Hoyle, Lipmanson, Faulder, Marijuana and the New Judge In Town
by Bruce McEwen, August 4, 2010
The prevailing sentiment at the courthouse is that newly anointed judge Ann Moorman, is going to usher in a New Age of Liberalism when she ascends to the bench at the first of next year. The county's defense lawyers think that the sitting judges are too subservient to the DA’s office. They and bide their time hopefully, Obama-ly, until Ms. Moorman is seated in January. By then the contentious issue of marijuana legalization may be clarified, and even if the state ballot measure fails, it is widely anticipated that Judge Moorman, a formidable defense attorney all her professional life, will go light on the regional marijuana community.
In recent cases Ms. Moorman has argued volubly with retiring Judge Leonard LaCasse over pot-related issues. For many of Moorman’s supporters Judge LaCasse symbolizes the damnable non-pot-friendly reactionary conservatism that makes cool people like defense lawyers stamp their little feet and go “Wah! Wah! Wah!” Judge Moorman, her supporters believe, will take the probable out of probable cause and replace it with iron-clad.
So it’s out with the old and in with the new, if you believe all this happy hopeyness, if you believe that a “liberal” judge makes any real difference at all. Get between any judge and his or her $180,000 a year and you'll find out how liberal they are.
But Judge LaCasse isn’t the only old spoilsport popping the party balloons in the Halls of Justice. Chief among the perceived killjoys is the Honorable “Rubberstamp Richard” Henderson. Give him a warrant for Peter Pan's house and he'll sign that baby right now. The cops say Mr. Pan must be into illicit drugs because the guy just doesn't seem to be getting any older and there's all the probable cause you need right there.
In a pending marijuana case Judge Henderson granted the DA a motion to compel a defendant to disclose his defense. Defendant Peter Colombo was presented the choice of waiving his Fifth Amendment rights or not asking potential jurors how they felt about medical marijuana. That case was set for trial in December, but many others are slogging their way through the court as well. Mr. Colombo has already waived his Fifth Amendment rights, and now his Second (the right to bear arms) and Fourth (the guarantee against unreasonable search and seizure) are on the line.
Deputy DA Shannon Cox threw the pitch; it's called a 402 Motion. Attorney Keith Faulder had gone to bat for Mr. Colombo. It looks like it's strike one, one away, and two runners on.
A typical preliminary hearing in Judge Henderson's court involved Timothy Donald Zimmerer who was charged with cultivation and possession of marijuana for sale. Special Agent Peter Hoyle had gone to Zimmerer's house in Redwood Valley last February 11th and formed the opinion that Zimmerer's 201 small plants, many of which were less than six inches, were for sale. Judge Henderson agreed, despite Mr. Zimmerer's assertion that he planned to give any excess plants to medical dispensaries. It was Mr. Zimmerer's first year in the pot growing business, his lawyer, Keith Faulder, said. He said that all the plants combined wouldn't amount to more than a very few pounds, that his client had a medical recommendation, and that many of the plants were destined to be culled as useless males.
Faulder asked Special Agent Hoyle, “If they were harvested that day, how much would they yield?”
Hoyle said, “I wouldn't guess. I didn't examine them that closely.”
“Did you examine the clones to see if they'd been rooted?”
“Yes, I did.”
“Did you photograph them?”
“Was there a medical recommendation posted on the door?”
“I don't recall whether it was on the door or not, but yes, there was one posted somewhere.”
“Did you ask if he sold clones?”
“And he said he never sold clones?”
“And when he said he was going to give any excess to clubs, that was hypothetical, because he didn't know yet if there would be any more than for his own use?”
“He told me this was his first operation and that if he had excess he would give it away.”
“Did you ask if he belonged to an association of...” Faulder glanced at Judge Henderson, who seemed to be dozing, his eyes closed and his head resting on his hand. “Never mind,” he said. “I don't have any more questions at this time.”
Henderson roused himself sufficiently to say he thought the evidence showed Mr. Zimmerer was growing the pot for sale and held him over for arraignment on the information.
Two down. Next batter.
Faulder knocked the dirt out of his cleats, spit on his hands and choked up on the bat. Play ball! The first pitch is low and outside — he has to reach to tag it but he golfs it like a Titleist on the sweet spot of a driver and puts it out of the park: “Charges dropped, case dismissed!”
