SAN FRANCISCO, CA – In a surprise sentencing Wednesday, medical marijuana defendant Thomas Kikuchi was given a two-year prison term as punishment for violating the conditions of his federal supervised release.
Although this sentence was the maximum penalty that could have been imposed, Judge William Alsup went on record as saying he wished he could have sentenced Kikuchi even more harshly. “If I could give you five years, I would give you five years, because you deserve it,” the judge told the defendant Wednesday.
Tom Kikuchi
Judge Alsup chose to proceed with the sentencing immediately after a hearing on the probation violation. He made this decision in spite of the fact that the lengthy proceedings had already forced him to push back his calendar, and in spite of the defense’s request to be issued a memorandum prior to sentencing. The crucial factor in the rush appeared to be prosecutor George Bevan’s impending retirement, and the judge put the sentencing on the fast track once he learned that any delays might force the prosecutor to miss out on the proceedings.
Although the sentencing was done in a flash, it was the only part of the day that went quickly. Prior to that, the court heard hours of testimony from law enforcement witnesses who tried to tie the defendant to a marijuana grow in a southern California residence last spring. The house in question was linked through utility records to Kikuchi’s partner and former wife, Stephanie Landa, and contained three bedrooms that were being used for cultivation. Officers with the Los Angeles Police Department, aided by reports of high electricity usage, found approximately 350 plants at the house on May 1st, 2007, as well as an assortment of documents bearing Kikuchi and Landa’s names. The search of the property also turned up a gray Ford Mustang registered to Kikuchi, which was being stored in the garage.
Stephanie Landa
However, information presented during the hearing also cast some doubt on the extent of the defendant’s connection to the grow. Kikuchi was not apprehended at the location, but during a traffic stop that was made a significant distance away. He says that officers seized papers from his vehicle and then planted them in various areas of the house, making it look like documents bearing his name were found during the search. According to Kikuchi, this was done by the LAPD in an attempt to shore up its case against him.
The case has certainly needed some shoring up, since the connection between Kikuchi and the grow house is tenuous at best. LAPD officers executing the search were unable to use any of his keys to unlock the door of the house, nor were they able to find any documentation listing the address as Kikuchi’s residence. A single session of surveillance on the property two months prior had documented a male entering the house, but this man was described as notably shorter, thirty-five pounds heavier, and more than twenty years younger than Kikuchi. Nonetheless, LAPD detective J.D. Garcia, who conducted the surveillance operation, insisted on the stand that Kikuchi was the man he had observed entering the house.
In spite of the inconsistencies, the law enforcement testimony was enough to convince Judge Alsup that the defendant had violated his supervised release by cultivating marijuana. “The evidence is overwhelming that Mr. Kikuchi has done it again,” the judge said, shaking his head.
The history of Kikuchi’s case goes back to July 2002, when he and Landa were both arrested for their role in a medical marijuana grow operation in San Francisco. The pair maintains that they were given the blessing of the San Francisco Police Department, who later raided the operation and turned the case over to the U.S. Attorney for prosecution. This change of jurisdiction put the defendants in greater peril, since the federal government refuses to recognize state laws permitting medical marijuana. Stripped of their defense and facing a trial that could have resulted in life behind bars, Kikuchi and Landa eventually pled guilty to a single charge of maintaining a place for the manufacture of a controlled substance. Kikuchi went immediately into custody on his 37-month sentence, but because he shared a minor child with Landa, she was allowed to delay serving her 41-month prison term until Kikuchi was released.
And delay it she certainly did.
Stephanie Landa on the day she turned herself in to federal authorities
In late 2006, the U.S. Attorney discovered that Kikuchi had completed his sentence and been released without triggering an order for Landa to surrender. Judge William Alsup was incensed by this lapse and scheduled Landa to report to prison, refusing to allow her to remain out of custody pending the appeal of her case. She surrendered on January 4th, 2007, and has been serving her sentence at a prison camp in northern California ever since.
