Pubdate: Mon, 26 May 2014
Source: Los Angeles Times (CA)
Copyright: 2014 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: Lee Romney

A D.A. WEEDS OUT THE POT CASES

When David Eyster took over as Mendocino County district attorney, 
felony marijuana prosecutions were overwhelming his staff and 
straining the public coffers.

With hundreds of cases active at any one time, taking an average 15 
months to resolve, there were few victories to show for all the effort.

"The system hadn't broken yet," Eyster said, "but it was dangerously close."

That was a little over three years ago.

These days marijuana cases clear in about three months and the 
Sheriff's Department is flush with cash, thanks to what some are 
calling "the Mendocino model." To others, it's the Mendocino shakedown.

The transformation began when Eyster dusted off a section of the 
California health and safety code, intended to reimburse police for 
the cost of cleaning up meth labs and pot grows, and retooled it for 
a modern Mendocino County.

In exchange for paying restitution, which Eyster sets at $50 per 
plant and $500 per pound of processed pot seized, eligible suspects 
can plead to a misdemeanor and get probation. (The law says 
restitution is reimbursement for actual enforcement costs, but 
defendants waive an itemized accounting and state the amount owed is 
"reasonable.")

The relinquishing of allegedly ill-gotten gains seized in separate 
civil forfeiture actions - cash, trucks and the occasional tractor - 
also might be part of the deal offered under Eyster's "global resolutions."

The restitution program is available only to those without 
troublesome criminal backgrounds who have not wildly overstepped 
California's somewhat gray laws on medical marijuana. Those who 
trespass, grow on public lands or degrade the environment need not apply.

Eyster said it's a complex calculation that he jots out himself, by 
hand, on the back of each case file. The size of a grow is not 
necessarily the deciding factor: In one current case, the defendants 
have records indicating they are supplying 1,500 medical users, 
Eyster said. Another case involved just four pounds of processed 
marijuana, but evidence indicated the defendant was selling for profit.

Participants must agree to random searches while on probation, comply 
with medical marijuana laws and grow only for personal use.

Restitution funds, which have topped $3.7 million since early 2011, 
go directly to the investigating agencies. Asset forfeitures - the 
$4.4 million in cash and goods seized in 2013 was nearly double the 
previous year - are shared by the state, the district attorney's 
office and local law enforcement.

Among those who have criticized the program is Mendocino County 
Superior Court Judge Clay Brennan, who during a restitution hearing 
last year for a man with an 800-plant grow blasted it as "extortion 
of defendants."

A federal grand jury investigating county programs that derive 
revenue from marijuana enforcement has subpoenaed accounting records 
on the restitution program, Eyster confirmed. The reason is unclear, 
as the U.S. attorney's office declined to comment on the probe.

Legal analysts also have raised concerns about the potential for 
unequal treatment of defendants and the incentive for officers to 
focus on lucrative targets at the expense of those more menacing to 
public safety.

"It suggests a two-tiered system of justice," said Alex Kreit, 
associate professor at Thomas Jefferson School of Law in San Diego, 
"where people who don't have the money for the restitution or don't 
have assets they can use as a bargaining chip may get more severe 
criminal punishments."

Eyster counters that he personally handles every marijuana case, and 
can opt to lower fines or not prosecute indigent suspects.

"The way we achieve consistency is that I do it," he said. "You can't 
pick every dandelion in the park."

::

A search warrant at Nicholas Koulouris' property last July turned up 
processed pot, a 171-plant garden, garbage bags of marijuana shake - 
or crumbs - and a 2006 Yamaha Grizzly.

By the time criminal charges were filed in January, a deal had been struck.

Koulouris received misdemeanor probation and paid the Sheriff's 
Department $10,750. A settlement agreement on the forfeiture shows 
that he paid the district attorney's office $5,000, the estimated 
value of the Yamaha, and got it back.

Neither Koulouris nor his attorney would comment on the case, which 
offers a road map to the global resolution approach.

Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 
to try to make pot cultivation a "wobbler," prosecuted as either a 
felony or misdemeanor. The effort failed, but he had devised another 
way to thin the caseload.

He drew on past experience with welfare fraud, where considering 
restitution before making a filing decision was routine. Convinced 
that not all defendants were created equal - the mastermind behind a 
for-profit grow is more culpable than hired trimmers - he decided to 
evaluate each case, consider potentially exculpatory evidence and cut 
deals as he saw fit.

He offers defendants guidance on how to stay within the law, and said 
paying restitution "shows a step toward rehabilitation."

"A month doesn't go by when someone doesn't say: 'Thank you for 
handling it this way,'" Eyster said.

Since he took office, 357 defendants have decided to pay restitution. 
About 20 of those violated their probation, resulting in 180-day jail 
stints and new charges. (On a second round, a straight misdemeanor 
charge is off the table.)

Eyster never accepts seized cash as payment of restitution, but his 
approach does throw such assets into the bargaining mix.

It is unclear how many probationers paid restitution and forfeited 
seized cash or goods, but Eyster conceded the practice is common. 
"One hundred percent of the time, the defense wants to do a global 
resolution," he said. "It's saving a lot of time and costs."

::

Defense attorney Keith Faulder, who practices in Mendocino County, is 
circumspect when discussing Eyster's program.

The district attorney, Faulder said, is "an innovator" who he 
believes is "operating in good faith when it comes to settling 
marijuana cases." However, Faulder said, Eyster "has a real policy of 
settling cases for civil forfeiture ... I think it gets a lot of 
dolphin with the tuna."

That program has exploded in recent years, with law enforcement 
officials attributing the increased seizures to a pot trade that 
permeates the county.

Earlier this month, D.A. investigator Butch Gupta helped serve a 
search warrant on a 1,300-plant grow, took possession of $45,000 
seized at another and sent truckloads of forfeited goods to auction.

"The running joke here is that we're breeding Toyota trucks," Gupta 
said at the storage lot as a drug dog searched a Tundra.

Despite the legal separation of the forfeiture and restitution 
programs, Kreit said, Eyster's combined settlement approach is 
worrisome. "It's basically a unified payment system to buy your way 
to a lower level of punishment," said Kreit, who added that the 
payoffs could motivate law enforcement treasure hunts.

Bob Alexander agrees.

The 57-year-old, who has an implanted spinal cord stimulator to 
control pain, was questioned by a patrol officer in August after he 
pulled his Mercedes up to a gas pump. (The officer said he'd been speeding.)

Alexander revealed that he had some marijuana in the car and 
presented his doctor's recommendation. After the officer also learned 
Alexander had $10,788 in cash - money he said he planned to use to 
buy his daughter a car - the Mendocino Major Crimes Task Force was called in.

Alexander said he was cuffed to a table as investigators asked whom 
he worked for. One presented an asset seizure form.

"You can sign this paper and say this money isn't yours," Alexander 
quoted the officer as saying, "and we can just call it a day." No 
criminal charges were filed. Alexander got his money back - eight months later.

The task force member who signed Alexander's paperwork could not be 
reached for comment; an administrator said it was "not our policy" to 
pressure suspects into giving up cash.

Mendocino County Sheriff Tom Allman said his deputies do not have the 
time or inclination to police for profit: "If I wanted to use this as 
a business plan, I'd have 12 people on my eradication team," he said. 
He has two.

But he credits restitution and forfeitures for a sheriff's budget 
that is $600,000 in the black, and said he has also been able to 
expand a resident deputy program and purchase a new fleet of cars.

Despite the criticism, Eyster said he was confident in the legality 
and effectiveness of his approach.

He said that he had offered Melinda Haag, U.S. attorney for the 
Northern District, "first dibs on the prosecution of all marijuana 
cases in Mendocino County" but that she declined.

So "they should please leave us alone and let local enforcement 
tackle our own marijuana problems."
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MAP posted-by: Jay Bergstrom