Overloaded & Overcharged

by Bruce McEwen, November 11, 2010

Stephen & Kevin Muller

A Huey came thump-thump-thumping into the Ukiah airport shortly after noon last Wednesday. An under­cover cop wearing digital camos with a Glock 25 pistol riding in a Bianchi Quick-Draw holster right behind his kidneys, jumped out of the chopper and slipped into a waiting squad car, which raced north on State Street, Code Three, lights and sirens, and pulled in behind the Courthouse. The cop, clutching a search warrant folded to conceal the names and addresses on it, entered through a back door, took the stairs three at a time, and rapped on Judge Henderson’s office door.

Officer Glock 25 was in Henderson’s office long enough to deliver a pizza — not, as one bystander observed, long enough for the judge to read a search warrant.

The cop soon came hustling out of the judge's office, leaving the Courthouse with all the urgency of a big bust in progress. Which, in fact, what was happening.

The warrant was for the Muller brothers, Kevin and Stephen, who each have 160 acres of land near Piercy up on the county line south of Garberville. Kevin and his wife Gayle had 327 pounds of processed bud marijuana all packaged and ready for market. Brother Stephen had 200 more pounds of the same in his house.

The bud was packaged in oven roasting turkey bags. Turkey bags, it should be explained, is a humble product originally designed to contain your Thanksgiving turkey or Christmas goose as it's done to perfection. It has since been put to a substantially different use as odor-tight pot envelope. The bags are even advertised on huge bill­boards on South State Street, Ukiah. People unac­quainted with the pot business are puzzled. "These Men­docino County people sure must like their turkey."

Back in Piercy, the enterprising Mullers had about a thousand pounds in the drying and trimming stage of the process, most of it in a long shed apparently designed for the purpose. The processing shed was 30 feet wide and 70 feet long with workstations for trimmers on both sides of a row of tables down the middle, and drying screens along the walls. There was more marijuana growing out­side, but it had been rained on and was beginning to turn moldy.

The badged pot raiders quit cutting the monster grow down when it got dark. The then and hauled the captured booty off in a cargo net attached to the big Huey.

It seems that the Muller boys’ father, a Norwegian national, had bought the two properties for his sons a few years ago where, with true Scandinavian resolve, the two young Vikings made a major go of it in the wilds of their adopted land, minus only the $41,000 in US currency the cops seized last Wednesday.

The marijuana they produced this year was spotted from the air during the summer months when hundreds of law enforcement personnel were in Mendocino County from all over the country, riding around in a squadron of small, black Bell helicopters, learning to spot devil weed patches from the air, then marking their locations on a map using a GPS satellite positioning system. Back in town the airborne narcs research the property owners and put them under surveillance. Homework complete, with robo-warrants hurriedly signed by a harried judge, the raid teams pounce.

The trimmers busted at the Mullers were from fara­way places, Spain and Puerto Rico, to name two of the nationalities nabbed in Piercy. In coming days the Mul­lers will be brought into court for arraignment where they and their international crew of trimmers will be charged with felony cultivation of marijuana for sale.

This is the prosecution policy of current DA Mere­dith Lintott — max out the charges. Felonies for every­one! Not enough prosecutors? Bring 'em in from Lake and Sonoma counties, and damn the cost!

DA-elect David Eyster promises a saner prosecution policy.

Remember that trimmer crew of forlorn Mexican grandfathers arrested out at Paco's Painting north of Ukiah off Parducci Road? After many highly expensive hours of courtroom bluster by the prosecutor, Deputy DA Scott McMenomy, the DA’s Office inevitably reduced the charges to Penal Code 37, accessory to culti­vation, a misdemeanor. It would have saved this finan­cially-strapped county a great deal of trouble and expense to charge these people appropriately in the first place. But the outgoing DA, who has herself declared personal bankruptcy, seems to apply the same profligate to public policy that she brings to her personal finances. Of course the more felony cases she files, the more industrious she appears.

The Muller case won’t come to trial for at least a year, if it ever goes to trial. Most marijuana cases don't.

But there is one in the Ukiah courthouse currently, but it is an exception. It involves an alleged long-stand­ing grudge between the officer in charge of the bust, Sheriff’s Department sergeant Bruce Smith, and the defendant’s father, Dennis McMahan.

According to Mr. McMahan senior, Sgt. Smith gave him a ticket 15 years ago, and when McMahan beat the rap in court, Smith vowed to get him. What is more likely is McMahan is the one with the grudge, since the defendant is his son, also named Dennis McMahan. At any rate, McMahan senior has found a lawyer, a very good lawyer, Mr. Che L. Hashim, to take the case pro bono. McMahan has also arranged a large number of witnesses, expert and otherwise, to testify on his son’s behalf.

It all started one year ago to the day, November 4th of ’09, when Sgt. Smith got a call from an confidential informant that McMahan was cultivating marijuana for sale at his property just off Spy Rock Road above Laytonville. It was the contention of the defense that the informant was a neighbor who also cultivated marijuana for sale. The difference being the neighbor didn’t have a 215 card — oh, and one other difference: The neighbor was also a DEA agent. That was the allega­tion anyway; a pot-grow­ing DEA man.

