Log Rustler Sentenced

by Mark Scaramella, July 14, 2010

In the Summer of 1998 an enterprising fisherman and timber worker named David McCutcheon leased a bare acre of land from Ed Colombi Sr. The acre sat off Odom Lane about a mile north of Fort Bragg. McCutcheon needed a place to store the huge Doug Fir and redwood sinker logs he'd laboriously retrieved from the depths of local rivers. Most of the valuable old-growth logs and partially milled lumber was destined for the construction of McCutcheon's oceanview dream home at Irish Beach where McCutcheon owned a nice lot.

For years in the 1990s, a few enterprising locals laboriously salvaged the perfectly preserved sinker logs lost years ago when big trees floated downstream with the winter rains, and sank before they got to the mill ponds. The beds of the Mendocino Coast's cold, fast flowing rivers acted as perfect preservatives. A hundred years later, if you could get them up and out of the water you had yourself virgin redwood seldom available anymore.

Fish and Game put an end to the sinker log business in 1997. Environmentalists had complained that the logs had been in place for so many years that removing them amounted to detrimental alteration of the streambeds. While it lasted, the retrieval of the old logs proved quite lucrative, however. Old growth lumber had grown scarce, and the yield from the big, dense sinker logs was much in demand.

Dave McCutcheon was one of several enterprising locals engaged in the sinker log recovery business, a business that requires multiple skills – diving to locate the logs, securing them in the underwater murk, hauling them up and out with an ingenious array of cranes, rafts and chains, and then onto trucks. It's not work for the lazy or the careless.

McCutcheon worked long and hard to salvage some 80 large sinker logs from local streams. The logs, along with other partially milled lumber, were like a savings account, a large and valuable sweat equity savings account McCutcheon had deposited for safe keeping on Colombi Sr.'s lot on Odom Lane.

In the years following his storage of his logs at his Odom Lane depository, McCutcheon, with a hired helper, had milled and produced more than 4,000 feet of fine redwood siding, 18 cants (large, slabbed logs ready for milling), 13 clear-heart redwood beams, a number of doug fir beams, paneling and flooring, all of it of a very high quality as only rare old growth lumber can be. McCutcheon also had about 28,000 board feet of unmilled, old growth sinker redwood logs worth more than many of the world's currencies. McCutcheon conservatively estimated the value of the milled lumber at about $70,000 and the value of the remaining unmilled sinker logs at about $300,000. He'd made this little fortune the old fashioned way – enterprise, ingenuity and many long hours of hard physical labor over several years.

The sinker log entrepreneur had rented the Odom Lane lot from Ed Colombi Sr. of Fort Bragg. The lot was perfect for storing and then milling the logs to lumber. The old man liked McCutcheon and never charged him more than a hundred dollars a month rent. Access to the property was limited, and a reliable neighbor named Tom Anderson kept an eye on the place.

But in late 2004 Ed Colombi Sr. passed away and the property was inherited by Ed Colombi Jr. McCutcheon continued to send rent checks to the address he'd always sent them to, but the checks started to come back marked “deceased, return to sender.”

McCutcheon says that after the first few months his progress on the conversion of his log cache to lumber had slowed way down. He'd married and started to raise a family in Oregon; he didn't get out to Odom Lane much. He thought that the vigilant presence of his friend Tom Anderson, who lived next door to the Odom Lane lot, would be more than enough security for his logs and lumber. And very few people even knew the logs and lumber were there. What could go wrong?

On May 26, 2006, McCutcheon arranged to move his dormant lumber operation down the coast to Elk, closer to his planned homesite at Irish Beach. He called Ed Colombi Jr. and told him that he was ready to move.

“I told him I knew I was behind in the rent and that I was ready to make it even with him. He asked me how much I was behind and I said it's got to be a couple thousand dollars. The actual amount was $1,800. And so I said I could pay $500 to $1,000 now and give him the rest by the time I moved the lumber and logs out of there by mid-July.”

McCutcheon says that Colombi told him, “‘Send me $500 and we'll call it good.’ … And I thought that was a heck of a generous – you know, very generous and very considerate of Mr. Colombi.”

