sentencing
Aug 27, 2008
One More Week 'til Sentencing
Where does the time go? Not very far. I sit here a week from sentencing still in awe of what this case has done to change my life. I have spent the last 11 months on an emotional roller-coaster that has tried my patience and stressed my relationship with everyone in my life. I have had one hurdle after another to jump over and I am exhausted by the entire process.
It is out of my control at this point. Next week I will understand more clearly my fate and what that will mean for my family. Will we be able to overcome the odds? Can we find a way to stay strong? Of course. There is nothing we cannot do if we put our minds to it.
I look forward to putting this past me and looking towards the future. I need to move on. This situation has consumed me. It has left my family unsure and in fear of being left to fend for themselves. It has given me more grey hairs than I would like to admit. I cannot wait for it to be over.
My future is at stake and I take that very seriously. I must look past this mess and see the potential for a future free from the stress and frustrations this case has brought to my life. I just want to spend time watching my boys grow into men and return to a simpler life out of the spotlight. I want my wife to be more confident of the future and understand that this is just a passing moment in our history.
In one week this situation will come to a head. I will either go to jail or not. That is not up to me. But at least I will know where I stand and be able to start building for the future at that point. I really cannot wait. I believed what I was doing was right and just. I hope the court sees that and is lenient, given my personal circumstances.
Please come out in a show of support next Wednesday, September 3rd at 1301 Clay St. in Oakland in the Honorable Judge Claudia Wilken's chambers @ 2:30 p.m. Your encouragement and support is greatly appreciated.
Jul 23, 2008
Sentencing Changed To September 3rd, 2008
Hello all,
Just an update that our sentencing has been moved to September 3rd and we would love to see everyone out in a show of support to send a clear message that our community disapproves of the resources and time being wasted on prosecuting and jailing medical cannabis patients and providers here in California. Save the date and please make it if you are available.
Myself and jessica Sanders will both be sentenced. For those who are not familiar, we are a medical cannabis edible producer that was violently raided in September of 2007 for providing clean and safe non-smoked forms of medicinal cannabis to patients throughout the state. Jessica's story is particularly troubling, as she is a lower-level employee that has been hit with a felony for simply taking an order over the phone. Her dog was shot twice in the process and she has lost her funding for extended education to boot. She needs your support.
We ask graciously that members of the community please join us in using this opportunity to raise awareness for medical cannabis and protest the unnecessary attacks we continue to see on our community. The information is as follows:
What: Sentencing for the Defendents of Compassion Medicinal Edibles
When: September 3, 2008 @ 2:30 p.m.
Where: 1301 Clay St., Oakland, CA; The Honorable Judge Wilken's Courtroom
Why: Because we need your support greatly.
Kind Regards,
Mickey Martin
Tainted Compassion Director
www.freetainted.com
freetainted@yahoo.com
510-377-1990
Apr 18, 2008
Second Tainted Sentencing: No Prison, No Drug Tests for Michael Anderson
Written by Vanessa Nelson http://www.medicalmarijuanaofamerica.com/content/view/209/1/
Anderson was the last of his co-defendants to accept a guilty plea, but this was not because he was the most hesitant. He was simply the most geographically remote amongst them. Since last year’s raid of Tainted Inc., Anderson has been living with his family in rural Georgia. An earlier attempt to fly him in for a change of plea hearing failed – a miscommunication about his access to email prevented him from receiving his flight itinerary from his attorney. 
But yesterday morning, Anderson finally made it to the Oakland federal courthouse in time…only to be delayed once again by an emergency evacuation drill that left court employees milling around the courtyard in hordes for the better part of an hour. Once Anderson finally got in front of Magistrate Judge Wayne Brazil, however, the proceedings flowed without a snag.
Waiting across the country, Anderson has been anticipating resolution in this case since last September. That’s when the Drug Enforcement Administration and the Food & Drug Administration raided his employer, a manufacturer of marijuana-infused food products. The business had begun as Tainted Truffles, but when it caught the DEA’s attention, the company was better known as Tainted Inc.
At the time of the DEA investigation, Tainted Inc. was most popular for its knock-offs of classic candy treats. Its product that resembled “Butterfinger,” for instance, had a label design that mimicked that of the mainstream candy bar, but called the marijuana-infused version “Buddafinga” and declared it to be “diggety, dankity, peanut-buttery!”
According to its own newsletters, the DEA first encountered the “Buddafinga” candy bar in early 2004. It was submitted as evidence by a merchant marine who had failed a random drug test and was defending himself by claiming he had unknowingly eaten a product containing THC. Given the different name and all of the warning labels on the product, the DEA was skeptical of claims of accidental ingestion. Nonetheless, the agency was very interested in leads on the source of the marijuana-infused products. It put out a call for information, and a confidential informant promptly answered the call.
Tainted Inc.’s products were distributed only to patients with a doctor’s approval, whose use was lawful under California’s 1996 voter-enacted Proposition 215. But this provided no protection for Tainted Inc. once the DEA began sniffing around – Proposition 215 is a state law, and, as a federal agency, the DEA does not recognize any state laws relating to medical marijuana. During the series of searches and arrests executed in September 2007, Tainted Inc.’s operations were considered a criminal drug-manufacturing enterprise.