On those exceedingly rare occasions when a judge does rule in favor of the defendant, His Honor seems to feel obliged not only to explain himself to the prosecutor, as if it were really the DA's judgment that had to be satisfied.
Another marijuana case was in Judge Ronald Brown's court across the hall where Judge Brown, who is assumed to have toked a few in his time, did most of the work for defense, arguing the case to the stubborn and staid Deputy DA Brian Newman.
The defendant was Donald Scoville, charged with transportation of marijuana. Mr. Scoville it seems left his cooperative in Humboldt County with some 10 pounds of pot for himself and another patient at a cooperative in San Francisco. It's a long drive from Humboldt Bay to the Frisco fleshpots, fraught with roving interdictions by the CHP and local police departments. Travelers often get off Highway 101 to rest on South State Street down by the Boonville Road turnoff. Which is where the cops found Don Scoville with the 10 pounds and busted him for transportation.
Judge Brown announced that the matter was on for further examination and added that there had been “a stipulation regarding certain facts. The issue comes before the court for oral argument and possible dismissal.”
What ensued was a Talmudic-like back and forth on what the words mean.
Mr. Newman had his own definition.
“What's at issue,” he said, “is whether the Attorney General's guidelines” —
“Have you read Hockendale?” Brown wondered aloud. “In Hockendale they were not interpreting—”
“They were — ”
“Whether it was constitutional or not members for dispensaries — ”
“The court ruled they did not — ”
“Collectives, specifically — ”
“They did not authorize a legal — ”
“Established for the cultivation and distribution of medical marijuana — ”
“It simply says 'shall not be liable for violations of sales, transportation, distribution' — ”
“What's confusing me is if they can get together for cultivation, that somehow has to be distributed.”
Newman allowed that pot farmers could transport marijuana from the weed patch to the drying room, the trimming stations, perhaps to the house, for their own use, but not to San Francisco where about half the population smokes the stuff. Factor in the greater Bay Area and.....well, the market is infinitely elastic.
Brown said, “What if a group — some of which can get to where the marijuana is being cultivated — someone in San Francisco, say, who wanted to grow in Laytonville — some of whom may be too sick to travel, but they have been recommended and they have a right to some but how do they get it? Maybe one person has land in Laytonville, some others trim — assuming everything is legit, of course — some members of the collective still live in the city, maybe they have the money.”
“It seems like a factual issue,” Newman said. “Intent to sell...” means intent to sell.
Newman, you can say, is a strict constructionist. And probably not a pot smoker.
“Or legitimate holders of medical recommendations, even though they're contributing only money. Isn't that the interpretation the Attorney General intended?”
“Only a patient or primary caregiver,” Newman insisted. “Now, if these people were caregivers that conduct would be immunized.”
“What if some of them weren't able to go to Laytonville? We've agreed it would be absurd to hold someone criminally liable for walking it down the hall, or even from the shed to the kitchen, where everyone would gather to get their share. Why should they be criminally liable for driving it to San Francisco?”
Mr. Newman wanted to talk about the money, the intent to sell angle. But Judge Brown said, “Can we take the money out of this, because I don't see any relevance; it's not a factor in this particular case. It's transportation from Point A to Point B. What's the difference if you go from the shed to the kitchen or from Laytonville to San Francisco? I mean, if one of the members says, for instance, 'Look, I'm going to pick mine up, I'll pick up yours, too.' Is that any different from going from the shed to the house?”
Again Newman tried to commercialize the issue. “I think it becomes a situation with no limits, a storefront.”
“I don't see that as the issue in this case. This is not a storefront. The real question is whether or not one patient can transport marijuana for another patient.”
“The law has not authorized that. The limit is to the primary caregiver.”
Brown again wound-up his Mr. Hypothetical-toy and bade him carry the bag from the shed to the kitchen again, but Newman still didn't get it.
“A patient can transport only their own marijuana.”
“That seems an absurd result to me.”
“The People disagree that there is a legitimate collective.”
“Are you arguing that this is what? — unconstitutional!?”
“The AG's guidelines are contrary to the statute, and I would further cite that the AG has no authority to issue guidelines.”
Judge Brown reached for his law book. Faulder was grinning slyly, practically dancing with anticipation, like a runner itching to steal a base. Brown read a lengthy passage of legalese scripture to Newman that seemed to settle the issue and said, “Anything further?”
