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August 7, 2008 -- New Times (CA)

[Med MJ]: Guilty On All Charges

Sentencing Is Scheduled for October 20, but Attorneys Vow to Appeal

By Kylie Mendonca

Return to Drug War News: Don't Miss Archive

Los Angeles -- Charles Lynch, in his recent federal trial for selling what he wasn't allowed to call medical marijuana in Morro Bay, had set out to do the unlikely.

Selling marijuana is illegal under federal law, and yet he didn't dispute, on the stand of a federal court, that he'd sold marijuana.

Selling marijuana to people under age 21 is an even more serious crime under federal law, and yet he didn't dispute, on the stand of a federal court, that he'd sold marijuana to people younger than 21.

And selling lots of marijuana is especially illegal, and yet he didn't dispute, on the stand of a federal court, that he'd sold millions of dollars worth, to thousands of patients.

In short, he entered a system rigged entirely against him and demanded a trial by a jury of his peers.

It was a bold tactic -- nearly everyone who has been arrested by federal authorities for running medical marijuana dispensaries has taken plea bargains -- but it wasn't really quixotic. Lynch's defense was that he'd talked to representatives of the federal Drug Enforcement Administration-they didn't deny it-and understood he wouldn't be prosecuted if he opened a medical marijuana dispensary (they did dispute that).His attorneys argued that Lynch was entrapped.

The jury didn't buy it.

"Charlie was steamrolled by the federal government," Lou Koory, Lynch's former lawyer said. "It's hard to win when the jury is not allowed to see all the evidence. How are you supposed to present a defense?"

Lynch was found guilty of the five charges against him. As a result, he faces up to 100 years in jail, although Koory said the judge might not be constrained by mandatory minimums, since it was obvious that Lynch was not a drug kingpin.

"The trial judge requested briefs from both parties,' Koory said, "on how he can avoid imposing mandatory minimum sentencing."

Lynch will be sentenced in October. Until then, he has been ordered back on house arrest with an ankle monitor.

His attorneys have vowed to appeal.

In the Courtroom

The federal courtroom where Lynch was tried on charges of conspiracy and drug trafficking seats only about 70 people, as observers discovered during the final hours of his week-and-a-half-long trial.

In the first days of the trial, the courtroom was occupied by a few reporters, a few curious lawyers outside the case, Lynch's immediate family, and some former patients of his defunct Compassionate Caregivers of the Central Coast medical marijuana dispensary, the Morro Bay business that closed last year after a raid by federal agents and local sheriff's deputies.

By the end of the trial, the courtroom was packed with medical marijuana backers from the Los Angeles area, federal prosecutors with no connection to the trial, and Lynch's die-hard supporters. The case was featured on CNN in a report that called it the "apex" of a clash between state and federal marijuana laws. The media attention was further stoked by the fact that DEA agents raided two Los Angeles-area dispensaries on the same day while the trial was underway.

Outside the courtroom, Los Angeles was sweltering. Even for August, the city was sticky and cursed with a persistent heat that was amplified by all the vehicle exhaust. Read what you want into the weather; the case was also briefly delayed by an earthquake.

In theory, the prosecution's case should have been open-and-shut. Under federal law, it's illegal to sell marijuana. Period. End of sentence, beginning of sentencing.

And the case should have been made even easier by the fact that Lynch was prevented from arguing that the drug was provided as a "medical necessity." Under the specifics of federal law, Lynch was nothing more than a simple drug dealer, and one who had computer records listing all his sales and patients.

Yet Lynch was not a drug trafficker in the traditional sense, nor was his dispensary some seedy drug house. His was a dispensary operating under California law with the blessing of local officials, who had provided him a business license and even posed for a ribbon-cutting ceremony when the dispensary opened in 2006.

Although California has passed laws decriminalizing the drug for medical use in California, the federal government refuses to recognize marijuana as a medicine and has pursued, with great enthusiasm, purveyors of medical cannabis.

