Eddy Lepp. Photo by Vanessa Nelson.
SAN FRANCISCO, CA -- Former medical marijuana grower Charles “Eddy” Lepp was sentenced yesterday to ten years in federal prison.
This term, which is the mandatory minimum sentence for felonies involving a thousand or more marijuana plants, has been a near-certainty for Lepp ever since a jury convicted him last September.
“I think that amount of time is excessive, but that’s not up to me to legislate – that’s up to Congress,” Judge Marilyn Patel said as she handed down the ten-year sentence.
To the relief of his supporters, who packed the courtroom yesterday, Lepp was not taken immediately into custody. His surrender date is set for July 6th, 2009.
Lepp’s chance at avoiding the mandatory minimum was to qualify for the safety valve, a legal mechanism that would have allowed the judge to impose a lesser term.
As it turned out, the crux of Lepp’s eligibility for the safety valve was whether he lied when he took the witness stand during his trial. At that time, Lepp disavowed direct involvement in cultivating some 32,000 marijuana plants that were seized from his land during a Drug Enforcement Administration raid in August 2004.
Lepp testified that he had allowed members of his Rasta church to make use of his rural Lake County property, but claimed no direct involvement in the activities undertaken there. On the stand, Lepp denied planting the marijuana, saying, “I acknowledge it was done and I’m proud of it, but I didn’t crawl around on my hands and knees.”
Medical Marijuana Garden on Eddy Lepp's land
According to Lepp’s prosecutor, Assistant United States Attorney David Hall, these statements contradicted case evidence and amounted to perjury.
Hall also suspected that Lepp’s statements about his church members were a back-door way of trying to testify to a religious defense.
Prior to trial, Judge Patel denied Lepp’s claims under the Religious Freedom Restoration Act, thereby disabling legal arguments that the marijuana in the case was part of protected religious expression. In her ruling, Judge Patel decided that the sheer quantity of marijuana created such a high risk of diversion that the government’s interest in eradicating it was a higher priority than Lepp’s ability to freely practice his religion.
In addition to losing his motions on religious use, Lepp was also denied a medical use defense.
Despite his contention that the marijuana was being grown for patients under the auspices of California’s Compassionate Use Act, federal courts do not recognize state laws permitting the medical use of marijuana.
At trial, Hall suggested that Lepp was denying any involvement in the cultivation simply because pre-trial rulings left him with nothing else to argue. “You have asked this court to give you a defense of medical marijuana and religious marijuana,” Hall said in his closing statement. “Both were denied by this court. Now you’re using the only defense left for you: it wasn’t me.”
It was a defense Hall was compelled to challenge. During cross-examination, the prosecutor confronted Lepp with videos taken from his MySpace page. One showed Lepp standing in the freshly-planted fields, saying, “We’re going to keep planting until there’s no time left to plant.” Another featured Lepp giving a speech about having the courage to plant twenty thousand marijuana plants alongside a state highway. According to the prosecutor, these clips were evidence of Lepp’s personal involvement with the marijuana being cultivated on his property.
For his part, Lepp denied any subterfuge. He has maintained that he was honest and open about what occurred on his property, going so far as to inform law enforcement authorities about the cultivation when the garden was first planted. “My God, I had Highway 20 running through the middle of it,” Lepp declared at trial. “I wasn’t trying to hide it.”
In at least one way, such openness undermined Lepp. Had the plants not been visible from the public highway, all of the evidence against him would have been thrown out when Judge Patel declared the search warrant invalid in 2006. Instead, he was left to proceed to jury trial without any of the defenses that might otherwise have given him a chance at acquittal. His conviction was assured almost from the start, just as the imposition of yesterday’s mandatory minimum sentence was nearly a foregone conclusion.
The safety valve may have been a longshot, but that didn’t stop the defense from fighting for it at yesterday’s hearing. Up until the last possible opportunity, defense attorney Michael Hinckley continued to argue that Lepp had not perjured himself on the witness stand.
Michael Hinckley, Eddy Lepp's defense attorney
The defense attorney explained that the cultivation was set up communally, as it is supposed to be under California medical marijuana law. “They don’t think that’s how it was run,” he said of the government, “but that’s how it was run.”
Lepp, too, steadfastly stood by the statements he made at trial. During his address to the court yesterday, he claimed that Hall had offered him safety valve eligibility if he would just recant his trial testimony. “When I met with Mr. Hall, he told me that if I would admit that I lied…then he would drop the ten years,” Lepp said.
It was an offer he was unwilling to accept, he explained, because his testimony was the truth and he would always stand by the truth. The alternative would be shameful, in Lepp’s view, and the possibility of avoiding prison was not worth compromising his values. “I don’t want to go to prison, but I would rather do the ten years and be able to look myself in the eye,” he said.
Judge Patel was unswayed by the defense’s arguments. “I believe Mr. Lepp has been less than candid in court,” she said in approaching the topic.
The judge then registered her skepticism about Lepp’s religious beliefs, saying it was “no coincidence” that Lepp turned to the Rasta religion after his medical use claims fell through in federal court. It was all too convenient for the defendant to convert to this religion, Judge Patel explained, “because it respects the use of marijuana in its rituals.”
The judge’s comments were interrupted by indignant grumblings of discontent from the gallery and by Lepp’s own outraged declaration that he has been part of the religion for more than a decade. Scoffing, Judge Patel characterized Lepp’s knowledge about Rasta beliefs as “less than persuasive.”
