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By: Terrie Best and Eugene Davidovich - San Diego Americans for Safe Access
SAN DIEGO – In the summer of 2009, Benjamin Gasper, along with two other seriously ill medical marijuana patients rented a warehouse space in the Sports Arena area of San Diego in a heavily commercial district far from residences and other “sensitive uses,” and began to collectively cultivate medical marijuana there, for their own personal medical needs.
In fact, all three members of the collective, as court documents have shown, signed an agreement which stated, “As qualified medical marijuana patients under California law, we choose to associate collectively or cooperatively to cultivate marijuana for medical purposes. All members of our medical marijuana collective will contribute labor, funds, or materials, and all will receive medicine.”
In November of 2009, several policemen entered the premises to conduct a “safety check”; according to the officers, they believed a burglary might have been in progress as the front warehouse roll up gate was slightly ajar. After over thirty minutes of searching, they happened on the entrance to the cultivation room which was completely isolated and sealed off from the main part of the warehouse.
After discovering and rummaging through the patient garden, even though the collective agreement, doctor’s statements and ID’s for all the members of the collective were present on site, they still arrested and charged Mr. Gasper with cultivation of marijuana.
In later court proceedings both members of the collective would testify on the stand they had signed the agreement and all actively contributed their labor, and money to the effort from the beginning all the way until the day of the raid.
Having gone through months of court proceedings and multiple hearings, Mr. Gasper’s charges were finally thrown out by a judge at 995 hearing in June of 2010.
Bonnie Dumanis the San Diego District Attorney (DA) however, did not give up persecuting Mr. Gasper. In line with her ‘fierce fight’ against patients and her commitment to waste precious law enforcement resources on investigating and prosecuting these cases; the charges were refilled and an entirely new case started.
Many thought that if the charges had been previously resolved in another case, re-filing the same charges would be ‘double jeopardy.’ This is unfortunately not the case. Through a technicality in the law, the prosecution circumvented the ‘double jeopardy’ clause, and filed the same charges against Mr. Gasper this time hoping for a different judge and a better outcome.
On Wednesday, May 18, Mr. Gasper was in court again, this time, for his second preliminary hearing this time in front of the Honorable William H. Kronberger.
Representing Mr. Gasper in his second case was defense attorney and San Diego Americans for Safe Access board member Melissa Bobrow. For Dumanis’ office, hand-picked by Bonnie Dumanis herself to oversee the prosecution in this case as well as all other medical marijuana cases in San Diego County, was veteran ‘chief patient prosecutor’ Steve Walter.
In describing how Mr. Gasper was identified to be arrested in 2009, at the hearing on Wednesday, the cross-deputized SDPD Detective/Federal Agent, John Joseph Tangredi testified that he and Skylar Voyce, another NTF agent on the scene, found Mr. Gasper’s contact information posted neatly on the wall, so they simply dialed him up, told him his place had been raided and arrested him on the spot as soon as he arrived a few minutes after their call. Tangredi went on to testify that only later did they obtain a search warrant for the premises via telephone.
The detective claimed they discovered “134 cannabis plants in various stages of development”, even though court qualified expert witness William J. Britt at the preliminary hearing in the first case had examined the plants and determined otherwise. At the first preliminary hearing, Mr. Britt testified that the majority of the plants discovered during the search were either dead branches the detectives seemed to have counted as individual plants, or un-rooted cuttings that had recently been planted and were preserved for a future harvest.
Mr. Britt also determined that the amount of actual usable medicine (plants, dried flowers, etc.) was absolutely reasonable for the collective to have, based on the patients’ individual conditions and size of the effort compared with other similar collectives across the state.
At Wednesday’s hearing the detectives true intentions and bias began to surface when Tangretti testified that he believed Gasper’s grow itself to be indicia of sales even though when cross examined by Ms. Bobrow he admitted to finding no scale, packaging, pay and owe sheets or any other materials indicia of sales.
Tangredi further testified that in his ‘expert’ opinion, backed up by his claims of a meager 1.5 hours of training, the 134 plants (mostly dead branches) would have yielded a whopping 150 pounds of dried flower had they been allowed to mature.
The defense’s expert witness, William Britt again testified that the amount was completely reasonable and would more likely have yielded five pounds of dried flowers at most. Compared with Detective Tangredi’s 1.5 hours, Mr. Britt’s training includes hundreds of hours of both in-class and hands on training in medical cannabis yields, dosages, cultivation techniques, and use of medical cannabis by qualified patients.
DA Walter’s cross examination of Mr. Britt was focused on the absence of a defined dosage amount on Mr. Gasper’s recommendation. Mr. Britt explained the lack of scientific data and the illegality of writing prescriptions for specific dosages as the primary reason why no amount was specified.
Also testifying for the defense at Wednesday’s hearing was one of the other members of Mr. Gasper’s collective. Prior to his testimony, in a thoughtful move, the Judge ordered an attorney be assigned to advise the witness of his rights and be on hand during Walter’s cross examination to specifically represent the patient. Walter’s cross examination of the collective member included a barrage of questions about what the patient’s specific task were in the cultivation effort along with personal questions into the patient’s medical condition.
In the end, even though there was overwhelming evidence of clear and unambiguous compliance with State law, Mr. Gasper second case was bound over for trial with the judge explaining that inasmuch as the 134 plants seemed to be above the safe harbor amount allowed, he would have required a physician to take the stand and testify to medical necessity in order to consider the charges for dismissal.
The Judge conceded however, that due to the lack of scientific research on recommended dosages, the law was difficult to understand even for him.
Adapting well, Ms. Bobrow, highlighted in her arguments that navigating this law for Mr. Gaper has been arduous as well and that aside from the many other reasons why this case should be thrown out of court, on the vagueness of the law alone the case should be dismissed.
The Judge disagreed and cited a lack of precedent in these sorts of cases as his reason. He sent Mr. Gasper on to face trial and set the issue for the jury to determine.
Following Wednesday’s hearing, attorney Melissa Bobrow said, “Although Judge Kronberger did come to reasonable conclusion based on the lack of precedent, it is unfair for legitimate patients and caregivers trying to follow the law to be dragged through the criminal courts. The DA’s office should provide clarity on the law through a guideline rather than through continuing to expand resources on cases like this, which should have never been pursued in the first place”.
Medical cannabis patients in San Diego continue to be in a situation where the only way for them to prove they were following the law, is to be dragged through criminal court proceedings and trials that ruin lives and cost taxpayers hundreds of thousands of dollars.
Mr. Gasper remains free on his ‘own recognizance’ and will be arraigned on June 2nd. At 1:30 in Department 11 of the San Diego Superior Courthouse.
For more information please email: [email protected]