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A 27-year-old Berkeley man arrested in March for possession of 10 pounds of marijuana appeared in Superior Court on Friday as supporters from a medical marijuana group rallied in his defense in the hallway outside. 

Leaders of Oakland-based First Hemp Bank say the defendant, Michael Fenili, who is also known as “Freedom Om,” was distributing the marijuana to gravely ill patients. Lawyers for Fenili and a co-defendant say their clients are protected by Proposition 215, the 1996 Compassionate Use Act. 

The state is charging Fenili and his girlfriend, 24-year-old Celina Perez, with felony possession of marijuana with intent to sell. The defendants are currently free on bond awaiting trial. 

“There is not any evidence of intent to sell,” Jamie Elmer, Fenili’s attorney, said Friday. “They intended to transfer (the marijuana) to people in the necessary line to get it to the patients that need it.” 

Assistant District Attorney Colleen McMahon was unavailable for an interview Friday. In a telephone message to the Daily Planet, McMahon declined to speculate whether her office would continue to prosecute the case, if the defendants establish that more than a dozen bags of marijuana found in Fenili’s van were intended for medicinal use. 

First Hemp Bank has leapt to the defense of Fenili, a slender six-footer with a shock of curly red hair tucked in a bun. 

“He was doing his work for the network and had obtained the medicine necessary to keep our members safe and healthy,” said First Hemp Bank co-founder David Clancy. “If you are sick and dying you don’t have the energy to grow and cultivate (marijuana),” he said. 

Clancy has gone so far as to intervene in the criminal case to argue that the seized contraband actually belongs to him, not the defendants. 

Under the Compassionate Use Act, “patients and their primary caregivers who obtain and use marijuana for medical purposes” are not subject to criminal prosecution. According to Clancy, about 30 East Bay residents with cancer, AIDS, chronic pain, arthritis and other illnesses receive marijuana from First Hemp Bank. The organization is licensed by the city of Oakland. 

But defense lawyers say Fenili’s arrest demonstrates the practical limitations of operating under the 1996 law. 

“People who need marijuana are finding they are having a hard time fighting their way through red tape and finding safe harbors,” said Perez’s attorney, Dirk Newberry. “The Act does not clarify how someone who needs marijuana may obtain it and how those who want to distribute it compassionately are supposed to do so. So it remains subject to prosecution.” 

Police arrested Fenili and Perez near People’s Park in Berkeley around midnight on March 26, after questioning Fenili on an unrelated traffic charge. According to police, a search of Fenili’s 1974 van turned up 19 bags of marijuana weighing a combined 10.4 pounds. Police say they also found a scale and 44 .25-caliber cartridges. 

Dressed in a green plaid shirt and baggy blue jeans, and wearing a light beard, Fenili stood at least a foot taller than co-defendant Perez in the cramped second-floor courtroom in downtown Berkeley. Friday’s court date had been set for a preliminary examination, but Superior Court Judge Jennie Rhine rescheduled that hearing for Aug. 9 because of other pressing court business. At that hearing, the judge will decide whether the prosecution has the evidence necessary to go forward with the case. 

Fenili, Perez and Clancy are each separately represented by counsel and supported by a colorful band of marijuana activists, patients, and volunteers. After Friday’s hearing a dozen people, many infirm or disheveled, gathered around the parties’ and their lawyers for an impromptu strategy session outside the courtroom. 

The legal merits of the defense case, however, are unclear. 

“A question arises whether the network and the people are caregivers” as the 1996 law defines that term, concedes Fenili attorney Elmer. 

“It is certainly our contention that they are. Otherwise people would be limited to growing it themselves. The network is the only realistic way to make this happen,” he added. 

But in two cases decided in 1997 by the California appellate court, the caregiver argument did not succeed. Three years ago the court ruled that San Francisco’s Cannabis Buyers’ Club could not qualify as a “primary caregiver” simply by having thousands of marijuana purchasers designate it as such. A contrary finding, the court said, “would entitle any marijuana dealer in California to obtain a primary caregiver designation from a patient before selling marijuana, and to thereby evade prosecution.” 

The court also declined that year to extend the protection of the Compassionate Use Act to the case of a Kensington resident arrested in 1994 for possession of two pounds of marijuana. 

Defense lawyers will try to show that Fenili and Perez fit the law’s definition of a primary caregiver as someone “who has consistently assumed responsibility for the housing, health, or safety of (the patient).” 

Attorneys for the defendants indicated Friday they plan to establish a medicinal marijuana defense by calling patients to testify. The DA agreed in court Friday to keep a proposed witness list confidential pending the defense filing a protective order based on the proposed witness’ medical privilege. 

Fenili’s backers say this is a test case that may set an important precedent for medicinal marijuana groups. 

But that could prove difficult. Commented Fenili attorney Elmer: “It’s just amazing what certain government bodies have done, including courts, to get around these marijuana initiatives and keep it a crime.” 

One source of confusion in the case could be a statement Fenili made to police following his arrest. Asked about his occupation, Berkeley police say, Fenili responded, “I sell herbs.” But Fenili told the Daily Planet that he was referring to a medicinal herb booth he operates at street fairs, not his work for First Hemp Bank. 

Fenili says he sells herbal products bearing such names as Good Health Smoke and Sexual Happiness Tea. He views himself as a shaman, he said, and therefore does not attempt to turn a profit from his business. 

“Cases like this will be forefront cases,” he said of his marijuana prosecution. 

“(The DA’s office) might want to challenge the ten pounds, they might want to challenge that we can actually have it in a vehicle. But how does marijuana get from the fields to the Hemp Bank?” he asked. “It has to be transported.” 

Fenili says he is prepared to stick with the case as far as necessary to make a point. 

“It’s a pioneer (case),” he said after Friday’s hearing. “But it needs to be done and other people down the road are going to be very thankful for this case.”