Following a rousing round of arguments on a variety of legal motions, attorneys for Charles “Eddy” Lepp are awaiting a decision on the fate of the case against the famed medical marijuana grower.
The much-anticipated ruling could stop nearly four years of legal action against Lepp dead in its tracks. Or, it could be the decision that brings to trial a case that involves nearly forty thousand marijuana plants and a laughably bungled sales sting. It’s a choice that only U.S. District Judge Marilyn Patel can make.
The case before her has been dragging on since August 2004, when a bust by the Drug Enforcement Administration netted 25 acres’ worth of marijuana plants from a search of Lepp’s property in California’s Lake County.
The defendant has consistently maintained that the plants were designated to patients who named him as their caregiver under the state’s medical marijuana law. The argument gives him virtually no traction in federal court, however, given the U.S. government’s continued prohibition on marijuana.
Lepp’s attempts at raising a religious use defense, though supported by his long-running ministry of Rastafari, were similarly shot down by judge. The amount of marijuana seized, she decided, far exceeded the amount needed for sacramental use by the members of Lepp’s church.
The defense was left with one strategy for getting the case thrown out before trial: attacking the legitimacy of the investigation. Luckily for Lepp’s attorneys, the case has no shortage of cracks and holes to serve as footholds in his climb.
Eddy Lepp at U.S. District Court in San Francisco
Two years into the case, Judge Patel threw out the warrant used to search Lepp’s property, saying it relied on incomplete and inaccurate information. That move would have thrown out all evidence seized in the search, including tens of thousands of marijuana plants, were it not for the prosecutor’s last-ditch attempt to save the case.
Assistant U.S. Attorney David Hall immediately argued that the agents didn’t need a warrant to take the evidence – since Lepp’s marijuana plants were plainly visible from a public highway, he said, they could be seized based on a principle called the open fields doctrine. In spite of the judge’s skepticism, Hall went to great lengths to prove his point and called a variety of law enforcement witnesses to the stand to testify about the visibility of Lepp’s garden. It was a poor showing, however. Even the case agent in charge of the warrant testified that he hadn’t seen Lepp’s marijuana field until the search was already in progress and a fellow agent pointed it out to him.
Other witnesses during these hearings were more convincing, but it remains to be seen whether they will persuade Judge Patel. Her first response to the idea of an open fields hearing was to rebuff the prosecutor as soon as he proposed it. “I think you ought to be stopped right here,” Judge Patel said to Hall. “I don’t want to have officers here lying on the stand about what they saw and have to second-guess them.”
But when the government persisted in bringing forth its evidence, the judge dutifully questioned the witnesses and watched them with a careful, if not cynical, eye. If she ultimately decides that Hall’s proof falls short, it will mean that Lepp’s charges for over thirty thousand plants will finally be thrown out of federal court.
That won’t be the end of Lepp’s troubles, however. As defense attorneys waited for the judge’s ruling on the open fields issue, they made motions regarding Lepp’s other pending legal problem: a subsequent raid, executed in early 2005, that netted several thousand more marijuana plants and left Lepp facing a charge for allegedly selling marijuana to an undercover agent. Both the 2005 warrant and the sales sting have been hotly contested in court, and the validity of these operations also hangs in the balance as Judge Patel considers the evidence.
The 2005 warrant was challenged because it used much of the faulty information from the invalidated 2004 warrant, and because it was based on aerial surveillance of property that was later revealed to belong to Lepp’s neighbor rather than Lepp himself. The sting operation related to the 2005 bust was even more complicated and perplexing. The government called it merely a continuing investigation into criminal activity. The defense called it a violation of 6th Amendment rights. And Judge Patel, with the strongest language of all, called it a rouse and suggested that it may have involved governmental misconduct.
A set of evidentiary hearings on the sales sting followed Judge Patel’s comments, fleshing out the details of an undercover operation that was, at times, quite bizarre. The main witness in these hearings was long-time police informant Benjamin Tenenbaum, who claimed credit for the idea of drawing Lepp into a marijuana sale.
