"The District Attorney of Shasta County Doesn’t Know the Law!"
Denney v. DEA et al is a civil lawsuit by California physician Philip A. Denney against the agencies involved in sending undercover operatives to his office in the fall of 2005. As reported previously in Counterpunch, the agents feigned histories and symptoms to get Denny’s approval to medicate with cannabis. Denney learned of the deceitful visits when a concerned citizen sent him the "Investigative Narrative(s)" prepared by Redding police officer Tracy Miller. Denney sued, contending that the elaborate deception infringed on his First Amendment right to discuss marijuana use with patients. He cited a 2004 ruling by the U.S. Ninth Circuit Court of Appeal in the case of Conant v. Drug Czar that upheld a permanent injunction barring the government from investigating a pro-cannabis doctor without probable cause.
In seeking a dismissal of Denney’s suit, the government claimed that there had been an investigation of a Redding dispensary called Dixon Herbs, and that agents obtaining Denney’s approval to medicate with cannabis were simply gaining access to that dispensary so they could make controlled buys. Last summer U.S. District Judge Lawrence K. Karlton denied the motion to dismiss. In October, Denney’s lawyer, Zenia Gilg, took depositions from the law enforcement agents who participated in the investigation. She was seeking evidence that in selecting Denney’s office to visit, they had been motivated by "retaliatory animus" towards an outspoken pro-cannabis doctor.
As Gilg reconstructs the scenario, Shasta County DA Gerald Benito had told Deputy DA Ben Hanna that as evidence against Dixon Herbs he wanted four controlled buys – three from confidential informants, plus one from a government agent. "But they didn’t need any more informants," Gilg says she ascertained. "Hanna already had a CI with a doctor’s recommendation working for him, who made the first buy. Then they send a CI to Dixon Herbs and he’s told that he can get a recommendation from a Dr. Rosenthal, who’s going to be at the dispensary Oct. 8. Meanwhile the first CI goes back to Dixon Herbs and makes another buy. So they need one more CI to make one more buy, and that’s their excuse for going to Dr. Denney’s office.
"But what we learned from deposing Officer Hale was that he had a CI working for him who already had a doctor’s recommendation! They could have used him to make the buy, but they didn’t, they said, because he was in Sacramento."
Instead of sending Hale’s CI from Sacramento to Dixon Herbs -a two-hour drive that would cost $25 in gas- the investigators deployed another CI to go into Denney’s office and lie to get a recommendation, while they conducted a stake-out in the parking lot. Perhaps the government can argue – truthfully!- that they weren’t investigating Denney, their agents were simply running up their billable hours.
The whole exercise was totally unnecessary, Gilg observes, because Dixon Herbs openly advertised itself as a medical marijuana dispensary in a local newspaper and online. She adds, "The business license which Dixon Herbs got in May 2005, basically says ‘We’re a medical marijuana dispensary.’ They could have gone to Ron Dixon and said ‘We notice you have a business license that says you’re a medical marijuana dispensary and you advertise on the internet as a medical marijuana dispensary and we don’t think that’s legal.’ How simple would that have been?
"It’s common sense -give them a warning. Ask them to stop. Especially when they’re doing it openly."
Gilg also learned, she says, that the investigation of Dixon Herbs was launched as "a Redding Police-Shasta County operation -not DEA- but with a twist I found very interesting. Ordinarily, such investigations are handled by a task force called SINTF [pronounced sin-teff] that includes the Shasta County District Attorney, the Sheriff, Redding Police, Anderson Police, the state Bureau of Narcotics, CHP, and some other agencies. But to go after Dixon Herbs they created a different organization, because the state attorney general mandates that anytime a task force investigates a medical dispensary, they have to get the okay [from the AG's office]. SINTF didn’t want to do that, so they created another group that included many of the same agencies, including the Shasta County DA, the sheriff, the DA -and they didn’t need the attorney general’s okay."
How did Gilg find out about SINTF’s end-run around the attorney general’s office? "[Redding Police officer] Tracy Miller admitted it at the deposition. Flat out."
Gilg believes that the impetus for the move against Dixon Herbs may have come from MacGregor Scott, a former DA of Shasta County whom George Bush had appointed U.S. Attorney for the Eastern District of California. Scott had issued a memo August 1, 2005 – "just after the U.S. Supreme Court ruled in the Raich case," Gilg notes, "and just before this investigation began"- inviting all law enforcement agencies in the Eastern District to forward medical marijuana cases to his office.
Gilg says, "Scott’s memo told every DA in the state, ‘Hand us your medical marijuana cases, because there’s no defense under federal law.’ And a lot of DAs who had cases they weren’t sure they could win in Superior Court went ‘Right on. How cool is that?’"