More than 60 California dispensaries have been raided in the last two years. To medical marijuana supporters, the raids are an assault on patients, who are denied safe access to the drug when dispensaries close, and, perhaps worse, are denied basic privacy rights when their medical records get seized as evidence. Indeed, a patient of Lynch's dispensary has filed a lawsuit against Sheriff Patrick Hedges, alleging the lawman committed crimes when he sought the raid.

The recent crackdown on medical marijuana dispensaries in California has newly stirred the debate over a state's right to self-govern. And Lynch, a soft-spoken man who had no previous criminal record-not even a traffic ticket-when he was arrested, seems to have become, at least for the moment, the poster boy for the medical marijuana debate.

Lynch's Defense

Charles Lynch took the stand in his own defense July 30, four days into the federal marijuana trial.

Lynch's own attorney, Reuven Cohen, began by asking a comically obvious question:

"Mr. Lynch," Cohen began, "Did you have some marijuana in that marijuana dispensary of yours?"

Lynch cautiously affirmed that he did, eliciting snickers from his supporters in the audience. They pooled along the left side of the room, just behind the defense, and kept close watch on the jury for any sign of fluxing emotion.

In general, medical marijuana cases are stupidly easy to prosecute. Business owners provide their own prosecution case with tax documents, patient lists, and receipts. Information about state law, whether a person is conscious of it or not, never enters the courtroom, and all that's left for the prosecutor is to tie the case up with a nice little bow.

Lynch's defense, however, made murky that tidy prosecution formula. His lawyers claimed that Lynch was the victim of an obscure form of entrapment, estoppel, which basically means that he received and relied on faulty information from an official within the federal government. The foundation for that argument was a series of phone calls Lynch made to the DEA, in September 2005, several months before he opened the dispensary. Lynch's attorney wrote the phone numbers he dialed on a white poster board, where they remained before the court throughout the trial.

Estoppel is not only obscure; it allows the defense certain unusual latitude, such as the right to keep their witnesses and strategy hidden until it is actually presented. And, unlike most trials, wherein the government bears the burden of proof exclusively, the defense must also do some convincing, although their burden of proof is considerably less than that of the prosecution.

In reality, his defense, and his future hung on just a few words uttered by someone at the DEA. It went something like this:

On September 12, 2005, according to Lynch's phone records and his testimony, Lynch called the DEA four times, being referred to another number during each call. On the fourth call, which lasted seven minutes, Lynch said that a woman answered the phone:

"Marijuana task force."

Lynch testified that he asked the person on the other line what the DEA planned to do about all the marijuana dispensaries that were popping up around California, at which point he was transferred to someone he assumed was a supervisor. So Lynch asked his question again, and this time, he testified, he got a definitive response.

According to Lynch's testimony, on the fourth call he was told that it was up to cities and counties to decide how they wanted to handle the matter of medical marijuana dispensaries.

So, Lynch asked: What if he wanted to start a medical marijuana dispensary? He said he got the same answer.

From that minimal interaction, Lynch inferred that if he followed state and local laws governing medical marijuana that he would not have trouble with the DEA.

Clearly, that was not the case. Lynch's business was raided about a year and a half after that call.

When the defense finally materialized in this fashion, it created such a ruckus that the jury was dismissed for the day.

An estoppel defense has five specific elements that must be met, and Lynch's defense had some holes. It requires, first, that the authoritative figure actually has the power to give the information the defendant relied on. Lynch didn't even know the person's name. The authoritative figure must also be given all the relevant facts. In Lynch's case, the prosecution asserted that information would have included the location of the proposed dispensary and the fact that it would be selling to "minors." The authority must explicitly mislead by saying that an action is legal, not just imply that someone won't be punished. For estoppel to work, one must also prove that the defendant relied on the misinformation, and that reliance was reasonable.

The prosecution objected to the use of estoppel in this case, sparking a series of debates, and Judge George Wu sent everyone home for the day, without a decision on the legitimacy of the defense.