As Tenenbaum told it, he came up with his ploy when he saw that Lepp was running a newspaper ad requesting photos of his 2004 bust. Tenenbaum, who had never before met Lepp, decided a perfect way to introduce himself would be by offering pictures of the raid he received through a contact with the Lake County Sheriff. Once he had gained Lepp’s trust, Tenenbaum planned to lure him into a sale with an undercover agent, which the DEA was all too happy to provide.
The story constructed for this sting was that Tenenbaum had received the photos from a friend of his who uncovered them while doing upholstery work on government aircraft. This friend, Tenenbaum would inform his target, had provided the pictures because he was interested in getting some marijuana from Lepp. Agent Andrew “Andy” Cash was chosen to play the role of the upholsterer and was fixed up with a hidden wire to transmit audio of the arranged transaction. At first, everything went smoothly for the informant and the undercover agent, but the process hit some snags when it came time to do the actual sale.
As Tenenbaum’s testimony revealed, Lepp was consistently vague when negotiating the deal. He either gave an appearance of passive agreement or made general comments that did not specifically indicate any action on his part. It seemed, at times, almost as though he was speaking in phrases from fortune cookies. Tenenbaum testified that Lepp told him, shortly before leaving to meet with the undercover agent, “Your friend will be very happy with the marijuana he will receive.” The informant acted as though this was an incriminating comment for Lepp to make, but to discerning ears it rang more like prophecy than a statement of personal action…and it was just one of many similar remarks.
At the meeting itself, the undercover agent warmed Lepp up by chatting with him about the DEA raid in 2004, asking if there was any marijuana leftover from that bust. This move further weakened the already-shaky legitimacy of the operation. The agent’s questions left the government open to accusations that its agents elicited statements from Lepp about a pending case outside the presence of his attorney. Such an action could easily be interpreted as violating Constitutional protections against self-incrimination, and Lepp’s attorneys sunk their teeth into that claim.
Even without this problem, however, the sting was only partially successful. As the witnesses testified, money and marijuana did change hands, but try as they might, they couldn’t get those hands to be Lepp’s. It turned out that his actions were as skillfully evasive as his words.
When the time came for the sale, Lepp tried to have Tenenbaum handle the transaction. The informant resisted, even faking a leg injury to try to manipulate Lepp into performing the action himself, but to no avail. As Tenenbaum testified, Lepp simply called another person and instructed him to handle the transaction. By all indications, the person accused of making this run is a young man named Daniel Barnes, who has been charged along with Lepp on the sales count. However, neither the informant nor the undercover agent –who were the only two other people at the scene – could identify Barnes by name or physical description when testifying during the evidentiary hearings.
By the time the attorneys came before the judge to make their last arguments on a year’s worth of motions, Lepp’s legal situation looked like a case riddled with holes. Both the government and the defense made their final points during a recent hearing, which addressed everything from the open fields claim, possible misconduct in the sting operation, and inaccurate information in the 2005 warrant. It was their last chance to sway the judge before she made the rulings that would decide the fate of the entire case.
In his argument, defense attorney Michael Hinckley relied heavily on the precedent set in the case of Massiah v. United States. The result of this 1964 appeals ruling is that law enforcement officers cannot deliberately induce incriminating information from an indicted defendant who is represented by counsel. “I don’t think there’s another way to describe what happened here,” Hinckley said of the sting against Lepp. “There’s no way to have him not discussing his current case. It’s completely wrong for the government to do this.”
Given that the sting operation was based on the provision of photographs from the earlier bust, for which Lepp was already facing charges and being represented by an attorney, Hinckley had a strong point.
The agent in charge of the sting defended his operation by saying that he hadn’t instructed the informant and undercover agent to engage in dialogue about the 2004 raid. However, he had failed to instruct them to not talk about the previous bust, and as a result, there was much discussion on this subject during the 2005 sales sting.
