Federal Judge Gives No Prison Time in First Tainted Sentencing
Written by Vanessa Nelson http://www.medicalmarijuanaofamerica.com/content/view/205/1/
Written by Vanessa Nelson
OAKLAND, CA -- The first defendant to be sentenced in the government’s case against medical marijuana candymaker Tainted Inc. has successfully avoided incarceration.
Diallo McLinn, 36, was sentenced yesterday to two years of probation following a guilty plea on a misdemeanor count of aiding and abetting the possession of marijuana.
Years ago, these products caught the attention of the Drug Enforcement Administration and the Food & Drug Administration, sparking a lengthy investigation of Tainted Inc. Even though the company voluntarily discontinued its parodies prior to the bust, this made no difference to the DEA and the FDA.
The federal agencies were also undeterred by the fact that Tainted Inc. supplied its products to patients complying with California’s Compassionate Use Act. The U.S. government, after all, does not recognize state laws regarding medical marijuana. Instead, federal authorities enforce a blanket prohibition on the drug.
Coming on September 26th, 2007, the bust of Tainted Inc. involved a raid of the operating facility as well as searches of the homes of some employees. Owner Michael “Mickey” Martin and order clerk Jessica Sanders were later charged with felonies.
Martin pled guilty last month to a single felony count of conspiracy to manufacture a mixture or substance containing a detectible amount of marijuana, and is scheduled for sentencing on July 2nd, 2008.
The penalties were much lighter for McLinn. He and fellow employee Michael Anderson, described by the DEA as Tainted Inc.’s couriers, were only charged with misdemeanors. According to court documents, the Oakland Police Department helped out with this part of the federal bust, pulling the two men over while they were allegedly in the middle of delivering marijuana-laced edibles.
Anderson was scheduled to be sentenced along with McLinn yesterday, but his lawyer instead informed Judge Wayne Brazil that there had been a mix-up in communication about the appearance. “I wanted to let the court know I don’t think it’s his fault,” Jerome Matthews said about his client.
The defense attorney explained that Anderson has been staying with his family in Georgia, living in a remote country area outside of Atlanta. Matthews had emailed his client the itinerary for his scheduled flight into town, but the attorney had not been aware that Anderson’s location prevented him from having in-home internet service. Although Anderson had said that he had access to email, Matthews had not understood the details of the circumstances. “I didn’t realize that access to email means coming down to someone who has a signal and then dialing into his email,” the defense attorney clarified. “I didn’t realize I had to call him on the phone and tell him to go check his email.”
Judge Brazil appeared to accept this account, but was curious about the rural location of Anderson’s residence. Matthews related that it was up on a mountain, and the description raised the judge’s eyebrows. “I hope it’s free from vegetable growth,” Judge Brazil commented dryly.
The innuendo about marijuana cultivation incited a few quiet snickers in the gallery, but Matthews was perfectly composed. “I believe it is, your honor,” he murmured with a charming smile. “No vegetable growth.”
Moving on, Judge Brazil decided that Matthews should consult with his client and then arrange another hearing in conjunction with the U.S. Attorney’s Office. Anderson would be scheduled to fly in the night before the chosen date and then fly back out after the court appearance. Such a plan, though tentative, suggested that no jail time was anticipated in Anderson’s case.
Incarceration was not McLinn’s destiny either, but it took a while to get to that conclusion. Judge Brazil gave his first indication of a lengthy hearing when McLinn, after being sworn in, kept his hand upraised a few moments longer than necessary. “You can take your hand down,” the judge told him. “You’re going to have to answer a lot of questions, so it would be up there for awhile.”
Smiling softly at the judge’s comment, McLinn lowered his hand. In a green business suit and stylish spectacles beneath dark, wavy hair, McLinn was as composed as he was suave. He stood up straight and attentive at the podium, alongside renowned defense attorney Ted Cassman, and listened to the judge expound on each step of the change of plea process.
Such hearings are often relatively brief, with the judge taking defendants through a standard series of inquiries aimed at determining whether they are competent to make decisions and whether the guilty plea has been taken voluntarily. But Judge Brazil had many observations to offer on each of the required questions, and this drew out the proceedings significantly. His speeches might have been tedious were they not delivered with such conversational ease or peppered so generously with insight and lively expressions.