She then suggested that Lepp was similarly unpersuasive in his claim that he was not involved in the cultivation. Drawing from trial testimony, Judge Patel quoted Lepp as saying that he felt responsible for the grow because of his roles as church minister and as the owner of the land.
The judge also noted Lepp’s repeated declarations about being proud of the cultivation that took place on his land. “I think Mr. Lepp’s main driving force is the legalization of marijuana,” Judge Patel speculated.
“Maybe you want to be a martyr for the cause,” she said to Lepp directly. “If so, then that’s your lot.”
In addition to reflecting on Lepp’s motives, the judge turned her attention to the defendant’s methods. She suggested that Lepp’s approach was to deliberately provoke authority figures and push boundaries. “You have acted in the face of authorities telling you ‘no,’ in order to continue to grow marijuana,” the judge said.
Such a characterization was particularly significant, given the prosecutor’s last-minute attempt to show that Lepp was involved in some brand new marijuana offenses. In doing so, Hall alluded to information he had gained while following up on searches made by the Mendocino County Major Crimes Task Force last Thursday.
The task force officers claim they were led to Lepp’s property after backtracking the Global Positioning System in a vehicle that was involved in a marijuana bust. Since this backtracking indicated a geographic area rather than a specific address, officers entered multiple residences in their investigation. It turned out that his neighbors were the intended targets, but that didn’t prevent Lepp’s own home from being searched in a manner he contends was improper.
Although officers say they seized no evidence from Lepp’s home at that time, Hall was visibly enthusiastic about the consequences of the search. As the prosecutor was preparing to mention the incident during yesterday’s hearing, Judge Patel commented to him, “You look eager with anticipation.”
Suggesting that an evidentiary hearing on the matter might be necessary, Hall encountered the judge’s cynicism. Allegations of Lepp’s continuing involvement with marijuana were no surprise to a blasé Judge Patel. “You probably assumed Mr. Lepp was using marijuana on a daily basis,” she remarked to the prosecutor.
“This was much more than that,” Hall shot back ominously.
In spite of his grave demeanor, however, the prosecutor eventually revealed that the new evidence would have little practical effect on the sentencing hearing. As Hall explained, he did not intend to use the information to argue for additional time on Lepp’s sentence. Instead, the prosecutor merely wanted to use the new evidence to enhance his “persuasive ability” at the hearing.
Judge Patel wasn’t keen on the idea of having an evidentiary hearing solely for the purpose of boosting the government’s arguing skills, and she quickly dismissed Hall’s proposal. “If evidence can be borne out, then the government is free to bring those charges,” she said. New evidence, she suggested, would belong with a whole new case against Lepp. “This case has gone on long enough, and it’s time for the sentence to be imposed.”
This decision disarmed Hall of everything except a single acerbic remark. Asked if he had anything to say before the sentence was imposed, the prosecutor simply stated, “I have never seen a man work harder to get time in prison than Mr. Lepp.”
A collective gasp swept the crowded gallery, but Hinckley stepped in with an amiable comeback. “Your Honor, I have worked hard to keep Mr. Lepp out of prison,” the defense attorney declared.
“You’ve done an admirable job,” Judge Patel returned graciously. However, she noted, she could not honor his request to give Lepp a non-custodial sentence. “The court would have to go way off the reservation for that,” she remarked before officially imposing the mandatory minimum sentence.
In addition to the ten-year prison term, Lepp was hit with $200 in fees and a five-year period of supervised release. Given the requirement that he refrain from cultivation and use of marijuana, Judge Patel assessed Lepp’s likelihood of complying with the terms of supervised release. “I suspect you’re going to have a hard time trying not to run afoul of them,” she predicted.
There was one final decision at yesterday’s hearing, and it was one that had observers in the gallery sitting on the edge of their hard-won seats. The government’s recommendation had called for Lepp to be immediately remanded into custody, and watchers waited breathlessly to see whether he would be snatched away in handcuffs.
Hinckley fought the battle to the end, claiming that exceptional circumstances justified a self-surrender for Lepp. “If this case is nothing else, it is exceptional,” the defense attorney insisted. Hinckley focused the argument on his client’s medical conditions, submitting letters from two physicians who stated that Lepp’s health could be severely damaged by incarceration.
Eddy Lepp. Photo by Vanessa Nelson.
In Lepp’s own plea, however, he appeared far more concerned with the health of others. Tearfully, he disclosed that his daughter was recently diagnosed with the same illness that killed his wife just a year and a half ago. “I beg you, let me self-surrender,” Lepp implored the judge in a near whisper, his voice choked with emotion.
Judge Patel agreed to the self-surrender, and, subject to the approval of the Bureau of Prisons, stated that she would recommend that Lepp serve his sentence at a facility with proper medical care. “But I am not aware of any facility that allows the use of medical marijuana,” she warned.
After setting the July 6th surrender date, Judge Patel had one last word of caution. “One time I not-so-facetiously suggested that you could stay in Amsterdam and the government would maybe drop the charges,” the judge recalled of an offer she made to Lepp back when she approved his request to travel abroad to a cannabis cup.
“Don’t get the idea you can do it now,” Judge Patel concluded, cracking just enough of a grin to make observers realize that her serious smile is identical to her facetious one.
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