“Yes! The real issue — with the absence of clarification by the legislature — is that any transportation of any marijuana is proscribed by law. We're not agreeing there's a valid reason for them to do that. They ignore the fact that transportation must be by the patient or primary caregiver. The person in San Francisco could have the personal caregiver bring it to them.”
“But what if they don't have one? A lot of people don't. It's difficult to understand how they can do this without distributing it. I mean, it's not the doctor bringing it down the hall or from the shed.”
Newman agreed that nursing home personnel were exempt, but he still wasn't giving in. He said, “The AG goes well beyond what the Legislature intended.”
“But aren't these called 'guidelines'?”
“We ask the court not to consider the AG's guidelines.”
“Then how does law enforcement know, how does the court decide? Mr. Newman, doesn't your office have seminars for law enforcement and isn't the AG the chief law enforcement agency in the state?”
“They do,” Newman said.
Newman did not comment on who his ultimate boss is, who would be Jerry Brown.
Becoming desperate to gain the reluctant prosecutor's approval, Judge Brown offered himself as an example, saying what if a family member, a nephew, for instance, went to the drug store to pick up a prescription for His Honor. Wouldn't the pharmacist merely call and ask if it were okay to give the meds to the nephew?
Newman said the court was restricted to the letter of the law. “That's not what the statute says,” Newman said.
Brown and Newman rehashed the issue again. Mr. Hypothetical went down the hall again, out to the shed and back to the kitchen, got in a car and drove to San Francisco.
Newman wouldn't budge, but the judge kept coaxing him.
Finally, Mr. Faulder said, “Here's the problem: What's not being argued is these people don't need to be patients. They need protection as caregivers, even if they are all patients they are protected, exempt from prosecution. The legislature did put that in there. The practicalities require transportation — everybody needs to get their medicine. The AG's guidelines are not gratuitous. It's important that patients and law enforcement can rely on the guidelines. The practical reality is that they need to get their medicine, even if they live in the cities; that's what's happening in this case; and that's why it has got to be distributed.
“If they're a caregiver, a patient,” Newman insisted. Judge Brown read again from his book: “Any person, it says.”
“It does, your honor. But you have to look at what 'administer' means. It does not mean transportation.”
“How can they administer it without moving it?”
Newman wanted to start over at the beginning, but Brown said he'd sleep on it and have his decision first thing in the morning.
I hitchhiked over early to catch the ruling, but still missed it. Faulder was gone, so was Scoville; Brown had ruled in their favor.
Case Dismissed. Finally. It seems like a simple call to Scoville's doctor could have saved a lot of time and expense.
Adam Orenstein, aka Kyle Kushman, a writer for High Times Magazine, was up next. His lawyer was former Anderson Valley pot grower Don Lipmanson. Chris Conrad, another pot-writer was waiting to testify. Special Agent Peter Hoyle was sworn in first.
Mr. Kush-man of Poppy Drive.
The ironies commenced.
Hoyle said he'd gone to
the Orenstein residence on Poppy Drive in the Brooktrails subdivision of Willits on January 14th and found Mr. Orenstein and two others trimming weed. The lower level of the house had been converted into a grow room with 83 plants. There were scales, canning jars and Tupperware containers of processed bud, and 48 grams of concentrated cannabis in the freezer. Hoyle also found a key to a safe deposit box at Wells Fargo bank. The box contained $35,000.
Deputy DA Katherine Houston asked Hoyle if he'd talked to Mr. Orenstein.
“Yes,” Hoyle answered.
“Did he understand his Miranda rights?”
“He appeared to, yes.”
“Did you ask how long he'd been growing?”
“Yes. He said five years. 75 day cycles. About eight-and-a-half pounds, each. He told me he donates the excess to dispensaries and paid his trimmers in marijuana. He said he was a marijuana consultant making about $80 to $90k a year.”
“Did you find a cell phone?”
“Was there a text message on the phone that was of interest to you?”
“Yes. It appeared he was saying he had some plants for sale. The message said, 'I'd like to get $20 for each, but if you take a bunch, I'll cut you a deal'.”
Photos of the text message were moved into evidence.
“Did you find any money at the residence?”
“I don't recall finding a significant amount at the house. He said he had about $10,000 in the deposit box, but there was considerably more.”
Lipmanson objected, but Judge Brown said, “I missed the part about how much money was in there.”
Ms. Houston looked through her files and asked, “Special Agent Hoyle, how much was in the box?”
“At least $20,000, perhaps more.” He looked at his report and added: “$35,000.”
