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Lost In 11360 Land

Stanley Scott.
Stanley Scott.

Stanley Scott almost went to trial on Monday for transportation of marijuana, a violation of section 11360 of the Health & Safety Code. The previous Friday Scott had tried to get the evidence against him — 40 pounds of weed — reduced to something like ten pounds.

Ten pounds of medicine seems a little more likely than 40 pounds of meds, maybe even the difference between transporting the stuff for sale and transporting the stuff for your lumbago.

Scott, at a youthful-looking 50, was also arrested in 2012 for failing to register as a sex offender, and could have saved himself the trouble of repeat court appearances if he'd played Let's Make A Deal with DA David Eyster. But Scott wouldn't play until the very last minute, and then he pleaded out to the more serious charge of transportation for sale.

Transportation is about the only thing pot pharmas need to worry about these days. Raids inspired by envious neighbors ended when Meredith Lintott left the DA’s Office; only extravagant grows get hit these days. But take it on the road and you risk what the cops call “interdiction.”

So there's a local glut. To make any money in the dope trade you've got to get the product to an area where there isn't a glut. Which means south on Highway 101, where all it takes is a traffic stop, and there go all your big plans out the window, and here comes the DA with an offer: “Mr. Dude, you pay a fine and save the taxpayers the expense of running you through the courts and we'll let you off with a tiny misdemeanor.

Most dope runners take the deal.

It happens rather more often than you might think that a guy like Stan Scott gets stopped with an outrageous pile of weed and claims he needs that much “for analgesic purposes” to treat the symptoms of his hypochondria. This is called a medical marijuana defense. And 40 pounds is conceivable if you are chain-smoking big honking fatties night and day and juicing up all the leaf and shake in fruit smoothies — but why would you need to carry it all around in the car with you?

So the business on Friday was all about just how much weed Mr. Scott actually had with him.

There were photographs of marijuana, but were they pictures of Scott's dope? And if they were, were they pictures of 40 pounds or ten pounds?

“I saw the photographs,” Behnke conceded. “But not the evidence.”

There ensued much back and forth about the 40 pounds.

Where was it? Did he have ten pounds or 40? Do the photographs of it constitute valid evidence? Hell, one marijuana bud looks like another.

And so on.

Judge Behnke: “But doesn’t what wasn’t destroyed still exist?”

Oakland-based marijuana Attorney William Panzer: “It’s all been mixed up so much that what was destroyed and why wasn’t clear. You can’t tell the difference, so what wasn’t destroyed is not a representative sample of the whole amount.”

The discussion had gone positively Zen.

Panzer carried a declaration on a piece of paper up to the bench saying, “It tells us nothing, your honor, there was no statement by witnesses, no information about the weights, nothing here about the amount and quality of what was destroyed — all of which is critical to our case, your honor.”

Behnke: “It tells us they photographed it all, and kept 10 pounds.”

Panzer: “It wasn’t a representative sample, your honor.”

Behnke: “If you have a witness, call your witness, counsel”

Whereupon Panzer called Chris Conrad, author, grower, teacher and publisher of West Coast Leaf, a widely distributed quarterly news sheet with a romantic sense of objectivity and an optimistic enthusiasm for marijuana legalization.

Panzer took Mr. Conrad through his resumé and offered him to the court as an expert witness.

Judge Behnke asked Eyster if he was willing to stipulate to the witness’s credentials — Conrad has been in the court so many times in this capacity that it should have been a foregone conclusion, but the DA said cryptically he didn’t think it would be “appropriate.” Thus began a long grilling of Mr. Conrad. DA Eyster, in his prior incarnation as a defense attorney, had used Conrad himself and therefore knew just where to strike.

“How many times have you been involved in cases involving transportation only, Mr. Conrad?”

“I don’t know exactly. Perhaps a dozen. Maybe more.”

“When was the last time?”

“For transportation only?”

“Yes.”

“I don’t know the date, specifically.”

“Where was it, then?”

A long pause.

“Well, what county was it in?”

Another long pause.

Panzer said, “Objection, your honor. I don’t see the relevance of this. Whether it’s for the purposes of transportation or not, the nature of the cannabis is not going to change.”