Although she’s already incarcerated, Landa could face additional time behind bars if Judge Alsup rules that she’s also connected to the Los Angeles grow house. Prosecutor Bevan officially declared his intentions to bring charges against Landa, saying that the U.S. Attorney’s office was currently evaluating how to bring her conduct before the court. And if those proceedings are anything like Wednesday’s hearing for Kikuchi, she will have to struggle for a presumption of innocence.
“Somebody there was committing a major crime,” Judge Alsup commented less than a half hour into Kikuchi’s violation hearing.
“Somebody,” defense attorney Allison Margolin interjected, trying to emphasize the ambiguity.
“And right now we’re finding out that was Mr. Kikuchi,” the judge finished, appearing to be already convinced of the defendant’s guilt.
The judge’s determination came in spite of the fact that nearly all of the evidence linking Kikuchi to the grow house was circumstantial. The defendant’s probation officer even took the stand to testify that he never had any indication that Kikuchi was residing at that location. But to Judge Alsup, the circumstantial evidence had significant weight in its totality.
“The case does turn mostly on circumstantial evidence,” the judge later concluded, “but the circumstantial evidence is overwhelming that absolutely Mr. Kikuchi was involved.”
Margolin repeatedly voiced her opposition to the proceedings, claiming that the only way to preserve due process would be to delay the federal violation hearing until the criminal case had resolved in state court. This was a major reason for rejecting an earlier plea deal that had offered Kikuchi a 15-month sentence, as Margolin stated that an admission to a violation of supervised release would result in her client incriminating himself in his state case.
“I think your points are not well-taken,” Judge Alsup told the defense attorney, continuing on to declare that the state is a separate sovereign from the federal government. “If we allow the federal system to be held hostage by delays in state prosecutions, justice will never be served.”
Defense attorney Allison Margolin
And in the name of justice, seven witnesses were brought to the stand to testify before the judge. Although nearly half of them were with the LAPD, Margolin noted the conspicuous absence of the officer who found most the evidence during the search of the grow house. The defense attorney’s objections on grounds of hearsay were numerous, matched only by the number of times Judge Alsup overruled them. The process became a tedious one, punctuating the lengthy testimony about the items that had been taken into evidence.
The court heard about the seizure of four scales and a sum of over six thousand dollars in cash, items the prosecution argued were evidence of marijuana sales. Officers also testified about seized documents that were purported to tie the defendants to the location, including several identification cards for medical marijuana dispensaries, vehicle registration and insurance paperwork bearing the names of both Landa and Kikuchi. At this point, Margolin stepped in with an objection.
“They are suggesting that he lived there by these various items,” Margolin said about the claims against her client. “There are certain pieces of property that they are saying were found in certain places of the house or on Mr. Kikuchi’s person—”
“The entire house was loaded with marijuana and plants and materials for growing it,” Judge Alsup responded, overruling the objection before it was fully articulated. “I’ve seen the pictures,” he added, echoing other statements that indicated he was sure of the defendant’s guilt.
There were indeed some notable pictures to see. One of these was a Polaroid photograph seized from the grow house, which showed the same gray Mustang that was found in the garage and which had been registered to Kikuchi. Posing with the vehicle was an unidentified man who struck a likeness to the defendant, and Judge Alsup was intrigued enough to get up and lean into the witness stand for a closer look at the picture. He glanced back and forth between the image and Kikuchi, who sat placidly at the defense table in a yellow jumpsuit marked “Alameda County Jail.”
“It has a resemblance to the defendant, but I can’t say it is him,” Judge Alsup commented. However, he became more and more willing to make that leap of judgment based on the mounting evidence that connected Kikuchi to the vehicle. By the conclusion of the testimony, the judge had changed his tune entirely on the matter. “Far and away, just the complete killer here…is Mr. Kikuchi’s car in the garage and the picture of him with it. It’s kind of like Lee Harvey Oswald standing there with the assassination rifle.”