McCutcheon faithfully sent the $500 check, but Colombi Jr. later told him that based on “legal advice” he hadn't cashed it, because, the mysterious advisor said, that would make him liable if something bad happened to McCutcheon's wood. McCutcheon says he then told Colombi that he would soon be down from his home in Oregon to relocate his logs and lumber to Elk. McCutcheon would move out by June 15th.

Colombi reportedly replied, “Great!”

When McCutcheon arrived on the 15th he discovered that his rented lot on Odom Lane was nearly empty. His logs and most of the lumber had vanished.

“There had been a burn pile that was still smoldering,” said McCutcheon. “And there was a road cut in from Odom Lane that had never been there before, since I was there, and never been used since I was there in '98. All my wood was gone.”

Colombi Jr. told the investigating officer, Mendocino County Sheriff's deputy Ricky Del Fiorentino, that he'd given an associate of his named Robert Russell permission to remove firewood and downed trees and to do general cleanup of the property. The deputy also talked to a neighbor who said that between June 9 and June 11 a steady convoy of small to medium-sized pickups and a flatbed truck came and went late into the night for three consecutive nights, carrying away many loads of logs and lumber – Dave McCutcheon's logs and lumber. The neighbor said he'd also heard chainsaws running for hours and couldn't help but see a newly constructed gate at the site.

McCutcheon decided to investigate the disappearance himself. He started calling around. Ed Colombi Jr. told a stunned and disbelieving McCutcheon, “I thought you’d abandoned that stuff.”

When McCutcheon first reported the disappearance of the logs and lumber, Coast Deputy Del Fiorentino’s first reaction was that the disappearance was a civil matter, a dispute over late rent, possibly abandoned goods, and miscommunications.

Others thought so too – at first.

But as McCutcheon piled up more evidence – photos of his wood now resting on other people’s property, statements from witnesses, and so on into irrefutable detail, law enforcement started to take his claims of theft seriously.

After several more months of McCutcheon’s own investigations, then-Assistant DA Keith Faulder looked at McCutcheon’s assembled evidence and instructed law enforcement to treat the case as a possible grand theft. Other attorneys who were approached on the case, including former Fort Bragg prosecutor Mark Kalina and Willits prosecutor Scott McMenomey, said that Mr. Colombi had no right to take any of McCutcheon’s wood or lumber without first going through a formal legal notification process to have it officially declared abandoned.

Nothing like that had been done. Neither Colombi nor anyone else had legal authority to touch McCutcheon’s wood. That’s what made it a possible grand theft.

McCutcheon continued his own inquiries, accumulating pieces of evidence of what happened to his logs and lumber.

Finally, Detective Del Fiorentino agreed to set up a pretext call from McCutcheon to Colombi. Colombi denied that he had anything to do with the disappearance of McCutcheon’s lumber, but he again declared, “I thought you abandoned that stuff.”

Colombi said he had authorized an associate named Robert Russell to go onto the parcel, and “remove wood, firewood, dead trees and clean up the property.” Colombi said he trusted Russell to do that even though, Colombi said, “I was forewarned about Russell through his ex-father-in-law, Herb James, but disregarded his advice.”

Colombi would later say that his primary mistake was that he “trusted [Russell] too much.”

Russell and a crew of what McCutcheon describes as “meth addicts” then proceeded to hustle over to Odom Lane and get all the wood out before McCutcheon arrived to move it away.

Colombi was the only person who knew McCutcheon planned to be down in mid-June to move his wood. As the probation report would subsequently conclude, “It seems too coincidental that the logs and lumber would disappear ‘all of the sudden’ within a month of Mr. McCutcheon's plan to relocate them to another property.”

And there was Colombi’s incriminating claim that he “thought” McCutcheon had abandoned his wood, and the “too coincidental” timing of the removal.

But to this day, Colombi insists that Robert Russell was the thief, not him.

Then there’s Colombi’s extensive criminal record, most of it for drugs and theft, plus a number of parole and probation violations going back to 1974.

