In Defense of Marijuana

Kyle Catlin and his attorney say he did nothing wrong, and are counting on Arizona’s medical marijuana law’s ambiguity to prevent him from life in prison

The thought of possibly spending close to 100 years in prison terrifies Kyle Catlin.

But he's mostly concerned about his mom. She's not in the best of health. If something were to happen to her, "I may not even be allowed to leave prison to go to my mom's funeral, and that's super fucked up," he says. "I'm probably not gonna see her, except for behind glass for the rest of my life. It hurts so much to think about that I try not to think about it and move on with my day."

The 27-year-old is facing 10-plus felony charges, including marijuana possession and sale, attempted production, and possession of drug paraphernalia. He has two separate cases with different accusations under his name.

Catlin, a medical marijuana patient and certified caregiver, swears his actions more than three years ago are protected by the law.

It's ironic, really. Catlin was involved in the movement that pushed to pass the Arizona Medical Marijuana Act in 2010. He spent his early days of advocacy with the National Organization for the Reform of Marijuana Laws, educating cardholders on the statute to ensure they were compliant. Now, he's trapped in the law's loopholes and confusing wording.

"I spent a lot of time trying to get this to pass, and I didn't do it so I could break the law and go to prison," he says. "It was, obviously, never my intention."

His first trial is scheduled for October, and the second begins in December. If he's convicted in case one, he'll go into case two with convictions on his record, which, if convicted of any charges, would only increase his years behind bars. Already on lawyer number five, Catlin might be losing faith.

The South Tucson native looks back at all the plans he had for his life. After a short stay in military school, Catlin wanted to become a firefighter or EMT—anything that involved being helpful to his community. He can't do much while on pre-trial, because no one will hire him over the pending felony charges.

"I told my new attorney, 'Here's a plea deal I would take: 100,000 hours of community service as a search and rescue person,' at least I would be doing something I am good at, helping people, volunteer work," he says. "That is a lifetime sentence of serving. It would be a lot more progressive than putting me in prison."

Case One

The MMJ Act was approved by voters in 2010, but it took two years for dispensaries to pop up. Qualifying patients were left with the options to either cultivate their medicine (the law allows for 12 plants per patient), or find so-called "compassion clubs" of independent medical weed dealers that could provide them with their medicine.

At the time, Catlin knew a few people who needed both help and a space to grow. After getting his MMJ card for chronic pain, Catlin went through the process of also becoming a medical marijuana caregiver. By law, caregivers can purchase, transport and grow medical cannabis in limited quantities for up to five patients, as long as they are registered with the state, comply with the MMJ law and pay taxes, according to the Arizona Medical Cannabis Association.

Catlin got a house near Fourth Avenue, where 15 people began to cultivate their 12 plants each (totaling roughly 150 plants). Via word-of-mouth, more and more patients got a hold of Catlin, so he rented a bigger house on Grant Road to handle the traffic. "I started up a little healing center," he says. He'd deliver to those who were very ill, and says he even donated weed to some patients.

In April 2012, Catlin was pulled over by Tucson Police officers, allegedly for speeding. What really happened, according to Catlin, is a young man had gotten in trouble earlier over having some weed, and he told the cops he had gotten it from Catlin. The police officers interrogated Catlin, and he ended up showing them the two ounces of weed he carried in his backpack (law says you can carry up to 2.5 ounces), and his medical marijuana card. "At some point I asked 'Am I under arrest?'" he says.

"I heard a police officer lie and say that I had said that there were more (marijuana) jars at my house, when I was never asked anything about marijuana at my house," he says. The cops searched his pockets and found two cell phones and cash, which they saw as sufficient probable cause to search his home.

They found 147 marijuana plants, weed in jars and a gun in Catlin's safe. Overnight, he was charged with four felonies: possession of weed for sale, attempt production, possession of drug paraphernalia and possession of a deadly weapon during the "commission of a drug offense."

According to the indictment document, law enforcement found more than two pounds, but less than four pounds of weed for each cultivation, production and possession, roughly adding up to 15 years if given the maximum sentence. Marijuana paraphernalia would be at least four months but no more than two years. A grand total of close to 20 years in prison if given the max, according to the marijuana advocacy group NORML.

In this case, Catlin doesn't have any prior convictions, but that still means he could face the minimum sentence for each felony if convicted, because in the 1980's Congress made such sentencing for drug offenses mandatory.

"It was one of the very popular 'tough on crime' measures," says Caroline Isaacs, program director of the American Friends Service Committee, a Tucson-based advocacy group for incarcerated people. "Primarily because the federal government offered money to the states that would enact that. Most states do some fort of minimum sentencing, but primarily they apply it to only serious and violent crimes, whereas in Arizona, we apply it across the board."

In Arizona, according to 2010 figures by the Arizona Prosecuting Attorney's Advisory Council, 2,343 of the state's inmates are nonviolent, first offenders. Of that number, more than half in prison are labeled "drug traffickers." In recent years, the Obama administration has expressed willingness to reform sentencing policies, especially when it comes to nonviolent drug crimes. In July, President Barack Obama commuted sentences for 46 nonviolent drug offenders, many whom could have spent the rest of their lives in prison.

"Marijuana has always been a huge job for law enforcement. They have made a lot of money from it. ..." Catlin says.

Case Two

A few months into pre-trial for case one, Catlin's home was searched again.

The investigators overseeing the case found recent information about his healing center— Arizona Medical Marijuana Caregivers—online, and that's how they justified another search warrant. (It was a site with tons of reviews about the weed Catlin sold and his services, as well as customer testimonials. They were all good reviews, he says.)