The judge’s analogy imbued the innocent photo with an undue amount of sinister intrigue, but when it came to scandalous pictures, things had only just begun. Government Exhibit 22, allegedly recovered from the living room of the house, was a photo of activist/model Sarah Diesel. The scrawled autograph was to “Tom” with a clumsy dedication to him as “the worldest greatest grower.” (sic) The naked woman in the picture was partially concealed by what appeared to be an artistic sprinkling of marijuana buds in just the right places to conform to public decency standards.
Judge Alsup squinted at the image, perplexed. “What is that that’s covering up the woman in the picture?” he asked. “Is that some kind of drug?”
For a judge who has presided over high-profile marijuana cases, it seemed that Alsup was remarkably under-experienced in the visual attributes of the harvested plant. The witness gave his opinion that the material was marijuana buds, eliciting a quick objection from the defense.
“It’s irrelevant whether this is real marijuana or not,” Margolin argued. Furthermore, she contended, the writing on the photo did not meet the standards of factual reliability, and there was no proof that the defendant was the “Tom” named in the autograph.
Bevan’s protégé, the young Bryan Whittaker, tried to field the counter-argument. The significance of the writing on the photo, he said, was not to show that Kikuchi was the world’s greatest grower, necessarily, but to just show that he was indeed a grower.
Judge Alsup, however, took the allegations a step further, speculating that Kikuchi “maintained this picture for the purposes of promoting marijuana activity.” Nevertheless, he ultimately decided that the comment about growing would not come into evidence. Only the image and the name on the autograph would be considered by the court. Almost as an afterthought, the judge asked about the identity of the woman in the photograph, but no one could provide an answer. The witness had no idea at all.
It was a claim that was difficult to comprehend, given that the picture bore the model’s full name and a simple internet search would have quickly taken any curious parties to Sarah Diesel’s own website. But this was just one of many instances in the hearing where even basic investigative work looked to be either incomplete or highly questionable.
Going on witness testimony, the genesis of the investigation on the grow house appeared murky. Ruben Chacon, a utility theft investigator for the Los Angeles Department of Water and Power, took the stand to testify that the property on Landa’s utility account had been using up to five times more electricity than expected. But when he tried to explain why he was investigating her account, he ended up creating more confusion than clarity. Chacon started off talking about a warrant from the LAPD for the electricity usage on a different address that was listed with a different occupant. According to the investigator, the records on this address showed Landa as a previous occupant, and, for reasons unspecified, he decided to look up her current account. This, he claimed, is how he came to scrutinize the utility usage of the location that was ultimately raided on May 1st, 2007.
Judge Alsup had a difficult time connecting the dots. It was indeed quite a jump to think that Landa should be put under scrutiny simply because she was a previous occupant of a house whose current occupant was being investigated. “This seems to be a remote fact connecting the two addresses,” Judge Alsup said as he got the facts straightened out. “The witness got us off into a wild goose chase.”
Margolin, however, focused on a different inconsistency, pointing out that Detective Garcia failed to turn up any information about Landa’s in-custody status when he performed record checks on the defendants. Although Garcia explained that the LAPD search system does not turn up federal cases, Margolin wasn’t satisfied with the excuse. In her view, more follow-up investigatory work should have been done, but the officers didn’t bother. “That really tells the lack of information and guesswork that’s going on in this case,” she told the judge.
Defense attorney Allison Margolin
The defense attorney also found the showing in court to be inadequate. After an officer testified to the seizure of Kikuchi’s parole paperwork, Margolin escalated her claims of hearsay. “The court should not admit evidence from officers who are not here,” she insisted. “The government has failed to produce Detective Hammer, who seized the majority of these items.”
“If this was a criminal trial, maybe you’d have a point, but the rules of evidence don’t apply to a probation violation.” Besides, the judge continued, it was inconceivable that there could have been any deception involved in the search and seizure. “It is beyond belief that the officers could have planted something like this. I’m talking about the suggestive photos.”