As Colombi said in his statement to the court:

“I am a recovering addict, unless one considers that I have been on methadone maintenance since around November 1998. The reason I say this is there are two schools of thought in recovery AA/NA in that if one is still dependent on medication to ‘stay clean,’ that person is not in recovery. The other thought is, if the medication as prescribed keeps one stable, it’s acceptable and I am in recovery. …

“I was born and raised in Fort Bragg and lived my teens there during what Life Magazine called the ‘town in trouble’ era. Between having weak character and the need to feel accepted I delved into alcohol and drugs at an early age. I graduated from Fort Bragg High School in 1968 and attended Santa Rosa Junior College only to drop out because of drug abuse and legal problems and was drafted into the Army in lieu of incarceration because of my possession conviction. I remained in the states during my Vietnam era service obligation. I again got in trouble because of drugs and barely got out of the service with an honorable discharge. I moved back to Fort Bragg and was soon divorced and back into drugs and legal difficulty. I moved to Oregon but no matter where I went, I was there. I found a job working for the Corps of Engineers and, still drinking, found peace for the first time in my life, I thought. I met a woman and bought some property and started to raise the two children we had. This gal I was with was a wallpaper hanger/artist and I fell into the construction trades. I obtained a contractor license and worked for years for numerous builders. This was from the mid-70s to the first of the 80s. I injured myself and was exposed to prescription medication. To me it was just like heroin. I couldn't get enough. I started ‘running’ doctors and got on methadone. I met the local drug addicts and fell in with them. After becoming physically/mentally dependent, I was kicked off of the program when I tried to right a wrong with another client on the program. I started to do heroin and stole to support my habit. It was a rapid downward spiral and I was soon incarcerated. It was very ugly. From 1982-1997 I had done over 13 years incarcerated! It was the prime of my life and I deserved to have done every minute. I did the crimes and I did the time! Period. When I was released in 1997 I knew if I repeated my old behaviors I would go back and spend the rest of my life and die in prison.” …

“Russell and I started doing things together probably early in 2003. In fact, when I first started working maintenance at Pine Beach Inn, he and I started doing small repairs around the Fort Bragg area. The place that I was living we built a garage, front deck, etc. Russell and I went to McCutcheon’s wood stack and gathered some rough cut 2x4s (9-12 feet) for roof bracing and a few pieces of scrap 4x4 posts. It was pretty much crappy wood and the vast majority was fir, at least on the south side of the skid road that separated the cut lumber. There were also a stack of logs that were 15-28 feet long by 1-3 feet across stacked maybe two feet high and extended probably 16 or so feet into the adjoining property. These logs were punky, water-soaked, and in my opinion worthless except for maybe 20-30% of it. They were lying on bare ground that was moist at least 50-60% of the time.”

Colombi continues, “Russell knew very well that the lumber/logs were not mine. I explained that I had ‘permission’ from McCutcheon to do this. [The “this” is not explained.] Tom Anderson was also there and his attitude was ‘Fuck McCutcheon, take it all.’ All was above board and no criminal intent was involved.”

(There’s no independent corroboration that Tom Anderson said anything of the sort.)

“Russell owed me several thousands of dollars as I had bailed him out of jail on an old warrant,” continues Colombi, “paid to repair his truck numerous times (tranny/rear end/etc.) and had let him live at my rental at Whipple Street without him paying the rent for six months as he had agreed upon. In reality, every time I would come down from Oregon to get some of my stuff, more and more of my property was missing. Russell kept coming up with lame excuses but he was my friend/partner so I let it go. …

“Then in May of that year, McCutcheon calls me up and says he has found a new woodyard and wants to catch up on the back rent. The first thing that came to my mind, without thinking about the legal ramification was, ‘Hell, I hadn't heard from you in years and I thought you abandoned the wood’ or something to that effect. The reason I even said that I was in shock that he had called after so many years out of the blue after not even making an effort on catching up on the three years or so of rent. He said he was planning on getting all his wood/lumber and those things were not going too well financially and that he could basically catch up on half the rent he owed. But he also said that he had intended on getting in touch but he was busy making babies and trying to stay afloat. We BS’d for a bit and he was to send me $500 to show his good intentions.

“A bit later, I called Russell and told him luck was with us and he didn't have to worry about that wood/logs being in the way as the owner was going to come up and remove it by the middle of June. When I asked him how the cleanup was going he said it was more work than he expected, that he needed more help and that the backhoe wouldn't start. The dry season was coming up and I had planned on going down to Fort Bragg soon to bring back another load of my stuff so I didn't worry.

