Edward "njweedman" Forchion 

                -vs-

    State of New Jersey 
 
 

 MOTION(s)to:
 

(1) dismiss -Medical Marijuana is legal

(2) dismiss-The substance was not marijuana 

(3) Change venue to Federal Court, or Superior Court 

(4) dismiss-Violation of 14th Amendment, 9th amendment, 1st amendment.

(5) dismiss-The public statement of March 16th, was a request of redress a 1st amendment right 

(6) Change venue to Superior Court level.(Request 4 Jury Trial)
_____

&n Medical Marijuana is legal 

                  This motion is based on the fact that marijuana is a 100% natural
             medicine used by man-especially people of color (which defendant is) for
             over 5000 years. That marijuana is a Religious Sacrament to member's of
             some religion's , in defendant's case "I am a practicing Rastafarian".

             The possesion of marijuana for medical/religious purpose's is legal.
             as per 21u.s.c. &321(p)
 

            The description of a schedule 1 substance in accordance with the CSA
            Controlled Substance Act of 1970, substance must:
             (1) Have no medical value in the U.S.
             (2) Be subject to wide spread abuse
             (3) Lack of accepted safety fr the drug, under medical supervision

Marijauna doesn't fit into any of these definations: It doesn't fit you've got to acquit.
 

____________________________________________________________

  This motion is based on the fact-truth, that marijuana is a 100% natural medicine used by man-especially people of color (which defendant is) for over 5000 years. Marijuana was first regulated at the federal level by the Marihuana Taxation Act of 1937, which required anyone producing, distributing, or using marijuana for medical purposes to register and pay a tax, and which effectively prohibited non-medical use of the plant. Although the Act did not make medical use of marijuana illegal, it did make it expensive and incovenient.

 This Act was a Jim Crow law, as it was directed at blacks, and mexican's originally, who at that time were the only user's of marijuana in this country. For blacks and mexican's who freely wanted to use natural " medicial marijuana", they were thus forced to use dangerous man-made chemical medicine's owned and patent by white-males.  Dr.'s were intimidated into no-longer prescribing "medical Marijuana". Thoughout the 40-50's the government produced propaganda commericals movies and literature all telling outright lie's about marijuna. ( example: The Movie Reefer Madness) - Or Bureau of Narcotic's Director Harry Anglinger's contention that marijuana made white women crave negroe's. 

This act -The MTA of 1937 remains one of the toughest Jim Crow laws still being enforced. It is no mistake that blacks are dis-approtionatedly incarcerated by the greatest Jim Crow law ever and it is no mistake that it is still in existance. The only difference is during the civil rights movement of the sixtie's white's were introduced to marijuana in mass. The marijuana laws are now used to keep the all white controlled prison industry supplied with bodies, mainly bodies of color, not public safety concern's. The government knows marijuana is safe. 

Calling marijuana dangerous is just the public lie presented to the public to insure enslavement of citizens. Mainly citizens of color, and unforunated white's who have been taught the truth about marijuana, by people's of color. The marijuana laws are a major vehicle for the legalized enslavement of citizens into the all white controlled prison industry. It's no fluck that the Governor's Christy Whitman's husband is entrenched in the prison industry and she encourages increased incarceration for victimless drug laws. - These laws, which enslave citizens also enrich  investor's in the prison industry. Present day legal slavery. And it's done under the cloak of law. 
                         The Governor is a slave master.
 

The crime: knowing the truth ("that marijuana is one of the safest theraputic substance's known to man") and acting on it. Quote from DEA -Administrative Law Judge Francis Young -1989 
-----------------------------------------
   In 1970 congress obviously mis-classified marijuana as a schedule 1 drug under the provision's of the (CSA) Controlled  Substance Act. The State of New Jersey followed suit. In the last 30 years since this mistake was enacted the State of New Jersey has both recoginized marijuana's medicinmal value and re-affirmed it's mistaken classification of marijuana as having no- medicinimal value with it's inclusion of marijuana as a schedule 1 drug. (CDS). 

   On March 16, 2000 - I Edward "njweedman" Forchion, the defendant in this case was charged with (cds)possesion, destruction of (cds) evidence and dis-orderly conduct. I challenge the law, it has a serious flaw in it. The substance "medical marijuana" is legal under 21 U.S.C. &321(p). Despite the attempts by the state of new jersey to try to ignore/hide this fact. 

