FRESNO, CA – At the conclusion of a lengthy sentencing hearing on October 1st, 2007, federal defendant Thunder Rector happily accepted a two-year prison sentence. But due to a series of special circumstances, he expects to serve only 10 months, and will not be required to surrender until May 2008.
The sign for Thunder Rector's hydroponics shop in Modesto, CA - photo by Vanessa Nelson
For Rector, the proprietor of Thunder’s Hydroponics, Tattoo & Body Piercing, legal disaster began on June 30th, 2005. That was when agents searched his Modesto home and the house of his neighbor, confiscating an estimated total of 233 pounds of marijuana. The properties were linked by a garden hose that allegedly ran from one yard to the other, and by a report that equipment on the neighbor’s property had been rented by Rector’s wife. It was a tenuous connection, but this didn’t seem to matter to the agents who carried out the search and the prosecutors who issued the indictment.
It also made little difference that Rector was a valid medical marijuana patient. Even though California’s Proposition 215 made marijuana possession legal under a physician’s approval, the federal government refuses to recognize state law and considers any marijuana to be a schedule I controlled substance. As a result, legitimate patients and care providers are often prosecuted in federal court, where they are uniformly deprived of a medical necessity defense and prevented from informing a jury about the legality of their activities under California law. And, all too frequently, the federal investigations have been helped along by the participation of local law enforcement agents who are responsible for upholding state law. It’s a situation that has continually undermined voter-approved legal protections for medical marijuana in California.
That said, the majority of Rector’s marijuana would have hardly qualified as what most would call “medicinal grade.” The overwhelming bulk of it was what Rector termed “mulch.” He described it as stored leftovers from previous harvests, consisting of mostly stems and leaves. Still, to the U.S. government, it was marijuana all the same.
“There is no federal concept of useable marijuana,” defense attorney Dennis Roberts explained. “You can only subtract the dry stalks – that’s it. Shake, sticks, stems, seeds – it’s all the same and counts as marijuana.”
With the full amount weighing against him, and the burden of multiple priors already on his record, prospects initially looked dismal for Rector. He was held in Fresno County Jail for a brief period following his arrest, but this was just the beginning of the hardships that stemmed from his bust. When bail finally came, it was at a steep price – Rector would have to give up marijuana, submit to drug testing, complete a substance abuse program, and wear an ankle bracelet monitor.
Suddenly forced to medicate the symptoms of bipolar disorder with a slew of pharmaceutical drugs, Rector was beset by an ever-increasing set of symptoms – stomach pains, anxiety, and acute depression. “I have tried over 15 different pharmaceuticals since my release, and each one has had worse side effects than the one before,” Rector observed. “Pharmaceuticals are not going to make me right with God.”
But, for Rector, there was one last chance, and he made a move to get his case thrown out of court on the basis of his religious beliefs and practices. After all, he reasoned, he was the established minister of a church that used marijuana as a sacrament, and federal law explicitly protects freedom of religion.
Basing his argument on the provisions of the Religious Freedom Restoration Act (RFRA), Rector requested a hearing to present evidence towards dismissing the case on religious grounds. It did not go as well as he hoped it would, and the final outcome was equally disappointing. While Rector may have been successful in conveying the sincerity of his own beliefs, in the court’s eyes it was not enough to justify 233 pounds of marijuana.
“The amount of marijuana seized was well in excess of what was used by the religious group that came here to testify,” Judge Oliver Wanger declared. “When I heard testimony about taking sacrament 8 hours a day, 7 days a week, I had concerns about whether there is a religious need for that.”
Thunder Rector displays the ankle bracelet he wore for pre-trial monitoring - photo by Vanessa Nelson
For Rector, it was a personal and spiritual blow. In his view, he had been severely misunderstood. “I know by the way the magistrate spoke when he made his decision not to dismiss under RFRA that all these misconceptions about me had caused him to paint a false picture of everything I am and all I believe in.”
For his part, Roberts emphasized the difficulty of winning a dismissal on religious grounds, and commented that the only cases he was able to find as precedent involved Rastafarians. But this did not diminish the legitimacy of his client’s claims. “I do think the defendant’s long-held religious beliefs are quite genuine despite his not being able to meet the very restrictive standards which courts have previously imposed.”