To emphasize this point, Hinckley pulled out the transcript of Lepp’s conversation with the undercover agent. “The bulk of the conversation is about the previous case,” Hinckley asserted. “It’s a seven page transcript, and there’s no mention of the marijuana sale until page five. The agent says lots of things to elicit discussion of the previous bust.”
Judge Patel then asked Hinckley if it would it be possible to prosecute Lepp for the sales charge, so long as the statements that were made about the 2004 bust were excluded from evidence. “What is the remedy if I agree that the conversation is infected with statements about the previous search?” she inquired ponderingly. “Is the remedy exclusion or could the government still go forward on the buy?”
“Then you have no case,” Hinckley responded unequivocally. “No evidence could come in for the buy, so presumably that count would have to be dismissed.”
Judge Patel continued to ponder the possibility of severing the counts, wondering if the 2005 transaction could be sustained on evidence that didn’t involve the 2004 case, but Hinckley insisted the two cases had become impossibly entwined. “It seems some of the quid pro quo was that the agent was exchanging dope for pictures,” the judge commented.
Even though the informant and the undercover agent hadn’t explicitly said they would hold back the pictures if Lepp didn’t make the requested marijuana sale, Hinckley asserted this understanding was implied. “It wasn’t expressed but it comes close to walking that line,” Hinckley told the judge. “Sort of a ‘you scratch my back, I’ll scratch yours.’”
Only, as the defense attorney then pointed out, it was not nearly such a benign arrangement, since Lepp was in a position where he needed his back scratched desperately. “It was set up in a way that pressured Mr. Lepp into making a sale in order to get the pictures,” Hinckley said, suggesting that such manipulation was sinister in nature.
“Mr. Lepp is a vulnerable person – he was already a defendant, facing federal prison and losing everything he has, including his freedom.” The defense attorney also pointed out that Lepp suffers from Post-Traumatic Stress Disorder and is a fully disabled Vietnam vet. “They know he’s vulnerable, and vulnerable in a way that they will lure him in with what he’s doing.”
Furthermore, Hinckley argued, using the sting operation as evidence in trial would result in an extreme prejudice against his client. “It puts a huge dent on his ability to defend himself in the 2004 case,” Hinckley said of Lepp. “If he tries to use a religious defense, [the government] will say, ‘But you sold marijuana to Mr. Cash.’”
The defense attorney also added that a sting was unnecessary in this case. “He’s fairly open about everything he does,” Hinckley said of Lepp. “He’s been very candid with pre-trial release.”
In contrast, Hinckley suggested, the government did not demonstrate such forthright honesty and transparency. Going with the judge’s language, he called the picture exchange a rouse, and declared this rouse was hidden from the judge who signed the 2005 search warrant. The affidavit for that warrant included reports of an undercover sales operation, but didn’t mention the deal with the photographs.
“I would point out that this rouse is hidden in all the discovery and there’s nothing about it in the affidavit for the search warrant,” Hinckley noted. “I think that goes to outrageous governmental misconduct as well.”
Prosecutor Hall had been demonstrating more and more anxiety as Hinckley’s speech progressed. By the end of the defense’s argument, he was chomping at the bit so hard that even the judge couldn’t resist commenting. “Mr. Hall, You’re jumping up and down,” she told the prosecutor. “I see you. I’ll call on you.”
After giving these assurances, the judge broke into a wry smile. “I’m not going to just let him argue and then rule,” she said through her grin. “You were worried about that?”
But Hall had good reason to be worried. In a previous hearing, Judge Patel said that motions involving outrageous governmental misconduct were seldom granted…except in her courtroom. “I may have the record for granting these motions,” she speculated at the conclusion of an evidentiary hearing held on January 16th, 2008.
His chances looked bleak, but the prosecutor argued forward nonetheless. “I think we had a right to investigate this,” he told the judge.
