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A Sentencing Reform Turning Point?

For months now there have been signs that political will may be building for a change in direction in sentencing and prison policy. In one of the top news stories the past 24 hours (NYT and WaPo, among others), it's been reported that US Attorney General Eric Holder will issue a revised policy on when federal prosecutors will seek mandatory minimum sentences, seeking to spare low-level drug offenders from such heavy punishments. Holder will address the American Bar Association at their annual conference in San Francisco (10:00am TODAY, Pacific Time, e.g. any minute), and is expected to highlight the reforms. (The ABA has someone live-tweeting, and it's scheduled to run on C-Span.)

The move should bolster momentum for the Justice Safety Valve Act, sponsored by Sens. Leahy (D-VT) and Paul (R-KY), as well as the Durbin-Lee Smarter Sentencing Act, the Charles Colson Task Force on Federal Corrections and other efforts. In a sign of changing times, the conservative ALEC legislators and business leaders network has called for passage of the Leahy-Paul bill.

Phil will be posting a feature report in the Chronicle after the speech is done.

Location: 
San Francisco, CA
United States

Serial Offender: Miami Fed. Prosecutor Called on Misconduct in Drug Cases [FEATURE]

special to Drug War Chronicle by Houston-based investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

Part 6 in a series, "Prosecutorial Misconduct and Police Corruption in Drug Cases Across America."

There is something rotten in Miami. A federal prosecutor there, Assistant US Attorney Andrea Hoffman, seems to have problems staying within the bounds of the law as she attempts to prosecute major drug cases. As a result, cases are coming undone, and some Colombians are going home, some who likely were innocent. And Hoffman's pattern of prosecutorial misconduct has so far come without serious professional consequences.

2011 press conference in Bogota announcing the 56 indictments (presidencia.gov.co)
On September 2, 2011, US Attorney for the Southern District of Florida in Miami Wilfredo Ferrer announced the arrest of 56 Colombians in a trio of separate foreign investigations -- Operation Seven Trumpets, Operation Under the Sea, and Operation BACRIM (Bandas Criminales). In what was one of America's biggest drug busts, authorities also seized 21 airplanes, 12 submarines, millions of dollars in cash, and more than 20 tons of cocaine and heroin.

"Together with our law enforcement partners in Colombia, we have developed a proactive strategy to combat the rise of narco-trafficking operations to eliminate the threat they pose to the security of the international community," Ferrer crowed at a press conference with Colombia President Santos and Prosecutor General Viviane Morales in Bogota that day.

But what appeared to a slam-dunk case validating America's never-ending war on drugs soon went sideways, and Hoffman was there. Two Colombian nationals arrested in the case, John Winer and Jose Buitrago, who were looking at life in prison without parole, are now free men after federal District Court Judge Marcia Cooke ruled earlier this year that Hoffman deliberately withheld key evidence from the defense, undermining the defendants' rights to a fair trial.

And that's just for starters.

Winer and Buitrago

On May 21, a jury had already been seated to hear the case against Winer, represented by attorney Jose Quinon, and Buitrago when the latter's defense attorneys, Kashap Patel and Helen Batoff, got DEA agents and a Colombian narcotics officer to acknowledge they knew the DEA was making monthly payments to "vetted units" of the Colombian narcotics police -- and that prosecutor Hoffman also knew about those payments.

"Vetted units" are elite anti-drug squads whose members have passed muster as not being corrupt, and are often used by the DEA and other agencies in their overseas investigations. These units are required to file monthly reports on their activities in order to justify incurred expenses paid for by the DEA as part of US foreign assistance to Colombia to wage the drug war.

Hoffman denied any previous knowledge of the payments to the vetted units.

But on the stand that day, Colombian police officer Pacheco blew up Hoffman's denials about the DEA payments. Pacheco said the matter about the money was discussed between him, Hoffman, and DEA agent Guillermo Turke upon arriving in Miami from Bogota on Sunday, May 14th.

Attorneys Patel and Batoff had already been tipped-off about the use of the vetted units in the case against their clients, and prosecutors acknowledged as much, but refused to disclose information about their role in the case unless the defense attorneys could prove they were entitled to it.

Under the Brady rule, the government is required to turn over exculpatory evidence or material information in the government's possession that could be favorable to a defendant.

"The defense sent a written request to get the documents from Hoffman and her co-counsel, Cynthia Wood, on April 3, 2013," Patel told Judge Cooke. Receiving no reply from Hoffman,  defense attorneys re-sent the letter and, on May 1, received a reply from Hoffman's office acknowledging that the payment information existed, but demanding that the defense explain how it was entitled to that information.

"Tell me why it's Brady material, or under what theory you are entitled to it," prosecutor Christina Maxwell responded.

"The DEA payments to Colombian officers were disclosable to the defense without them having to file a Brady motion to get them," harrumphed Washington, DC, criminal defense attorney Stephan Leckar in an interview with the Chronicle.

US District Court Judge Marcia Cooke didn't let Hoffman get away with misconduct. (stu.edu)
Judge Cooke suspended the trial to hold a hearing on the matter, and things only got worse for Hoffman. Cook and the defense attorneys grilled a bevy of DEA agents, and they testified that Hoffman had known about the payments at an earlier date.

Bogota DEA Special Agent Guillermo Turke reiterated Pacheco's testimony that the "payments were specifically discussed with Hoffman on May 19th".

Miami DEA Corrine Martin told the frustrated judge "after all of the court motions, we spoke with DEA Special Agent Ed Reed about the payments and we also let Ms. Hoffman know."