After losing the RFRA hearing, Rector was distraught. “I am a peaceful man of God who needs his sacrament to live a sane and happy life,” he insisted. “If anyone who is as deeply attached to his God as I am had to change any part of their religious structure, it would burden their soul. I am not being forced to change a part of my religious practice, but the most important part.”
Further hardships came in the months that followed. Rector’s wife, who was also charged in the bust, decided to file for divorce. His father grew increasingly ill, and the necessity for risky triple bypass surgery became evident. And, in a cosmic smack of insult to injury, Rector was involved in a debilitating car accident almost immediately after his ankle bracelet was removed. He spent the end of 2006 bedridden with broken limbs and facial damage.
During his recuperation, he was forced to come face-to-face with the likelihood of doing hard time. But he still wasn’t ready to give up.
Incarceration became a near-certainty as the year 2007 unfolded and other federal defendants were hit with conviction after conviction in medical marijuana cases. Taking a plea deal would put him behind bars, and going to trial would very likely lead to a much longer sentence. Prison seemed unavoidable, and Rector’s despair quickly became suicidal.
When he tested positive for methamphetamine during a random drug test in early 2007, he came clean to his probation officer. According to Rector, he had decided to end his life, and went to a friend’s house to borrow a gun. Instead of a firearm, however, he was given methamphetamine, and he reported that he settled for what he was offered. Upon disclosure of this story to the probation office, Rector was promptly sent for mental health counseling. It appeared to be a turning point.
“I don’t feel in my heart that it is the time to give up or I would have already left this place to meet my maker,” Rector reflected. “He is telling me to fight because I have not helped change anything yet.”
In April 2007, the defense counsel was able to work out a deal with the U.S. Attorney, setting the amount of marijuana seized at less than 100 kilograms. If Rector pled guilty to this agreed-upon charge, he would face a much lower sentence and could also be considered for downward departure. In addition, and perhaps most significantly, Rector’s acceptance of a plea deal was enough to convince the government to drop the charges against his wife. By July 2007, a little over two years after his bust, Rector was ready for resolution and officially changed his plea.
The fateful day of sentencing came on October 1st, 2007, and true to the melodrama surrounding the case, it got off to a disastrous start. Attorney Dennis Roberts, in fact, characterized it as a nightmare.
To the surprise of everyone involved, the probation office had not issued a final sentencing memorandum that incorporated changes based on the plea agreement. The representative of the probation office claimed Roberts had not adequately notified them of the deal, but the trouble ultimately came down to a miscommunication regarding email versus postal mail.
“I received an email from Mr. Roberts to change the base offense level to correspond with under a hundred kilograms, based on the plea agreement,” the probation representative recalled. “I told him to submit that request during the formal process, in a letter to the probation office. We never received a letter, so I issued the final report with no changes.”
Roberts, for his part, maintained that he provided adequate notice, and had waited in vain for a report that incorporated the details of the plea agreement. Having it disregarded was like a slap in the face of the negotiation process. “To reach this plea agreement, I think you’ll agree, was like pulling teeth on both sides,” Roberts said in court, glancing over at Assistant U.S. Attorney Kimberly Sanchez.
Judge Wanger shrugged, reminding the defense counsel that the probation office is independent and not bound by the agreements between other parties.
Still, Roberts insisted that the code required the probation office to submit a pre-sentence report and notify both parties of it. The judge pointed out, however, that the determining word in the code was “may,” leaving expectations vague and seemingly subjective.
Roberts balked at that interpretation. “Someone needs to talk to the rules committee,” he told the judge. “This is a nightmare. If we’re not told it’s a final report, how do we know?”
Judge Wanger promised to bring up the wording of the rule at the next meeting of judges. “I’ll be blunt – we’ve never had the issue come up before,” he told Roberts. “You don’t go looking for problems. They find you,” he added as the court finally moved on to sentencing.
Roberts first addressed the issue of Rector’s mental health, asking for leniency because of diminished capacity. When the attorney got to a description of bipolar disorder, Rector tried in vain to speak up. “Sit down, okay? Just sit down!” Roberts issued the command in a hiss that was magnified by his proximity to the microphone, about which he was seemingly unconcerned.
But the defense attorney barely got into the next issue before another interruption came. There was a conspicuous pause in courtroom activity for Rector’s father to take a pill, an activity that required the court clerk to scramble to provide a glass of water for the elderly man seated in the audience. The episode was an all-too-perfect segue into declarations about the defendant’s responsibility as the sole caregiver for his father.