“As I ask you these questions, it may seem like a ritual, but it’s not a ritual,” Judge Brazil advised the defendant. “Don’t answer like it’s a ritual… Think about each question and answer it individually. Every single question is designed to protect your rights. We want to make sure we don’t do anything while you’re high as a kite or have some other problem.” That said, the judge also stressed the importance of not taking the questions personally. McLinn was to understand that these were standard questions and not tailored to be a commentary on his particular circumstances.
After confirming that McLinn had not taken any drugs, medications or alcohol over the last 24 hours, and that he had not been treated for a mental condition during the past two years, Judge Brazil inquired about education.
“I’m two classes away from my degree, at the California College of Arts and Crafts,” the defendant stated. “I changed my major in the last year.”
“It might be cool to take those last two classes,” Judge Brazil commented.
“I have to get caught up on my financial aid,” McLinn explained. “I’m in the process of that.”
Judge Brazil’s level of engagement became apparent as the hearing proceeded, and, even in its awkward moments, it showed itself to be quite a charming aspect. At times the judge seemed unduly anxious about his phrasing, and he would nervously explain his intentions over and over. One of the most troubling questions for him was an inquiry about the defendant’s emotional state. “The next question…I’ve never been able to find out how to ask it intelligently,” Judge Brazil said, continuing to skirt around the inquiry until he could avoid it no longer.
“Do you feel enough okay emotionally to go forward?” the judge finally asked, with remarkable sensitivity. The proceedings were beginning to seem downright touchy-feely.
McLinn, by contrast, was not reticent in his answers. He easily confirmed that he was mentally and emotionally prepared to proceed, and also that he had been adequately represented by his attorney. In addition, McLinn confirmed that he had not been induced by threats or promises to change his plea.
Not concealing the concern in his voice or his facial expressions, Judge Brazil went on with the next step of the hearing and read the official charges: that between May and September of 2007, the defendant had aided and abetted the possession of marijuana at two different locations in Oakland, California. If McLinn decided to go to trial, the judge told him, the government would have to prove that he gave some assistance knowingly to people who possessed marijuana at those two locations. And, if convicted, he would face a maximum of a year in jail, a $100,000 fine, a $25 special assessment, and a year of supervised release. Or, the judge noted, if no jail time was imposed for the conviction, McLinn could receive a maximum of five years of probation.
Before allowing the defendant to formally give up his right to a trial, Judge Brazil launched into a long monologue about the process of jury selection and his approach to it. When he finished making assurances that he would go to great lengths to choose a fair jury, the judge expanded his narrative to include his philosophy on plea deals and a description of the risks of pleading guilty. A plea deal, he said, was a set of promises made by the defendant and the government, and he emphasized the vast importance of both sides keeping their promises.
“This is the kind of plea deal that’s not binding on me,” Judge Brazil warned McLinn. “I have the power and the responsibility, based on my oath of office, to decide what the law prescribes as appropriate for the sentence. I could give you a sentence stricter than recommended by the agreement between you and the government, up to one year in prison. And you couldn’t say, ‘Hey, wait a minute. I got Attila the Hun! I want to go back and have a trial!’”
There was, however, an exception to this. “You might be able to later attack your conviction,” the judge conceded, making a tiger-claw gesture in the air as he said the word “attack.” But, he explained, the defendant would have to make a substantial showing that he had been improperly represented by counsel, and success at such challenges were rare. “You shouldn’t presume you will get to do that,” the judge advised.
Throughout this process, Judge Brazil was insistent that McLinn look at him in the face openly. This expectation intensified as the judge got closer and closer to officially accepting the defendant’s plea. “Before this, I have to make sure there’s a factual basis to the plea,” he told McLinn. “I have to say, ‘Did you do it?’” It sounded like the hearing was finally coming to a close, but, without a pause, the judge held his palm up in a stopping gesture and gave the urgent command, “Don’t answer now!”
Before giving a reply, the defendant would have to hear a repetitive lecture about how he didn’t have to answer the question. Again and again, Judge Brazil told McLinn that his response could be self-incriminating, and so he must be cautious. “If you make the election not to answer, then the case goes to a jury,” the judge concluded. “If you do that, I won’t hold it against you.” It would be the judge’s final warning.