The reason the case against Dixon wasn’t turned over to the feds, Gilg learned through depositions, was that after searching Ron Dixon’s home the investigators "determined that they hadn’t found enough to spark the interest of the feds."
"Most interesting of all," says Gilg of the depositions, "was their astonishing level of ignorance. When I asked Benito if he knew the case of People vs. Urziceanu, he said ‘No.’
"’People vs. Wright?’
"’People vs. Mower?’
"”I’ve heard of it, but I can’t tell you what it says.’
"That’s crazy! ‘People vs. Spark?’
"’Never heard of it.’
"’People vs. Jones?’
"’Never heard of it.’
"’Never heard of it.’
"The district attorney of Shasta County doesn’t know the law!," says Gilg.
Benito’s deputy, Ben Hanna, had heard of Spark and Jones.
The gist of all these key decisions -controlling precedents in the districts in which they were handed down- is provided below.
The government -both the federal and state defendants- have filed motions for "summary judgment" which will be argued before Judge Karlton March 24. These are post-deposition claims that the case should be dismissed because, based on the evidence presented, no harm was done to Denney and no reasonable jury could find for him. Says Zenia Gilg, "A lot of things came out in the depositions that are going to strengthen our position at trial, and nothing came out that’s going to weaken it. Of course the government denied that they were investigating Dr. Denney, but as Judge Karlton said, ‘You can deny that all you want but the facts are the facts.’ And the big one is that they had another informant who had a recommendation."
Denney’s suit names as defendants the Drug Enforcement Administration, DEA Administrator Karen Tandy and Agent Dennis Hale; the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives, FBATFE Director Carl J. Truscott, and Agent Steven Decker; the Office of the Shasta County District Attorney, D.A. Gerald Benito; the Shasta County Sheriff’s Department, Sheriff James Pope, Deputy Robert Modin, and Deputy Christopher McQuillan; the Redding Police Department, RPD Chief Leonard Moty, Officer Tracy Miller, and Officer Eric Wallace; and Does 1-40.
Memo to Shasta County D.A. Gerlad Benito
At depositions in the Denney v. DEA et al law suit, Deputy DA Ben Hanna, who was acting in an advisory capacity to law enforcement in connection with the Dixon Herbs investigation, did not know the propositions for which the following cases stood: Urziceanu, Wright, Mower and Conant. You yourself acknowledged unfamiliarity with those four cases, as well as Spark and Jones.
To help your office perform its mission properly, legal affairs analyst Pebbles Trippet has prepared the following executive summary.
People v Mower (Aug 2002) California Supreme Court
Issue: Are medical-marijuana users and people who use prescription medicines equal under the law?
Facts: Myron Mower, a legally blind diabetic, confessed from his hospital bed (while hooked up to a morphine IV drip) and was convicted of cultivating 31 plants. He was sentenced to five years probation. The 5th District Appeals Court denied his appeal.
Ruling: The Supreme Court reversed Mower’s conviction based on incorrect instructions to the jury regarding the burden of proof. Patient-defendants need only raise a reasonable doubt (a doctor’s authorization); the prosecution must disprove beyond a reasonable doubt, not by "preponderance of the evidence." Doctor-approved marijuana users are "no more criminal than" those who use prescription meds. The Court created a new motion to dismiss, prior to preliminary hearing, i.e., a doctor’s authorization is the equivalent of a prescription and grounds for immediate dismissal.
Conant v Walters (Dec 2002) US Court of Appeals, 9th Circuit
Conant protects physicians’ First Amendment right to discuss and recommend medical cannabis under state law regardless of conflicting federal law. It was originally filed as Conant v McCaffrey) to stop the federal government from interfering with the right of California doctors to make medical decisions based on discussions with their patients. Dr. Conant was granted a permanent injunction preventing the Drug Czar, the DEA and other federal officials from even investigating doctors for authorizing medical cannabis under state law without probable cause.
People v Jones (Sept 2003) 112 CalApp4th 341 o 3d Appellate District o Sacramento County
Issue: What qualifies as a physician’s approval to use marijuana for migraine headaches?
Facts: William Ira Jones was found guilty of cultivation of 31 marijuana plants for migraines after a no-contest plea. He testified at a pre-trial hearing that his doctor had stated, "It might help. Go ahead." The court determined that the jury could find that such a "favorable opinion" qualifies as a physician’s approval, even though the doctor admitted that he was afraid to issue a written approval. Thus the trial court erred in precluding defendant from presenting his defense to the jury, and the order granting four years probation was reversed.
Ruling: A defendant need only raise a reasonable doubt as to whether s/he had a doctor’s approval to permit a jury to decide the question.
