Entrapment? Lynch Trial Update

Posted by Seth Goldin

Friday was the first real, solid day of the trial, with opening statements and witness testimonies.

The indictment against Lynch, which is in no way evidence, included knowingly possessing and distributing more than 100 g of marijuana, possessing more than 100 marijuana plants, knowingly possessing and distributing substances containing marijuana and THC, a schedule I controlled substance, knowingly and intentionally distributing to persons under the age of 21, operating a marijuana dispensary named Central Coast Compassionate Caregivers, growing and selling marijuana for profit, and hiring employees to grow and sell marijuana. The list goes on, with lots of details regarding what was turned up at the raid earlier this year.

The government gave its opening statement, telling the jury that Lynch operated a marijuana store, had over 2000 customers, had thousands of plants, etc. Assistant U.S. Atty. David P. Kowal also made the point that Lynch kept very good records of exactly who he was selling to. The government was trying to point out that he overtly broke the law, but it could have actually backfired as a rhetorical technique, since Kowal made it clear that Lynch wasn't some street dealer. Regardless, opening statements are not evidence.

The defense then gave its opening statement, using a visual aid, four phone numbers on a big piece of paper on an easel. Lynch, who has no criminal record, will take the stand at some point. When Lynch testifies, he will ask the jury to focus on one document, an SBC phone bill that shows calls that he made to 4 phone numbers, which all belong to the DEA. He called the Oakland field office, who couldn't answer his question about the legality of opening up such a business, and then called the local DEA office, in Camarillo. Then he was referred to L.A., and then referred to two duty officers of the marijuana task force. He called the DEA precisely because he wanted to comply with the law.

Entrapment will be the key defense in Lynch's trial. From the LA Times:

But one of Lynch's lawyers hinted during opening statements that Lynch had sought -- and presumably received -- approval from an official with the federal Drug Enforcement Administration before he set up shop. If they are able to convince U.S. District Judge George Wu that there is a sufficient basis for mounting such a quasi-entrapment defense, they may be allowed to present evidence that Lynch believed he was operating within the law, which legal experts said would likely make him more sympathetic to jurors.

"It could have an enormous effect," said Rebecca Lonergan, a USC law professor and former federal prosecutor in Los Angeles. "Any time you have a hot political or public policy issue like this, there is the risk that members of the jury will decide based on their politics, not the evidence in the case.

The defense's opening statement ended with Lynch's attorney declaring: "The evidence in this case will show that there is a moral and law-abiding man sitting in that chair."

After the opening statements, witnesses were called to the stand. The government called Detective Greg Beuer, a deputy sheriff for San Luis Obispo who explained that he conducted surveillance on the dispensary, and confirmed that once he saw an elderly man step into the dispensary for 5-10 seconds, say something, and then walk outside. An employee then handed a brown paper bag to him on the sidewalk, then drove to a residence and delivered a large brown paper bag. Beuer also observed that employee drop off a package to the post office. In the cross examination, the defense pointed out that this person was elderly, so they inquired as to how he so quickly climbed the flight of stairs to the second floor, where the dispensary was located. The defense also pointed out that Beuer let a suspect package be mailed even after seeing it dropped off at the post office.

The government called to the stand James Wade Moxley, a deputy sheriff for San Luis Obispo. During this initial questioning by the government, they brought up what they think is a black backpack full of cash, and a box which they saw taken out of the store. The cross-examination revealed that Moxley couldn't guess at all what was in the box, so the defense successfully weakened any point of evidence that the government was trying to push as relevant.

What the government was trying to do is prove that a few rogue employees were actually operating under the orders of Lynch, and the defense is systematically disproving this.

After lunch, the government called to the stand Detective Nicholas A. Fontecchio, another sheriff's deputy from San Luis Obispo. In questioning, he explained that he had 100 hours of training in growing marijuana indoor and outdoors, and had worked on approximately 1300 narcotics cases, 300 of which pertained to marijuana. He described a drug deal that happened with an employee. The government questioned him for quite a long time, dragging the questioning on and on, providing recordings of phone calls with the employee from an undercover officer, as well as the evidence for product they obtained in the deal. The government dragged this out for hours, making Fontecchio identify forty pieces of evidence that were obtained both in the drug deals with undercover agents, and in the raid on Lynch's business and home. In the cross examination, the defense brought up that two informants involved in executing the drug deals were working off cases, and one was paid $300, including gas for his car. The number that the defense had was closer to $1000, but the number was disputed.

Fontecchio also said that he didn't recall whether or not he searched the first confidential informant at one of the drug deals, which means logically, that Fontecchio could have no idea if the informant had any more money or drugs in his car at the time than what he had after the drug deal. The implication from the defense was that this informant was being paid, and had an incentive to produce results. Since he wasn't searched, there's no way to tell if the drugs that were produced ever even came from Lynch's business. Also, the store only sold 1 or 3-gram quantities, and the amount of marijuana supposedly purchased at this drug deal set up was about 300 to 330 g which makes it increasingly unlikely that Lynch had anything to do with it. Also, this employee at the drug deal did not provide receipts of any kind, or instructions on how to properly use the marijuana, as would have been provided by the dispensary, further removing what would have been any involvement by Lynch, and therefore, responsibility. The defense also pointed out that Fontecchio could have no idea if a particular strain obtained in the drug deal was the same strain grown at the dispensary.

The trial continues today in Los Angeles. For more information, visit Friends of Charles C. Lynch.

Watch reason.tv documentary short on Charlie Lynch here.