McLinn indicated that he was ready, and the judge, sighing, asked him the all-important question. “Did you, between the months of May through September of 2007, aid and abet the possession of marijuana while working at Tainted Truffles, otherwise known as Tainted Inc., and did you do so knowing that it was against the law?”
“Yes, your honor,” McLinn said with dignity. “I knew it was against federal law.” He uttered the line so naturally that Judge Brazil appeared not to notice the subtle reference to the conflict between state and federal laws on marijuana. The defendant went on to affirm that he had been aware that he was engaging in that conduct, and then the moment of finality arrived.
Judge Brazil seemed somber, “Is it your request that I enter a plea of guilty?”
“Yes,” McLinn said simply.
This established, it was time to move on to sentencing. The court was prepared for immediate sentencing, and the defendant had requested it, but, true to form, Judge Brazil wanted to make sure McLinn was fully aware of the ramifications of his decision. He was, after all, giving up his right to a pre-sentencing report. Such a report may or may not be beneficial for McLinn, the judge stated, then reflected on ways in which the information in the report could help or harm a defendant. After listening to this explanation, McLinn was permitted to waive his right to a pre-sentencing report.
In spite of skipping this aspect of sentencing, the judge spoke as though he knew a great deal about the defendant’s personal history. “You’ve had some bad stuff in your life, through no fault of your own,” Judge Brazil said carefully. “But this one is your fault.”
McLinn hesitated for just a second. “Yes,” he answered, leaning into the microphone.
“That’s how we mature,” Judge Brazil commented, then proceeded to compare the situation to that of his teenage son and the peer pressure he faces. “You’re 36 years old, you’re a man…you can’t just say, ‘It was what my pals were doing.’ You have to own yourself. I want you to own yourself.”
The judge’s speech began to sound like coaching as he continued, repeatedly beseeching McLinn to be more vigilant about protecting himself from people who wanted to exploit him just to make money. “You have all this talent in the arts arena, and that’s beautiful,” Judge Brazil said, praising the defendant generously. As the full-fledged pep talk came to its climax, the judge’s tone was persuasive. “You don’t need all those other clowns,” he finished, ostensibly referring to the remaining three defendants in the Tainted Inc. case.
In addition, Cassman addressed a statement in the plea agreement that talked about requiring McLinn to participate in a counseling or therapy program. “There’s a question about what kind of therapy that would be,” the defense attorney explained. “We’re asking you to leave that up to the probation department.”
Judge Brazil again agreed, but not without comment this time. “Therapy would be helpful,” he insisted, “but I’m not competent to decide what that would be.” Then, with what seemed to border on self-deprecation, he mused softly, “I can barely figure it out for myself.”
After all this came McLinn’s opportunity to make a statement, and he was taken aback by the suggestion. He had been listening intently for a great while, and the request that he make a speech of his own demanded a change of gears. The defendant meditated for a moment, then spoke slowly and clearly. “I don’t think I have anything to say, except for, from this point on, I will be on my best behavior as far as all laws go.”
The judge had done everything besides imposing the actual sentence, and with that decision upon him, he was faced with two conflicting requests. The government asked for three years of probation, while the defense wanted just two years. After a brief interval of contemplation, the judge sided with the defense. “I think two years is enough,” he announced. However, he did not yield to all of the defendant’s desires. He refused to waive random testing for controlled substances and insisted that the McLinn begin a counseling program. “It’s not punishment – it’s help,” he said, benevolence in his voice.
Plus, there was one more small thing. “I have to order the $25 special assessment,” the judge added. “Can you pay that today?”
“It’s the least I can do,” Martin said soberly. He then told McLinn that, if permitted by the court, he wanted to keep in touch as friends. They had known each other too long, he said, to just stop talking to each other now.
At parting, the two men hugged, and for a moment an atmosphere of warmth and good will prevailed. But there was deep sadness in Martin’s face, its gravity pulling down all the smiles he tried to muster, and as he turned to walk away alone, down an empty hallway, the heartbreak of shattered dreams was unmistakable.