   While I still maintain the substance I was accused of ingesting (both by smoking and eating) was not marijuana, for the purpose's of this motion.  I will challenge the State of New Jersey's allegation that marijuana is a schedule 1 drug. I personally receive all of my "medical marijuana" from the State of Arizona. The State of Arizona , in 1996 rescheduled marijuana as a  schedule 2 drug, in accordance to it's proposition 2000 . Making it a legal  medicine within the State of Arizonia. 

   Based on the undenialable fact, that I'm a medical/religious user of  Marijuana, receiving my medical-sacramental marijuana across state line's, one state classifying marijuana as medical while the other New Jersey claiming thru this prosecution that marijuana has no medicimal value.  I request of the court to veiw this alledged State of New Jersey criminal act, prosecution or indictment in light of federal commerce clause. 

 SHOULD THE COURT FIND THAT THE COMMERCE CLAUSE APPLIES TO THE "INTERSTATE MEDICAL MARIJUANA" ACTIVITIES SET FORTH IN N.J. statue's 2c-35__, and 2c-35__, THOSE ACTIVITIES DO NOT CONSTITUTE AN OFFENSE UNDER 21 U.S.C. §841(a), (1) BECAUSE "MEDICAL MARIJUANA" IS A FEDERALLY RECOGONIZED PRE-1938-GRANDFATHERED MEDICINE (21 U.S.C. §321(p)) SUBJECT TO FDA REGULATION UNDER 21 U.S.C. §301 et. seq.  and not a schedule 1 drug as the State of New Jersey alledge's in this misdomeanor.

    Defendant, "NJWEEDMAN" is charged  with violating NJ status, 2c-35__, - the possesion of marijuana, a Schedule I substance. As noted, for purposes of this motion, the undisputed facts establish that the State of New Jersey has no evidence of possesion of the "medical marijuana," e.g., marijuana cultivated and used for medicinal purposes within the meaning U.S.C.§301 et. seq. 

     Should the Court find that the Commerce Clause does, in fact, apply to the "medical marijuana" activities set forth in the charge _________-, those activities do not constitute an offense under 21 U.S.C. §841(a)(1), or NJ Status 2c:35___ because "medical marijuana" is a federally recognized pre-1938-medicine (21 U.S.C. §321(p)) subject to FDA regulation under 21 U.S.C. §301 et. seq. "Medical marijuana" is not a Schedule I substance subject to 21 U.S.C. §841(a)(1), or NJ 2c:35__ as alleged in the charge. 

 Factual Basis for this motion(s) are: 

AA. - Truth/History

A. Relevant Federal Statutes and "The Grandfather Clause" 

  The Federal Food, Drug, and Cosmetic Act of 1938 ("the FDCA"), 21 U.S.C. §301 et seq., is designed to protect public health by regulating "new drugs" that are intended for use in interstate commerce. Barnes v. United States, 142 F.2d 648 (9th Cir.1944); United States v. Kordel, 164 F.2d 913 (7th Cir.1947); United States v. Two Bags, Poppy Seeds, 147 F.2d 123 (6th Cir. 1945). There exists, however, a "grandfather" clause which exempts certain old drugs from this "new drug" status. 21 U.S.C. §321(p)(1); United States v. Rutherford, 442 U.S.544, 546-48 (1979); Rutherford v. United States, 541 F.2d. 1137, 1140-42 (10th Cir.1976) (reversed on other grounds, 442 U.S. 544). 

     As explained by federal regulators, when Congress revamped the FDCA in 1939, it "accepted those drugs marketed prior to 1938 which had been subject to the 1906 provisions of the FDCA [requiring drugs to be identified in recognized medical authorities such as the National Formulary, United States Dispensatory, Pharmacopeia of the United States, or other similar sources] provided these very old drugs retain their exact formulations and are never promoted for new uses." 57 Fed.Reg. 10499, 10503 (1992) (citing 21 U.S.C. §321(p) and (w)). As further explained, these pre-1938 drugs "are politically 'grandfathered' drugs" and "need not meet modern standards for safety and effectiveness." Ibid; United States v. Rutherford, 442 U.S. at 546-48; Rutherford v. United States, 541 F.2d. at 1140-42. 

    As will now be shown, marijuana is one of those "very old drugs" that was grandfathered in as a medicine back in 1938. Marijuana (more commonly known as cannabis) was widely recognized for its medicinal use in the medical journals of that time, and brand-name companies, such as Parke-Davis and Eli Lilly, were cultivating "home-grown cannabis" and selling the "flowering tops" of the plant for use in the treatment of illnesses such as anorexia, chronic pain, spasticity, and nausea. 