“Did he tell you why he had it in a safety deposit box?”
“He said it was because Wells Fargo would only give out about $2,000 without having to come and meet with a bank officer and he couldn't get out large amounts of cash.”
Ms. Houston asked about Mr. Orenstein's mortgage payments, his PG&E bills, car payments, etc.
“Did you ask Mr. Orenstein how he paid all these bills?”
“I did, yes. He said he made about $200 an hour as a marijuana consultant.”
“Did you find any documents indicating this was his source of income?”
“Did you form an opinion.”
“Yes. He was growing marijuana for sale. There is a market for selling small plants and I also believe he was selling marijuana bud. He told me he was donating it, but I just find it highly unlikely he'd give that much money away when he had all the expense of growing it.”
“Did Mr. Orenstein have a criminal record from other states?”
“Yes. And based on what I saw his record only bolstered my opinion.”
Lipmanson rose to cross.
“Do you have a clear recollection of the statements my client made?”
“No, only generally.”
“He told you he had a medical recommendation?”
“He may have.”
“Pay and Owe sheets?”
“Have you heard the phrase, 'a sea of green'?”
“Yes, I may have.”
“That's when one is running a continuous harvest, isn't it?”
“I don't know.”
“He told you he was developing a new strain?”
“I don't recall.”
“He told you he was growing from seed?”
“He had some seed.”
“He told you that he smokes and eats and juices marijuana?”
“He may have. He mentioned a number of ways he uses marijuana.”
“Did you see any rolling papers, pipes, bongs?”
“I don't recall.”
Lipmanson showed Hoyle a photo and asked, “Isn't that a bong?”
Hoyle said yes, he supposed it was.
“Your honor,” Mr. Lipmanson said, “I'm going to ask to play the tape of the interview due to Agent Hoyle's lack of memory.
The tape player was on the fritz. Moreover, a “high security defendant,” Mr. Glenn Sunkett, had arrived.
The Kushman Kase had to be put on hold.
Mr. Sunkett hasn't been in court in a long time. Since his last appearance, his prosecutor, Chief Deputy DA for Mendocino County, Jill Ravitch, has been elected as DA for Sonoma County, and his defense lawyer, David Eyster, is in a runoff race for Mendocino County DA against incumbent DA Meredith Lintott. On this occasion, however, Mr. Eyster was absent, and the senior partner from Eyster's firm, former Mendocino DA Duncan James, was there in his stead. Mr. James said Mr. Eyster was attending a funeral.
“The motion speaks for itself,” Mr. James said. “He needs additional time for the evidentiary hearing.”
Ms. Ravitch complained that she'd only received the motion yesterday, and she objected to it.
“It's unfortunate,” she said, “that Mr. Eyster, based on his own convenience, had to wait to the last moment to file. I would like the court to note that the case has been continued over and over again, over the People's objection. At some point the People have a right to have this case go forward. And each time Mr. Sunkett is moved the jail and the streets have to be shut down due to security issues.”
Mr. Eyster's 'own convenience'? Death tends to inconvenience lots of people, even defense attorneys.
And why Sunkett is moved around like he's Al Capone is, well, silly. And prejudicial. A couple of badged beefoids could get the guy from Low Gap to the Courthouse without all the hullabaloo.
“I want to briefly respond,” Judge Brown said. “First of all, I believe it's important if good cause is shown — and I would like to see this resolved myself — so I'm here because there's a 1050 Motion before the court. I understand that it's difficult for the Sheriff's Office, but I can't take that into consideration to find good cause.”
“It's only two weeks,” James said. “We're quibbling over pebbles.”
“We're not 'quibbling over pebbles',” Ms. Ravitch said. “This is ten weeks — four months after Mr. Eyster was appointed.
“I, too, want to get this to conclusion,” Judge Brown said. “But I do find good cause to continue it.”
The next date was set for September 3rd, 9am.
Kyle Kushman's case resumed. Still, the recording of the interview with Special Agent Hoyle wouldn't play. So Mr. Lipmanson called his client to testify. This may have been a mistake. It's one thing to put words down on paper; quite another to match wits with a skilled lawyer.
Lipmanson took Kushman through the direct so smoothly that it seemed rehearsed. Which it probably was. But when the cross examination came, the pot writer didn't sound quite so articulate. I made a mental note and resolved that I would never take the stand in my own defense. I would almost rather accept conviction than sound such like a blithering, prevaricating bungler of my own best interests.