Replying to a question from Judge Cook, Miami DEA Special Agent Mike Torbert concurred.

"I discovered there was a $200 operational expense given to SIU (special investigation units)," he told the court. "I passed the information to Ms. Hoffman."

Although her office had responded to defense letters about the payments on May 1, acknowledging they had occurred, Hoffman insisted to Judge Cooke that she had first found out about them on May 20, on the eve of the trial. But when Cooke pressed, Hoffman revised.

"Your honor, I found out about the payments at noon on May 21," she then replied.

But after hearing the defense evidence that Hoffman in fact knew about the money paid to the Colombian sources before the trial started, Judge Cooke accused Hoffman of prosecutorial misconduct, or intentionally engaging in inappropriate or illegal behavior by withholding evidence or knowing permitting false testimony and tampering with witnesses. Hoffman had violated the Brady rule by not automatically turning over materially important evidence to the defense prior to trial and when the trial started.

Had defense attorneys been given the information by Hoffman about the DEA payoffs, the wiretaps in the Winer-Buitrago case could have been challenged and used to impeach witnesses, the attorneys argued.  "The scope of the defense would've been different," Patel explained to the judge.

Hoffman apologized to the court, blaming her misconduct on miscommunications due to language barriers, but Judge Cooke wasn't buying it.

"I think the US government was aware of Colombian police officers receiving payments and did not disclose it to the defense," an angry Cooke replied. "The prosecutor was ethically and legally bound to turn the information over. This does not make sense to me. This is all you do. Answer this:  Why does the government get a pass?"

Defense attorneys moved to have the case dismissed because of Hoffman's misbehavior.

"The government's conduct deprived the defendants of their constitutional rights to due process," the attorneys wrote. "Such flagrant disregard for the rule of law and brazen dishonesty to the court and to opposing counsel should 'shock' the court's conscience."

Judge Cooke denied the motion to dismiss but a deal was struck. Winer and Buitrago both pleaded guilty to a lesser charge of conspiracy to transport cocaine and were sentenced to 36 months, with credit for the two years they had already been behind bars pending trial. Both men were subsequently released from custody.

Winer and Buitrago and the Practice of Information Buying and Selling

The little matter of the Brady rule violation in the area of the vetted units wasn't Hoffman's only problem in the Winer-Buitrago case. Defense attorneys also accused her of failing to disclose a letter indicating that another Colombian, Daniel Bustos, who was facing years in prison on a cocaine conspiracy charge, had paid money to another drug defendant, Fabian Cruz, so that Cruz would use his informant connection with prosecutors or outsiders to obtain "inside information" about evidence in the Winer-Buitrago case and feed it to Bustos. Then, Bustos and other defendants could use that information to testify falsely for the prosecution against the Operation Seven defendants in exchange for leniency.

But Assistant US Attorney Hoffman rejected a defense request to obtain the whistleblower letter exposing the dealings between Bustos and Cruz. In the courtroom, Hoffman confirmed that the letter existed, and Judge Cooke gruffly ordered her to produce it for the defense, again citing the Brady rule. At the time, Bustos and Cruz were already on the prosecutors' witness list.

This underground scheme is called "buying and selling" evidence (fake or real) for a defendant to get on the bus with the Feds and ride all the way home to freedom. In a December 2012 story in USA Today, reporter Brad Heath exposed the inner workings of the practice, illustrating how prisoners game the system by buying and selling evidence against other defendants with pending drug cases, then using that bought information to testify for the prosecution in exchange for sentence cuts and early freedom.

That report found that "one out of eight" federal drug convicts had their sentences reduced for helping prosecutors. Similarly, the Houston Chronicle reported that federal judges last year "resentenced 1,738 inmates nationwide after they provided substantial assistance" to investigators and prosecutors.

The corrupt scheme works like this: An inmate with outside connections (or already an informant) will have relatives and friends collect information on the street about a drug dealer's operation, or have operatives to dig up additional information about a dealer awaiting trial. Then the inmate will sell the collected information to prisoners who have money but are short on facts or criminal contacts to cooperate with the government on their own.

Daniel Bustos was hoping to lessen his sentence by paying Cruz to get information on Winer and Buitrago and then using that information to testify against them. And Hoffman was prepared to let him until defense attorneys blew the whistle.

Hoffman has not been officially sanctioned by the court for her misconduct in the Winer-Buitrago case. A court worker told the Chronicle recently that while the matter was under consideration, no ruling had been issued, and Hoffman was still assigned to Cooke's courtroom.

A Miami public affairs spokesman for US Attorney's Office for Florida Southern District declined to comment.

That's not the end of the trouble in Miami. Operation Seven Trumpets and its prosecutors have taken more hits, with other Colombians who had been indicted in the operation and extradited to the US being released and sent home after the charges turned out to have been unfounded.

Carlos Ortega Bonilla

Carlos Ortega Bonilla hugs his son as he is released. (seitleslaw.com)
Carlos Ortega Bonilla and William "Willy" Gil-Perenguez, both Colombian nationals, were arrested and extradited to the US as part of operations Seven Trumpets and BANCRIM. Both were thrown into the Miami Federal Detention Center to await trial on cocaine charges, and both faced up to life in prison if convicted.

Ortega Bonilla, the former head of Colombia's Flight Security (the equivalent to the Federal Aviation Administration), was enjoying his retirement in Bogota when agents armed with paramilitary-style weapons swarmed his home and arrested him.