These views were naturally encouraged by Bevan, who made his own comments in closing about the conduct of the officers. In particular, he praised Garcia and fellow officer Jaime Balderas for being exceptionally accurate and meticulous during the search of the grow house. “They should be commended,” Bevan said with gravity. “These are two officers who obviously pay attention to detail.”
Overlooked in the prosecutor’s speech was the hearing’s third and final LAPD witness, Dennis Packard. The forfeiture specialist had waited outside the courtroom all day long for his chance to testify, entertaining those in earshot with animated football stories. And, when it comes to Packard, earshot is quite a long distance indeed. The middle-aged cop’s booming voice commanded him as much attention on the witness stand as it did during the hallway storytelling sessions.
In spite of his supreme audibility, Packard had very little testimony to give. After detailing nearly 35 years of employment with the LAPD, the officer described his involvement with the search of the grow house. He been called to the scene to do what he did best – conduct a financial investigation – and the focus of his efforts was a series of money order receipts he said he found in a desk in the living room. His brief testimony consisted almost entirely of his analysis of the purpose of these transactions.
Packard determined that some of the money orders had been used to pay the rent and the utility bills. Others had been for payments on a loan taken out by Landa, while at least one other had been used to deposit money on her inmate commissary account. All of the money orders, he claimed, were paid for in cash. And so the purpose of Packard’s testimony became clear – the government was attempting to establish that cash from marijuana sales was being converted into funds for Landa’s use.
But the prosecution didn’t just take the LAPD’s word for it. Bevan also called to the stand postal inspector Christopher McCollow to augment the Packard’s testimony about the financial evidence. The inspector had researched the money orders from within the postal service’s records system, and his testimony seemed to corroborate Packard’s claims. McCollow also provided a total dollar amount for the money order receipts, putting the sum at approximately $7900.
The last of the government’s witnesses, Christina Auckerman, took the stand for the purpose of confirming the volume of communication between Landa and Kikuchi. A financial specialist for the Bureau of Prisons, Auckerman was poised to provide the information that would bolster the prosecution’s case of a conspiracy between the former co-defendants. She testified about calls made by Landa from prison to two different phone numbers listed as Kikuchi’s, coming up with a total of 130 calls over a five month period.
Margolin objected, claiming that the content of the conversations was unknown. For his part, Whittaker countered that the frequency of the phone calls was evidence of constant communication that could be relevant to proving a continuing criminal conspiracy. Ultimately, Judge Alsup allowed the phone records to come into evidence, but nothing was ever presented with regard to the subjects of those conversations.
For Margolin, that omission was conspicuous and revealing. After all, she pointed out, phone calls from prison are recorded, and the government can access these records routinely. If there had been anything incriminating on the recordings, surely the prosecutors would have presented it. “The government could have subpoenaed the recordings of the calls from the Bureau of Prisons and they did not,” she told the judge. “We could have known the exact content of those calls.”
But these points seemed not to matter to Judge Alsup. He was already convinced that Kikuchi had cultivated the marijuana in the grow house, and that he had done so as part of a conspiracy with Landa. “I think Mr. Kikuchi and Ms. Landa, even while in prison, will be cooking up a new scheme, and I warn the Bureau of Prisons to monitor their activity closely,” the judge cautioned.
It was a sentiment that Bevan played upon as he urged Judge Alsup to give Kikuchi the maximum prison sentence possible. “He violated the law with Stephanie Landa at a time when she should have been in federal prison. And even when she goes in, they’re in constant communication…continuing their conspiracy,” Bevan said, summing up his points. The prosecutor also took the opportunity to gripe about Landa, complaining that she had litigated her case in an appellate court and raised issues that were precluded by the plea agreement she had accepted. Ultimately, however, Bevan returned to the subject of Kikuchi and the matter at hand. “The fact that he’s violating the very same laws again, and with the same co-defendant, I think, cries out for and justifies a sentence above the guidelines.”