On cues provided by his lawyer, Orenstein sketched a self-portrait of himself as a philanthropist, if not a perfect saint. He said he generally only produced enough marijuana for his own medical needs and donated any excess to dispensaries. He claimed he did his own trimming — he never weighed his weed, he claimed, but estimated the amount by the time it took him to trim it. The presence of the scales and trimmers in his house contradicted this testimony, but Kushman plunged on. He said his consultation consisted of helping others set up grow operations. Regarding the text messages he was merely helping a client get started. He made his money as a consultant and a journalist. The big hunk of cash in the safe deposit box? Why that was left to him by his late mother. He had put the money in a Certificate of Deposit, then later removed it to the safe deposit box in Willits. He said he taught classes at Oaksterdam University in Oakland and Peace & Medicine in Sebastopol; he also donated marijuana to these organizations “for the underprivileged.”
Mr. Kushman's testimony was, you might say, hilarious.
Ms. Houston began her cross.
“You pay about $4,400 just in mortgage and PG&E bills. This comes from your consulting business?”
“Do you get paid from High Times?”
“Of course you give marijuana to other adult smokers who are legal. How do you pay trimmers?”
“I don't. I give them money or marijuana. If they're legal.”
“How did you pay the people who were at your house?”
“I don't recall how I paid those people.”
“The rate is about $20 an hour, isn't it?”
“If you say so.”
“How much do you pay?”
“Ten to $20 an hour.”
“Or you pay them in marijuana?”
“Yes, if they prefer, I would give them a small amount of personal marijuana.”
“So you donate to the legal dispensaries?”
“So the dispensaries aren't going to make any money on your donations?”
“How do you know?”
“I've had discussions with them.”
“Did you move to California specifically so you could grow marijuana?”
“No, not specifically.”
Houston showed him the transcript and Kushman admitted that he had told Agent Hoyle just that.
“So you moved here from New York 'specifically' so you could grow marijuana. Now, about the text message where you were offering to sell the plants for $20 each?”
“I offered the plants as part of my consulting. I had 10 extra I did not want to throw away so I offered them to another patient.”
“For $20 a piece. No further questions.”
Chris Conrad was called to testify. He said the amounts of marijuana Mr. Orenstein had in jars and other containers was not consistent with sales. It was his opinion that some of it was being given away.
“He's probably using a little less than he says, but he may be giving away more than he thought. The weights were not commercial weights.”
Ms. Houston said, “His is not a collective; it's a one-person grow. The issue is that he has a fairly heavy debt. And although he claims he gives marijuana away, that happens to be against the law. He's paying people with cash and marijuana and that is not permitted. He offered to sell plants for $20 a piece, which is illegal. He claims he doesn't weigh his marijuana but there were three digital scales in the living room. He was evasive on the issue of supplying materials with his consulting. But the most telling thing is he told Mr. Hoyle he moved here from New York to grow marijuana. This is an example of the problem we have here in Mendocino County.”
Mr. Lipmanson said, “First of all, I take strong issue with 'moving here to grow marijuana.' This is a modest-size grow. He's trying to comply with the Compassionate Use Act.”
Judge Brown said, “Kelly [the recent California Supreme Court case which said the government couldn’t put numeric limits on medical pot] says an amount reasonably consistent with a patient’s needs and he has a medical recommendation signed by Dr. Asad.”
“Yes, Your Honor,” Lipmanson said. “But there's a problem with that. Dr. Asad no longer has a license.”
“I wasn't aware of that,” Brown said.
“Otherwise, we would have brought Dr. Asad in. However, Mr. Orenstein has some ability to decide how much he needs.”
“Sorry,” said Brown. “That's not what the law says. Other doctors are available, and I am required to follow the law. Mr. Orenstein is not an MD. I'm finding probable cause. I have no information from you as to his use, and he's giving it away, which is against the law. I haven't heard anything to convince me this was a collective. Based on the evidence at this point it's a question that needs to be decided by a jury. It's like the $35,000 in the safe deposit box. On the one hand it's suspicious. But under the circumstances there may be an explanation that really tips the scale. If documents were presented, a check and where it was invested. I'm not trying to say whether he's guilty or not, but I have to say it is probable cause. Tax returns may have been useful to show where these funds were coming from, but I think there's a reasonable suspicion and I'm going to hold him to answer.”