"You have been indicted for supplying airplanes to traffickers to ship tons of cocaine to other Latin countries and the US," one of the drug agents told him. The agent explained that Ortega Bonilla's voice had been heard on wiretaps selling planes to drug dealers, in particular one Alvaro Suarez, a veteran trafficker who had once worked as a pilot for legendary Medellin Cartel capo Pablo Escobar.

Protesting his innocence all the while, Ortega Bonilla was imprisoned in Bogota while he unsuccessfully fought extradition to the US. He was eventually transferred to Miami, where he languished in jail as he sought to prove his innocence, but that was an extremely hard sell for Assistant US Attorney Hoffman.

"I never worked harder in my life," Miami criminal defense attorney Mark Seitles told the Daily Business Review about his attempts to convince Hoffman to drop the charges.

Seitles immediately hired Ed Kacerosky as an investigator. Kacerosky is a highly decorated former US Customs Agent credited with helping the Feds dismantle the infamous Cali Cartel. Ironically as an agent, Kacerosky had worked closely on previous major drug cases with Hoffman.

Authorities targeted Ortega Bonilla, tapping his phone, but failed to provide evidence that any airplanes he sold were linked to drug trafficking. The key to his freedom would lie in the wiretaps.

"Kacerosky realized after hearing the wiretaps that there was a gross misidentification, and they indicted my client Ortega for acts of another guy named Carlos," Seitles explained.

At an August 14, 2012, hearing in the courtroom of Judge Cooke, Seitles explained that his client had been wrongfully indicted on drug crimes and that his own investigation discovered irrefutable evidence the feds had misidentified his client's voice on the wiretaps.

As a plane broker, Ortega Bonilla sold or leased aircraft, and someone had convinced the feds that he was dirty. But they were wrong.

"Ortega Bonilla's voice was on the wiretaps in one plane deal where he determined that the men who sought the aircraft were drug dealers," Seitles explained. "And he refused to do the deal. No plane was ever sold and emails sent by Ortega Bonilla to the men showed he refused to do business with drug traffickers. There are even recorded calls with Ortega Bonilla attempting to contact the FBI to tell them about this. And the affidavit in support of extraditing Mr. Ortega Bonilla mentioned seven planes and no mention of that airplane, which was an E-90."

The seven planes in question actually belonged to another Carlos, Honduran drug dealer Carlos Litona, Seitles explained.

But Hoffman was having none of it. She argued to Judge Cooke that she had a witness, a co-defendant willing to testify that Carlos Ortega Bonilla was the right guy. Seitles countered in a separate hearing, putting Kacerosky on the stand with the wiretap tapes to explain how he had uncovered evidence that the feds had fingered the wrong man.

"The real guy is Carlos Litona," Kacerosky told the judge.

Without calling her secret witness, Hoffman dropped the charges on August 31.

When Ortega's family arrived at the airport in the Colombian capitol, hundreds of supporters surrounded them, hugging him with teary eyes and wishing him well. But his problems aren't over.

"Ortega Bonilla's US visa has been revoked, and he's having a hard time accepting that he was in custody for a crime he did not commit," Seitles told the Chronicle.

Ortega Bonilla has hired a Colombian attorney to file a lawsuit there and is currently searching for legal representation in the US to file a lawsuit here.

William "Willy" Gil-Perenguez

In June 2006, DEA and Colombian National Police jointly investigated a widespread conspiracy among multiple defendants importing cocaine and heroin on cargo planes traveling from Colombia and landing at Miami International Airport. DEA picked up the name of a cargo worker named "Willy" who supposedly was part of the conspiracy. An informant even identified "Willy" 's voice on wiretaps.

Willy Gil-Perenguez was living the good life at the time in Cali. He had a beloved girlfriend and a decent job, working for the Girag cargo air freight company. But in June 2007, his good life came to a screeching halt, when Colombian drug agents arrested him, believing he was the "Willy" overheard on the drug investigation wiretaps.

He was taken to a DEA office in Colombia, where agents threatened him, telling him to cooperate with them or they could make a phone call and have him sent to prison for 30 years. Gil-Perenguez maintained his innocence, saying he had no idea what they were talking about. In September 2008, he was extradited to Miami to face assorted drug charges that potentially carried a maximum penalty of life in prison.

Facing the wrath and the resources of the US government, Gil-Perenguez caught a lucky break while sitting at the Miami Federal Detention Center awaiting trial. He encountered another detainee, Neixi Garcia Lamela, a major target of Operation Seven Trumpets, who had agreed to cooperate with the feds. But he had bombshell news for Gil-Perenguez.

"DEA agents and Hoffman tried to pressure me to implicate you but I refused, because I knew I would be fabricating testimony to implicate an innocent person," Garcia Lamela told Gil-Perenguez, according to a lawsuit he later filed.

Gil-Perenguez immediately contacted his attorney, Luis Guerra. Guerra relayed to Hoffman the information about Garcia Lamela's admission that his client was innocent.

"I went to Hoffman and said, 'You have the wrong guy. My guy is innocent,'" Guerra told Law.com. "She said she had other witnesses. Turns out the witnesses never existed," Guerra recounted.

After serving 19 months behind bars, which included one year in Colombia's Combita lockup, a place described by human rights activists as one of the most oppressive and notorious prisons in the world, US District Judge Donald Graham freed Gil-Perenguez in February 2009, finding that his voice had been wrongfully identified on the wiretaps.