People v Spark (Aug 2004) 121 CalApp4th259 o 5th Appellate District o Kern County
Issue: Must a patient be considered "seriously ill" to qualify for protection under Prop 215?
Facts: Noel Spark, a patient being treated for chronic back pain, was arrested for growing three plants. Spark was found guilty of cultivation at two jury trials. Both verdicts were reversed on appeal, based on the jury having been erroneously instructed. At the first trial the jury was instructed to decide based on the "preponderance of evidence" not "beyond a reaonable doubt." At the second trial the jury was allowed to interpret the meaning of "seriously ill," which is not a jury issue.
Ruling: A physician’s determination that the use of marijuana is appropriate is not to be second-guessed by jurors.
People v Urziceanu (Sept 2005) 132 Cal App 4th 747 o 3d Appellate District o Sacramento County
Issue: Is collective or cooperative cultivation and distribution lawful under Prop 215 and SB420?
Facts: Michael Urziceanu and his partner Susan Rodger created FloraCare, a cooperatively run dispensary near Sacramento. Some members contributed medicine and got "suggested donations." Floracare was first raided 9/18/01. After reorganizing as a co-op, they were raided again. A jury acquitted Urziceanu of cultivation and sales but convicted for conspiracy to sell (a three-year sentence).
Ruling: While Prop 215 may not have protected collective medical marijuana gardens and sales, SB420 (which created Health & Safety Code 11362.7) did. The appeals court unanimously reversed and remanded for a new trial, based on improper jury instructions on conspiracy and mistake of law, as well as search and seizure procedures. The court applied expanded protections to patients and caregivers as long as the medicine-providing processes are collectively or cooperatively organized for the good of the whole, rather than for individual profit.
People v Wright (Nov 2006) 40 Cal4th 81 o Supreme Court o Orange County
Issues: Was the trial court’s refusal to instruct the jury about an implicit Prop 215 defense to transportation of personal-use marijuana prejudicial or harmless error? The 4th District appeals court had reversed the conviction, ruling it was prejudicial to the defendant to deny the instruction to the jury. The appeals court had ruled it was prejudicial to the defendant to deny the defense. The California Supreme Court granted review to resolve the conflict between two appellate decisions: Trippet (Prop 215 confers an "implicit right" to transport) and Young (215 doesn’t protect transportation). Second issue: is the quantity a patient can possess under SB420 not to exceed eight ounces of dried marijuana?
Facts: Huntington Beach police stopped Shaun Eric Wright as he was leaving a carwash in his pick-up. A search revealed 1lb, 3oz of marijuana, which Wright used with a doctor’s approval. A jury convicted him of transportation and possession for sale. The 4th District Appeals Court reversed based on the trial court’s refusal to instruct the jury about a 215 defense to the transportation charge.
Ruling: The California Supreme Court reversed the appeals court ruling on grounds that the trial judge’s error in not allowing the transportation defense was harmless, not prejudicial, error. While granting the judge should have allowed the defense, "the omission of the instruction did not affect the trial outcome, thus rendering the trial unfair." The Court reinstated the convictions and remanded for further proceedings on defendants’ additional claims of instructional error.
On the question of whether Prop 215 implicitly allowed transportation of marijuana for personal use, the Supreme Court determined "that Trippet, not Young, was the better-reasoned decision." On the question of legal quantity, the Supreme Court ruled that SB420 had established six mature plants and eight ounces of processed cannabis as a minimum that counties had to allow patients to possess -not a maximum.
Prejudice = Ignorance x Arrogance
Documents obtained by the lawyer defending Ron Dixon -Ed Denson of Redway- included a revealing email from DA Benito to Redding PD Captain Chuck Lebak, sent on Feb. 8, 2006. Lebak had asked for guidance: "The Chief has received a letter from Eugene Denson, the attorney representing Ron Dixon (marijuana collective owner). He has 16 questions he would like the chief to respond to. The questions all deal with how marijuana collectives can operate legally Let me know how you would like us to proceed."
Benito replied: "Thanks for letting me know. For over a year now, I have received calls from marijuana users wanting to know how they can grow and sell it legally. I have refused to give them advice in this area. I will do the same if this attorney calls or writes me. I tell them that I do not like or agree with the law, therefore I will not help people fall under the protections of the law. I usually advise that they obtain an attorney, but this guy is an attorney. He can read the law as well as I can."
Maybe better. Prejudice distorts comprehension.
Fred Gardner edits and Pebbles Trippet covers legal affairs for O’Shaughnessy’s, the journal of cannabis in clinical practice. The Winter/Spring 2008 issue can be ordered from email@example.com