  B. "Medical Marijuana" Is A Bona Fide Medicine

 Within The Meaning Of The Grandfather Clause Exemption First, it bears emphasizing that federal regulators readily recognize "medical marijuana" as an authentic pre-1938 medicine: 

     "Cannabis sativa L. was one of the first plants to be used by man for fiber, food, medicine, and in social and religious rituals. There were approximately 20 traditional medicinal uses of cannabis ... in Western medicine from the mid-19th to the early 20th century ...In 1941, marijuana passed out of the National Formulary and the United States Pharmacopeia."   54 Fed.Reg. 53767, 53774 (1989). 

Next, recorded documents existing within private and public libraries, now located on the world-wide web, (internet) further reveal evidence of marijuana's recognition and acceptance as medicine prior to1938. Defendant submits the attached declaration and supporting exhibits which verifies the pre-1938 acceptance of marijuana in the United States Dispensatory, Pharmacopeia of the United States, and Materia Medica acknowledging marijuana's use in the treatment of pain relief, epilepsy, appetite loss, depression, vomiting, etc., etc., etc. 
 See Attached -(Declaration of Edward "njweedman" Forchion). 

 As set forth in this declaration, companies such as Parke-Davis, Eli Lilly, Merck, and Squibb made extensive use of marijuana for commercial medicinal purposes and not only manufactured and sold marijuana preparations, they cultivated "home-grown cannabis" and then sold the "flowering tops" of those plants by the gram, ounce and pound. (NJWEEDMAN- Declaration.) 

   Thus, the "medical marijuana" that I the defendant "njweedman" is charged with possesion,  is identical to the type of marijuana that was cultivated and marketed for medical use back in 1937. Since "medical  marijuana" is a federally recognized pre-1938 medicine, not a Schedule I  substance, defendant's conduct does not constitute an offense in violation of NJ status: 2c:35___, and 2c:35____.. In fact these newly enacted status are seriously flawed in that it erronerously classifies marijuana as a schedule 1 drug, which requires substance's in the schedule 1 classification to have no medical value in the U.S. . 

   It is common knowledge that marijuana has medicimal value. In fact the State of New Jersey seems to ignore that it recoginized marijuana's medicimal value in 1983, with the enactment of the ("Medical Marijuana" Research Bill ______ sponsered by (r) Sen. Basano.  (see attached) 

Currently there are several on going federal programs that distribute marijuana for medical purpose's under the 1978 Compassionate Use Act.
 

 Dispite the so-called illegality of it Dr'.s often tell patients to use marijuana for a wide variety of ailments and symtoms.

  Defendant is also aware of recent federal studies such as the March 1997 release of the IOM - Instute of Medicine report "titled Marijuana as Medicine", this report and it's findings 100% dispute the State of New Jersey's claim that marijuana has no medical value in it's charge. 
   (Defendant has a copy of this) 
 
 

 C. The Burden Is On The Government To Refute Defendant's Claim That His Activity Falls Within The Grandfather Exemption

    In Rutherford v. United States, 541 F.2d. at 1140-42, the court noted, then emphasized that it is the government's obligation to refute a valid claim that a drug falls within the grandfather exemption. 542 F.2d at 1143 ("FDA would have to present substantial evidence to support the proposition that Laetrile is not grandfathered by the exemptions"). Moreover, once the FDA issues its determination, that ruling is then "reviewable by a district court."  Ibid (citing Weinberger v. Hynson, Wescott & Dunning, Inc., 412 U.S. 609 (1973) To date, defendant Edward "njweedman" Forchion is unaware of any administrative (or court reviewed) finding refuting defendant's claim that "medical marijuana" is a legal pre-1938 grandfathered drug.1-(ft note) 

   It is anticipated that the State of New Jersey will claim the medical use of marijuana was repealed or otherwise un-grandfathered when Congress enacted the Controlled Substances Act and placed marijuana into Schedule I. See 21 U.S.C. §812(I)(c). As will now be shown, the pre-1938 recognition of marijuana as medicine and its acceptance as a grandfathered drug has never been repealed or removed from its grandfather status. 

   First, as explained in 57 Fed.Reg. 10499, "[t]here is nothing in the Controlled Substances Act, its legislative history, or its purpose that would indicate Congress intended to depart radically from existing Federal law" regarding the identification and use of drugs. Id. at 10503.