Gil-Perenguez returned to Colombia wearing a "bad jacket." His fellow countrymen think he snitched on others to be released so early. He filed a $10 million wrongful arrest lawsuit against the US government, charging that he had been left jobless and in pain and suffering. But the US 11th Circuit Court of Appeals threw out the lawsuit, ruling that the US lacked jurisdiction and that it couldn't be sanctioned for "any claims arising in a foreign country."

"Our country is not supposed to be making these kinds of mistakes," Florida attorney Richard Diaz, who represented Gil-Perenguez  in the civil suit, told Law.com.

Hoffman and her colleagues have managed to win some convictions in these high-profile drug conspiracy cases, and given her hardball attitude and willingness to skirt -- if not cross over completely -- the bounds of prosecutorial misconduct, that comes as no surprise. But other Colombian defendants continue to be exonerated, with two more of them, Luis Alfonso Rubiano Ramos and Jose Norberto Mejia Cortez having their cases dismissed and going home in June.

Dr. Ali Shaygan

Dr. Ali Shaygan has nothing to do with Colombian drug trafficking conspiracies, but his case is yet another example of Hoffman's prosecutorial overreach. As previously reported in the Chronicle, Shaygan was charged with overprescribing narcotics as part of the federal government's campaign against prescription drug abuse, but later acquitted.

After his acquittal, Shaygan won a $600,000 judgment against Hoffman and another federal prosecutor, with the judge in the case finding their conduct in attempting to influence witnesses and deny potentially exculpatory evidence to the defense so "profoundly disturbing that it raises troubling issues about the integrity of those who wield enormous power over the people they prosecute."

That judgment was overturned by the 11th US Circuit Court of Appeals. Shaygan and his supporters sought review at the US Supreme Court, but were turned down. In the meantime, Hoffman is still on the job in Miami and, if her work on the big drug investigations is any indication, still bumping up against the rules without serious professional consequence. Prosecutorial misconduct still seems to be a bridge too far for the American criminal justice system to address.

Miami, FL
United States

HUGE: Sanjay Gupta Apologizes for Anti-Marijuana Stance, Slams DEA

In a commentary on cnn.com this morning, CNN Chief Medical Correspondent Dr. Sanjay Gupta endorsed medical marijuana -- and apologized for not doing so sooner:

Reading... papers [about medical marijuana] five years ago, it was hard to make a case for [it]... I... wrote about this in a TIME magazine article, back in 2009, titled "Why I would Vote No on Pot."
 
... I didn't look hard enough.. I didn't look far enough. I didn't review papers from smaller labs in other countries doing some remarkable research, and I was too dismissive of the loud chorus of legitimate patients whose symptoms improved on cannabis...

I mistakenly believed the Drug Enforcement Agency listed marijuana as a schedule 1 substance because of sound scientific proof... Surely, they must have quality reasoning as to why marijuana is in the category of the most dangerous drugs that have "no accepted medicinal use and a high potential for abuse."

They didn't have the science to support that claim, and I now know that when it comes to marijuana neither of those things are true. It doesn't have a high potential for abuse, and there are very legitimate medical applications. In fact, sometimes marijuana is the only thing that works...

We have been terribly and systematically misled [about marijuana] for nearly 70 years in the United States, and I apologize for my own role in that.
 

Gupta's documentary "WEED" will run on CNN this Sunday at 8:00pm EST.

 

 

For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

DEA Unit Uses Spy Data to Launch Criminal Investigations, Then Hide Their Origins

At an undisclosed location in Virginia, a publicity-shy DEA unit is feeding surveillance data from the National Security Agency (NSA), as well as wiretaps, informants, and a massive DEA phone record database, to law enforcement officials around the country to help them launch criminal investigations of American citizens. Reuters broke the story with an investigative report Monday.

Law enforcement has been directed to conceal how those investigations really began, deceiving not only defense attorneys, but also prosecutors and judges, raising serious questions about the propriety and even the constitutionality of the practice.

“The DEA increasingly qualifies as a rogue agency -- one that Congress needs to immediately investigate," "said Ethan Nadelmann, executive director of the Drug Policy Alliance. "This latest scandal may well be just the tip of the iceberg," he added, referring to the agency's checkered past.

"It's remarkable how little scrutiny the DEA faces from Congress or other federal overseers," Nadelmann continued. "With an annual budget of over $2 billion as well as significant discretionary powers, DEA certainly merits a top-to-bottom review of its operations, expenditures and discretionary actions."

The DEA unit in question is the Special Operations Division (SOD), which was created in 1994 to combat Latin American drug trafficking organizations. Its members also include the FBI, CIA, NSA, IRS, and Department of Homeland Security, among two dozen partner agencies. Since its inception, SOD has grown from several dozen employees to several hundred, Reuters reported.

Most of its work is classified and is intended to remain confidential. But Reuters managed to get its hands on key documents, including the one quoted from below.

"Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," one document tells agents. It directs agents to not mention SOD participation in investigative reports or search warrant affidavits in courtroom testimony or discussions with prosecutors, instead instructing agents to use "normal investigative techniques to recreate the information provided by SOD."

In other word, to lie about the origin of information that becomes the basis for criminal prosecutions. DEA officials and former federal agents defended the practice, and one described the process to Reuters.

"You'd be told only, 'Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said.

Agents would then pretend that the investigation began with traffic stop, not with the tip from SOD, a practice known as "parallel construction." Surprisingly, senior DEA officials told Reuters the practice is nothing new and is used to protect sources and methods.

"Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept."

But the practice could violate a defendant's right to a fair trial. Disguising the origins of information could violate pretrial discovery rules by obscuring evidence that could be helpful to defendants. And without knowing how an investigation began, defendants cannot know to ask to review potential sources of exculpatory evidence.

Legal experts pronounced themselves troubled by the revelations.

"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011, who along with others said the practice was more disturbing than the revelations that the NSA is collecting domestic phone records. "It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."

"That's outrageous," said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. "It strikes me as indefensible."

A systematic effort to conceal the evidence that sparked criminal investigations "would not only be alarming but pretty blatantly unconstitutional," said New Jersey defense attorney Lawrence Lustberg.

"You can't game the system," said former federal prosecutor Henry E. Hockeimer Jr. "You can't create this subterfuge. These are drug crimes, not national security cases. If you don't draw the line here, where do you draw it?"

Even prosecutors have problems with the program. One federal prosecutor told Reuters that in one case, a DEA agent "misled" him, telling him an investigation of a US citizen began with an informant's tip. When the prosecutor pressed for more information, a DEA supervisor revealed that the information had actually come via the SOD from an NSA intercept.

"I was pissed," the prosecutor said. "Lying about where the information came from is a bad start if you're trying to comply with the law because it can lead to all kinds of problems with discovery and candor to the court."

The prosecutor never filed charges in the case because he lost confidence in the investigation, he said.

The SOD has claimed some "successes," including a 2008 DEA sting in Thailand aimed at Russian arms dealer Viktor Bout, who was convicted of conspiring to sell weapons to the Colombian FARC guerrilla army. It also coordinated Project Synergy, a crackdown on synthetic drugs that resulted in 227 arrests in 35 states.

"It was an amazing tool," said one recently retired federal agent. "Our big fear was that it wouldn't stay secret."

Medical Marijuana Update

A dispensary is now open for business in the nation's capital, several dozen are coming to Arizona, dispensary and cultivation battles continue in California, Massachusetts advocates prepare to protest restrictive regulations, and the DEA hits a Michigan dispensary. Let's get to it:

Arizona

On Tuesday, state officials announced they had issued 61 dispensary licenses with two weeks left to go in the year-long licensing period. Another 21 would-be dispensaries are scheduled for inspection in the next week.

California

Last Monday, the DEA announced it had raided a defunct Orange County dispensary. Agents hit La Habra Cares weeks after it closed its doors last month after the La Habra city council voted to ban dispensaries, but still maintained a marijuana garden there. No one was arrested.

Last Tuesday, the Anaheim city council banned medical marijuana delivery services. The ban was passed as an urgency ordinance and goes into effect immediately. The city had banned dispensaries in 2007, but didn't enforce the ban until the state Supreme Court ruled in May that such bans are legal. The city's 11 dispensaries all closed, but at least 30 delivery services have popped up.

Last Wednesday, the Rancho Santa Margarita city council passed a first reading of a dispensary ban. Mayor Tony Beall said most medical marijuana patients appeared to be young men and that the herb "is routinely abused and not appropriate for this community." The ordinance will become law if it passes a second reading. The city has had a moratorium on dispensaries since 2011, but that is set to expire this fall. Meanwhile, the council also passed a zoning ordinance that would allow fortune tellers to operate in residential and general commercial zones.

Last Thursday, the Santa Maria city attorney's office presented a dispensary ban ordinance to the city council. The city already bans them, but the new ordinance would specifically ban them in all zoning districts of the city. The proposed ordinance must be approved by the city planning commission and then by the city council, most likely in September.

Also last Thursday, a state appeals court rejected a lawsuit over the seizure of a medical marijuana crop. The First District Court of Appeals ruled that police who seized a marijuana field in Humboldt County and destroyed over 1,500 pounds of pot did not violate the owners' constitutional or statutory rights, including the right to use marijuana for medical purposes. Authorities raided the property despite the presence of posted medical marijuana recommendations for four people, but the court said there was enough marijuana on hand to supply those patients for the next five years.

On Monday, opponents of a new Bakersfield dispensary ban fell short in their efforts to get enough signatures to place the issue before voters. Patients for Compassionate Use Policies needed to come up with some 15,000 signatures to block the ordinance from going into effect, but they didn't show up with any as the deadline expired Monday evening.

On Tuesday, a San Diego judge sentenced a medical marijuana hash maker to jailtime, but not before berating him for having supporters in the courtroom and slamming medical marijuana as a dangerous farce. Judge Peter Gallagher sentenced Victor Marion to eight months and warned supporters, who had demanded that prosecutors heed public opinion, that "if there are anymore attempts to contact the prosecutor, they will be met with arrest and prosecution." Gallagher also treated the courtroom to a diatribe against medical marijuana:  "Medical Marijuana is not a good business plan, 22 year old kids are getting doctor's recommendations for toe fungus and frying their brains on marijuana," he railed.

Also on Tuesday, Tehama County supervisors considered amendments to the marijuana cultivation ordinance that would tighten up rules and regulations. Under the current ordinance, growers can grow 12 mature or 24 immature plants on properties of 20 acres or less and up to 99 plants on larger parcels. The amendments would limit gardens to 12 plants no matter the size or the parcel and whether or not they are mature. They would also create a $1,000 a day fine for abated gardens that aren't destroyed within 10 days after notice. The council acted after hearing complaints from residents of many out of compliance gardens.

