Pubdate: Wed, 17 Aug 2005
Source: Anderson Valley Advertiser (CA)
Column: Cannabinotes
Copyright: 2005 Anderson Valley Advertiser
Contact:  http://www.theava.com/
Details: http://www.mapinc.org/media/2667
Author: Fred Gardner
Action: Feds Escalate War on Activists http://www.mapinc.org/alert/0315.html
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/people/Dustin+Costa (Dustin Costa)

FEDS TAKE OVER PROSECUTION OF DUSTIN COSTA

Down in the Valley

The valley so low

Hang your head over

Hear the wind blow

Dustin Costa, leader of the Merced Patients Group, was arrested at his
residence on Wednesday, Aug. 10. He is being held at a federal detention
facility in Fresno pending a bail hearing. Federal prosecutors are taking
control (from the Merced County district attorney) of a case based on the
seizure in February 2004 of some 900 plants, 8.8 lbs of dried marijuana
(leaves and shake), and a shotgun from Costa's greenhouse. In a federal
trial the jury will not be allowed to weigh Costa's claim that the cannabis
was all destined for medical users and dispensaries.

Costa, 58, is a Vietnam-era Marine Corps vet who has experience as a union
organizer. Instead of retreating after getting busted, he devoted himself
to building the Merced Patients Group. It's a co-operative for which
attorney Bill McPike wrote the by-laws in conformance with state law
(created by Prop 215 and SB-420) and precedent cases. McPike advised that
the patients group could assign (hire) members to grow marijuana for those
who were unable to do so for themselves. "DC was very confident that they
were establishing a legal model that would be applicable throughout the
state," says Tom O'Connell, MD, who has seen patients in Merced.  "His
group was really picking up momentum."

Willingness to do political work is one of the explicit conditions for
membership in Costa's group. Last month he led eight MPG members to the
office of Congressman Dennis Cardoza to protest Cardoza's "no" vote on an
amendment that would have stopped the DEA from raiding growers and
distributors in states with medical-marijuana laws. Cardoza was the only
California Democrat to oppose the measure. Costa and crew arrived at his
office dressed in black t-shirts emblazoned front and back with a bright
marijuana leaf and blunt slogans: "Safer than aspirin" on one side, "More
effective than Ritalian" on the other.

MPG members also had gone in their distinctive attire to public hearings in
Modesto and Stockton (where their input helped block extension of the local
moratorium on cannabis dispensaries). They twice attended San Joaquin
County Superior Court proceedings in support of Aaron Paradiso, a
quadriplegic facing cultivation charges. They launched a graffiti removal
project that was written up favorably in the Merced Sun-Star. The group was
there en masse when Costa appeared in Superior Court in Merced and got a
continuance of his trial till October -over objections from the D.A.
Ebullient after this small victory, Costa's friends distributed t-shirts to
courthouse employees.  Was it this pattern of activism that led to the
re-arrest on a federal warrant?

A third-hand account of the August 10 bust: "Six or seven officers came
with guns drawn -Winton police, CHP, sheriff's deputies, state Bureau of
Narcotics Enforcement. No feds, although they had a federal arrest warrant.
They handcuffed Dustin but were relatively pleasant. When they started to
search the apartment Dustin asked them to see a warrant and that seemed to
throw them into disarray. They tried to call the DEA. After an hour they
left [with Costa in custody], saying that they weren't going to conduct a
search at that time."

The looming question is: at whose initiative did the feds take over the
prosecution? Most of the explanations are ominous (and not mutually
exclusive). Congressman Cardoza could have expressed his displeasure with
Costa. A sheriff who had it in for Costa might have asked a federal
colleague, as a personal favor, to take him down. The Merced County D.A.
could have asked them,  knowing that Costa was going to mount a vigorous
medical marijuana defense in Superior Court and the Central Valley media.
Or the feds on their own could have moved against Costa after identifying
him as a leader in a political movement they are determined to stamp out.
DEA Administrator Karen Tandy issued a revealing statement July 29 on the
arrest of Canadian seed salesman Marc Emery: "Today's arrest of Mark (sic)
Scott Emery, publisher of Cannabis Culture magazine and the founder of a
marijuana legalization group, is a significant blow not only to the
marijuana trafficking trade in the U.S. and Canada, but also to the
marijuana legalization movement. Hundreds of thousands of dollars of
Emery's illicit profits are known to have been channeled to marijuana
legalization groups active in the United States and Canada. Drug
legalization lobbyists now have one less pot of money to rely on."

If the DEA is applying political criteria in deciding who to take down in
California, Costa would have been a prime candidate. He was the leading
activist in the Southern Division of the Eastern District. "He was our ace
and he was trumped," says Tom O'Connell. Undoubtedly the DEA and federal
prosecutors will claim that they had no ulterior motives and that Costa is
being prosecuted based on the number of plants he had under cultivation. A
detention hearing for Costa will be held in Fresno Federal District Court
Aug. 17, the day this paper appears.

Can Costa's rearrest be considered a direct result of the Supreme Court's
ruling in the Raich case? U.S. Attorney McGregor Scott was paraphrased thus
in the Merced Sun: 3marijuana remains an illegal drug under federal law, as
affirmed by the U.S. Supreme Court last June.2 Assistant U.S. Attorney
Karen Escobar will prosecute Costa, who was indicted by a federal grand
jury on three counts, all originating from his February '04 arrest:
Manufacturing, possession of 8.8 pounds, and intent to sell.  He faces a
mandatory-minimum five years and a fine of up to $2,000 for each drug
charge. The gun charges adds a mandatory consecutive five-year term.

"Costa has been flaunting the law for months now under the guise of
Proposition 215," Merced County Sheriff Mark Pazin told the Sun. "What
Costa has done is take the original intent of medical marijuana and has
used it for his own agenda."

O'Connell was concerned by word that Costa, a diabetic with a problematic
ticker, had gone on a hunger strike. The good doctor reached him by phone
at the Fresno jail to advise against it. Attorney Bill McPike visited Costa
Saturday, Aug. 13, and reports that his morale is holding up. McPike says a
deputy was "upset and sympathetic" upon learning that Costa's arrest was
actually a rearrest in an ongoing Superior Court case. McPike estimates
that he and Dennis Roberts had made some 20 appearances on Costa's behalf
over the past year and a half.

In the world of common sense, Costa has been put in double jeopardy, which
most Americans assume to be illegal. "Not according to the courts,"
explains attorney Joe Elford. "First, there is the fiction that the state
and federal governments are separate sovereigns, so they can each attempt
to prosecute once without any double jeopardy problems. Double jeopardy
only prevents successive prosecutions by the same same sovereign. (This is
how the Rodney King police were convicted in federal court after being
acquitted in state court.) Second, the prohibition on double jeopardy
attaches only after the jury is sworn.  Because Dustin made bail, there was
no jury trial, so there could be no double jeopardy."

But Dustin Costa sits in a cell in Fresno, having been arrested twice for
the same "crimes." In the real world. Doing real time.

Hear the wind blow, D.C.,

Hear the wind blow

Hang your head over

Hear the wind blow

- ---
MAP posted-by: Jay Bergstrom