Rather, the CSA must read in conjunction with the FDCA and "viewed inlight of the prior legal status of these drugs under the FDCA." Id at10504. When the CSA is examined in conjunction with the FDCA and "viewed in light of the prior legal status of these drugs under the FDCA," it becomes evident that Congress continued to recognize the validity of drugs, including "medical marijuana," qualified under the FDCA's grandfather clause. As set forth in 21 U.S.C. §812, and NJ State Status 2c_35___, and 2c:35____, - Schedule I substances are defined as follows: 

"Unless specifically excepted ..., any material, compound, mixture, or preparation, which contains any quantity of the following ... (10) Marihuana." 21 U.S.C. §812 Schedule I(c). 

    The "unless specifically excepted" clause must be read to refer to 21 U.S.C. §321(p) where Congress "specifically excepted" and accepted as medicine those drugs marketed prior to 1938 which qualified for the grandfather clause exemption. See 57 Fed.Reg. at 10504 ("Congress put pre-1938-grandfathered drugs into Schedules II, III, IV and V of the CSA."). If Congress had intended to repeal marijuana's pre-1938-grandfather recognition under §321(p), it would have made clear its intent to repeal medical marijuana's exempt status. Tennessee Valley Authority v. Hill, 437 U.S. 153, 189-90 (1978) (collecting cases) ("intention of the legislature to repeal must be clear and manifest"). 

    Next, in Rutherford v. United States, 542 F.2d 1137, the court discussed the possibility that the drug Laetrile may qualify for the grandfather exemption but could also be un-grandfathered if the FDA found that Laetrile was "dangerous to health." Id. at 1142 n4. To date, neither Congress, the FDA, nor the DEA, have declared medical marijuana "dangerous to health." In fact, marijuana is listed in a widely recognized source as "generally recognized as safe."2 

     Thus, unless the government can prove otherwise, defendant's possesion of "medical marijuana" is a statutorily recognized activity in accordance with 21 U.S.C. §321(p). Accordingly, defendant's conduct does not constitute an offense within the meaning of 21 U.S.C.§841(a)(1): "Medical marijuana" is not a Schedule I substance; "medical marijuana" is a bona fide pre-1938-grandfathered medicine subject to FDCA regulation. 21 U.S.C. §301 et. seq. 

  (D) - Marijuana is a natural medicine, 

Used by member's of the Rastafarian faith of which defendant Edward Forchion is a member. Under the Freedom of Religion clause in the US constitution as well as the NJ Constitution. The Defendant should not be charged. 

  1. - The defendant in following his conceince, his faith's teachings and belief's regard marijuana as a medicine and the demonstration of his medicial, spritual use on  March 16th, before the entire NJ State Assembly, was in fact a request for redress, a first amendment right. 

  2. - Marijuana is scientifically not a schedule 1 drug as the state of New Jersey alledge's in these charges. Currently 35 state's have recognized marijuana's medicimal value.(including New Jersey). 8 state's and the District of Columbia have legalized marijuana for medical reason's. ( Arizona, California, Maine, Washington St., Oregon, Alaska, and Nevada.) 

20% of the American people now live in state's where marijuana is a medicine. 

 (E) -  No Evidence

 The Substance the state of New Jersey say's was marijuana was in fact not. 

(F)  Constitutional Rights violation - 14th Amendment. 
 

 As was stated earlier in "Compassion-attachment" - the federal government distributes medical marijuana to individuals, while the state of New Jersey is arresting me for using marijuana as my medicine. Why am I not so protected? How could I be facing up to 6 months in jail, and a loss of all federal education funds for essentially doing exactedly what other's are premitted to do legally. 
 

 (G) - The case be heard in Mercer County Superior Court, before Jury.
 

  I the defendant wish to be judged by a jury of my peers. In light of the fact that municipal courts in new jersey operate in violation of the US and NJ constitution's guarantee of a jury trial, I the defendant wish to be Judged by a jury of my peer's which can only occur in the State Superior court's. Jury Nullification is a constitutional function of a jury. A Jury is empowered to use it's own conceince and current moral's to dictate, or reject laws.
  1972- D.C. Circuit Court of Appeals - 473 F. 2d 1113 

    The Jury has the right to Judge a law as well as evidence. By Denying me the right to a Jury trial the state is again attempting to ignore the will of the people who when asked accept the fact that marijuana is a natural medicine and not a schedule 1 drug.  As the state of New Jersey claims. I as the defendant am confident that a jury wouldn't convict a citizen for using  "medical marijuana".

