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The preliminary hearing in a felony drug possession case involving an Oakland medical marijuana club was once again postponed yesterday in Berkeley’s Superior Court when a key prosecution witness was not available to testify. 

The witness, a drug crimes expert with the state Department of Justice, was expected to testify that ten pounds of marijuana found in a van belonging to defendant Michael Fenili in March was intended for sale and distribution, not personal use. 

The defense claims the contraband was to be used by patients in a medical marijuana network run by Oakland-based First Hemp Bank. 

With the state’s chief witness unavailable, assistant District Attorney Colleen McMahon and defense lawyers for Fenili and co-defendant Celina Perez agreed in court yesterday to re-set the preliminary hearing in the case for Sept. 6 at 9 a.m. The preliminary hearing, in which the state must show it has sufficient evidence to proceed, had already been postponed twice. 

Meanwhile, First Hemp Bank co-founder David Clancy, who claims the seized marijuana belongs to him, filed a motion yesterday asking the court to return the contraband so it can be distributed to patients in the organization’s network.“It’s personal property,” Omar Figueroa, Clancy’s lawyer, told the Daily Planet. “It’s medicine and the patients will ingest it,” he said of the marijuana, which now sits in an evidence locker.  

In June, Berkeley Superior Court Judge Jennie Rhine denied a similar motion filed by Figueroa on behalf of First Hemp Bank, ruling that over 20 bags of pot confiscated in the March 26 arrest of Fenili and Perez must be preserved as evidence in the case.  

Jamie Elmer, Fenili’s lawyer, said he had hoped to use yesterday’s preliminary hearing to put on testimony from 22 “patient-caregivers” in the medical marijuana network. Elmer will try to convince Rhine that the criminal case should be dismissed because Fenili was serving as a “primary caregiver” under the Compassionate Use Act, which permits distribution of marijuana to patients who have received a doctor’s prescription. 

Elmer said yesterday that his client was not willing to discuss a plea bargain with the DA’s office. “The [medical marijuana] defense is pretty much all or nothing,” he said yesterday. “Our clients have felt fairly strongly that this was not a crime,” he said. “They are willing to go to the mat, so to speak.”  

District Attorney McMahon said Wednesday she could not comment on the case. But she indicated that calling an expert narcotics witness was routine at a preliminary hearing to establish possession with intent to distribute. “It’s something that an expert must testify about,” she said. “Every time we have a possession for sale case I have to qualify an expert to provide that testimony.” 

Defense lawyers said yesterday that a ruling last month by U.S. District Court Judge Charles Breyer in San Francisco has brightened prospects for the medical marijuana movement. On July 14, Breyer reversed an earlier decision he had made against pot clubs by ruling that Oakland’s Cannabis Buyers’ Cooperative could resume distributing marijuana to patients who would otherwise “suffer imminent harm.”  

“Judge Breyer’s ruling is narrower than Proposition 215 because it only applies to people that have no alternative,” Clancy attorney Omar Figueroa said yesterday. “But it does show that the federal government recognizes medical necessity,” he added.  

But Fenili attorney Elmer said a medical marijuana defense could nevertheless be difficult to establish. “The courts don’t look too kindly on the defense,” he conceded. “It’s a tough case given the laws and the ways the courts are dealing with it.”