District of Columbia

On Monday, the nation's capital saw its first medical marijuana sale at a dispensary. Capital City Care dispensary made two sales Monday, marking the culmination of an effort that began 15 years ago with the passage of a medical marijuana initiative in the city. Congress blocked the initiative from being implemented until 2009, and the District of Columbia government then spent the next four years coming up with strict regulatory and licensing scheme. But now patients can get their medicine legally in the District. "After a couple of years of hard work, it's exciting to open our doors and serve the patients our facility is really for," said dispensary spokesperson Scott Morgan. "This is a moment we've all been looking forward to for a long time."

Massachusetts

On Wednesday, medical marijuana supporters called a demonstration for Thursday at the state Department of Public Health to protest new state regulations limiting patients to only one caregiver, making home cultivation illegal if a dispensary is nearby, and blocking compensation for caregivers. The protest is a picket with signs between 2:00pm and 4:00pm, followed by speeches and a press conference. The address is 250 Washington St. in Boston.

Michigan

On Tuesday, DEA agents raided an Ypsilanti dispensary. The raiders hit The Shop, seizing two vehicles as well as inventory from inside the store. Ypsilanti Police and other state law enforcement assisted. One man was temporarily handcuffed and detained, but later released without arrest. The DEA had no further comment because of "an ongoing investigation."

Washington

On Monday, the Lynnwood city council voted to continue its moratorium on dispensaries and collective gardens. The moratorium will continue for another six months as the city attempts to deal with the issues.

For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

DEA to Pay $4.1 Million to Man Forgotten in Cell

The DEA has agreed to pay $4.1 million to San Diego college student Daniel Chong after rounding him up in a drug sweep last year and then forgetting him in a holding cell for five days without food or water.

UC San Diego student Daniel Chong
Chong attorney Eugene Iredale announced Tuesday that he reached a settlement with the Justice Department. He didn't even have to file a lawsuit.

Chong's not-so-excellent adventure began on the night of April 20, 2012, when the engineering student went to a friend's house in University City to celebrate the pot-smokers' holiday. He was unaware that the house had been under surveillance by a federal drug task force, and had slept over when DEA agents raided the place early the next morning.

Agents found 18,000 ecstasy tablets, as well as marijuana and several weapons in the home. They also found Chong sleeping on the living room couch. DEA agents transported Chong and six other people in the house to the DEA's San Diego office for follow-up questioning.

After questioning, DEA agents decided against charging him and said they would release him. But instead, he was returned to a temporary holding cell -- and forgotten. Chong spent the next four days in the cell without food or water. He said he resorted to drinking his own urine, became delirious, and broke his glasses, using shards from them to cut the message "Sorry, mom" in his own forearm.

Chong said that despite repeatedly pounding on the cell door and calling for help, no DEA personnel came to his assistance. The DEA later admitted that its agents "accidentally" left Chong in the cell and publicly apologized for the oversight.

Neither DEA headquarters in suburban Washington nor the San Diego office has commented on the settlement. The incident was investigated by the Justice Department's Office of the Inspector General, but the results of that investigation have not been released.

San Diego, CA
United States

Medical Marijuana Update

New Hampshire becomes the 19th medical marijuana state, some folks in Kentucky would like it to become one, too; and the local tussling continues in California. And in late news, the DEA strikes in Washington State.  Let's get to it:

California

Last week, San Francisco Supervisor John Avalos moved to potentially expand where dispensaries could operate. He introduced legislation that would require the city Planning Commission to review the city's 2005 medical marijuana law and provide recommendations for changes. Avalos is seeking to avoid the clustering of dispensaries in his Outer Mission neighborhood. The review would include analysis of "impacts on the public health, safety and welfare of expanding the areas" where dispensaries can open and the impact of existing rules on patient access.

Last Friday, a Bakersfield dispensary landlord paid $1.675 million to the United States to resolve claims his buildings housed medical marijuana dispensaries and grow operations.  Ned Strizak now gets to keep his properties, which the Justice Department had sought to seize in October 2011.

Also last Friday, Bakersfield medical marijuana supporters announced they are organizing a referendum to overturn a June ordinance banning dispensaries in the city. The ordinance was approved by the Bakersfield city council June 26 and will become law August 1. It is modeled after an example in Riverside, which was upheld in a decision by the California Supreme Court allowing cities to ban dispensaries. The Patient Advocacy Network will need to gather 15,326 valid voter signatures to force a vote on the issue. They only have until July 29. If they succeed in getting the necessary signatures, the city council will have two options: consider a vote to repeal the ordinance or call for an election to let voters decide.

On Sunday, the state Democratic Party passed two pro-medical marijuana resolutions at its executive board meeting in Costa Mesa. The first called on President Obama to (1) respect the voters of Colorado and Washington and to not allow any federal interference in the enactment of their marijuana legalization initiatives, (2) end the federal raids on patients and providers in medical marijuana states and (3) appoint a commission to look into the reform of our nation’s marijuana laws. The second resolution called on the state legislature to enact statewide guidelines for medical marijuana distribution that respects the rights of local municipalities to regulate and license but will also provide marijuana "to all patients in all areas of California, rural as well as urban." The resolutions were the work of Riverside activist Lanny Swerdlow and the Brownie Mary Democratic Club he helped organize.

On Tuesday, the Tehama County board of supervisors moved to heighten penalties for non-compliant medical marijuana grows. The board voted to direct staff to prepare amendments that would allow for monetary and criminal penalties against grows found to be out of compliance with the county's marijuana cultivation ordinance. The proposed amendments come after several months of increasing complaints regarding noncompliant marijuana grow sites, particularly in the Rancho Tehama Reserve area.

