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Charles Lynch Gets a Year and a Day (No Thanks to Eric Holder)

Charles Lynch has been sentenced by U.S. District Court Judge George Wu to spend a year and a day in prison. At a hearing June 11, Wu rejected federal prosecutors’ arguments that Lynch must serve a five-year mandatory minimum, and defense suggestions that he get home detention or a work-release program. The technical legal term for what Wu did is “splitting the baby.”

Lynch, 47, ran a dispensary in Morro Bay (San Luis Obispo County) for 11 months in 2006-07.  The dispensary had the support of the mayor and other city officials.  It closed after a DEA raid, reopened a week later with the city’s renewed blessing, then closed for good when the DEA threatened Lynch’s landlord with forfeiture of his building.

The Bush-Gonzales Justice Department charged Lynch with distributing marijuana, conspiracy to distribute, and providing marijuana to people under age 21 (minors under federal law). He was convicted in 2008 after a trial in which no reference to California’s medical marijuana law could be considered by the jury.

Judge Wu had put off sentencing Lynch because he was reluctant to impose a five-year mandatory minimum. “If I could find a way out, I would,” Wu said at a hearing April 23. If the mandatory minimum must apply, Wu asked the lawyers for both sides, could Lynch’s time “be served someplace other than prison?”    Briefs were then filed advising Wu on his options. The U.S. Attorney argued that the judge had none, that Lynch had to be put behind bars for five years.

The US Attorney for the Central District of California is Thomas P. O’Brien. The Assistant USA prosecuting the Lynch case is David P. Kowal.  Both their names appear on the brief demanding five years in prison for Lynch. But the brief itself presumably reflects the policies of  their superiors: Eric Holder and Barack Obama.

Attorney General Holder had led many (including Judge Wu)  to believe that under President Obama, the Justice Department would only prosecute medical marijuana cases involving violations of state law as well as federal law.  The government’s June 2 brief to Wu explicitly contradicted Holder’s implicit promise:  “And again it bears repeating that defendant’s ITAL mens re END ITAL [state of mind] with respect to UNDERLINE state law END UNDERLINE  is especially irrelevant… because the criminal activity here is entirely defined and governed by federal law.”    The words “state law” are underlined in the brief.

Lest there be any doubt that the prosecutors in L.A. are speaking for their bosses in DC, the brief asserts:  “The government’s decision to charge and seek to apply the mandatory minimum sentences should be afforded some deference. As the Court is aware, the government’s decisions with respect to the mandatory sentences have been vetted at the highest levels of the Department  of Justice and have remained consistent through two administrations from the time plea negotiations ended, prior to trial.”

In other words: “Judge, you asked the Obama Administration to weigh in and they did -for us.”

In their zeal to keep Lynch from qualifying for the “safety valve” that would spare him the mandatory minimum, the prosecutors -speaking for the Obama-Holder Justice Department- invoked the tortured logic of Judge Jay Bybee in the Epis case:  “Since the last hearing in this case, the Ninth Circuit affirmed a 10-year mandatory minimum sentence in the context of a medical marijuana grower purporting to comply with state law. United States v. Epis (attached hereto). This affirmance included denial of safety valve eligibility based on the natural application of an aggravating role enhancement… to less evidence of managerial control than exists here.”

Thus Barack Obama, a Constitutional law professor who got elected by promising political change, is adhering to political/legal principles laid down by Jay Bybee, the ambitious lawyer who gave the Bush-Cheney Administration what they wanted -memos authorizing U.S. government agents to commit acts of torture.

United States v. Lynch was the first case Wu presided over since being appointed to the bench by George W. Bush. (Shades of David Souter, a man of integrity appointed by Poppy Bush.) At the sentencing hearing June 11, before a courtroom packed with supporters of Lynch, Judge Wu did not explain his reasoning. He will, subsequently, in writing. Observers assume that the judge sees Lynch as a member of a collective who had leadership responsibilities rather than the kingpin of a criminal enterprise. The extra day tacked onto Lynch’s one-year sentence is a lenient gesture, qualifying him to get a month-and-a-half off for good behavior in prison.

Lynch is free on bail while his federal public defenders, led by Reuven Cohen, prepare an appeal to the Ninth Circuit. (Will the Presiding Judge in the sky assign Jay Bybee to the panel that hears the appeal?) When Lynch emerged from the federal courthouse after being sentenced, he was asked by a reporter if he felt he had won a victory. He replied, “Not really a victory, In a way it’s a loss. But it’s not a bad loss.”

The Industry Ascendant

“THC Expo,” a  trade show for the burgeoning  medical marijuana industry, drew 35,000 people to the Los Angeles Convention Center last weekend. I drove down with O’Shaughnessy’s contributing editor Martin Lee to take orders for our upcoming issue. When we arrived around noon on Saturday, the line to get into the Expo was so long that it blocked the entrance to an adjacent hall housing Erotic LA, the porn trade show.

Organizer Todd McCormick reportedly spent about $500,000 (on Freeman Exhibit Services, rent, etc.)  and took in about half that on the sale of booths.
Income from ticket sales -35,000 at $10/per- was the key to his success.

As we drove back Sunday night Martin mused about the advent of full legalization:

“How will the industry fare if legalization should arrive suddenly and swiftly?

I’m reminded of the situation in East Germany shortly before the Berlin Wall fell.  A thriving grassroots network of social justice groups — church activists, artists, greens and ecologists, pacifists, anarcho-punks, leftwing libertarians and human rights workers — spearheaded the drive to topple the sclerotic Communist regime.  They organized huge demonstrations that greeted Soviet Premier Mikhail Gorbachev, which led to the fall of the wall. And then West Germany, with its VCRs, bananas, and Deutchemarks, quickly gobbled up East Germany, and the grassroots networks were overwhelmed by the nationalist rush toward unification. Will the grassroots cannabis industry go the way of the Eastern German pacifists when legalization is enacted?”

Martin fears the tobacco companies could play the role of West Germany. He raised the prospect at the Expo in a conversation with a legendary grower named DJ Short.

“Short thinks some sectors would be hurt by legalization: lawyers would lose, the patient-ID-card services, the bailbondsmen [three of whom had booths across the aisle from O’Shaughnessy’s], and the doctors running recommendation mills.  At the same time there SHOULD be increasing demand for serious, conscientious doctors who have educated themselves about the endocannabinoid system.”

“Short thinks that hydroponics stores will take a hit with legalization because more people will grow outdoors. But more people may also grow indoors. And hydroponics stores also offer an array of super-fertilizers and phyto-nutrients prized by an avid clientele.

“What about the the grassroots growers, the ma and pa family pot farmers? Will the tobacco companies move in and flood the market with cheap, inorganic weed, bringing the price down? As of now there are thousands of families in Northern California not getting rich but supporting themselves as growers… Can they all survive as ’boutique’ operations?

“Best to keep the tobacco companies at bay if possible. The authorities are so nuts when it comes to anything cannabis-related that activists may be able to insert a small-is-beautiful plank into the inevitable regulatory apparatus.”

FRED GARDNER can be reached at fred@plebesite.com