Aaron Sandusky, the owner of the G3 Holistic medical marijuana enterprise in California's Inland Empire, has been found guilty of conspiracy to manufacture marijuana and intent to distribute. The jury is deadlocked on four other counts. He is in custody awaiting sentencing, which is scheduled for early January.
While Sandusky's plan of defense depended upon convincing jurors that he was in compliance with state law and that statements from federal officials led him to believe that the Feds wouldn't interefere, Federal Judge Percy Anderson cut off Sandusky's lawyer, Roger Diamond, at every turn.
The final day of the trial began with the bad news for the defense that Judge Anderson would not allow Diamond to make an "entrapment by estoppel" case, as outlined in an earlier post. Essentially, Diamond hoped to use public statements by President Barack Obama and Attorney General Eric Holder, as well as private conversations between Sandusky and an FBI agent whom he assisted in prosecuting a corruption case, to prove that authorized government officials had given Sandusky erroneous advice leading him to reasonably believe that his actions were legal. Judge Anderson denied Diamond the opportunity to introduce any evidence or argumentation related to President Obama or Attorney General Holder.
"Unless it was a face-to-face meeting with President Obama or Eric Holder, it's not going to be admitted into evidence," Anderson said.
But the truly devastating blow to Diamond's case came when Anderson refused to allow any testimony related to Sandusky's conversations with the FBI agent. Diamond seemed to be in disbelief that the judge was making this last-minute ruling on the final day of the trial and asked for a trial postponement. The judge denied this request. At this point, Sandusky put his head in his hands and then glanced at his fiancee, who was by this time in tears. His look said it all: Game over.
Diamond was forced to change his defense strategy once again and focus on the government's key witness, John Leslie Nuckolls. Nuckolls is a longtime friend and associate of Sandusky's who helped him start G3 Holistic. He also turned out to be a government informant. Because of his close relationship with Sandusky, Nuckolls provided some of the more damning testimony in the trial. Diamond attempted to discredit Nuckolls who, the previous day, lied on the stand about the terms of his written agreement with the government. He also tried to make the case that Nuckolls had been setting up Sandusky from the very beginning.
In the end, the drama with Nuckolls seemed besides the point. The federal government was successful in quelling any discussion of medical marijuana laws, federalism, or jury nullification--all of which were specters looming over the case when they discussed it in open court while jurors were not present. In closing statements, the federal prosecutors were sure to emphasize to jurors that personal feelings, political beliefs, and morals do not matter. The law is the law.
One prosecutor instructed the jury "not to debate the law, but to apply the law." If there was one important takeaway from the prosecution's closing, it was this phrase, emblazoned on one of their presentational slides: "Factual determination, not moral judgment."
Diamond did not make any mention of state law and the legal ambiguities surrounding medical marijuana in his closing statement. Instead, he was constrained to pointing out technical faults in the prosecution's case. Was there really a formal agreement amounting to "conspiracy"? Had the prosecution really proved that Sandusky had handled the marijuana and therefore technically been in "possession" of it? But even while making these arguments, he conceded to the jury that he knows such technical loopholes rub people the wrong way and that it's simply his duty to make every argument possible for his client, even ludicrous-sounding ones. It was kind of like watching a stand-up comic finally give in to a relentess heckler, throw up his hands, and say, "I got nothing."
When the jury was dismissed, Judge Anderson did grant one request: The prosecution's request to add an extra two sentences to the written jury instructions: "Congress has defined marijuana as a schedule I controlled substance, making it illegal under federal law. You must disregard any state or local law to the contrary."
After the jury went into deliberation, I talked to Sandusky for a few minutes. As often seems to be the case, he seemed unusually cheerful given his circumstances. But he didn't seem to be in denial about what the likely verdict would be and seemed less-than-optimistic about Judge Anderson's sentence.
"I think he's going to throw the book at me," Sandusky said. "He can't wait to get his claws into me."
Sandusky also said, if convicted, he plans to file an immediate appeal based on the evidence that Judge Anderson denied.
So that's where we are with the drug war in California where, it bears repeating, medical marijuana is legal. Agents of the federal government are well aware that the tide of opinion has turned against marijuana prohibition, and prosecutors are reduced to devoting the majority of their closing statements not to convincing jurors that defendants are a danger to society but to admonishing jurors against daring to think about the moral justifications behind the law. Your job is not to consider right and wrong. Your job is to convict violators of the law. And that's exactly what they did today.
Sandusky faces a minimum ten years and the possibility of a life sentence.
Aaron Sandusky's fiancée emailed to ask that I include a link to his legal defense fund to recoup attorney fees and plan for his appeal. It is here if you are interested.