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Charlie Takes the Stand--Lynch Trial Update

Posted on July 31, 2008, 12:00am | Seth Goldin

Wednesday morning began with the cross examination of Special Agent Rachel Burkdol, of the DEA. John Littrell, one of Lynch's lawyers, pointed to some glaring problems in Burkdol's methods and testimony. She conceded that only 0.5 g and 1 g amounts were sold from the store, according to the hours of footage she viewed from the security cameras. The defense has demolished the conspiracy charge by noting that Lynch kept accurate customer records, bank statements, financial statements, and a security camera on his own business.
What street dealer has ever kept a storefront, only sold to people with prescriptions, accepted credit cards, and given receipts with instructions not to distribute, and to use only for medical purposes?

In Burkdol's count at the store on the day of the raid, she came up with 104 plants, an important number, since federal law calls for harsher penalties for cultivating 100 or more plants. Burkdol counted the plants by herself on the day of the raid, and not even one other agent or deputy checked or confirmed this number. She left no paper trail, but simply wrote down 104 on the search warrant receipt. Later, in filing her report, she wrote, "approximately 104." Apparently, it is standard practice to write "approximately" before measurements in reports, even when these measurements are accurate to several decimal points. If it wasn't problematic enough that no one checked her count, it didn't help the government's case when Litrell discovered that this was Burkdol's first case that she had led, that she had no prior experience counting plants, and that she never learned any official procedure for counting plants.


Marijuana plants are difficult to count. One plant is defined as belonging to one rootball, and plants commonly have multiple stems growing from the same rootball. To see if the stems do belong to the same rootball, an agent would need to tear the stem out from the slab, and this procedure easily damages the rootball, ripping it apart. As such, this would give Burkdol a perfect opportunity to inflate her count. One of the exhibits showed how agents had handled the plants at the raid. A photograph of a ripped up plant revealed it to be ostensibly damaged and casually draped on top of a cardboard box. Obviously Burkdol didn't worry much about precision.


Litrell at one point asked if the court needed to rely on Burkdol's math skills to count the plants, prompting laughter from the public and jury for the reference to her testimony on Tuesday in which she botched a customer's age by incorrectly subtracting the date of birth on their California driver's license from the date of the raid.


Did Burkdol have an incentive to inflate the count? Litrell interrogated as to whether or not Burkdol was familiar with 21 USC 841, the law from where the number 100 came. Even though Burkdol cited 21 USC 841 in her application for the federal search warrant, she admitted that she had never read it in its entirety, even during her training at the DEA training academy in Quantico, Virginia, just 18 months earlier. She also conceded that while she was familiar with the cutoff amounts that vary penalties for other controlled substances, she was unfamiliar with the amounts for marijuana. This surely left the jury astounded, since Burkdol had been working on this case for a year, this case that explicitly involves marijuana and no other controlled substance. She claimed that no one in the DEA office knew of the significance of the number of plants being cultivated. Burkdol said that after learning of the significance of the number 100, she surprised her colleagues when she informed them.


Burkdol put the plants into plastic containers despite knowing that this was an inferior way to keep them, if they were not vacuum-sealed. Many of the plants deteriorated quickly, so much so that a DEA chemist asked Burkdol to dispose of them when the boxes in which they were kept grew moldy. Burkdol gladly disposed of the plants, about a month before any charges were even brought against Lynch, and no one from the prosecution or defense had any opportunity to inspect the plants before they were destroyed. Burkdol said that she was not familiar with 28 CFR 50.21, the procedures governing the destruction of contraband drug evidence in the custody of Federal law enforcement authorities, and rather, just followed the guidelines in the DEA manual. She wasn't aware that she needed to notify the attorneys involved in the case if she destroyed evidence. Kowal, the short-tempered male lawyer representing the government, violently bellowed out an objection, and the court took a side bar and break.


Litrell poked holes in the financial records and log of credit card transactions Burkdol summarized in her report, since she had never received any training in forensic accounting, and was not even familiar with the term Generally Accepted Accounting Principles (GAAP). There was no way for her to tell whether or not someone could have been using the credit card machine to embezzle money.


After the lunch break, the U.S. government called Timothy Nugent, an IRS criminal investigator, who went over financial documents. Unlike Burkdol, the defense found in the cross examination that he was indeed versed in GAAP. The government called Leah Carney, a forensic chemist to testify that indeed, she had found marijuana and THC in the evidence presented to her, using a microscopic test, color test, thin layer chromatography, gas chromatography mass spectrometry. Sam Maroge was another forensic examiner called to the stand who performed the same tests, except for the gas chromatography. The forensic examiners were excused without any cross examination.