Since it’s against the law to divulge the address of a law-enforcement officer, this allegation could never be brought into evidence. The neighbor's profession disal­lowed, Deputy DA Brian Newman and a variety of lumi­naries from the medical marijuana community spent a lot time arguing about whether Dennis McMahan actually had a medical condition that required the amount of marijuana he was growing.

Does it even need saying that a great many of the 215 cards are issued to recreational pot smokers? But once a licensed MD signs off on them as medical necessity there’s nothing left to say beyond doctor's orders. Yet the DA continues to challenge each and every case.

Mr. Newman is tireless at this pointless exercise, and boy-oh-boy did he get a workout this week! The jury was so exhausted by the pure tediousness of the testi­mony that Judge Brown gave them a three-day weekend to uncross their eyeballs.

On Monday the verdict came in: Not guilty on all counts. And it’s hard to avoid the conclusion that the jury was, at least in part, simply sending a message that they’re tired of hearing these kinds of cases.

In another, even higher profile attempt to get the name of a confidential informant for a medical marijuana bust, a glamorous trio of lawyers from the Big City were in town on Friday: Zalkin, White & Thomasini.Ms. White of ZW&T got right down to business.

“The prosecution is concealing the name of the infor­mant whose identity could be exculpatory.”

Judge Brown asked, “Is this a citizen informant?”

White said, “Deputy James Elmore says he got infor­mation of a ‘trim party’ at the location. We believe that the informant was a disgruntled member of the collec­tive, who called a retired police officer, and if he were truthful he’d admit that there was no possession for sale, that their [the other members of the collective] conduct was legitimate under the law. As it stands now, he’s wearing ‘the cloak of protection,’ I call it. The court could hold an *in-camera hearing with the officer to determine if there is a security risk.”

Deputy DA Rayburn Killion admitted, “It is just a citi­zen.”

Brown: “I have a question about the retired police offi­cer.”

Killion: “It sounds like the defense knows who this person is.”

White: “The prosecution has a duty to produce the informant.”

Killion: “The only information Deputy Elmore had was that there was a trimming party going on.”

Brown: “Does the DA’s Office have any information on who this officer was?”

Killion: “No, I asked specifically.”

Brown: “What I’m having trouble with is that there is in reality basically two informants, and the officer was just a conduit. If I knew a little more about the situation then I could make a judgment. As it stands, the only way I can handle this is to have the in-chambers hearing with the officer.”

The “hearing” was scheduled for January 7th.

Meanwhile, Public Defender Linda Thompson was across the hall in Judge Richard Henderson’s court with her client, Phillip William Frase. Mr. Frase is charged with the murder of Steve Schmidt, formerly of Elk, whose body was found by the Sheriff’s cadaver dog under a brush pile on Frase’s Bell Springs Road (north­east of Laytonville) property last winter. Mr. Schmidt's corpse had apparently been dragged to the place it was found by a four-wheeler.

Ms. Thompson is not the lawyer of choice for defen­dants charged with serious crimes, and Mr. Frase was hoping to replace her with Keith Faulder.

“However,” Ms. Thompson said, “Mr. Faulder has not been retained due to a recent, uh, incident. And now it appears that he won’t be able to represent r. Frase because of a possible conflict of interest.”

The “incident” the Public Defender seemed to be referring to was the recent election wherein C. David Eyster was voted in as the new District Attorney for Mendocino County. Eyster takes office in January. The “possible conflict of interest” could be confirmation of the widespread speculation that Eyster plans to install Mr. Faulder as one of his top lieutenants.

Judge Henderson wanted some input from the Dep­uty DA who is presently prosecuting Mr. Frase, but Mr. McMenomy wasn’t present, and the matter was put on hold until he could be found.

Mr. McMenomy was upstairs in Judge Leonard La­Casse’s court attending to the sentencing of one John G. Caputo. LaCasse was furious with the defendant who had come to court stoned. A fastidious lawyer named Robert Boyd was representing Stoner Dude, and he was telling the probation officer, Tim King, that he wanted a sentence tweezed from the terms of probation. In para­graph 10 it said that Stoner Dude couldn’t participate in any marijuana cooperative or collective. Mr. Boyd thought that keeping the lad away from great heaps of dope was, well, harsh. Before Boyd could finish caviling over the unfairness of the terms and conditions of proba­tion, Judge LaCasse lost his patience.

“This is the kind of thing that just grates me to *no end,” the judge said in a pained roar. “Here we have a guy with poly-drug abuse issues — he’s been stealing Vicodin and Oxycontin from his father — who comes in here reeking of weed and you’re gonna stand there and tell me we’ve got to carve out a deal so he can smoke pot?!”

