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Judge delays sentencing Charles Lynch after Obama's policy shift

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LOCK HIM UP, OR LET HIM GO? :  Charles Lynch of Arroyo Grande still waits to be sentenced for federal crimes related to selling marijuana, though under California law he legally sold the drug to patients. Federal law-enforcement policy toward dispensers of medical marijuana is shifting in his favor but Lynch may be the last person to be jailed in the conflict between federal and state drug laws. - PHOTOS BY STEVE E. MILLER
  • PHOTOS BY STEVE E. MILLER
  • LOCK HIM UP, OR LET HIM GO? : Charles Lynch of Arroyo Grande still waits to be sentenced for federal crimes related to selling marijuana, though under California law he legally sold the drug to patients. Federal law-enforcement policy toward dispensers of medical marijuana is shifting in his favor but Lynch may be the last person to be jailed in the conflict between federal and state drug laws.

No one knows exactly what will become of Charles Lynch. No one knows whether he will be the first medical marijuana dispenser sent to prison on President Obama’s watch or the last man federally prosecuted for selling the drug despite adhering to state law.

Certainly, Lynch doesn’t know. The Arroyo Grande man arrived for sentencing at the federal courthouse in Los Angeles on March 23 prepared to go directly to prison. But he wasn’t jailed, and in the judge’s wavering stance and delay in sentencing, some Lynch supporters see hope. Meanwhile, Lynch calmly waits, though his prospects are far from bright. While federal drug enforcement policy toward medical marijuana distribution is shifting from zero tolerance under the George W. Bush presidency toward acceptance of state laws permitting sales, Lynch remains in legal limbo, awaiting incarceration or vindication while his social and financial life crumble.

Lynch’s Central Coast Compassionate Caregivers dispensary was raided by federal agents in 2007 after a year-long investigation by the local sheriff failed to establish any violation of California law. He was convicted in 2008 of selling marijuana, which is illegal under federal law regardless of the circumstances. And finally, there he was, returning to the federal courthouse for sentencing. A crowd of more than 50 people waited outside Courtroom Number 10, the same high-ceilinged room in which he was convicted, and they whispered familiarly to each other in an echoing murmur. 

Lynch came down the hall wearing a black suit and yellow shirt, following his four public defenders, his mother, and his younger sister, as though they were in his funeral procession. The room gave way to silence after he passed. He shook hands, and smiled.

“You’ll be all right,” one of his supporters assured him.

His attorney, Reuven Cohen, wasn’t so optimistic. “It’s going to be a bloodbath,” he told a reporter before the scheduled sentencing. “They’re going to crucify him.”

Lynch faces between five and 100 years for selling pot to sick people. If he’s going to be the last of the medical marijuana felons, the People (that is the feds) seem ready to make an example out of him. Lynch was not sent to prison that day; he’s still waiting to see if federal policy will change to reflect the new rhetoric. His fate remains as uncertain as the current federal policy for marijuana, approved for medical use in a dozen states.

For Lynch, the irony couldn’t be more stinging. If the new administration follows through on recent statements, his future could be decided based on his compliance with state law—the exact information that was withheld from jurors, to their own dismay, during his criminal trial.

Lynch at rest

Lynch appears patient and unruffled but must have a stubborn streak. He has politely refused to capitulate to President George W. Bush’s federal policy. In fact, Lynch has become a powerful symbol for the disconnect between state and federal drug policy. Intelligent, courteous, and candid, Lynch is the best poster boy the medical marijuana lobby could want.

“One of the things that the probation department is recommending,” Lynch said, “is that I get five years in federal prison, and a couple of reasons for that is to teach anybody else a lesson. Anyone else who thinks about doing the same kind of crimes I’ve done. And to teach me a lesson, so I never do it again. So they’re really trying to make an example out of me.”

Despite his legal troubles over the last two years, Lynch is not a complainer, and he’s not crippled by self-pity. He acknowledges the details of his days since the raid in a clinical fashion, listing them as symptoms of a life being ripped from his control. He’s going through bankruptcy (as a convicted felon, and now infamous marijuana purveyor, he can’t find a job). His migraine headaches have returned, but he can no longer treat them with marijuana as he had under a doctor’s recommendation (Lynch is drug tested for court compliance several times a week) and he said many of his friends are afraid to talk to him (they’re concerned about eavesdropping).

In the days before his sentencing, Lynch’s house, a comfortable suburban abode above Arroyo Grande that is now at risk due to his bankruptcy, has been overrun with film crews. He watched himself on nationally televised news programs in which he was unflustered by the cameras.

If his life were a movie, Lynch said, he’d either play himself or try to get Sean Penn to do it. The plot, if that film were ever made, would run something like this: completely average, normal guy finds himself at the center of a paradigm shift, an unwitting participant in a historic moment. The ending is undetermined. Will he be martyred for the cause and sent to jail or will he be saved by what his lawyers call “common sense”?

“I’m right on the cusp, essentially,” Lynch said. “It’s kind of a weird place to be. Dispensaries continue to operate around the state and they’ll be able to continue operating without the fears that I went through while I was being prosecuted or raided.”