"They destroyed my house, ripping posters down, and breaking glass water pipes all over the house," he says. Catlin was pinned with 10 felonies. (At least three were dropped, according to his attorney, Brick Storts.)

Among them, "illegally conducting an enterprise that sold and/or possessed for sale amounts of marijuana and cannabis ... to customers," the indictment says. It lists Catlin as the boss, who employed an "associate" to deliver marijuana, and "arranged appointments between the runner and customer for the purpose of selling marijuana." There was also another charge for possession of marijuana for sale, possession of drug paraphernalia, and conspiracy to possess and sell.

"Here I am trying to prove that what I am doing is legal, and I'm getting in trouble. I'm not doing anything illegal, but it appears to (the judge) that I am," he says.

The trial for case one begins on Oct. 13. If he's found guilty of all or any charge, he'll face trial two with previous convictions.

"The problem with some law enforcement is that they don't really know the (medical marijuana) law," Catlin says. "People get arrested and they leave it up for the courts to figure out. The law was made so that no more people got arrested. (The state) is trying to undermine the medical marijuana system."

The Defense

The medical marijuana law has a section called Affirmative Defense, which pretty much means that if you prove the marijuana possession, use, cultivation etc., falls within medical boundaries—and as long as you follow other guidelines, such as being in possession of the legal amount of weed, or growing marijuana in a "contained, enclosed facility"—all or some charges can be dropped.

That's what Catlin is trying to prove.

A paragraph of the medical marijuana law reads, "The qualifying patient and the qualifying patient's designated caregiver were engaged in the acquisition, possession, cultivation, manufacture, use or transportation of marijuana, paraphernalia or both, relating to the administration of marijuana solely to treat or alleviate the qualifying patient's medical debilitating condition ... or (its) symptoms ..."

Catlin says the weed, the cultivation, the paraphernalia were all for his and the other patients' medicinal purposes.

In a defense letter he wrote to the court, Catlin says that his acquisition, possession, cultivation, manufacturing, transportation and marijuana paraphernalia were there to treat, alleviate "mine and other qualifying patient's debilitating medical conditions or symptoms associated ..." Also, he had a system where everyone got carded, and he made sure no one got more than 2.5 ounces of weed every 14 days.

He argues, as a patient he has the right to grow 12 plants, so he did. The rest belonged to the other 15 patients. He says that several of his lawyers have asked him to hand over the names of those 15 people, so that at least the 147 marijuana plants aren't all tagged with his name. But Catlin isn't willing, unless he's promised those people won't get charged with anything. But, he says, if the prosecutors wanted to get a hold of them that bad, their names and contact information are in his computer, which they confiscated at the time of his arrest.

Then there's the amount of weed he's being charged with, which he says is inaccurate because prosecutors are counting stems, leaves, and other un-useable parts of the plant. Useable marijuana is the flower that's been dried out.

Arizona v. Matlock

In May of this year, the Arizona Court of Appeals Division Two overturned a ruling from July 2014 by Pima County Superior Court Judge Richard Fields, which stated that medical marijuana patients are allowed to provide each other with weed, per the state's medical marijuana law.

Back when he issued the ruling, Fields said a section of the marijuana law says patients can't be prosecuted for providing each other with weed, as long as "nothing of value" is exchanged in return. Another section says that a patient's card can be revoked if the patient gives a non-cardholder weed, which he interpreted as, cardholders can provide marijuana to other cardholders. He also argued that the 59-word provision contained no commas, so under state law that meant the section was ambiguous, and could be interpreted in several ways. When a law, or portion of a law, is ambiguous, the court must be lenient with the defendant. Basically, the wording was so confusing, a person couldn't know if he or she was breaking the law, if he indeed broke it.

The Fields ruling helped dismiss a case against Tucson resident Jeremy Allen Matlock, who was caught placing ads on Craigslist offering medical marijuana in exchange for a small donation of $25 per plant.

The Court of Appeals said allowing patient-to-patient transactions would green light sale enterprises. Their decision also came down to a different interpretation of the wording (and the grammar), similar to what Fields cited in his ruling.

With the Fields case overturned, Matlock is facing prosecution again. An appeal to the Arizona Supreme Court is pending.

Storts says that if the Arizona Supreme Court overturns the Appeals Court's decision, then Catlin has "a really good chance." Ideally, Storts would like Catlin's trials to be rescheduled, while the Matlock case plays out in the Supreme Court.

"Kyle is in a difficult position," Storts says. "If (the Appeals Court ruling) stands, you have to trial this as 'jury nullification,' in other words saying 'OK folks, he did it but this law is ridiculous and you don't want to sentence anybody to prison for a long time.'"

Killing Time

Catlin's been spending his days renovating his grandparents' home in South Tucson. "That's where I lived after I was born," he says.

The other half of his time is spent writing document after document detailing his defense. He even has a white board filled up with legal definitions, state statutes—he's ready to fight hard, even though at times he isn't too hopeful about the outcome.

When trial begins, his only request is to have a jury that's well educated on the medical marijuana law. He says his previous attorneys were careless, and screwed a lot of things up throughout the process because of their unfamiliarity with the statute, and he doesn't want to keep risking it.

"My emotions are a roller coaster, I feel really good sometimes, because I figured some more things out that I want to bring to my lawyer that will help my case," he says. "I know I didn't break the law, so I am always really positive and hopeful, but I get disgruntled when I go into court and the judge doesn't want to hear anything. It all makes me think a lot about my family. I have always been around my family. They are an awesome support structure."