Pair cry foul over arrests in court on U.S. pot charges

January 16, 2004

Denny Walsh, Sacramento Bee

(Saturday, January 17, 2004) The medical marijuana confrontation between California and the U.S. government took a dramatic turn this week when two people were arrested on federal charges as they sat in a Tehama County courtroom. David Dean Davidson and Cynthia Barcelo Blake were waiting for their attorneys to finish a meeting in the judge's chambers after Deputy District Attorney Lynn Strom had announced at the Tuesday hearing that she would seek a dismissal of charges against the pair for cultivation and possession for sale of marijuana.

a24ae.jpg When the prosecutor, who requested the meeting in chambers, left the courtroom with the defense attorneys and the judge, sheriff's deputies ordered the defendants into the hall, handcuffed them and told them they were under federal arrest.

At the same time, the county prosecutor informed the judge and defense attorneys that the pair had been indicted five days earlier by a federal grand jury in Sacramento. When the defense attorneys rushed back to the Corning courtroom, their clients were gone and they were informed by a deputy that the pair were on their way to jail in Sacramento.

Deputies had taken Davidson and Blake out the back door of the courthouse and placed them in an unmarked car.

As he was being handcuffed, Davidson said, he told a deputy he wanted to see his lawyer. 'He told me, 'You don't have a lawyer. Your case was dismissed,' ' Davidson said Friday at a news conference in front of the U.S. courthouse in Sacramento shortly before he and Blake were arraigned on the federal charges.

The pair are charged in the federal indictment with conspiring to grow at least 1,000 plants, possessing marijuana with the intent to distribute, and manufacturing at least 100 plants.

If convicted, they face a mandatory minimum 10 years in prison.

California's 1996 Compassionate Use Act legalized medical marijuana on a doctor's recommendation. The law has pitted state and some local officials against federal drug agents and the current administration's zero-tolerance pot policy.

Davidson, 53, and Blake, 54, use marijuana on the recommendation of physicians to alleviate pain, depression and insomnia, they said. Both said they had never been arrested before their July arrest on the state charges.

Davidson is a retired businessman who lives in Oakland. Blake worked 16 years for the Federal Reserve Bank in San Francisco. She took disability leave in April and now lives in Red Bluff.

They appeared before U.S. Magistrate Judge Gregory G. Hollows on Wednesday and were ordered released on $50,000 bail each. Davidson said they were processed out of the downtown jail in Sacramento about midnight.

'It was a nightmare come true,' Davidson said of the ordeal.

Their attorney, J. Tony Serra, had stronger words.

Strom 'knew she couldn't win,' Serra asserted. 'So, she concocted this terrible, illegal, underhanded scheme to separate David and Cindy from their attorneys and transition them into federal jurisdiction, where she knows that medical necessity is not a defense.

'The U.S. attorney's office should never have taken this case. David and Cindy have never sold marijuana. They grow it strictly for their own medical use,' Serra added.

The veteran defense lawyer cited a decision last month by the 9th U.S. Circuit Court of Appeals -- the highest court in the West -- that personal cultivation and use of medical marijuana in a state like California, which permits such activities, can be outside the control of federal authorities.

The appellate court's rationale would apply to those who grow their own pot or obtain it from local grower-caretakers without involving interstate commerce.

Serra insists that Davidson and Blake fit that profile.

Tehama County Assistant District Attorney Jonathan Skillman disputed Serra's characterization of Tuesday's events.

'Typically, this case would be taken by the federal government because it is multijurisdictional, in that the evidence was gathered in two counties, Tehama and Alameda,' Skillman said in a telephone interview. 'And, there has been a federal presence from the beginning. Federal agents were involved in the search (of Davidson's residence) in Alameda County.

'There were more than 62 pounds of processed marijuana and 1,803 plants seized at the two locations. So, we were not too concerned about any kind of medical marijuana claim. They could have supplied the entire West Coast.'

The number of plants and amount of marijuana seized is contested by Serra and two other defense lawyers.

Serra said the amount charged is 'ludicrous,' and was inflated to achieve the specter of a very long sentence and 'manipulate us into some kind of plea bargain. This is a political case, and it will be fought.'

Skillman confirmed the circumstances of the arrest but said the defense lawyers' presence 'would not have made a difference.'

Besides, he said, Davidson and Blake had no constitutional right to counsel in the federal case prior to their arraignment.

The pair were first arrested July 29 when Tehama County sheriff's deputies raided Blake's home in Red Bluff, where Davidson was visiting. When asked by officers if there was marijuana at his Oakland residence, Davidson told them there was.

'When I got home, the front door was standing open and the place had been ransacked,' he said Friday.

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