The great paradigm shift, of course, has to do with the new president, but the story goes all the way back to the Clinton years, when the so-called “compassionate use act”—Proposition 215—was passed by California voters. In its brevity, it decreed that marijuana should be available to sick Californians, and since then California law enforcement has struggled to deal with marijuana patients. Then came California SB 420, which set up collectives for sharing marijuana, and then came the feds; patients growing a few plants to serve their own needs might be overlooked, but businesses selling marijuana openly from storefronts were quite another issue as far as the Department of Justice was concerned. Thus began federal raids on state-sanctioned marijuana dispensaries. The federal government refused to recognize medicinal uses for marijuana and instead prosecuted patients-turned-pharmacists as though they were no different than drug kingpins. Enter Charles Lynch.

PHOTOS BY STEVE E. MILLER
  • PHOTOS BY STEVE E. MILLER
On the criminal food chain, Lynch is graham crackers and milk. Lynch’s criminal investigation, his trial, lawyers, and now sentencing are estimated by his lawyers to have cost millions. A prisoner in a federal penitentiary, such as the one Lynch could be sent to, costs more than $45,000 a year and Lynch is facing five years at minimum. In the new economy, this doesn’t seem like such a good deal. The Obama administration, per campaign promises, has made statements indicating the raids will stop, although there were four of them in the week after the president’s inauguration. Just days before Lynch was to have been sentenced, Attorney General Eric Holder, who heads the Department of Justice, had this to say:

“… given the limited resources that we have, our focus will be on people, organizations, that are growing, cultivating substantial amounts of marijuana and doing so in a way that’s inconsistent with federal and state law.”  

Merely recognizing medical marijuana and states’ sovereignty is a big step, and a departure from prior administrations. Unfortunately for Lynch, so far the rhetoric is pure talk and not official policy. And the statements have been somewhat ambiguous. Holder went on to say that the policy on medical marijuana has been pretty consistent, that there has not been an official change. So what does all this implied change mean to a guy who’s already been convicted?

“I’m already in the grinder,” Lynch said before the judge delayed his sentencing. “It’s kind of like what [Holder] said is too late for me. ‘Well, we’re going to stop the raids,’ but I’m like two years ahead of the curve, you know.

 “There’s kind of like a whole huge mess to clean up that the Bush administration left behind,” Lynch went on. “From the raids to future raids stopping, to stopping the prosecution of people like me … and then there are the people in jail right now.”

Inside the courtroom, where Lynch supporters—including medical marijuana luminary Ed Rosenthal—filled the church-style benches and lined the back wall, Judge George Wu also wanted a better explanation of Holder’s statements. Dave Kowal, the prosecutor, argued that the statements should have no bearing on Lynch’s sentence.

“In this district,” Kowal began, “our policy has not changed in response to statements by Attorney General Eric Holder.”

Judge Wu, however, responded that Kowal’s office did not set the standards. He requested that Kowal get a written statement from Holder with direction for the court. The date to return was tentatively set for the Monday 30 days from March 23. Reuven Cohen responded that that date would be April 20—that’s four-twenty—and the audience briefly lost composure (four-twenty is slang for marijuana).  The hearing was, in the end, moved to April 27. 

If the formal declaration requested by Judge Wu follows the administration’s previous statements insisting that the feds will respect state law, Lynch’s case will be turned on its head since, throughout his trial, California’s laws were ignored by the court.

“If the people who are working for Eric Holder are given truthful and accurate information,” Lynch’s lawyer Cohen said, “and if they want to respect the mayor of the city of Morro Bay, the city attorney, and the chiefs of law enforcement in California, all but two of whom visited the dispensary, then [the Department of Justice] will dismiss this case.”

Jurors for justice

Following Lynch’s conviction last summer, three of the jurors who were not allowed to consider California law or hear about Lynch’s presumed compliance with it wrote letters to the judge asking for leniency in sentencing. In many ways the federal case against Lynch was built on his compliance with state law. Lynch had a business license, kept meticulous records, and was a member of the Chamber of Commerce in Morro Bay. Prosecutors usurped those records and called them evidence.

“Since the Supreme Court ruled that federal law takes precedence over the state law,” Juror Mariclare Costello wrote, “I had to find Mr. Lynch guilty of breaking the federal law. Mr. Lynch is in the impossible position of being caught between two valid and contradictory laws. Common sense has been abandoned. Justice is questionable at best. To compound this lack of justice with further punishment is untenable.”

Lynch’s proficiency in front of cameras and reporters is something new; he seems to perk up a little when they’re around, instead of retreat as he did after the raid.

“Compared to what I’ve been through,” Lynch said, “you know, I don’t get nervous about that.”

After the sentencing appearance, Lynch emerged from the massive art deco courthouse and took his place on the courthouse steps, flanked by his attorneys and with his entourage behind posed for the cameras.

“Charles Lynch is no Pablo Escobar,” Cohen told the press. “He’s the most decent man that has ever been prosecuted in this building.

“All we’re asking for, really,” Cohen continued, “is some common sense.”

If Lynch had been sentenced that day, he was prepared to be hauled off immediately. His effects were in order, he said. There was a deep sense of relief following Judge Wu’s request for more information.

But the delay won’t last. In a month, Lynch will return to Los Angeles to be sentenced. And even then, regardless of what the judge decides, it won’t be the end of Lynch’s case for him or for taxpayers.

“I will be appealing this case,” Lynch vowed. “Because, like I’ve said, I don’t think I should have to continue my life as a felon.”

Staff writer Kylie Mendonca can be reached at kmendoca@newtimesslo.com.

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