A federal grand jury is demanding information about Mendocino County’s 9.31 medical marijuana zip tie program, including names of participants and the amount of money Mendocino County made from it. Local officials remain unclear as to the motivations behind issuing the subpoena.
“Obviously we don’t want to turn over any info on anyone that may have negative consequences to the county or anyone involved in the 9.31 program,” 5th District Supervisor Dan Hamburg tells The Independent.
County officials are weighing their options. The supervisors will meet in private session December 4 to discuss what information, if any, they could redact before meeting the subpoena’s close deadline. Official sources say the county will request a 30 day extension.
Mendocino County Sheriff Tom Allman believes there’s nothing to fear:
“All our meetings were in public. Last spring 2011, the District Attorney and I met with [US Attorney] Melinda Haag in Eureka and I went over the 9.31 program with her; she didn’t say stop. I informed her about the whole thing.”
Allman, who helped craft the 9.31 program, tells The Independent he’s handed over the 9.31 documents to Mendocino County Counsel Tom Parker. “They’ll decide what goes and doesn’t go,” he says, adding that the participants knew they weren’t immune from federal prosecution.
The two year program was a groundbreaking attempt to regulate and control the production of medical marijuana in Mendocino County. Cannabis farmers joined forces with county officials and local law enforcement to develop the 9.31 exemption and its guidelines, which included environmental protections and allowed participants to grow up to 99 medical marijuana plants. Applicants paid a one- time $1,500 fee and a $50 zip tie fee for each plant. They also paid for a monthly inspection costing between $300 and $500 per visit. The unprecedented collaboration brought peace to two traditionally warring factions of America’s drug war – pot growers and the law enforcement. It also brought $829,726 to the county’s coffers at a time of economic distress.
“The Mendocino program was a model program for the state and country for legitimizing medical marijuana cultivation and bringing it into the light of day, where it’s taxed and regulated,” says Ellen Komp, deputy director for the marijuana advocacy group, CalNORML.
But federal authorities thwarted those efforts earlier this year when they threatened to file an injunction against Mendocino County to stop the program and to go after local officials, as The Independent reported. The supervisors promptly cancelled the program last February.
Since California voters legalized marijuana for medical purposes in 1996, with the passage of Proposition 215, 18 states in the U.S. have legalized marijuana in some form; Colorado and Washington voters legalized it in the most recent election. But cannabis, medical or not, remains illegal at the federal level, and battles continue to flow through state and federal courts around its legality, sale, use, distribution and production.
“The feds say marijuana is not recognized at any level of government, but the federal courts have reviewed these state propositions and have given their stamp of approval. That’s where the conflict lies,” says Allman.
Allman, who welcomes the federal investigation into Mendocino County’s former pot program, says he hopes it brings more clarity to a murky legal situation.
But sources close to county officials say the federal government isn’t looking for clarity, it’s looking for wrong doing.
Feds vs. Mendocino County
“My guts telling me they’re investigating law enforcement: Tom Allman and the people who implemented and enforced 9.31,” says former interim District Attorney Keith Faulder. “The U.S. Attorney has said it was potentially violating aiding and abetting federal marijuana laws,” recalls Faulder, whose private criminal defense practice largely represents clients grappling with marijuana related charges.
The subpoena comes at a time when federal authorities already have their eye on local officials. As The Independent reported in November, Sheriff Captain Randy Johnson, who oversaw the 9.31 program, is under a marijuana-related internal investigation. Allman requested that the Sonoma County Sheriff’s Department launch the investigation after federal authorities raided property owned by Johnson’s father and found 500 marijuana plants, which is adjacent to Randy Johnson’s home. Johnson remains on duty. As The Independent reported in August, Deputy District Attorney Sergio Fuentes resigned from his post after authorities allegedly found 150 marijuana plants in a home he shared with his mother.
Allman, who maintains that his duty is to “enforce laws and protect rights,” is remaining cool and confident about the 9.31 program. “I don’t believe Mendocino County crossed the line on this,” he says.
Hamburg, a former congress member, a medical marijuana advocate, and a critic of the 9.31 program, fears for the financial stability of Mendocino County, if the federal government asks for the $829,726 the county collected from its marijuana regulation.
“Our financial condition is not good. I’m not worried they’ll send supervisors to jail, I’m worried about the money.” He continues, “the thing I’m most concerned about is being somehow sanctioned.”
Hamburg has long expressed concern about federal officials using RICO against Mendocino County for implementing medical marijuana regulations under the former 9.31 exemption and zip tie program. RICO, the Racketeer Influenced and Corrupt Organizations Act, is a federal law that targets organized crime through prosecution of acts such as bribery, money laundering, and extortion.