“If his father was left to his own devices, he would subsist on Ding-Dongs and Ho-Hos,” Roberts speculated. It was a colorful statement, but junk food was just the beginning of the discussion on this matter.
The issue was quite serious indeed. Rector’s father suffers from an often deadly combination of high blood pressure and heart disease, and requires around-the-clock care. According to Roberts, Rector’s father was currently being urged to have a triple bypass procedure, but was refusing the surgery unless his son would be free to provide 24-hour care during the intensive recuperation period.
“Without my client there, the father is gone,” Roberts said gravely. He then cited several cases where sentences were reduced substantially due to the negative impact the defendant’s incarceration would have on innocent family members. One of them was a drug case, United States v. Galante, in which the 2nd Circuit upheld a reduction in sentence from 57 months to a mere eight days because the defendant was a single father of two children. Roberts suggested that Rector’s case was not much different from this situation.
Beyond that, it was argued, Rector deserved leniency because he had suffered severe abuse as a child. To demonstrate this, Roberts made an overview of his client’s early life and pinpointed certain key traumatic events. In the defense attorney’s account, trouble was brewing for his client at puberty, when Rector’s mother remarried and put him at the mercy of a tyrannical stepfather.
It was at this time that the mood swings of his budding bipolar disorder were beginning to manifest, and Rector says his erratic behavior was punished with verbal abuse and brutal beatings from his stepfather. His mother claims ignorance of the abuse during this time, saying she was distracted by the demands of caring for a new baby that had been born with three holes in its heart. “Many years later Thunder told me that he had suffered physical abuse at the hands of his stepfather,” Rector’s mother related in a letter to the judge. “Had I known this at the time, I would most likely have had him arrested.”
After two years of hearings, Thunder Rector finally signed a plea deal in federal court - photo by Vanessa Nelson
There was no refuge for Rector. At home, he faced neglect and degrading abuse. It was no better for him amongst his peers, where he reported being picked on for his small size and for his behavioral differences. Things at school were much worse than beatings from classmates, though, and they came to a head in a profoundly confusing and disturbing experience.
“[Rector] was once molested by a school janitor, and finally couldn’t take it anymore and quit school in the 10th grade,” Roberts wrote in his sentencing report.
But, according to the defense attorney, things got better for Rector when he moved in with his father…and even better when he began using marijuana to treat his mood disorder. “When he smokes marijuana, he functions quite normally,” Roberts reported.
Turning to the judge, he continued, “I hope someday the federal government realizes what the state of California does and realizes some people need marijuana to function medically.” Concluding, Roberts asked Judge Wanger to consider all the factors presented by the defense as “part of a package for downward departure.”
Assistant Attorney Kimberly Sanchez wasn’t buying it, however. “I have a very difficult time believing that every defense possible actually exists,” she said, skeptical that the defendant met all of the conditions that could qualify him for a downward departure.
Although Roberts objected to it, Sanchez was permitted to detail what she characterized as Rector’s “long and serious problem with drug use.” Sanchez also suggested that this drug problem led to crimes beyond possession charges – specifically, she linked it to one of Rector’s prior incarcerations, which resulted from an episode where he provided the drug ecstasy to a 17 year-old girl and then engaged in what the prosecutor described as non-consensual sex. In Sanchez’s view, this crime was a direct consequence of Rector’s drug problem, and she wanted it given due consideration. “The childhood abuse is unfortunate but doesn’t excuse him for all time. This is his fourth conviction,” she reminded the judge.
At this point, Rector was given an opportunity to make a statement, and he seemed to shake as he approached the podium. Voice wavering, he began a series of apologies – to his wife, his family, the court and the country, and especially to his father. “I’ve made a lot of mistakes in my life. I can’t change them, but I can work towards making sure they don’t happen again.”
The discussion of his priors had a visible impact on Rector, and he looked haunted and hollow as he addressed the prosecutor’s comments. “I understand where Ms. Sanchez is coming from,” he conceded, “but I think if she spent an hour with me and talked to me, she would have a different idea. I never meant to do anyone harm.”
He began to choke up here, and he made an explanation of his emotional state. “I’ve been struggling so hard because I lost my relationship with God, and I had a really good relationship with God before all this.”