Kentucky

Last Thursday, a push to get medical marijuana legislation moving got underway. State Sen. Perry Clark (D-Louisville) hosted supporters at his home ahead of a hearing scheduled for next month in a legislative committee. Perry and supporters also rallied Sunday in Louisville. Perry has introduced bills that have gone nowhere for the past two years, but now has won a hearing and will reintroduce a medical marijuana bill next session.

New Hampshire

On Tuesday, Gov. Maggie Hassan (D) signed a medical marijuana bill into law, making New Hampshire the 19th medical marijuana state and making all of New England medical marijuana country. The bill is one of the most restrictive yet -- it allows no personal grows and it could take two years for dispensaries to open -- but it is a medical marijuana bill.

Washington

On Wednesday, the DEA raided at least five Puget Sound region dispensaries. The dispensaries raided included Seattle Cross, Tacoma Cross, and the Bayside Collective in Olympia.

[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

Obama Discusses Race and Justice System in Trayvon Martin Remarks

Pres. Obama's remarks on the Trayvon Martin case dealt extensively with issues of racial bias in the criminal justice system (starting at about 4:30). Drug laws are briefly touched on (4:38). Obama discusses his work in Illinois's legislature passing racial profiling legislation (9:30).
 
Media have focused on Obama's past involvement in the racial profiling issue in recent days. An Associated Press article yesterday detailed his efforts in the the Illinois legislature to address the issue. In a piece on Salon.com this morning, Edward McClelland posted audio of an interview with the president last year, including a recording Obama played of a 2000 campaign ad highlighting racial profiling (at about 40:20).
 
Video of the speech and interview follow:
 
 
 

Chronicle Book Review: Too High to Fail

Doug Fine, Too High to Fail: Cannabis and the New Green Economic Revolution (2012, Gotham Books, 319 pp., $28.00 HB)

[Ed: This review was based on the hardcover edition of "Too High to Fail." The paperback edition of Too High Fail has now been published as well. According to the author it includes a a postscript that reflects "more unbelievable happenings in Mendocino County and worldwide through the beginning of this year."]

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Marijuana and marijuana policy are big news these days -- they are exciting times, indeed! -- and that's reflected in what has now become a deluge of books on the topic. We've probably reviewed a dozen or more pot books in the last year alone, and here's another one. While, given the torrent of titles, it becomes increasingly difficult to stand out in the crowd, New York Times bestselling author Doug Fine's Too High to Fail is exceptional.

Fine writes with verve and passion, making it clear from the outset that he views marijuana prohibition as not only useless, but harmful -- not only to any sense of justice and morality, not only to the millions of people arrested and punished in myriad ways for the crime of possessing or trading in a hugely useful and versatile plant, but also to the country's efforts to claw its way back from the precipice of the Great Recession.

With that out of the way, in early 2011, Fine heads off for Mendocino County, California, ground zero in the new marijuana economy. A couple of hours north of San Francisco on US 101, Mendocino is part of the state's famous marijuana-growing Emerald Triangle, and is, to a mind-blogging extent, dependent on the pot economy. In fact, if not for pot, Mendocino would probably wither up and blow away. The logging industry is history, and the legal agricultural economy is a fraction of the size of the pot economy. (The county's largest legitimate ag crop, wine grapes, pulled in about $75 million in one recent year, at the same time the pot harvest was estimated at $8.1 billion, or about a hundred times as much).

The pot economy is normalized in Mendocino County. Marijuana dollars pay for everything from the new pickup trucks flying off dealers' lots every fall to the capital necessary to open boutique businesses that dot one-horse towns like Willits and Ukiah to the salaries of Mendocino County sheriff's deputies (at least for a couple of years; see below). County officials know what the local economy runs on, and so does the sheriff, which is why the county instituted its zip-tie program for growers willing to register as medical marijuana providers. Farmers paid thousands of dollars into county coffers for those zip-ties, which would let state and local law enforcement know that these were legal grows, not outlaw ones.

If California, where medical marijuana is legal is Fine's "bubble," Mendocino County, with its casual acceptance of the pot economy is the bubble squared, and growers operating within the guidelines of the zip-tie program, complete with inspections by law enforcement are inside the bubble cubed. This is where Fine situates himself, as he uses the journey of a single plant from cloning to delivery to a patient as the hook for his narrative of his hazy Mendo days.

Fine's sympathetic portraits of the folks involved, from Sheriff Tom Allman, who told him he wouldn't get "up off my ass" to arrest a guy with a pound of pot in the sheriff's parking lot and who created the zip-tie program, to Deputy Randy Johnson, who performed the unique job of zip-tie program compliance sergeant, to novice Mendo outdoor (but experienced East Bay indoor) grower Tom Balogh, who grew the clone Fine tracked, to Northstone Organics head Matt Cohen, who was determined to run a farmer-to-patient collective in scrupulous compliance with state laws, help put a human face on Mendocino's marijuana culture and some of its intricacies.

Fine also shines at explicating the various currents and tensions that run through the community, whether it's the veteran "Redneck Hippies" unhappy with the new generation of young, bling-slinging profiteers or county commissioners not exactly happy with Mendo's free-wheeling grow scene, but who recognize that it can't be wished away and should instead be regulated for the benefit of the county and its citizens. Or the travails of newcomer Balogh, who must contend with skeptical neighbors and prove to the community that he's not just another hit-and-run wannabe "sensimillionaire."