Behnke said, “I think he [Conrad] has testified to sufficient issues. The standard for a trier of fact is not that rigorous. You may proceed, Mr. Panzer.”

Panzer: “Have you not examined the reports made by the CHP Officer Jake Slates and Task Force Agent Peter Hoyle?”

Conrad: “Yes.”

Behnke: “I have the photographs of the evidence and will consider them for the purposes of this hearing.”

Panzer took them to Conrad, who looked them over.

Conrad: “Yes. These are the same photographs, or copies of the same ones.”

Panzer: “Were there not some others?”

Conrad: “Yes. They were copies of the preserved evidence.”

Panzer: “Let me ask you this: In reviewing the declaration, did it not say which, if any, of the photographs were of the evidence destroyed?”

Conrad: “No.”

Panzer: “Does it not distinguish between the cannabis to be destroyed and the cannabis to be preserved?”

Conrad: “No. I don’t know if these are accurately weighed. The word ‘net’ in Agent Hoyle’s report is used to say there was 40 pounds net.”

Panzer: “Was that with or without the packaging?”

Conrad: “I have no way of knowing.”

Panzer: “Was there not any evidence that it had been weighed?”

Conrad: “No, not even any enumeration of how many bags there were. It had all been rearranged so I don’t know which amount came from where.”

Panzer showed the witness more photos: “Are these not the photographs of the cannabis pertaining to this case.” Mr. Panzer was inordinately fond of negative constructions, which rendered a simple yes or no answer vague, if not confusing.

Conrad: “I got them from yourself; my understanding was that they were from this case.”

Panzer: “Are you not able to determine the quantity and quality of the cannabis destroyed from these photographs?”

Conrad: “No — er, it’s not clear whether other amounts or strains of marijuana may have been in which bag, or how many were duplicated. The five samples in the 10 pounds which were preserved could be from anywhere. It makes it really hard to ascertain in that regard. Also, I don’t know the moisture content — how dry it was — or the usability; it could have been moldy.”

Panzer: “Is it not described as ‘40 pounds of drying marijuana’?”

Conrad: “Yes, it is.”

Panzer: “So does it not have to be dried to be used?”

Conrad: “Yes.”

Panzer: “And how much weight is lost in drying?”

Conrad: “Approximately 75%. And to some degree I can see there had been some drying, by the brown and curling leaves.”

Panzer: “So would there not be a variation in the final weight?”

Conrad: “Yes.”

Panzer: “Is there not any way to tell what that variation would be by looking at these photographs?”

Conrad: “No.”

Panzer: “Was there not any material retained in these photographs that would make you believe different strains were involved?”

Conrad (having studied the photos again): “I would say that, um… I don’t think so. The coloration is different in some and it has not been manicured.”

Panzer: “Does it not lose yet more weight when manicured?”

Conrad: “Yes.”

And here we begin to see what the judge meant when he said the expertise didn’t have to be that rigorous, duh.

Panzer: “How much weight are we talking about here?”

Conrad: “It varies greatly.”

Panzer: “So we have all these variables, your honor. And the mold, for example”—

Behnke: “Why would somebody be carrying around moldy marijuana?”

Panzer: “…uh, I don’t know…”

The court bailiff came in and told the judge that the jury in the rape case had come to a verdict.

Judge Behnke's courtroom was suddenly a very busy place

Behnke: “Madame Clerk, will you call the attorneys and tell them a verdict has been reached.”

The courtroom began filling up with those interested in the rape trial, but the 11479 hearing (to determine of the evidence destruction was legal) continued as they filed in.

Panzer: “Do all the buds not look the same in the photographs?”

Conrad: “No.”

Panzer: “Is it not important, in a medical context, to determine the quality of the marijuana?”

Conrad: “Yes. If it is moldy, for example, it cannot be used.”

Panzer: “And some strains are more desirable than others, are they not?”

Conrad: “Yes.”

Panzer: “And speaking of strains, does the photograph not include individual bags?”

Conrad: “No. Some are more green; some are more brown.”

Panzer: “I see. And how do you preserve cannabis?”

Conrad: “Well, it has to get enough air so it doesn’t mold, and be kept out of the sunlight.”

Panzer: “Is there not any reason why it could not have been reasonably possible to preserve that cannabis?”

Conrad: “No.”