“Next thing I know, McCutcheon is calling me telling me his wood is gone! I told him Robert Russell was working on the property to clear up the drainage and get it ready for sale. He is irate. I gave him Russell’s cell number and tell him where I think he lives at. My understanding is McCutcheon is going around stopping anyone carrying lumber on their vehicles and talking to neighbors. I finally get in touch with Russell and he tells me that McCutcheon is wrong and that he just cleaned up the area getting ready to clear out the ditch. He said it looked like someone, probably McCutcheon himself, took all the lumber and that there were still over a dozen or so logs still there.”

So here are two people with criminal records for theft claiming that McCutcheon himself stole his own wood!

Deputy DA Tim Stoen of the DA's Fort Bragg office soon filed grand theft charges against both Edward Colombi Jr. and Robert Russell.

Russell was subsequently convicted of a minor charge related to the theft, served 30 days in jail and was fined $3200. Prosecutor Stoen said there simply wasn't enough evidence to pursue him on felony charges. Besides, how would anyone get a large sum of restitution money out of a drug guy?

Colombi hired Richard and Justin Petersen, the go-to guys-if-you're-guilty-and-can-afford-their-magic criminal defense lawyer team in the County.

Perhaps for his stated fear of prison, perhaps because Stoen’s case was looking better and better, Colombi Jr. pled no contest to the Grand Theft charges.

The next step, and probably the most difficult, was trying to establish the amount of restitution Colombi would have to pay.

Colombi insisted that McCutcheon was exaggerating the value of his wood. McCutcheon insisted that it was worth at least $400,000.

After the interviews and statements were prepared by the Petersens and the prosecution, Stoen updated his charges saying that “Mr. McCutcheon's claims of loss are corroborated by several witnesses. Although none of the witnesses are able to confirm the total amount or value of the stolen property, taken together they support his claims.”

Mr. Stoen also noted that “the defendant’s witnesses contradicted themselves or offered testimony that had negligible probative value.”

“Defendant Colombi Jr. is expected to testify that he had nothing to do with the theft of Mr. McCutcheon's logs and lumber,” said Stoen, “and that there was nothing nearly of the value and board footage claimed. However, the defendant did enter a plea, represented by the finest defense lawyers around, and who therefore could not possibly have been convicted if he was not guilty. Mr. Colombi's testimony, whatever it is, is unbelievable and impeached – based on five convictions for grand theft, four of them felonies and one of them, the petty theft, for which he was on probation in June 2006.”

As the case neared its conclusion, McCutcheon submitted his official “Victim Impact Statement” to the Court.

“The theft of logs and lumber by Ed Colombi Jr. and Robert Russell and a 10 or 12 meth addicted workers, set me back significantly financially. There were 70,000 board feet of lumber at the very minimum and two giant piles of similar logs.

“That was significant to my future because in truth it was a theft of years of effort towards a retirement plan that I started investing in in the middle 90s. Stolen was my ability to manifest a truly spectacular home upon which I based my future. That said, the real damage to my family and myself came from the threats made by Ed Colombi Jr. and the organized crime network that he is a part of.

“The loss of this amount of construction material is like a serious physical injury, something that happens that has to be worked through and dealt with. It has an emotional impact but it is a one-time incident of onset and not a sustained emotional attack of threats against a man’s children, wife and home from Ed Colombi Jr. and his supporting group of criminals from both inside and outside the law enforcement community.

“When not when a father of three young children, two still in diapers, is threatened with Mob-speak – 'we know where you live' type of thing and 'our people will be after you and yours.' Exactly 90 days after I discovered the theft and was reduced to tears because of the threats against my wife and children, I walked the dirt road at night trying to decide if I should dishonor my own personal integrity and that of my ancestors, Revolutionary War heroes and just honest hard-working people, by just slinking away quietly, my children safely secure. But at what cost? That was the question. At what cost?

“At the cost of my self-respect and values I believe in as a patriot of the ideals of justice this United States of America was founded upon.

