years. His most recent awards include best columnist and best feature writer in the California Newspaper Publishers Association Better Newspaper Contest. R.V. welcomes your comments and story tips. Contact him at RVScheide@anewscafe.com

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