Last modified: July 11, 2012 5:56pm CDT
Return of Property Reply to Opposition
May 25, 2004 - page 4
1 To answer the first question, a court first must define the
2 activities at issue based on the particular facts of the case.
3 In Raich, the majority defined the class of activities at issue
4 as "intrastate noncommercial cultivation, possesion, and use
5 of marijuana for personal medicinal purposes on the advice of a
6 physician and in accordance with state law" and not "drug traf-
7 ficking." Raich, 352 F.3d at 1228-29. The class of activities
8 did "not involve sale, exchange, or distribution." Id. at 1229.
9 The court then considered whether this defined class of activi-
10 ties constituted commerce or any sort of economic enterprise.
11 It focused particularly on the fact that the purpose of the me-
12 dicinal marijuana was personal use and not economic or commer-
13 cial use: the user did "not seek to exchange it or to acquire
14 marijuana from others in a market." Id. at 1231. In contrast,
15 the court characterized the CSA as "part of a wider regulatory
16 scheme criminalizing interstate and intrastate commerce in
17 drugs." Id. at 1230. It thus concluded that the CSA, as applied
18 to the "cultivation, possesion, and use of marijuana for me-
19 dicinal purposes and not for exchange or distribution," did not
20 regulate commerce or any sort of economic enterprise. Id. at
22 The court also noted that "none of the cases in which the
23 Ninth Circuit has upheld the CSA on Commerce Clause grounds in-
24 volves the use, possesion, or cultivation of marijuana for
25 medical purposes." Raich, 352 F.3d at 1227.
26 Addressing the second Morrison factor, the court found that
27 there is no jurisdictional element limiting the CSA to a dis-
28 crete set of cases wherein interstate commerce is substantially
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Defendant's Reply to Oppoosition to Motion for Return of Property