But while Fine spent a season deep inside the bubble, he also found that it could be punctured. He details his own experience being pulled over by sheriff's deputies in neighboring Sonoma County to the south who profiled him for his facial hair and muddied, big-tired pick-up, as well as the misadventures of two Northstone Organics deliverymen also pulled over and busted by Sonoma narcs and, gallingly, prosecuted by Sonoma County district attorneys. The drive from Mendo south through Sonoma and on to the Bay Area was called "running the gauntlet," as law enforcers on the hunt for busts and assets to seize preyed on the US 101 traffic less like highway patrolmen than highwaymen.

(As a resident of medical marijuana-friendly Sonoma County, such behavior by my elected officials and their minions offends my sensibilities. I'll be attending a Summer Solstice event this coming week to celebrate the formation of a political action committee whose goal is help enlighten our public servants, or replace them if they appear too thick-headed to get it.)

But Fine, Northstone Organics, and the entire Mendocino County effort to craft a tightly-regulated, county-benefiting medical marijuana program encountered an even more dramatic bursting of the bubble when federal prosecutors renewed their war on medical marijuana in the fall of 2011. Mendonesians had largely ignored the raids on dispensaries going on elsewhere in the state as the war ramped up, but they couldn't ignore the crew of DEA agents who rousted Cohen at gunpoint and chopped down Northstone's 99 plants, depriving more than 1,700 patients of their medicine, and effectively putting an end to the innovative zip-tie program.

With Too High to Fail, Fine show us how marijuana can be regulated and integrated into the community. And he dares to dream of a future where the cannabis plant, with all its manifold uses, can be integrated into, and indeed, become a boon for, the American economy. He also shows us the obstacles in the way.

The story of Mendocino's (and America's) marijuana adventure didn't stop in the fall of 2011. Since then, even as the first two states legalized marijuana outright at the ballot box, the federal offensive against medical marijuana in California has continued. Mendocino County had to fend off an overreaching federal subpoena of all records related to its medical marijuana program, Northstone has been knocked out of business, and an innovative program that served the interests of the community and the local economy has been stopped in its tracks.

In the new paperback edition, Fine returns to Mendocino and adds a 6,000 postscript on all the exciting developments since 2011, including legalization in Colorado and Washington, the seismic shifts in public opinion in favor of legalization, and the continuing trials, tribulations, and triumphs of the county's growers and the public officials attempting to come to grips with it all.

Although Fine looks bravely and boldly toward a cannabized future, we aren't there yet. But Too High to Fail chronicles what it could look like based on the Mendo experience, and provides a valuable and entertaining read along the way.

Will Mexico Cartel Leader's Capture Reduce Violence or Drug Abuse?

The leader of Mexico's brutal Zetas organization has been captured in northern Mexico, authorities announced. According to the Associated Press:

Trevino Morales, 40, was captured by Mexican Marines who intercepted a pickup truck with $2 million in cash on a dirt road in the countryside outside the border city of Nuevo Laredo, which has long served as the Zetas' base of operations. The truck was halted by a Marine helicopter and Trevino Morales was taken into custody along with a bodyguard and an accountant and eight guns, government spokesman Eduardo Sanchez told reporters.
 

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Trevino Morales (state.gov)
The US State Dept. had offered up to $5 million for help in capturing him.

The report is mainly about the facts of the capture, and of Morales and the Zetas. There's one expert quote, about Morales:

"He is the most sadistic drug capo in Mexico," said George Grayson, a professor of Latin American politics at the College of William and Mary and an expert on the Zetas cartel. "He delights in inflicting torture and pain. He deserves to be in the lowest rungs of hell."
 

Grayson's take on Morales is easy to accept, if one has read any articles about the Mexican drug wars of the past several years. In fact there are reports I wish I'd never read. That said, I wish the reporter had sought some expert quotes about whether capturing a kingpin like Morales is likely to reduce drug trafficking or availability or abuse; and whether it could reduce the violence.

The answer to the first question is decidedly "no." The Zetas will continue doing business and/or will splinter into rival factions doing business and/or other drug trafficking organizations will get the business. This is what has always happened previously.

Looking at the second question, the backdrop is that illegal drug trafficking exists because of prohibition. Absent drug prohibition laws, the trade and the vast revenues it currently generates would mostly reside in the licit economy, not encouraging violence in the trade. All that would be left in the underground is a sliver from "gray market" activity, smuggling to evade taxation and so forth.

Mexico's drug wars have reached the height of violence they have in recent years, in part because of the escalation of anti-cartel activity -- such as the capture of cartel leaders like Morales. It's had the effect of producing many localized drug trafficking groups, fighting many more wars than was the case before. The current weakness of the government in terms of keeping a lid of crime is also a factor. The aggressive escalation of anti-cartel activity undertook by the administration of former Pres. Enrique Calderon came at a time when the government was least able to minimize the unintended consequences of such a program, which made it even worse.

Does that mean that Morales's capture will necessarily provoke yet more violence? It might, but that depends on which way Mexico goes. One of the truisms of prohibition is that tolerating the prohibited activity can sometimes reduce the violence associated with the prohibited activity. One cartel can be replaced by a less violent one, if the government quietly allows that to happen.

So Mexico has some choices to make. But it would be better to expand the set of choices by considering international legalization systems, as Latin American leadership is currently pressing for a discussion of.

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