    Congress on Oct 8, 1998 enacted the higher Education Act of 98. This act had a clause within it which if convicted would forhibit's defendant from ever receiving Federal  Education Funds for citizens who have been convicted three times on possesion of drugs. This I beleive raise the "consequence of magnitude" that would result if a conviction occur's in this prosecution.

    On Feb., 3rd 1999 - Winslow Twp., Conviction currently on appeal.
    Feb., 23rd, 2000 - Cherry Hill Twp., Conviction currently on appeal
    Feb., 29th, 2000 - Haddon Heights., Conviction on appeal. 
 

(H) - I use marijuana with the full knowledge of my Dr.'s.

 Over the years I have always acknowledged my use of marijuana,  medicimally. At no-time has a Dr. ever told me my use of marijuana as a  medicine was factual wrong or would create a dangerous situation other than the punishment that would be inflicted by the government if caught by the government. ( see attachment - Dr Report) 

(I) - Ninth Amendment right to regulate my own body is being infringed upon.

   I have never surrendered my ninth amendment right to regulate my own body. No-where in the US Constitution or NJ Constitution do either of them give government the right or authority to regulate my body. I freely chose to regulate my body with safe natural "medical marijuana". The state of New Jersey has no authority to force me to use medicine I freely choose not to use, and it is powerless to stop me from self-medicating with a safe natural medicine including marijuana. 

    My choosing to use marijuana as my medicine in compliance with my religious views, are substantially burdened by the enforcement in this case of New Jersey Statues 2c:35____-,and 2c:35_________. 
 Hobbie v Employment Appeals Commission -480 U.S. 146 (1987)
 Sherbert v Verner, 374 U.S. 398, 83 S. CT. 1790
 Wisconsin v Yoder, 406 U.S. 205, 92 S. CT 1526

  (J) - Safety - My NJ Constitutional Right to safety is being infringed upon. 
         Article 1 (1) - If I'm prosecuted for using "medical marijuana".
 

All persons are by nature free and independant, and have certain natural and unalienable rights, among which are those of enjoying and defending life liberty, of acquiring, possessing, and protecting property, and pursuing and obtaining SAFETY and happiness.

  Marijuana is one of the safest thuraputic substance's known to man. zero have ever died of marijuana use. Over 100,000 US citizens died each year from legal man-made drugs. I have of my own free will decided to be safe and use only natural medication's. 
 
 

 FOOTNOTES

1.-Nor is defendant required to exhaust any conceivable administrative remedy that may be required to adjudicate the "grandfather" exemption. United States v. Kiffer, 477 F.2d. 349, 352 (2nd Cir.1973) ("even assuming the existence of a viable administrative remedy, application of the exhaustion doctrine to criminal cases is generally not favored because of the 'the severe burden' it imposes on defendants.") (quoting McKart v. United States, 395 U.S. 185, 187 (1969)). 

2.-Duke, James A: "Handbook of Phytochemical Constituents of GRAS Herbs and other Economic Plants" (1992) at p. 128. 

3.- The 1999, Institute of Medicine Report Titled "Marijuana as Medicine" - In 1996 after Arizona, and California citizens voted in the legalization of medical marijuana. Drug Czar Gen. MCcaffery called "medical marijuana" Cheech and Chong medicine, and commissioned this study to prove it. - Again as in the Shaffer Commision report, he got the truth, the IOM report now is in the process of being buried. 

4.- The 1972, Shaffer Commission, named after former Penn. Governor William Shaffer who headed the study. The study challenged the Scheduling of marijuana as a schedule 1 drug, and the appropiateness of prosecuting individuals for using this relatively safe substance. - (President Nixon- after reading the truthful report buried it, and refused to follow the shaffer commission's recommendations. Many believe in anger at the anti-war movement who he despised.
 

RASTAFARIAN - Is a recognized religion. It is a religion which first took root in Jamaica, it is based on a combination of Old testimate ideology and East African, philsohy. Most follower's are Black. During the 1920's with the rise of Jamiacian Nationalist and American Black leader Marcus Garvey it gained adherents in the United State's. See - Mircea Eliade, Encyclopedia of Religion pages 96-97 (1989). It is one of the 1,558 religious groups sufficiently stable and distinctive to be identified as one of the existing religions in this counrty. Standard descriptions of the religion emphasize the use of marijuana in cultic ceremonies designed to bring the believer closer to the divinity and to enhance unity among believers. Functionally, marijuana-- known as ganja in the language of the religion -- operates as asacrament with the power to raise the partakers above the mundane and to enhance their spiritual unity.