Trial Begins for Pot Activist

November 15, 2006

John Ellis, Fresno Bee

Testimony began Wednesday in Dustin Costa's trial, with prosecutors portraying the Merced marijuana activist as a drug dealer who violated federal law.

Costa, 60, is facing a three-count indictment charging him with growing more than 100 marijuana plants with the intent to distribute. He also faces a charge of possession of a firearm "in furtherance of drug-trafficking crime."

In opening statements in U.S. District Judge Anthony W. Ishii's courtroom, prosecutor Karen Escobar told jurors Costa had a "relatively sophisticated marijuana operation" at his Merced County home. She said Costa was robbed 13 times, but never called police because he knew he was in violation of the law.

Never mentioned within earshot of the jury, but always on the fringes of the trial's opening day, was the medical marijuana issue.

The issue first came up when Escobar objected to a spectator wearing a small marijuana-leaf pin on his lapel. She said the pin could influence the jury.

During pretrial motions last month, Escobar asked Ishii to prohibit Costa's supporters from wearing buttons or T-shirts that promote legalizing medical marijuana because it could improperly influence jurors.

Ishii acknowledged the fair trial versus free speech issue, but issued no ruling. On Wednesday, he made no broad trial ruling but allowed the spectator to keep the pin.

"As long as you are discreet, you don't have to worry about it," Ishii told the man.

Medical marijuana was again addressed when defense attorney Robert Rainwater sought to cross-examine a witness about the drug's medicinal uses. Escobar said the U.S. Supreme Court had spoken, and such testimony "is not appropriate in a federal case."

Rainwater said it is necessary for Costa's defense. At one point, a frustrated Ishii told Rainwater that existing law prohibited him from allowing such questioning.

At the heart of the issue is California law versus federal law.

California voters in 1996 approved Proposition 215, which gives ill people the right to use marijuana for medicinal purposes when cleared by a doctor.

In 2002, the 9th U.S. Circuit Court of Appeals stopped the Bush administration from prosecuting Oakland resident Angel Raich — who used marijuana to fight pain — as well as her suppliers. In June 2005, the U.S. Supreme Court overturned that decision, and the federal government then cracked down on medical marijuana dispensaries.

Costa has pleaded not guilty and believes he wasn't violating the law when he was arrested.

Ishii had earlier ruled that a medical marijuana defense was not allowed, but the subject could be explored if the prosecution brought it up.

Escobar said she didn't, but Rainwater said she did when she questioned a federal agent on the amount of marijuana someone might have for personal use versus growing enough to sell.

Rainwater argued that those who use marijuana for medicinal reasons — a personal use — might need more than those who simply use it to get high.

One reason would be eating it instead of smoking it. Eating, Rainwater said, requires more marijuana than smoking it for the same therapeutic effect.

Rainwater said he has an expert witness prepared to testify that the amount of marijuana found at Costa's Winton home was consistent with personal use — if that personal use is for medicinal purposes.

But Escobar said if Rainwater can present such testimony and explore such issues, it opens the trial to medical marijuana questions, which isn't legal.

"We're going down a slippery slope here," Escobar told Ishii.

The reporter can be reached at or (559) 441-6320.

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