After a pause, Rector continued, drawing close to tears. “I really don’t want my dad to die because I made a stupid mistake,” he said woefully. “I love him. I think that I prolong his life. I think that me being there keeps him alive. I need my father, and he needs me.”
The defendant then turned to the judge to wrap up his speech. “You’ve always been great with me, and very fair, and I appreciate that,” he said to Judge Wanger. “I am very sorry I broke the law. I didn’t mean to do it. I had bad information. Thank you for hearing me out.”
The judge had spent most of the hearing sitting quietly, crowned by the large domed ceiling above his bench. He had appeared meditative and reflective, carefully listening to all sides. But the pensive silence and speculation had come to an end, and the time for decisions had arrived.
In spite of the fact that the plea deal had been ignored in the probation report, Judge Wanger elected to proceed based on the terms of the agreement hammered out between the defense and the prosecution. “The government would not have acquiesced to less than 100 kilos if there was not a reasonable basis for doing so,” he concluded.
That said, Judge Wanger started out with facts – given the severity of the offense and the criminal history level, and taking into account a reduction for his acceptance of responsibility, Rector was facing a guideline sentence of at least 57 months. To impose a term below that, the judge would have to find that the issues presented by the defense qualified for a downward departure. And, in his view, they certainly did.
Judge Wanger was most sympathetic to the plight of Rector’s father, stating that the loved ones of the defendant are the lesser-seen victims of crime. The judge also expressed considerable compassion regarding the claims of childhood abuse, giving mention to the extraordinary and unfortunate circumstances of Thunder’s upbringing. In addition, the judge fully accepted the argument that Rector’s actions had been a result of poor advice of counsel. “The court finds the defendant did in good faith use bad legal advice,” he said unequivocally.
Skepticism first surfaced when the judge discussed Rector’s mental health. On this subject, Judge Wanger referred to a report from an examination done by a court-appointed doctor who did not diagnose the defendant as bipolar. The judge read aloud from the report, which characterized Rector as “vague,” “self-serving” and “manipulative.” Also, the doctor had asserted, Rector “blames everyone else for what happened to him,” “has little insight into his behavior,” and “wants to get high and stay high.”
As presented during the hearing, the doctor’s comments were extremely unflattering to the defendant. Still, Judge Wanger took them with the necessary grain of salt, maintaining that Rector’s psychological health was indeed an important consideration for the court. “I do not discount that a lot of the defendant’s behaviors were caused by mental illness,” he conceded.
All things considered, however, Judge Wanger refused to sentence below a 24-month prison term, and flatly denied the request for the sentence to be served on probation. “The court cannot believe that a sentence that does not include incarceration would be respected by the public, justified by the law, or consistent with the grounds that were offered,” he explained. “A 24-month sentence is a reasonable sentence. There’s a need for the sentence to reflect the seriousness of the offense.”
Federal defendant Thunder Rector expects ten months in prison to go by quickly - photo by Vanessa Nelson
The judge then laid out the other terms, which included a five-year period of supervised release that specifically prohibited the unlawful use of controlled substances and required Rector to submit to drug testing. Judge Wanger also gladly ordered Rector to be admitted to the Bureau of Prison’s 500-hour drug program that will allow him to receive a sentence reduction in exchange for completing a series of drug-education courses while incarcerated. “I am attempting to be compassionate,” the judge said, “but the sentence must afford adequate deterrence and afford the opportunity for the defendant to get the treatment he needs while in custody.”
But Judge Wanger was surprisingly flexible in deciding when the defendant would be required to serve his sentence, and ultimately scheduled a turn-in date of May 1st, 2008. This would, in his estimation, give Rector plenty of time to help his father through the triple bypass and the post-surgery recuperation period. All of this was granted with a final word of warning, as the judge said with a wary sigh, “I don’t want to, quite frankly, be taken advantage of.”
The defendant’s reception of the sentence, however, made it look unlikely that he would disappoint the judge with non-compliance. Outside the courtroom, Rector seemed so relieved that his mood bordered on jubilant. His spirits rose even higher after a short conference with his attorney reminded him of sentence reductions from the prison drug program and from time already served. All told, he expects to serve only ten months in a federal institution.
“I can do that,” Rector said confidently after the sentencing. “It was not knowing that was really bad, but ten months…yeah, I can handle that.”
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