Medical marijuana grower on sentence: ‘My attorney says I moved a mountain'

May 09, 2011

Liz Kellar, Grass Valley Union

A federal pot raid on a Big Oak Valley grower back in September 2007 was heralded by The Union at the time as a declaration of war, part of a widening crackdown on commercial pot farms just three months after law enforcement tightened the limits on medical marijuana grows.
But the federal case against Michael E. Lombardo Jr., which originally carried a five-year mandatory minimum sentence, eventually fizzled in the face of what some see as a shifting of attitudes among federal judges. Lombardo was sentenced March 29 to a year and a day — and will be allowed to serve his three years of probation under state guidelines that allow the use of medical marijuana.

“We just eroded their power a little bit more,” Lombardo said. “It was a major milestone — my attorney said I moved a mountain.”

Lombardo spent much of the week before he was to begin his prison sentence fishing; he is set to surrender today.

The raid

Lombardo, 49 at the time of the raid, said he had been growing for about four or five years at his Greenview Court property, off Highway 20 west of Penn Valley. He had five state medical marijuana recommendations, but Nevada County had just limited legal growers to six plants.

“In the middle of that summer, the county changed its regulations from 10 plants per recommendation to six,” Lombardo said. “Are you going to tell a farmer who's already planted his fields to pull up his plants?”

Lombardo was just leaving the morning of Sept. 13, 2007, when he saw the federal agents approaching.

“I was about to open the gate and here come five or six cars down my driveway,” he said. “They didn't have federal license plates — they were all personal cars. At first, I just wondered who these yahoos were.”

Then the officers began stepping out of the vehicles and he could see their Drug Enforcement Agency jackets.

Lombardo said he was quick to assure them he would be totally cooperative. He admitted to having one — rusty — gun on the premises, and said agents later uncovered a gun that he had forgotten about, a gun belonging to a friend that had no clip and no bullets.

Agents at one point became convinced that a gutted bathroom he had sealed off might be a space where he was stashing drugs, he said.

DEA Special Agent Brian Nehring wrote in an affidavit that 111 live marijuana plants were found during the search, as well as 76 dried plants. Agents also found $5,000 in cash — which turned out to belong to Lombardo's ex-wife — a semi-automatic pistol and a revolver, along with ammunition.

Legal wrangling

Federal prosecutors tagged Lombardo for growing more than 100 plants, which triggered a mandatory minimum sentence of five years.

But according to Lombardo's public defender, Timothy Zindel, 18 of the 111 live plants found at his residence were small cuttings.

“They count babies,” Zindel said.

Lombardo also was tripped up by a cumulative plant count that included the 76 dried plants from prior harvests, which he called “stumps.”

He spent the next 3 1/2 years in legal limbo, with Zindel filing a series of continuances.

“We were waiting for the politics to change,” Lombardo said. “I just knew it was going to get better ... I was hoping they would drop it.”

He thinks now the prosecution had too much invested to let his case go.

On March 29, U.S. District Judge Lawrence Karlton found Lombardo guilty of manufacturing at least 100 marijuana plants, and sentenced him to 12 months and one day.

He also set three years of supervised probation and indicated Lombardo cannot unlawfully possess a controlled substance. But Karlton set special conditions that stated Lombardo was to obey state laws — not federal laws.

Lombardo took the opportunity to speak at his sentencing — a relatively rare move by a defendant that paid off.

“Michael gave a really beautiful speech ... about how he had come to use medical marijuana, that his ex-wife needed it and they couldn't afford it,” Zindel said. “It was powerful ... The judge was moved; I think he thought it was a legitimate medical use of cannabis.”

After Karlton handed his sentence down, Lombardo said, “Relief came over me — it's over.”

Lombardo received word Friday the government will seize his property, even though there is little equity left.

“This whole time, they'd been holding it over my head that they were going to take my property,” he said. “Before the indictment showed up, they had filed a lis pendens — that's Latin for ‘we're going to steal your land.' It was definitely a land grab.”

Lombardo will be in a minimum security camp at Atwater, he said, adding that he doubts he will resume growing marijuana when he gets out.

“He's just a decent, well-meaning person,” Zindel said. “It galls me he has to go to prison for even one day.”

Gun was crux of lesser sentencing

Federal prosecutor Michael Beckwith defended the decision to prosecute Lombardo, an 11-year county resident.

“We (are) directed to go after operations that are cloaking themselves in the California medical marijuana laws,” Beckwith said. “He was selling his weed, he came out and said that. He was not in compliance with state law.”

While there is a five-year mandatory minimum sentence for 100 plants or more, there is a statute that offers first-time offenders a break, allowing sentencing of two to three years under more lenient guidelines.

This “safety valve” can be used for defendants with no prior criminal history, unless a gun is used in connection with a marijuana grow.

In Lombardo's case, the prosecution tried to convince the judge the gun found at the residence was not rusty from disuse but was simply dirty, Zindel said.

Karlton evidently disagreed and Beckwith's attempts to push a higher sentence for Lombardo were unsuccessful.

“The judge said he's not a narco trafficker, he's just a guy out growing weed,” Beckwith said. “We were arguing for 24 months, the defense was arguing for no time .. The judge split the baby.”

Shift in federal legal strategy not clear

Does Lombardo's case signal any kind of meaningful shift in the way the federal government prosecutes medical marijuana growers in California?

It depends on who you talk to.

Some activists have seen a shift toward a less aggressive prosecutorial stance and more lenient sentencing.

Kris Hermes of Americans for Safe Access pointed to a case involving a dispensary owner in Morro Bay. The man, Charles Lynch, also was arrested in 2007 and charged with five felony counts, including conspiracy to distribute marijuana. He was convicted in 2008 and sentenced to five years.

But in 2010, U.S. District Court Judge George Wu cut Lynch's sentence to one year and one day, citing “shifting positions” and a less antagonistic approach toward medical marijuana by the Obama administration.

Hermes noted that sentence has been appealed, however.

“It shows some backbone ... for the federal court to recognize state law and sentence people accordingly,” he said. “The judges are questioning, frankly, the wisdom of prosecuting these cases. (Even though) medical marijuana is still off the table as a defense, we are seeing very lenient sentences.”

Others say it is not so clear-cut.

“It's still all over the map,” said Dale Gieringer of the National Organization for the Reform of Marijuana Laws. “They're sending mixed messages all over the place.”

If there are any systemic changes in sentencing, Zindel said they are slight, adding he still sees smaller growers getting indicted.

“It's a fascinating phenomenon,” he said. “You've got growers feeling empowered by state law, and there's a lot of information out there about what would cause prosecution — but there's no clear answer.”

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