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Judge Leans Toward Leniency

Collective Farming and the Lynch Case

by FRED GARDNER

Things looked grim for Charles Lynch last week when the Department of Justice instructed the U.S. Attorney in Los Angeles to keep seeking a five-year mandatory minimum sentence in his case. Lynch had been convicted in federal court last summer of marijuana-law violations –five counts—stemming from his operation of a Morro Bay dispensary.  In March U.S. District Judge George Wu, noting Attorney General Eric Holder’s stated intention to not prosecute dispensaries that comply with state law, put off sentencing Lynch until DOJ weighed in. That happened April 17 when Deputy AG H. Marshall Jarrett advised the prosecution not to cut Lynch any slack.

Evidently Wu–a Bush-the-Younger-appointee handling his first case as a federal judge–wanted to do the right thing whether or not DOJ did.  Yesterday he indicated that Lynch, not being a “kingpin,” qualified for the exception to the mandatory minimums. Wu said he was contemplating a year-and-a-day sentence and asked the defense to brief him on how Lynch might serve his time outside a prison. Wu postponed the sentencing once more, until June 11.

"It looks good for Charlie, but it’s not a done deal yet," said patients’ advocate Bill Britt, our man in the courtroom. Bill said the testimony of character witnesses for Lynch was especially convincing  – "not that the judge needed convincing."  The mayor of Morro Bay, Janice Peters, spoke admiringly of Lynch,  said he had always done what city officials asked of him, and evinced no criminal intent.  City Attorney Rob Schultz got a laugh when he testified that the only complaint he had received about Lynch "had to do with the quality of the medical marijuana" available at his dispensary.

Attorney Joe Elford of Americans for Safe Access testified that Lynch’s dispensary was operating as a de facto collective and that he would not have been indicted had the current DOJ policy prevailed in 2007. (The prosecution contends that Lynch was not a "primary caregiver" under California law and that he was a profiteer who grossed $2.1 million over 11 months in 2006-07.)

The most compelling witness of all, according to Britt, was Owen Beck, who at age 17 had obtained cannabis from Lynch’s dispensary, resulting in the sold-to-a-minor count against Lynch.  Crucial facts were inadmissible during Lynch’s trial in Wu’s courtroom:  Owen had bone cancer and was using marijuana with his parents’ permission and on the advice of his Stanford University Hospital oncologis) to reduce nausea and sustain appetite during chemotherapy. Lynch”s sale of marijuana to Owen Beck was repeatedly misrepresented to the media by the US Attorney as an example a state-law violation.

Steven Beck, Owen’s father, testified that the marijuana provided by Lynch (free or at a deep discount) enabled his son to eat and sleep, and restored his spirits. "I never felt as though Charlie was there for the money," Beck said.

Bill Britt was pleased to report that Owen, an amputee, "has grown into a strong, good-looking young man."  Bill said Judge Wu began his commentary on the case yesterday by recounting all the reasons he ought to impose the mandatory minimums. Anxiety built in a courtroom filled with friends of Charlie Lynch. One well-wisher expressed premature outrage and was ejected by a bailiff shortly before Wu’s line of thinking swerved towards leniency.

Lynch was represented by federal public defender Reuven Cohen. He intends to appeal his conviction.  Despite his satisfactory relations with Morro Bay officials –and the Chamber of Commerce –  the feds  indicted him at the urging of San Luis Obispo County Sheriff Patrick Hedges.

Collective Farming

Bill Britt was peripherally involved in another case that resulted in a strong expression of support for medical marijuana providers.  On April 3 a Mendocino County jury hung 7-5 in favor of Luke Strauss and Joe Maligno, who had been growing hundreds of pounds for a West Hollywood storefront dispensary.  As reported by Pebbles Trippet in the Anderson Valley Advertiser, "Attorneys J. David Nick and Edie Lerman proved to the jury that Strauss and Maligno were in compliance with state law on collectives. The evidence… revealed that approximately $1.4 million passed through the West Hollywood collective’s bank accounts in order to cover overhead expenses and the cost of cultivating the cannabis. The prosecution, on the other hand, had no evidence that they were operating illegally. They simply relied on their accusation that it was just ‘too much marijuana.’"

Edie Lerman commented, "The law is clear. It allows for medical marijuana patients to associate and collectively cultivate, to get paid for their labor and services and reimbursed for expenses."  The jury understood what the Mendocino County sheriff and district attorney did not: California law does not limit the number of members who can associate in a medical-marijuana collective or cooperative cultivation project, nor does it limit how much weight a grower can provide to physician-approved patients.

Bill Britt was going to testify that medical marijuana consumers in urban areas –especially in Southern California, given the bias of local law enforcement— rely on growers from rural areas, but Judge Ron Brown granted a prosecution motion to exclude Britt on grounds  that his testimony would be redundant.  It didn’t matter; the jurors understood the common-sense reality.

Four of the five jurors who voted for conviction have  reportedly advised DA Meredith Lintott not to re-file the case against Strauss and Maligno. 

Here’s Trippet’s hopeful summary of the legal situation from the real paper of record (the AVA):

The Strauss-Maligno case relied on the new marijuana laws enacted under the Medical Marijuana Program Act (Senate Bill 420) in 2003. In August 2008 the California Attorney General published his Medical Marijuana Guidelines. They are currently considered the best authority for the legal elements of the "closed circuit membership" model, that explains how to lawfully cultivate collectively or cooperatively under H&S 11362.775 (SB420). The most comprehensive legal analysis of the new medical marijuana laws under SB420 is the 3d District Court of Appeals precedent, People v Urziceanu (2005), that interprets the meaning of "collective cooperative cultivation projects" as adding extra protections for sales and distribution, if evidence shows a situation of collective good rather than individual profit. In Urziceanu, the court held that:

"This new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers… It’s specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana."

Defense attorney Edie Lerman remarked about the case after the verdict, "This shows that juries will be fair if they hear all the evidence and understand the law, regardless of the quantity involved. The Strauss-Maligno case proves that no credible medical marijuana case should be dealt away with a plea agreement, unless perhaps it is for deferred judgment, where the record is erased in six months. We’re getting calls from other lawyers saying they are now emboldened to take their cases to trial."

FRED GARDNER edits O’Shaughnessy’s, the Journal of Cannabis in Clinical Practice. He can be reached at fred@plebesite.com