Hall then claimed that, according to Lepp’s conversation with the undercover agent, the defendant was not very interested in the pictures at all. “I don’t think there was a quid pro quo with pictures for marijuana,” he stated. “In page two of the transcript, Mr. Lepp says, ‘We got probably 10,000 photos of that. Everybody who had a camera took a picture…It’s not the nail in the coffin type.’”
The photographs, Hall maintained, were a means of introduction, rather than a tool for exploiting Lepp’s vulnerability. “He didn’t meet the agent to get more photos, but to sell marijuana,” the prosecutor noted. “No pictures were exchanged that day, but money changed hands, and marijuana changed hands.”
Judge Patel, again, had a speculative question for the attorneys. “If, as a result of the ruling, the marijuana that was part of the buy was suppressed, or the count dismissed, and [Lepp] goes to trial on the 2004 charges, can that evidence be used to rebut or impeach any defense he uses on religious purposes?”
“I think the law allows the impeachment of Mr. Lepp in his testimony,” Hall responded quickly, “if he says something contradictory like, ‘I don’t sell the stuff. I just give it to ease their pain or help them find their god.’”
Hinckley, naturally, disagreed. The defense attorney persisted in his belief that the statements about the 2004 case could not be excised from the evidence without causing a complete collapse of the sales charge. “It’s clear from the transaction that Mr. Lepp was interested in photos for his case and they’re exploiting that, and if he had refused to provide marijuana, the photos would have stopped,” Hinckley reiterated.
“There was no investigation,” the defense attorney added. “They had nothing. They just thought he was dirty and wanted to try to get him on something.”
After taking a short break, the judge moved on to the issue of the open fields claim. As expected, the government argued that Lepp’s marijuana plants were plainly visible from the highway, while the defense argued that the evidence contradicted such a claim.
“Agent Macanga testified that the crop appeared to be consistent with marijuana but he had to confirm it,” Hinckley reminded the judge. “The fact that he had to confirm it suggests it wasn’t clear from the road.”
The defense attorney mentioned that the sheriff drove onto Lepp’s property in order to examine the field, suggesting that trespassing was necessary in order to see and identify the plants. In addition, Hinckley pointed out, the person who shot the video footage of Lepp’s field had used a zoom lens in order to get images of the plants. “The fact that he has to zoom is significant,” the defense attorney maintained.
“It’s appropriate to consider this aspect of the motion – the plain view issue was raised after the fact,” Judge Patel said forcefully. “This is not a motion for reconsideration, but making up for not moving for plain view at the time of the ruling.”
Hall was adamant that he had raised the issue of an open fields claim at the time the 2004 warrant was thrown out, and his assertion was indeed true. However, his only evidence at the time was a photograph printed in a Santa Rosa newspaper, and Judge Patel had laughed down that showing. After that, it had taken the prosecutor some time to line up law enforcement witnesses and get the proper declarations for a hearing on the open fields motion.
“All the evidence we heard was that it was in plain view,” Hall said of the hearing. “No evidence was given that you couldn’t see it, that there was a wall, there was a fence, there was an embankment.”
The Healing Fields in August 2004
The judge indicated that she would decide for herself, based on the officers’ testimony and evidence from surveillance done shortly before the 2004 search. She appeared more interested in hearing the defense’s argument about the errors in the 2005 warrant, which had been addressed in a separate Franks hearing. In order to get the warrant thrown out, the defense attorneys would have to convince Judge Patel that the errors were either intentional or done with reckless disregard.
Hinckley had many points to raise as part of this claim, but the judge was showing signs of weariness. “I’ll try to keep it tight,” he vowed as he plunged into the strongest details of his argument.