Panzer: “Is there not any way to determine the amount destroyed?”

Conrad: “Not with precision.”

Panzer: “”Is there not any way to determine the quality of the cannabis destroyed?”

Conrad: “No.”

Panzer: “Do you not recall in the report that CHP Officer Slates said he works out with weights a lot and considered himself a good judge of weight?”

Conrad: “Yes.”

Panzer: “And what did he say he thought the cannabis weighed?”

Conrad: “I believe he said it was 20 pounds.”

Eyster: “That was just an estimate, judge. Officer Slates turned it over to Agent Hoyle and he [Hoyle] weighed it. He wrote down 18,160 grams net weight, correct?”

Conrad: “Yes.”

Eyster: “And you didn’t take that to mean he had weighed it?”

Conrad: “He wrote it down in grams, yes, but that coincided with exactly 40 pounds, which would have been a rare coincidence.”

Eyster: “When was this marijuana located?”

Conrad: “December 30th, 2012.”

Eyster: “Is that during the growing season?”

Conrad: “Not for outdoor marijuana.”

Eyster: “Could you determine whether this was indoor or outdoor?”

Conrad: “Yes. It was outdoor.”

Eyster: “So the photographs depict dried or drying marijuana?”

Conrad: “Yes.”

Eyster: “Is that consistent with the transportation of outdoor marijuana — at the end of December?”

Conrad (somewhat reluctantly): “Yes.”

Eyster: “Agent Hoyle’s report said he took 10 pounds with five sub-samples — is that significant to you?”

Conrad: “Yes.”

Eyster: “And that corroborates what is said in the document, exhibit A?”

Conrad: “Yes.”

Eyster: “And looking at the photographs, do you see any evidence of mold?”

Conrad: “I would say nothing that is clearly mold; I could not do that, no.”

Eyster: “You first got involved in this case — when?”

Conrad: “March 7th.”

Eyster: “Are those your notes you are referring to, there?”

Conrad: “Yes.”

Eyster: “May I see them?”

Conrad handed them over. Eyster paged through the notes. Judge Behnke asked his clerk where Ms. Heidi Larson was — she was the prosecutor in the rape case. The defendant, Aaron Johnson and his lawyer, Chris Andrian, had already arrived and taken seats.

Ms. Larson came in shortly and told the court that the victim-witness, Ms. Brittany White, was on her way. It should take only a few minutes, she said.

The dope case resumed.

Eyster: “What day were you retained?”

Conrad: “March 25th.”

Eyster: “Had you spoken with Mr. Panzer before that date?”

Conrad: “Yes. Maybe four times.”

Eyster: “Do these notes contain all of your conversations?”

Conrad: “No.”

Eyster: “Have you looked at the actual marijuana?”

Conrad: “No.”

Eyster: “You say it is common to retain 40 pounds of marijuana for evidence at trial?”

Conrad: “Yes.”

Eyster: “Where?”

Conrad: “In Humboldt County. In Tehema…”

Eyster: “How long ago was this?”

Conrad: “Maybe four or five years…”

Eyster: “So if you go back in time, farther — way back… What’s the standard in Mendocino County?”

Conrad: “I don’t know.”

Eyster had no further questions and Mr. Conrad stepped down.

Special Agent Peter Hoyle was called and sworn.

Eyster: “Remember where you were December 30th, 2012?”

Hoyle: “I was called to meet with CHP Officer Jake Slates and take control of some evidence, an amount of marijuana, a cell phone, and an expired medical marijuana recommendation.”

Eyster: “What did you do with the marijuana?”

Hoyle: “I photographed it and weighed it.”

Eyster: “Are these the photographs you took?”

Hoyle: “I believe so, yes.”

Eyster: “What is that silver thing to the side, there, in this photograph?”

Hoyle: “It’s a scale.”

Eyster; “Did you use that scale?”

Hoyle: “Yes.”

Eyster: “What for?”

Hoyle: “I weighed the marijuana with it.”

Eyster: “How much did it weigh?”

Hoyle: “At least 40 pounds. It was slightly over, as I recall. But I always round it down to the nearest even number.”

Eyster: “How many times have you been involved with 11479 of the Health & Safety Code?”

Hoyle: “Well over 100, I expect.”