After days of enduring the prosecution tediously presenting evidence, it was finally time for Charlie Lynch to testify for the defense. Reuven Cohen asked him questions, and started slowly, moving cautiously and deliberately.


They began with his background with his family, and his preparation before opening the dispensary. They clarified that Lynch listened to and saw all the testimonies from the trial. Lynch did indeed have marijuana in his dispensary. They discussed his background, including the multiple degrees he earned from college, and his successful career in software development. Before opening the dispensary, Lynch had started his own software business. Even before college, Lynch demonstrated his work ethic when he worked for his stepfather's business.


In the summer or fall of 2005, Lynch considered opening up a medical marijuana dispensary. San Luis Obispo didn't have one, so it seemed like a good idea to him to provide a valuable service for all those patients who needed to travel a sizeable distance to fill their prescriptions. Lynch wanted to be very sure that he would not violate any laws state or federal, so he started to do some research on the Internet. He looked at Proposition 215 on a California state government website, which referred to Senate Bill 420, which he looked up. He looked at the Tenth Amendment to the Constitution of the United States , and still found the laws confusing. He checked out the DEA website and found a page that listed the scheduling of drugs.


Cohen admitted Exhibit 421, a copy of Lynch's phone bill. Lynch first phoned the Oakland DEA office, and inquired about the marijuana dispensaries for the state of California. The man on the other end of the phone couldn't answer his question, so he referred Lynch to a local office in Camarillo. Lynch asked his question again, and was referred to another office. For the third call, Lynch rephrased his question, sensing that he was hitting a wall. He asked what the DEA was going to do about the medical marijuana dispensaries around the state. He was referred to yet another office. When he called this fourth office, a lady answered, "Marijuana Task Force." Lynch repeated his question to her, and the woman asked how he got their number. He explained, was put on hold, and eventually a male picked up. Lynch asked about any legal obstacles if he wanted to open up his own dispensary in California, to which the man on the other end of the phone replied that it was up to the cities and counties to decide how they want to handle the matter. This made sense to Lynch, after his reading of the California and federal laws.


Wu stopped the testimony here. He wanted to delay on deciding whether or not this would be sufficient to argue for entrapment by estoppel. The office did answer with "Marijuana Task Force," and the defense does have a document of each of the phone numbers he called, but the voices were never named on the other end of the line. Also in question is the legitimacy of the authority of that unnamed man from the Marijuana Task Force.


Having admitted to dispensing marijuana on the witness stand, the defense is relying on entrapment by estoppel to absolve Lynch of all charges. Wu will make the decision on whether or not this is a proper defense this morning at 10:15, before the jury comes in at 10:45.


Supporters are encouraged to attend the trial.


U.S.
District Court
Courtroom 10
312 North Spring Street
Los Angeles, CA 90012

Supporters can join the Free Charlie Lynch! Facebook group.


For information on how to contact your elected officials, please go here or here.


Check out previous coverage of the trial for Friday , Monday , and Tuesday , as well as a video update. If you haven't seen it already watch Raiding California for context leading up to this trial.

Watch Owen speak about how he was not allowed to testify on Charles behalf: reason.tv/video/show/496.html

Latest update on Charles Lynch's trial: reason.tv/roughcut/show/501.html

The Penultimate Day -- Lynch Trial Update

Posted on August 2, 2008, 12:00am | Seth Goldin

Friday, August 1 started with Wu prohibiting a patient to testify as a character witness. The defense wanted her because she would testify that she once asked Lynch to break the law, and he refused. As they waited on a juror to arrive, Wu went over some jury instructions that would reference the considerations of state laws.

When the jury was brought in, Kowal continued his cross-examination. It was clear that he had been coached since the day before, because he had a visibly less hostile demeanor, although anything short of furious screaming was less hostile than his behavior from Thursday. They examined documents regarding Lynch’s business, including his business license applications. Kowal noted that the police chief of the city had not signed it, so Lynch explained that the police chief made a point not sign off on the license, but also the chief clarified that did not disapprove of the license either.

Kowal inquired as to whether or not Lynch opened his dispensary back up after the raid by the DEA. Kowal implied that he should have taken the raid as a sign to stop his business, but Lynch wasn’t even arrested on the day of the raid. He figured that the raid might have just been a scare tactic from the paramilitary DEA. On the day of the raid, he was never instructed by any law enforcement officer, DEA or Sheriff’s Deputy, to stop operating his dispensary, and though the business was decimated, Lynch made the tough decision to open back up for business, since sick people were relying on him for their medicine. He took a cue from the many other dispensaries that had been raided and reopened shortly after.