Margolin laid her own final arguments out. “Other than this incident, he has been abiding by probation,” she emphasized. “The evidence submitted is circumstantial. There’s nothing else to tie him to the location other than the documents and one day of surveillance.” The defense attorney then asked for a one-year sentence, reminding the judge that, “The government didn’t prove Mr. Kikuchi was cultivating, that he possessed marijuana, that he did anything other than visit the location once.”
A moment of silence followed the conclusion of Margolin’s plea. The judge then offered Kikuchi an opportunity to make a statement to the court, which he declined. That choice was soon validated by Judge Alsup’s own comments, as he reminded the defendant that there would be no excuses this time around. “You’re not going to use your son – he’s too old now,” the judge said sternly to Kikuchi. “There’s no excuse you could give me that I wouldn’t be suspicious of.”
After that, it was all Alsup’s forum, and he continued to address the defendant personally as he imposed the two-year maximum sentence. “First of all, this is exactly what you did before,” Alsup said, going on to summarize the outcome of the first cultivation case. According to the judge, the defendants got a great deal the first time around because of his compassion and the generosity of the government. But, in Alsup’s view, Landa and Kikuchi had not been duly appreciative of the favor they were shown. “It’s hard to believe that you thumbed your nose at the system, and Ms. Landa did too,” the judge said to Kikuchi. “It is inexcusable. This is flagrant disrespect for the law. You are incorrigible.”
Judge Alsup concluded his speech by urging the state court to punish the defendant as harshly as possible for the May 1st grow house bust. “You ought to throw the book at Mr. Kikuchi,” the judge said to any state authorities who may have been listening. “He deserves as much time as he can get.”
The rhetoric quickly shifted from what was deserved to what was needed, and Judge Alsup finished with another call for more prison time. “I think Mr. Kikuchi needs a more severe sentence than he has already gotten, and Ms. Landa too, because she was a co-conspirator.”
Stephanie Landa
Bevan then assured Alsup that the U.S. Attorney was evaluating the proper way to charge Landa for violating the conditions of her own pre-trial release. It was a statement that seemed to satisfy the judge, and he quieted down on the matter…that is, until he was asked about where Kikuchi would serve his sentence. “I hope it is somewhere where Ms. Landa is not assigned,” he exclaimed. In the end, though, Judge Alsup refused to designate a facility for Kikuchi. “He has abused the court’s generosity in this case. They can send him to Fargo, North Dakota. I’m not making any more recommendations.”
But the judge would make one final speech, and he crafted it into a tapestry of praise for Bevan’s lifetime of work as a prosecutor. This was, after all, the man Judge Alsup had previously dubbed “Mr. Marijuana for the U.S. Government.” With all due emphasis, the judge gave the prosecutor’s career a stirring eulogy. “Mr. Bevan, after 35 years of government service, will soon be going into…” Judge Alsup paused here, realizing he didn’t know what Bevan’s plans were. The judge ventured a few guesses before the prosecutor finally admitted that he didn’t know what he was going to do with himself upon retirement. Bevan’s vagueness and lack of enthusiasm suggested that he was not particularly pleased about having to leave his job.
Judge Alsup continued cheerily nonetheless, bubbling over with patriotic overtones and declarations that Bevan has always exemplified fairness. “He has been a marvelous lawyer for the government,” the judge said with ceremony. “He has been a model for all U.S. Attorneys to live up to.”
Bevan reciprocated the thanks and appreciation, after which Judge Alsup turned to look down at the defense attorney. “And Ms. Margolin, we always enjoy having you here as well,” he finished.
Court was then adjourned, leaving the parties to break up into private chatter as Kikuchi was escorted back to confinement. It had been a day of colorful analogies and biting character assessments, but the charismatic words were not the ones that lingered in the courtroom or echoed in the heads of the listeners. To the contrary, the most poignant quote of the day was a rather tame and ambiguous one. Although he had been speaking about the need for further punishments for the defendants, the judge happened to utter a set of words that could have otherwise served as the anthem for the case as a whole. As Judge Alsup said with great earnestness, “I don’t want there to be a suggestion that justice was served here.”
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