Thursday, July 31, 2008

Lynch Trial Update: Wednesday, July 30

Cross-posted to Rough Cut

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 Littrell 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.

Littrell 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? Littrell 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.

Littrell 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.

It remains unclear the degree to which Rachel Burkdol even understood how poorly her cross examination went. She did not act appropriately shamed as Littrell exposed her irredeemable incompetence.

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 noble 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.

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.

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