Kowal tried to have Lynch describe a record of vendors that he had never seen. The document was entitled “Clone Vendors,” a term Lynch never used. Kowal, sensing that this was a dead end, then probed into the conspiracy charge, asking about Abraham Baxter, an employee who had apparently stolen marijuana from the store and sold it to undercover sheriff’s deputies. Baxter wouldn’t testify in court as to how Lynch was unaware of his street dealing. On Thursday, the court had phoned Baxter’s attorney in San Francisco, who said that Baxter would just plead the fifth for every question since he was dealing with that criminal charge.

The cross-examination revealed that Lynch did indeed testify that he sold marijuana to customers under the age of 21. This is the charge Wu specified could not be covered by entrapment by estoppel.

Kowal examined some documents from Lynch’s store and continually tried to bring up whether or not Lynch considered the differences in legality between state and federal laws. Lynch’s testimony was consistent. He did not cave to Kowal’s repeated attempts to bully him into acknowledging that he understood the federal law. Lynch told Mr. Kowal that if he had known that operating a dispensary would land him in that courtroom, he never would have done it. Such a heartfelt statement surely won sympathy from the jury.

The defense wanted to call a federal agent as a witness to testify as to a statement from Baxter that “Charlie didn’t know about the deal,” a clear reference to Baxter’s current legal trouble. The statement would provide evidence to separate Lynch from the conspiracy charge. Wu would not initially allow it though. Wu thought it would be inappropriate to allow this testimony without any notification to Baxter’s attorney.

Scheduling did allow for the defense to call Janice Peters to the stand. Peters is the mayor of Morro Bay, and she wholeheartedly endorsed Lynch’s dispensary. Wu would not allow her to discuss any references to local laws, but the defense was able to lay sufficient foundation for her as a character witness. From all her interactions with Charlie at city council meetings, she testified that she had a good feeling about his reputation as a law-abiding citizen. The defense called another character witness, Robert Schultz, the city attorney for Morro Bay. He also testified that he never heard anything other than that Lynch was a law-abiding citizen.

The prosecution called Special Agent Deanne Reuter to the stand. It was Reuter’s phone line from Lynch’s important fourth call to the DEA. She said that the person Lynch talked to was a receptionist, and explained that office procedure was never to answer the phone, “Marijuana Task Force.” She did not recall any conversation with Lynch, and said that if she had heard the question, she would have answered that state laws are irrelevant, and that there would be no way to avoid federal prosecution. Reuter had directly contradicted the details of Lynch’s phone call. Her testimony appeared gravely damning for the case for entrapment by estoppel, until the defense poked a gaping hole in her testimony in the cross-examination. She was not in the office on the day of the phone call. She also amused the courtroom, when she made a fool of herself by blurting out that California Senate Bill 420 had been repealed. This is factually false. Wu allowed the defense to inquire about her own perceived legal expertise, despite the prosecution’s knee-jerk objections. If there were any doubt before, Reuter solidified her incompetence when she confidently repeated that she knew CA Senate Bill 420 had been repealed, because she said, one of her superiors had sent out an e-mail with this information to her entire office. Her testimony appeared nonsensical for another reason: Lynch’s phone bill contained a seven-minute call.

After the jury was dismissed for the weekend, the prosecution and the defense continued to discuss whether or Lynch’s lawyer from Atascadero would be allowed to testify about a conversation that he had with Lynch, in which Lynch described his phone call to the DEA. The prosecution and the defense deliberated on whether Lynch’s motive for the phone call would have arisen either when he finalized his decision to start up the dispensary, or when federal charges were brought against him. Wu will decide over the weekend about whether or not he will be able to testify, according to interpretations of other cases discussed by the prosecution and the defense.

The jury will reconvene on Monday at 11:00 a.m. The evidentiary portion of the trial will end on Monday, because Wu has another trial on Tuesday. The closing statements will occur at 4:30 at the latest, including 15 minutes for the prosecution and the defense, but the earlier they finish with evidence, the longer they will have for closing statements. After that, it’s up to the jury. The decision must be unanimous to find Lynch guilty or innocent, and the courts rarely allow hung juries, since that would mean conducting the trial all over again. The court will let the jury deliberate until they reach a consensus.

Lynch's supporters are encouraged to attend the trial.

U.S. District Court
Courtroom 10
312 North Spring Street
Los Angeles, CA 90012

For information on how to contact your elected officials, please go here or here.

Check out previous coverage of the trial for Friday, Monday, Tuesday, Wednesday, and Thursday as well as a video update. If you haven't seen it already, watch Raiding California for context leading up to this trial.

Lynch's supporters can join the Free Charlie Lynch! Facebook group.