The remaining two Tainted Inc. defendants were only charged with misdemeanors, so their cases resolved quickly and with happier endings. On April 7th, Diallo McLinn was sentenced to two years of probation and a $25 special assessment fee for a single count of aiding and abetting the possession of marijuana. Michael Anderson received the same sentence yesterday, except that Judge Wayne Brazil exempted him from the drug testing requirement. That exemption was an unexpected decision that followed many sections of commentary from the characteristically animated and conversational Judge Brazil.
In fact, the judge’s tangential musings began even before the attorneys had finished introducing their appearances for the case. When Anderson was presented as having just flown in from Georgia to make the hearing, the courtroom was treated to Judge Brazil’s autobiographical meditations. “I was born in Fort Benning, Georgia, during World War II,” he revealed.
But this was not just a fleeting comment or a footnote, and when the judge continued with reflections about this experience, listeners began to wonder if they were going to hear his entire life story. “Frankly, I don’t have any memory of it,” he continued. “I was only there for eight months.” Even in the absence of memory, Judge Brazil still had more to say about Fort Benning, stating that he didn’t care to ever return there, but ultimately deciding there were other parts of Georgia that he might be more inclined to visit.
By the time the judge came back to the business at hand, he seemed to be so absorbed in other musings that he accidentally mixed up the purpose of the hearing. After mistakenly saying that Anderson was appearing in order to change his plea from guilty to not guilty, Judge Brazil made the correction and then knocked himself on the head in a comical gesture.
Anderson then went through the standard procedure of stating his age, his educational background, his mental and emotional competence for decision-making, and his satisfaction with his legal representation. The defendant was waiving his rights to an indictment and to a jury trial, and the judge wanted him to be very sure about the ramifications of this choice. “The right to a jury trial is a big deal,” Judge Brazil declared, making expansive gestures with his hands.
But Anderson confidently asserted that he wanted to proceed with the guilty plea, and it soon came time for the reading of the factual basis for the charge against him. At this point, Judge Brazil frowned down at the documents in front of him. “This is an infelicitous way of phrasing this,” he criticized, “but, with respect to the two locations given in the charge, during the time frame relating to the charge –” The judge broke off the sentence there, perturbed by having to repeatedly flip though pages of the document to find the actual places and dates that were referenced. “This is a very crappy way to write this!” he said, his voice chastising.
The prosecutor apologized, offering that the dates were between May and September of 2007, and the judge then went on with the description of the charges. “…Between May and September of 2007, that you assisted other people in obtaining marijuana and that you knew that doing so was against the law,” he continued. “Are both of those things true?”
Anderson answered in the affirmative, standing at the podium with his head held high. Judge Brazil, of course, made an extra comment to be doubly sure the defendant understood what was meant by the intent provision in the charge. “The government would be required to prove that you were knowingly aiding and abetting the possession of marijuana,” the judge explained. “In other words, that you didn’t think it was cabbage.”
Anderson, smiling brightly, agreed that he understood this requirement. He then assented with his counsel’s request to waive a pre-trial services report and go straight to sentencing. On behalf of his client, defense attorney Jerome Matthews also offered a few words of praise. “He impressed me that his conduct was wrong and a poor example to his children, and all he wants to do is get back to them and to his role in life.”
It was a sentiment that was echoed in Anderson’s own statement to the court. “I’m sorry for breaking the law – it’s not my style and it won’t happen again,” he told the judge. “I just wanted to say that you have treated me very well and very fairly, allowing me to return to my home and my children, and I thank you for the way you’ve treated me this whole time.”
Judge Brazil, nodding his head benevolently at the remarks, returned Anderson’s gratitude. Then he embarked on his final commentary of the hearing, working his way up to the actual imposition of the sentence. “In a democracy, you have to understand who makes the rules,” he began. “There are a lot of rules here, in my position, that I must enforce, even if I don’t happen to like them…” The judge’s statement wandered off, as he became increasingly self-conscious of where his narrative was leading him.
“I shouldn’t say too much about this,” he explained, speaking slowly and cautiously. “In this particular case, there are lots of very humane reasons on this one side.” The judge hesitated again, and then added, “But there’s also a lot of good old-fashioned human greed too.”
With that, Judge Brazil announced Anderson’s sentence – two years probation, to be served in Georgia, a $25 special assessment, and conditions, which included the prohibition of firearms. However, the judge noted, he would suspend the drug testing unless there was some other probation violation down the road.
But Anderson had admirers of his own. “He’s a great guy,” Martin said yesterday. “He’s like a brother to me.”
Martin has now watched two of his co-defendants receive sentences of probation, but he’s not as optimistic about his own chances of avoiding incarceration. “I’m probably going to prison,” Martin said while watching Anderson depart. “Maybe I can get house arrest, but, if not, I’ll be going in.”
Apr 15, 2008
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.