He returned the following day with a ruling: Estoppel would be considered an appropriate defense in three of the five charges Lynch faced, but for the two charges related to selling marijuana to minors-which carry stiffer penalties, it would not be accepted, because, from Lynch's testimony, no element of the conversation dealt specifically with selling marijuana to minors. The rest was up to the jurors to decide.

While the jury didn't buy the estoppel defense, the tactic was still a minor moral victory for the defense, if only because it allowed him to argue that he'd been in compliance with local laws, something nearly unheard of in a federal marijuana case.

Lynch's attorney, John Littrell, commented before the verdict was received, that at least "In the end the jury did get to hear about Charlie."

Once the estoppel was established, the testimonial floodgates were opened. Morro Bay's mayor, Janice Peters, and its city attorney, Rob Schultz, were both subpoenaed to testify as character witnesses on Lynch's behalf.

Schultz described Lynch as a law-abiding citizen.

"I was basically asked my opinion as to the moral character of Charles Lynch," Schultz said. "I said as a businessman he complied with all the laws and rules and ordinances of the city of Morro Bay."

On the final morning of the trial, Debbie Beck, the mother of 19-year-old Owen Beck, who lost a leg to cancer, was also able to testify to Lynch's character, even though her son had been kicked off the stand days earlier, apparently because he mentioned the words "medical marijuana."

Debbie Beck, who described herself as a conservative Republican, said that medical marijuana wasn't the first prescription they sought to ease her son's pain, but after they tried other pharmaceuticals, they were ready to try something new. And, she said, the marijuana worked.

Owen, she testified, was too sick to grow his own marijuana, so eventually they sought medicine from Lynch.

"It's a sad situation Charlie's in right now," Debbie Beck said after her testimony. "My heart aches for a person who is set up like this."

What about Charlie Lynch?

Lynch does not seem the kind of man who will do well in prison. He was described by one of his dispensary employees as not having a mean bone in his body.

The former software developer is generally unimposing, and unfussy, even in a suit. His hair is short, grey, and balding on top, and he looks somewhat like the actor Jeff Daniels, only shorter. His lips form a thin line, which is slightly turned down, but not in an unpleasant way.

Most remarkably, he looks like someone who's aged ten years in one year's time.

During the trial, he sat with hands clasped atop the desk, and looked toward the jury as the prosecution used Lynch's own business records and patient lists to paint him as a big time drug dealer who sold to minors and masterminded a drug operation, which grossed $2.1 million in sales for one year.

The Prosecution

Lynch's trial began Friday, July 25, and continued for seven days, longer than anyone expected it would take to prove that Lynch was involved with selling marijuana.

Federal prosecutors were painfully thorough during the first three days of the trial, when they presented several witnesses from law enforcement agencies, including sheriff's deputies, who were part of the yearlong stakeout of the dispensary. They brought experts: a chemist, who concluded that the marijuana and hash being sold from the dispensary contained THC -- the active ingredient in marijuana -- and an investigator from the IRS, who tallied grams of marijuana sold from the dispensary based on receipts.

DEA Agent Rachel Burkdoll, who was largely responsible for executing the federal warrant to raid Lynch's home and business, left her seat next to the prosecutors to explain from the witness stand a series of charts made from patient records. Lynch's clientele, the records showed, consisted of more than 250 minors-younger than 21 years old by federal standards.

But perhaps the most damaging blow to Lynch's estoppel defense came from a DEA agent who claimed to be the most probable person to have answered the fourth phone number, except she said she didn't remember Lynch's string of questions from more than two years ago.

Furthermore, she said, no one on that line would have answered the phone as "marijuana task force," and they certainly wouldn't have given Lynch any indication that selling marijuana was permissible.

Lynch's attorneys are already planning their next move. The omission of certain facts could be the basis of Lynch's appeal, Littrell said following the verdict. First, though, they'll have to wait for sentencing, and then the appeal process can begin with a request for a new trial. For now, Lynch is out on bail, though confined to his home, at least until his sentencing.

"Our county is not any safer because of this prosecution," Koory said. "I'm not sure who the raid and prosecution benefited."

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