SAN FRANCISCO, CA -- A federal jury this afternoon found medical marijuana provider Charles “Eddy” Lepp guilty on all charges. This includes one count for conspiracy to distribute or to possess with the intent to distribute, and another count for manufacture or possession with the intent to distribute. With regard to both counts, jurors made the finding that the offenses involved at least a thousand marijuana plants.
The decision came following a fast-paced trial that played out over the course of three mornings in a modest San Francisco courtroom. It involved relatively unrestricted language about the medical and religious use of marijuana, but before deliberations the jury was told to disregard this rhetoric and apply federal law as instructed. As such, the verdict was a predictable outcome.
The jury tipped their hand after about two hours of deliberation, when they sent a question regarding the quantity of marijuana involved. In an oddly-worded inquiry that came in at 4pm, the jurors asked if they “needed to prove” there were more than 32,500 plants.
“Love that language,” Judge Marilyn Patel commented with a smirk. When the jury gathered to hear her reply, she set things straight verbally. “First of all it’s the government that needs to prove,” she emphasized before going on to remind the jury that they only needed to determine whether or not there were over a thousand plants involved in the offense.
Eddy Lepp. Photo by Vanessa Nelson.
Long-standing estimates put the amount of marijuana seized during Lepp’s August 2004 bust at approximately 32,500 plants, and jurors heard references to this figure during the trial. They also heard a different number – 25,000 plants – referring to the amount to which both parties had stipulated for trial. In the end, the boundary to be considered was only a thousand plants, allowing for quite a lot of wiggle room in the findings.
Whatever the number, it was a bad sign for Lepp, since quantity was only to be considered by the jury if they had already come to a guilty verdict. His only hope was that the jurors might have confused their instructions, a theory that was viable given the complexities of the case. After all, the jury had spent the entire morning hearing rebuttal witnesses who testified about a sales sting that wasn’t even part of the charges in the trial.
These rebuttal witnesses were called because the government accused Lepp of lying on the stand when he denied selling marijuana, and when he implied that the marijuana on his property was solely for medical and religious use. Judge Patel instructed that testimony about the sting was to be considered only for purposes of determining the defendant’s truthfulness, but it was still a baffling situation for the jury. It was a matter the judge ultimately had to clear up during deliberations, when a question indicated that the jury was contemplating how the sting applied to the criminal charges.
Jurors eventually saw their way through the confusion and presented a clear set of guilty verdicts at approximately 5:30pm. The convictions thus delivered, Judge Patel thanked and excused the jurors. “It’s not easy,” she said about jury service. “It’s a very serious and very important responsibility.”
However damning the guilty verdicts may be for Lepp, their announcement was not the emotional climax one might expect. It took another issue to bring courtroom anxieties to a head: the matter of Lepp’s freedom.
After the last juror exited the courtroom, the judge turned to the attorneys and asked the hot question. “Is there any reason why Mr. Lepp may not remain out on bail?”
Defense attorneys Michael Hinckley and Lidia Stiglich. Photo by Vanessa Nelson.
Assistant U.S. Attorney David Hall immediately made a motion for remand, initiating a tense struggle with the defense that would push towards evening. “I believe it’s mandatory under these circumstances,” the prosecutor commented about revoking Lepp’s bail. “There is no discernable issue on appeal, and the defendant is going to do some time.”
Defense attorney Michael Hinckley responded with a list of factors intended to convince the judge that his client’s situation was extraordinary: the fact that Lepp has been out on bail successfully for four years, the grief from his wife’s recent death, and the need to regroup in preparation for an important sentencing hearing. Hinckley also pointed out that the policies about remand are often bent for far less compelling circumstances. “This rule exists and is not applied everyday in this building,” he noted.
“I believe ten years is the mandatory minimum,” Hall countered. “The stakes have changed for [Lepp]. The risk of flight is higher now.”
The defense was not prepared to accept that characterization. “When we proceeded to trial, his chances were slim at best…and he has not fled,” Hinckley said of his client.
The judge couldn’t seem to swallow the assertion that Lepp knew his odds of winning were slim. “There was a sense that he could beat all of this, and that hasn’t happened, obviously,” she commented.
The defense had another issue to raise, however, and it turned out to be a crucial one. “It appears to us that he is safety valve eligible,” Hinckley said, referring to a mechanism that would allow the judge to sentence below the mandatory minimum.
The prosecutor appeared to agree about Lepp’s qualifications, but noted that there was one significant problem. To be eligible for safety valve consideration, a defendant must give a truthful statement about the elements of his offense, and Hall believed that Lepp lied during his trial testimony. “The statement he gave on the stand would not be a truthful recitation of his involvement,” Hall maintained.
Judge Patel seemed content to resolve the issue of eligibility later, after Lepp’s post-conviction interview with a probation officer. For the meantime, the judge was more interested in assessing whether Lepp was a flight risk. On that matter, Hinckley pointed out that Lepp has left the country multiple times while out on bail, but always come back and surrendered his passport on return.
With a smile, Judge Patel recalled an invitation she had made to Lepp during previous court appearances – an offer that he go to Amsterdam and never come back. “I’ve invited him to leave before and he never left,” she said. “He never took up my invitation.”
“I won’t take advantage of it now,” Lepp broke in from the defense table, his voice in low tones of sincerity. “I promise you.”
It appeared to be enough for Judge Patel. Finding that Lepp was safety valve eligible, not a flight risk, and not a risk to the community, she agreed to let him stay out of custody…but on strict conditions. He would not be allowed to leave the Northern District of California, and he would be required to be in a situation where he was not around marijuana at all. This last restriction would prohibit the growing of marijuana and the using of it for any reason, in his “environs.” If he violated that, Judge Patel promised, Lepp would be “back in custody before you can say ‘boo.’”
But almost as soon as she had made that pronouncement, Lepp was requesting permission to leave the state to speak at Portland Hempstalk during the coming weekend. “Is this for medical marijuana advocacy?” the judge asked him bluntly.
Eddy Lepp talking with his attorneys after the verdict. Photo by Vanessa Nelson.
When Lepp answered in the affirmative, the judge made her wishes known. “I want you to be truthful about what happened here,” she said about Lepp’s depiction of the trial. “Let them know it’s not without problems and jeopardy to one’s liberty,” she urged, ostensibly referring to the possession, cultivation and distribution of marijuana.
Judge Patel then set a date and time for sentencing: December 1st, 2008 at 9am. “Mr. Lepp should be prepared to surrender for sentencing,” she warned.
But Lepp had other ideas. Outside of the courtroom, he was his unsinkable self as he spoke enthusiastically for his chances on appeal. “There’s still a very real chance I won’t go to prison,” he told the waiting cameras.
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