I had been dozing outside LaCasse’s court dur­ing the lunch break in one of the big padded chairs out there when Caputo came in and seated himself by the doorway. I had caught a whiff of the weed on him as he went by, and when Judge LaCasse came back from lunch, he gave me a friendly nod and proceeded to the doorway where he nearly froze in his tracks when he smelled the pot smoke on the brazen Caputo.

“It just boggles my mind what we’re doing here,” LaCasse groused.

King said, “We’re asking that he not be able to smoke any marijuana.”

Defense attorney Boyd said, “Well, the appeals court has ruled on this so I’m asking the court to strike the first sentence.”

“Alright, I’ll do it," Judge LaCasse said with a sigh. "I don’t want to do it, and it doesn’t make any sense to me, but… Okay, Mr. Caputo I’m striking the first sentence of paragraph 10; and, having pled guilty to the 11360, I’m going to impose the suspended 120 days and fine you $2,500. You are hereby remanded to jail forthwith.”

Deputy Tim Goss sprang out of his seat to cuff Caputo and escort him into custody.

Mr. McMenomy picked up his files and left to go deal with Mr. Frase, who is accused of dispatching Mr. Schmidt with "a blunt instrument" that may have been a hammer.

Public Defender Thompson repeated for McMenomy’s benefit that she’d spoken to Mr. Faulder and that Faulder wasn’t likely to be taking the case. At this stage *she still had the case and would like to set it for trial in February. Perhaps by then Frase could find a lawyer more to his liking.

Mr. McMenomy said he didn’t think Frase had any resources to hire a lawyer and was just stalling. He wanted the trial date moved up.

No matter. Judge Henderson said the soonest he could get to it would be March 21st. He said he had the Brunnel homicide set for February 7th and the six-defendant Burton trial set for March 11th. He said there were many trials set for the first part of the year and late in March was the earliest they could get to it.

Thompson said, “There’s still an offer on the table. I think this can be resolved as a manslaughter.”

McMenomy disagreed. He seemed confident he could prove murder.

Across the hall Randall Shaffer was getting sentenced for his fourth or fifth DUI. His lawyer was Deputy Public Defender Atilla Panczel, the youngest lawyer in the local defense bar. But Mr. Shaffer’s saving grace was his sober admission of his guilt and sincere contrition for the trouble he’d caused, which on the whole wasn’t much. He’s always done his drinking and driving out on remote backroads and had always cooperated peacefully with law-enforcement when caught. He’d written a four-page letter which seemed to make a positive impression on Judge Brown.

Panczel said, “Mr. Schaffer was on probation and picked up another DUI. The probation report is recommending four years and four months, the aggravated term. He knows probation is not a possibility. He knows he has a problem, but he wants to take care of his mother. Somehow, he wants to set up a reverse mortgage so she can keep the house he built for her. He acknowledges he has a drinking problem, but on the other hand his blood alcohol count was low, he was driving on backroads and cooperated with the officers, so we are asking for the mid-term.”

“It looks like he pled before it went to trial,” Judge Brown said.

“Yes, he did, your honor,” Panzcel broke in.

“Let me finish, Mr. Panczel, Judge Brown said. “He pled before trial and also I don’t think he’s been to prison before.”

“No, your honor; his record was all drinking offenses,” Panczel said.

The judge had been addressing the prosecutor. He gave Panczel an icy glare that shut him up and turned again to Mr. Killion.

“Anything further,” Brown asked.

Panczel said his client had something to say.

Mr. Schaffer said he’d long had a drinking problem, but had got it under control with attendance at AA meetings until his recent divorce. “A fourth and fifth DUI is just stupid,” he said, hanging his head. “I realized I could go to prison, but what really scared me was the possibility that my drinking could put my mother on the streets.”He felt he could keep the house he’d built for his mother if he could get out of prison and go back to work within two or three years. Brown was swayed and granted the mid-term, three years, four months total with 240 days credit.

“Thank you, your honor,” Shaffer said.

Overheard In The Hallways

• A woman told Peter Hoyle he looked just like Mr. Clean. I hadn’t seen those TV commercials in years, but now that she mentioned it it was true — the legendary lawman does look like Mr. Clean. I suggested we make it a new nickname for the well-known and much-feared Special Agent. Deputy Tim Goss added, in reference to SA Hoyle, “He only gets two Christmas cards a year — one from his mother and one from me; I love the guy!”

• A judge overheard me telling the security guards that a cop with a search warrant hadn’t been in another judge’s office long enough for the judge to read the warrant. The next day security told me to try and keep my voice down in the future.

• College kids coming home for the holidays will be shoulder-to-shoulder Thanksgiving Eve at the annual party the Forrest Club across the street from the Court­house. It’s a long-held tradition in Ukiah. College kids and alumni from all over the County attend every year – this one’s supposed to be the biggest ever!

• Judge Clayton Brennan is rumored to have invested in multiple acres in the Bell Springs area (a major pot growing region of the County) — in hopes that Prop. 19 would pass? Just a rumor? Nobody but the judge’s real estate agent knows for sure.

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