The defense attorney focused on the variety of errors made by DEA Agent Brandon Burkhart, whose aerial surveillance photos had been used as evidence to obtain the 2005 search warrant. But there was a big problem with these photos: they were labeled as Lepp’s land, but a hearing later revealed that they were actually photos of land belonging to Lepp’s neighbor. On the witness stand, Burkhart admitted that he had been confused about the boundary lines of the different rural properties and that the aerial surveillance mission had been difficult. The agent claimed it was accidental, and it was up to the defense to show that all this was more than just a simple mistake.
“It was at least reckless,” Hinckley declared, launching into his argument. “This was the third search of Mr. Lepp’s property in four years. Mr. Burkhart had been on the property twice beforehand. Aerial surveillance was done before. Mr. Burkhart had the benefit of all that information in establishing the property lines…It’s wholly unacceptable that, with all this, Mr. Burkhart didn’t know where the neighbor’s residence was until he was here in court.” Hinckley paused and then added, “No one else had the problem of thinking Mr. Lepp’s property was his property.”
The defense attorney pointed out that Burkhart had failed to consult a surveyor, and, as a result, also mistook the municipal water tanks for being on Lepp’s land. “No, it’s city or county property,” Hinckley said of the tanks. The way Burkhart had tried to portray it, Lepp looked like the sole owner of the city of Upper Lake, CA.
There were, Hinckley also observed, omissions as well as errors in Burkhart’s reports. “Mr. Burkhart did not have a belief that the marijuana in the photos would be there when they did the search, and he did not tell the magistrate that,” the defense attorney remarked. “That misleads the judge about what will be found in the search. That is a material omission.”
Also withheld from the magistrate, Hinckley noted, was the way Lepp had been led into the undercover sale through the use of pictures from the 2004 bust. “They sanitized the rouse with the photos,” the defense attorney said, referring to the reports of the sales sting that were used to get the search warrant. According to Hinckley, the affidavit also never mentioned that the informant had a sizable criminal record, a long-time profession as a snitch, or a self-proclaimed vendetta against Lepp.
Furthermore, Hinckley asserted that alternative explanations for Lepp’s high electrical consumption had been omitted from the search warrant affidavit. Not included, the defense attorney pointed out, were the facts that there were multiple buildings on Lepp’s property, including an apartment building, as well a large number of people living in those structures.
This comment did not escape the prosecutor’s refutation. “The defense hasn’t shown that it isn’t high, just that there may be another explanation for it,” Hall said of the electrical usage. “That’s not a Franks issue. You don’t have to put in every possible explanation. It just has to say that high usage is associated with marijuana cultivation.”
The prosecutor looked up at the judge with his final plea. “It is clear that Mr. Lepp is a dope grower, and that he was a dope grower from 2002 to 2004, and into 2005,” Hall said with conviction. “There’s ample probable cause to not throw out the 2005 search warrant.”
Hinckley’s parting words gave one last attack on the affidavit used for the 2005 search warrant. Most egregious, he suggested, were the misidentifications made about Lepp’s property in the aerial surveillance. “It’s so bad that it’s either intentional or reckless,” he contended. “We all have neighbors. A case shouldn’t be decided based on a mistake of who lives in which house.”
The last word, however, came from defense attorney Harris Taback. As the counsel for Daniel Barnes, Lepp’s co-defendant in the sales charge, Taback has taken a backseat in the action of most of the hearings…although he has consistently lightened the mood in the courtroom by maintaining a witty repartee with Judge Patel. “I just need that one sales count severed,” Taback promised coyly, “and you won’t see me again.”
“That may have to happen,” Judge Patel remarked as she brought the hearing to a close. She stepped down from the bench and disappeared into her chambers, leaving the case with an atmosphere of anticipation that will only be cleared by the announcement of her rulings.
Both sides now await those decisions anxiously. Either the case will be declared sturdy enough to go to trial, or the world’s largest medical marijuana bust will be thrown out of court. For Lepp, who has a long history of making cases against him vanish into thin air, a dismissal would not be unheard of. It would, however, be the biggest disappearing act Lepp has pulled off so far.
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