“The thing that we don’t want to be is a poster child. Here’s what we do to counties that step over the line,” says Hamburg,
Allman says 9.31 was a transparent program and the money made was used to reimburse the sheriff’s office for administering the program.
“For every dollar that came into the program, receipts were given and money deposited into the County Auditor’s Office. Nobody in government made a dime from this,” says Allman.
Faulder agrees. He guesses that although the federal government is fishing for information, they’re not going to get too far. “It would really open a can of worms if the US Attorney started prosecuting local law enforcement who are enforcing state laws and local ordinances that enforce state law. 9.31 is law enforcement working with people in Mendocino County to know how to safely cultivate marijuana under state law.”
Robert Raich, an attorney and member of CalNORML’s legal team, says federal authorities aren’t just investigating, they’re intimidating Mendocino County officials and in fact already have, when they threatened legal action against the county’s 9.31 program.
“That is a rather clear violation of the 10th amendment of the U.S. constitution, constituting commandeering of the federal government–trying to make local authorities, or agents of the state in this case, comply with federal law rather than enforce state law,” argues Raich, who was legal counsel for the only two cannabis cases to go before the U.S. Supreme Court.
Feds vs. 9.31 Participants
“We’re very concerned about the safety and protection of growers who signed up for the program, and we’ll do all we can to protect that,” says Ellen Komp with Cal NORML. Marijuana advocacy groups and cannabis activists are urging the Board of Supervisors to redact the names of the cannabis farmers who signed up for the 9.31 exemption program.
The first year of the 9.31 program, Allman says, 18 people signed up. By the second year, 95 people applied; 91 were approved.
“I don’t feel good about handing over people’s information,” says Supervisor Hamburg. “We’re not in a position where we want to antagonize the U.S. Attorney. At the same time we have an obligation.”
The supervisors’ legal counsel is looking at HIPAA, the Health Insurance Portablity and Accountability Act, as a means of protecting the names of 9.31 participants, since they all have a medical record, according to Hamburg.
But Faulder says it’s unlikely to work.
“Those [state] records never disclose a patient’s medical condition. The records solely contain the name of the patient and physician recommendation,” he says, likening the records to a prescription.
One 9.31 participant, who asked to remain anonymous, says handing over his information to federal authorities is “a slam dunk case against you.” He wants the records to be destroyed.
But, he says, if one of the participants falls, they all will. “We’re all co-conspirators. The county itself – they were all taking funds from this thing. If any of us are guilty, we’re all guilty.”
Even if the county gave the federal government the names of 91 cannabis growers in 2011, Faulder says the information isn’t enough to go after any one person.
“The information is too old,” he argues. It’s insufficient for a search warrant, but he says it could be used as a lead to investigate people further.
“Most of the people involved in the program are good people. Good citizens, definitely not criminals,” says a 9.31 participant.
And it’s that sentiment that has local officials frustrated at federal authorities for interfering with their attempts to solve a social and criminal problem.
“If you agree with [9.31] or not, it was a good faith effort by a board majority to deal with a lot of problems in our county. It wasn’t an attempt to create a criminal subculture – on the contrary it was an attempt to deal with what many perceive as a criminal subculture, particularly around environmental issues,” says Hamburg, who was not a supervisor when 9.31 was adopted.
Attorney, Raich points to a 2007 grand jury subpoena to the state of Oregon and the THCF Medical Clinic demanding records of 17 medical marijuana patients that a federal district court in eastern Washington denied, saying it could provide legal precedent for Mendocino County to resist the subpoena.
“If Mendocino County officials remain true to their constituents and fight to uphold their local ordinance enacted pursuant to State law, they ought to have an excellent chance in federal court of quashing their federal subpoena,” Raich writes in an email.
But, Mendocino County is small, compared to southern neighbors such as Santa Rosa, San Francisco or Oakland. With finite resources, it’s unclear how high and how quickly the supervisors will jump regarding the federal subpoena. Hamburg says although they’re preparing information to hand over to federal authorities, the issue is not going to be resolved anytime soon.
There is some sentiment that the feds should find bigger fish to fry.
“The [feds] got their victory in the end because the program’s dismantled. I’m 99% sure a program like that won’t be resurrected in this area; I hope they’d be satisfied with a victory like that,” says a 9.31 participant.
Federal authorities are apparently not satisfied with closing down the 9.31 zip-tie program. They’ve given Mendocino County until December 8 to hand over the program’s records.