Eyster: “Did you take five representative samples of the 10 pounds you preserved?”

Hoyle: “Yes.”

Eyster: “”What did you do with it?”

Hoyle: “I put it into evidence.”

Eyster: “And the rest?”

Hoyle: “It was destroyed in accordance to 11479.”

Eyster showed Hoyle Exhibit A: “Is that your signature?”

Hoyle: “Yes.”

Eyster: “Who did you take that document to?”

Hoyle: “Judge David Nelson.”

Eyster: “And he signed it?”

Hoyle: “Yes.”

Eyster: “So that was within 30 days of your coming in contact with this marijuana?”

Hoyle: “Yes.”

Eyster: “Do the photographs show all the marijuana?”

Hoyle: “Yes.”

Eyster: “Is it common to preserve 40 pounds of marijuana for evidence?”

Hoyle: “It is not our practice, currently.”

Eyster: “Is that due to the high volume of marijuana brought into evidence in this county?”

Hoyle: “Yes.”

Eyster: “And you don’t have the space to store 40 pounds of marijuana?”

Hoyle: “That’s correct.”

Eyster: “Did you comply with 11479?”

Hoyle: “Yes.”

Eyster: “Did you try to hide anything?”

Hoyle: “No.”

Mr. Panzer rose to cross, but the victim-witness in the rape trial had arrived and Judge Behnke sent for the jurors. People were still coming into the courtroom as Hoyle's testimony resumed.

Panzer showed some more photos to Agent Hoyle: “Do you not recognize these photographs?”

Hoyle: “I recognize them, yes.”

Panzer: “Do you not see the five samples, here?”

Hoyle: “I do, yes.”

Panzer: “Can you not tell us how you chose which bags to keep?”

Hoyle put his eyeglasses on and studied the pictures: “This one right here is a package just as it was seized.”

Panzer: “And is that not a bag of small buds or shake?”

Hoyle: “Yes. Correct. And the large oven bags are just the way I received them. The one in the small zip bag is one I packaged myself.”

* * *

The door opened and the jurors for the rape trial filed in and took their seats in the jury box. The judge asked Mr. Panzer and his client to move out of the way and the parties in the rape trial took over the defense and prosecution tables, Mr. Johnson and his attorney, Mr. Andrian at one, and DDA Larson and Detective Van Patten at the other. Mr. Aiken, the jury foreman handed the verdict to the bailiff who carried it to the judge, who handed it to the clerk.

Clerk Bonnie Miller stood and read the verdict:

“In count one, forcible rape, we the jury find the defendant, Aaron Johnson, not guilty; in count two, forcible rape, we the jury find the defendant, Aaron Johnson, not guilty; in count three, forcible rape, we the jury find the defendant, Aaron Johnson not guilty; in count four, forcible rape, we the jury find the defendant, Aaron Johnson, not guilty; in count five, penetration with a foreign object, we the jury find the defendant, Aaron Johnson not guilty.”

Mr. Andrian clapped his client Johnson heartily on the back and said, “Congratulations!”

Ms. Brittany White, the alleged victim, looked on without so much as a flicker of expression on her face, and DDA Larson looked down and squeezed her eyes shut as a lone tear hit the pointy toe of one of her high-heels. The judge thanked the jurors for their service and excused them. After the jurors and Ms. White had left, Judge Behnke congratulated Mr. Andrian.

Then the 11479 hearing resumed.

Panzer: “Do you not see the marijuana in the big banana box?”

Hoyle: “Yes.”

Panzer: “Does it not appear to be drying to you?”

Hoyle: “It appears to be marijuana, to me.”

Panzer: “Did you not weigh the box and the bags separately?”

Hoyle: “Yes.”

Panzer: “Did you not keep any notes of the different weights?”

Hoyle: “Yes.”

Panzer: “Do you not have those notes with you now?”

Hoyle: “No.”

Panzer: “Where are they now?”

Hoyle: “They were destroyed.”

Panzer: “Do you not have any evidence, other than your word, that the weights are accurate?”

Eyster: “Objection, that’s argumentative.”

Behnke: “It is argumentative, but I’ll let him answer.”

Hoyle: “It was 40 pounds — 18,460 grams. I weighed it in increments. I was being conservative.”