“My decision was validated in August 2007 when Fort Bragg Deputy District Attorney Tim Stoen told me in his office that 'if nobody stands up to the criminals, soon the criminals will take over.'

“Tim Stoen decided to press charges on my word alone with almost no investigative effort, except for the pretext call done by investigator Ricky Del Fiorentino which caused then-Sergeant Bushnell to kick the crime over to civil court forcing me to hire Mark and Barbara Kalina to research the law. Both Ricky Del Fiorentino and Detective Rob Crabb believed the theft was indeed a crime, in fact when pressed further on the sidewalk outside the courthouse in Fort Bragg, Ricky told me, “I would like nothing better than to help you catch these wood thieves but it would seem there is a lack of political will or perhaps it's a lack of money.”

“At that early August 2007 meeting with Mr. Stoen my faith in the American judicial system and God himself was restored. There is no doubt God himself is on my side. I've had too much help from on high.

“For example, hearing the milling of large logs going on across Greenwood Creek on Clift Ridge; meeting the man who volunteered his time and airplane to find Robert Russell’s truck there the next day. Spotting Ed Colombi Jr. and his friend following me in Ukiah before I got out on the County Road on August 8, 2008 and on numerous other occasions.

“After the initial threat from Ed Colombi Jr. with the ‘you are pissing me off and you are pissing a lot of other people off,’ an allusion to the criminal organization known to law enforcement as ‘the good old boy network,’ I was terrified and knew I should be afraid not of Ed Colombi himself but the criminal network that he works with.

“The damage this crime and its larger crime of threats, intimidation and retaliation have caused my family is immeasurable. In fact, there is no amount of money that can compensate me for 3-3/4 years of apprehension, lost work time and emotional stress for my wife, myself and my family as a whole.

“That is why although I can set a value on my logs and lumber, there is no value that can be set on the cumulative stress caused by 2-1/2 months of intense investigation, three separate emotional meltdowns in the fall of 2006-2007 and the summer and fall of 2008, and actually then again in the summer of 2009, although not as emotionally grievous, I was still afraid to establish a pattern of being gone at work all day every day. I could sleep but not dedicate myself to work while we painted the house.

“I would like to see the court recognize the criminal racketeering nature of Ed Colombi Jr. and the organization of people he works with by imposing RICO act statutes in penalties at his sentencing.

“Also as a condition of his very light sentence he should name his mysterious “legal advisor” person he talked about on the pretext call tape made by Ricky Del Fiorentino. I believe that this person was high enough up in Mendocino law enforcement that Colombi Jr. felt he was protected from prosecution and could guarantee the same for his partner Robert Russell and his crew of meth addicts.

“In short, this person, Ed Colombi Jr., has robbed me of ten years of work and savings, my pension, and given the retaliatory nature of the organization he works with, my peace of mind for many years to come.

“The value of the wood is around $700,000, depending on how it is marketed. The value of my past emotional strain and future peace of mind I would put at between $1 and $2 million dollars, closer to $2 million if a value can be set upon such a thing at all.

“For too long criminals have had the upper hand in Fort Bragg. It's time for this to come to an end. Protected crime – crime for which a criminal is guaranteed protection from prosecution – is illegal. All those who participate in such crime, the act and the protection of the act, should be investigated. Now is the time to send a message to the network that these acts will no longer be tolerated.”

The Probation Department agreed with McCutcheon. Coast Probation Officer Monica Vargas wrote:

“The defendant displayed no remorse as he does not accept responsibility for this offense. The defendant does not appear to be a danger to others.”…

“The defendant’s previous probation performance has been unsatisfactory. …

“Edward Lewis Colombi is a 59-year-old male appearing before the court for sentencing after pleading nolo contendere to felony grand theft/personal property. The defendant is aware he could be sentenced to 16 months, two years or three years in the California Department of Corrections, or up to one year in county jail for this felony conviction. Other sentencing alternatives available to the court have been discussed with the defendant including the terms and conditions of probation. Although there is an indicated plea agreement of probation, if it were denied, this appears to be an aggravated term of three years in state prison. Mr. Colombi has been reminded of his lifetime prohibition from owning or possessing any firearms and ammunition.