Panzer: “What proof is there?”

Behnke: “I get it that he didn’t preserve a log of the individual weights, counsel.”

Panzer: “Where does the Sheriff keep the evidence?”

Hoyle: “At the Sheriff’s office.”

Panzer: “Yes, but where, exactly?”

Hoyle: “I don’t know.”

Panzer: “You’re with the sheriff’s office and you don’t know.”

Hoyle: “I’m not with the sheriff’s office; I’m with the Ukiah PD.”

Panzer: “Well, then, where is the Ukiah PD’s evidence room?”

Behnke: “It’s not relevant where they keep the evidence, counsel.”

Panzer: “Well, how big is it?”

Hoyle: “About twice the size of the jury box.”

Panzer: “How often is the evidence room broken into?”

Hoyle: “To my knowledge it has never been broken into.”

Panzer: “Then why does it say in the report that there is not sufficient personnel to guard the marijuana if 40 pounds is kept?”

Hoyle: “I can comment that the 40 pounds would not fit if”—

Panzer: “That’s not my question.”

Behnke: “That’s not going to help me decide the case, counsel. This is Mendocino County and it is not feasible to keep all the marijuana seized. I’m more interested in what happened to your client’s marijuana.”

Panzer: “The requirements of 11479”—

Behnke: I’m looking at the case you cited in your brief, and the cross-examination of the witness on the situation at the evidence room is not going to aid me. I interpret that part of the report to mean two things; that they don’t have the space or the personnel to preserve large amounts of marijuana.”

Panzer: “I have nothing further.”

Mr. Johnson went to Aladdin Bail Bonds to get his money back and Ms. White went back to Washington, hoping, no doubt, that her new husband, and the father of the child she is expecting, wasn’t one of the seven US soldiers killed last week in Afghanistan during the Taliban’s spring offensive.

Then it was back to dope.

Panzer argued that the photos of the marijuana seized from Stanley Scott represented a “mish-mash of the cannabis” seized, which hadn’t been fully dried or trimmed and may have been moldy. He said Agent Hoyle wasn’t credible and seemed about to make some accusations about Hoyle but the judge cut him off and vouched for Hoyle’s diligence and credibility saying, “He [Hoyle] wouldn’t have weighed it all at once. The purpose of 11479 isn't to impeach the officer. I found the witness [Mr. Conrad] credible, but he didn’t provide any proof that the samples preserved were not representative of the 40 pounds.”

Eyster said, “He [Conrad] didn’t even go look at it; it was here; it was available; I don’t know why they didn’t go look at it.”

Panzer: “Mr. Conrad did testify that it did not appear to be representative. And I did ask Mr. Eyster to bring the evidence to court.”

Behnke: “I would not expect Mr. Eyster to bring it to court, counsel. 11479 does have some particular requirements, one of which is an affidavit which allows law enforcement to destroy part of the evidence with court approval so statutory requirements are mandatory, and if not complied with sanctions may apply. First off, I don’t think there is any doubt in this case with regards to the affidavit, particularly as it was signed by Judge Nelson. And there doesn’t seem to be any dispute they [law enforcement] retained 10 pounds in five representative samples — the statute says leaves or buds, and I don’t think there’s any doubt that we have the same evidence preserved as was photographed from a variety of angles, perhaps imperfect, yet still representative. If you took a picture of an orange, then cut two-thirds of it away, the picture and the remaining third would still be representative of the whole orange. There is a scale in the photographs and the officer testified he weighed it and rounded the gross weight down. And it is not reasonably convenient to store large amounts of marijuana in Mendocino County. To use a baseball analogy, they keep the balls in a humidor in Denver because of the low humidity and the balls — drying out — are more easily knocked out of the stadium otherwise. But it is not reasonable to maintain a large facility for marijuana in Mendocino County. As Hoyle testified, it tends to mold and become a fire hazard, and my read is they did keep a representative sample. I find your expert’s testimony pretty credible, Mr. Panzer, but your motion is denied.”

Unless Mr. Stanley Scott had a change of heart over the weekend, his trial would begin on Monday. This would lay him open to having his felony past presented in open court — a strike offense involving a sexual indiscretion with a minor.

He pleaded out.

There was no trial.

Scott will be sentenced in June.

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