“Additionally, the majority of his record is theft related conduct which does not help his credibility regarding this offense.

“Probation understands there are possibly some civil issues here as well due to unpaid rent, but the bottom line is that up until the victim notified Mr. Colombi of his intent to remove the lumber in June of 2006, the wood had been undisturbed. It seems too coincidental that the logs and lumber would disappear ‘all of the sudden’ within a month of Mr. McCutcheon's plan to relocate them to another property.

“Probation is also bothered by the defendant's refusal to accept responsibility. To this day, he seems angry and almost blames the victim for his predicament. During the interview, Mr. Colombi appeared appalled at the idea of having to serve any custodial time let alone a lengthy period. This officer was left with the impression that the defendant feels he is a victim of circumstance and he places the entire blame on Robert Russell. Mr. Colombi's credibility is very questionable. Although there is a lot of gray area in this case, the victim has done a lot of work to prove he's telling the truth. Probation has spoken with the victim on numerous occasions and it is clear this case has consumed him and affected him not just financially but emotionally as well. He deserves to be restored and although he will likely never be fully compensated financially it is a strong desire that the defendant be held accountable and face punitive consequences.

“Mr. Colombi's prior record is horrible. He is presumptively ineligible for probation except in unusual circumstances due to suffering two or more prior felony convictions. However, it has been 18 years since his last felony conviction and he has not had any criminal convictions in the past five years until now. Mr. Colombi should be given an opportunity on probation but he needs to accept his part in this offense. To continue to deny any accountability would be counterproductive in his plan of achieving successful rehabilitation.”

At a July 2, 2010 hearing prior to the sentencing, Judge Henderson said he had difficulty determining the value of McCutcheon’s loss, but he put substantial weight on the testimony of realtor-appraiser Stu Beck – described by Henderson as “reliable and dependable as a witness” – who saw the lumber and its condition and quality a few months before the theft and had no interest in the outcome of the case.

Beck confirmed most of what McCutcheon said. He also found that Dave McCutcheon was “generally credible,” whereas Colombi and Russell were “somewhat suspect.” (Stoen later pointed out that having the judge declare someone “generally credible” means that, effectively, everything that that person says is considered true unless proven otherwise by the defendant. On the other hand, Colombi was declared to be not credible by the probation department and the judge.

Petersen, taking over the courtroom with his boisterous style, admitted that he wished he’d accepted an earlier lower estimate of value because the value of McCutcheon’s loss was going up as negotiations proceeded.

Henderson told the parties to attempt to arrive at a compromise one more time, and they agreed. After almost five days of lengthy negotiations, Stoen reported that they had come to an agreement: Colombi would have to pay a total of $200,000 in restitution, $150,000 to be paid within 30 days, and another $50,000 to be paid within 90 days. (Apparently Colombi Jr. intends to mortgage some of his late father’s property to pay the full restitution.) “There would be a stipulation to a 90 day actual Mendocino County Jail term without any half-time credits,” added Stoen.

Justin Petersen told the judge that Colombi’s mother was dying and that Colombi needed time before he could turn himself to do his 90 days of County time.

Henderson said that based on advice from probation he would defer sentencing until Colombi gets back from Oregon because otherwise he wouldn't be able to leave the state to help his mother.

After agreeing to the deal, Henderson acknowledged that there still seemed to be a significant difference of opinion about the value of the lumber that was stolen and that each side had “strongly held beliefs.”

After agreeing to the sentence and restitution, Colombi first shook prosecutor Tim Stoen’s hand. Then he turned to Mr. McCutcheon and said, "I'm sorry this happened" – still not admitting any personal responsibility – and shook McCutcheon’s hand.

McCutcheon said he was glad it was over. He spent years trying to convince whoever would listen that Colombi was responsible for the theft of what amounted to McCutcheon's life savings. And although the final judgment was not all that he wanted, Colombi Jr. is going to jail, and McCutcheon will get a good hunk of his life savings back.

One Response to Log Rustler Sentenced

  1. Alice Eberle Reply

    August 25, 2010 at 10:07 am

    Hip Hooray for McCutcheon. It takes determination to stand up to the law, even when you are right.

    i was looking for a different McCutcheon when I saw this.

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