Asset Forfeiture

Eight years ago, voters in Northern California's Mendocino County passed the groundbreaking Measure G, which allowed people to grow up to 25 marijuana plants for medical or personal use and directed local law enforcement authorities to make marijuana offenses their lowest enforcement priority. Since then, the already well-established Mendocino cultivation community has exploded, and with the size of the crop estimated to be somewhere between $500 million and $1.6 billion a year, marijuana is now the backbone of the local economy.

outdoor marijuana harvest in California (from NDIC via usdoj.gov)

Last week, Mendocino residents went to the polls to vote on a measure that would undo Measure G and set cultivation limits at six plants, as mandated by state law. (That portion of the law was recently declared unconstitutional by a state appeals court; see our coverage here.) Known as Measure B, the initiative had the support of most of the county Board of Supervisors and the rest of the political establishment and prominent local media, and polling suggested it would easily pass.

But despite media reports on election night that the measure had passed by a margin of 52% to 48%, the election is by no means over. Nearly 11,000 hand-delivered absentee ballots, or about 38% of the total vote, have not yet been counted. The county has until the end of the month to count them and certify the election, although the final results could be announced any day.

Opponents of Measure B think that they will prevail when all the votes are counted. Supporters of Measure B say the same.

"The margin right now is only 710 votes, and we think we will win in the end," said Laura Hamburg, spokesperson for the insurgent movement to defeat the initiative known as the No on Measure B Coalition.

"One reason for optimism is that those last minute ballots are coming from people who were very concerned about making sure the registrar got their votes, and we have been stirring those people to get out and vote. The second reason is geography. The county seat of Ukiah is more conservative, but the outlying areas of the county have been much more liberal and sympathetic to mom and pop personal and medical use. These rural areas are where the hand-delivered absentee ballots are coming from."

"There are a lot of conservative voters who take voting seriously and don't trust the Post Office and want to hand deliver their votes," argued Ross Liberty, spokesman for Yes on Mendocino County Measure B Coalition. "And our strongest district is District 1, which is where most of the uncounted votes are coming from. This is still doable," he said, while conceding that some of his allies consider his prediction of a 60%-40% win "overly optimistic." Still, said Liberty, his team all agrees they are odds on favorites to win.

Dale Gieringer (courtesy pot-tv.net)

Liberty said he was not opposed to medical marijuana or even recreational marijuana use, but that the situation in Mendocino County was intolerable. "I'm a libertarian," he said. "I would think I'd died and gone to heaven if federal marijuana prohibition were lifted, but I don't want Mendocino to be the only place doing it. These people aren't growing despite it being illegal, but because it's illegal. They're growing and dealing because its illegal and has a federal price support program."

Liberty said he was not personally impacted by marijuana growing -- although he complained about "the trained helplessness that dependence on federal marijuana prohibition brings to our community" -- but that other supporters of repeal were. "People who live near me grow, and it doesn't bother me, but there are quite a few people who can't stand the smell of it -- it really reeks in the summer -- and it can make their lives miserable," he said.

"It's also dangerous because it's worth so much money," Liberty continued. "One lady I know, within a hundred yards of her house, there's collectively a million-dollar marijuana crop in her neighbors' back yards. You have people with guns going through yards just following their noses looking for marijuana to steal. How do you let you kids out to play when that's going on?"

Liberty mentioned yet another problem, too. "I've had people grow on my property without my permission," he said. "It's not medical marijuana, it's just dope growers and outlaws." But, Liberty said, that incident predated Prop. 215.

Measure B doesn't address the real problems created by commercial growing, said opponents. "This initiative isn't aimed at the problems created by the large commercial grows -- the growing on public land, the environmental damage -- but at the people growing fewer than 25 plants," said Gieringer. "They're cracking down on the small growers, not the commercial growers. With even our opponents conceding it shouldn't be illegal, we should be about dealing with the problems associated with those big grows, and Measure B doesn't do that," he said.

"We've seen an increase in criminal profiteering with commercial grows and growing on federal land, so there was a backlash from that," Hamburg acknowledged. "People started feeling like the energy was different, they saw all this profiteering. We're in our fourth decade of marijuana farming here, and we do it well, it is one of the glues that holds this county together, but there had never been any public venting of tensions about these changes," she said. "People wanted to DO SOMETHING, and many of them initially supported Measure B, but that has been changing as they really think about what it means," she said.

"This measure targets the wrong people," argued Hamburg. "If you want to address marijuana, why turn on the community? Why don't we see instead how we can thwart those big commercial grows? Mom and pop growers are community-minded people; if they are compensated by the dispensaries, they report their income. They're proud of being organic gardeners. We think we should put resources and energy into fighting crime, not backyard grows, and that's what's been happening."

Indeed, with the election of a new sheriff and district attorney in late 2006, marijuana law enforcement has come down harder, and asset forfeiture numbers are rising through the roof -- up from $100,000 in 2005 to $1.6 million last year -- but it's not the illegal large national forest grows being targeted, said Hamburg.

"When the sheriff goes after those big commercial grows, all they typically find is some guys living in tents in the woods -- there are no assets to seize," she noted. "We're very concerned that they are targeting smaller growers. Don't turn on law-abiding citizens who are part of the fabric of this community," she pleaded. "Don't turn us into criminals. We don't want to be felons for growing one plant for personal use or seven for medical."

It wouldn't just be mass criminalization that Mendocino would have to worry about if Measure B passes, it could be economic recession. Marijuana is by far the most important economic activity in the county, and Liberty freely admits that victory could lead to hard times, or, as he put it, "a period of adjustment."

"To the extent that we move the needle, we will have to adjust from an economy dependent on federal prohibition to one that is driven by the free market," he said. "Now, you don't see regular jobs coexisting with this marijuana economy. Basic industry jobs that must be globally competitive cannot compete with the wages driven by the price support program we know as federal prohibition."

Whatever the final election result, the Mendocino marijuana wars are far from over. And proponents of a more open system of regulated growth and sales are feeling emboldened. "After we came back in this campaign, we have a lot of bargaining strength," said Gieringer. "We expect to make some really forward-looking proposals for regulating the industry in Mendocino and moving closer to a legally regulated market that makes money for the county and keeps the criminals and fringe element at bay."

Stay tuned.

In a reprise of a tactic first used against Los Angeles and Sacramento area dispensaries, the DEA this week sent letters to dozens of owners of buildings leased to San Francisco dispensaries warning them that their buildings could be seized. Dispensary operators responded by filing suit in federal court to stop the agency, and a high-ranking congressman has promised to hold hearings on the matter.

Medical marijuana has been legal in California since 1996, and currently, hundreds of dispensaries are operating in the state to provide marijuana to patients qualified under the state's admittedly loose law. DEA raids and federal prosecution have failed to blunt their growth, and the landlord letters are only the latest wrinkle in the agency's war on the will of California voters.

"By this notice, you have been made aware of the purposes for which the property is being used," said a copy of the letter sent to San Francisco landlords, signed by the special agent in charge of the DEA's San Francisco office, Javier Pena. "You are further advised that violations of federal laws relating to marijuana may result in criminal prosecution, imprisonment, fines and forfeiture of assets."

The letter gave no deadlines.

San Francisco once had as many as 40 dispensaries, although only 28 have applied for licenses under a city regulatory process that began in July. But dispensaries may also be linked to other buildings where medical marijuana grows or storage take place.

"The feds do as they please... (and) they've done it before," San Francisco Supervisor Ross Mirkarimi told the San Francisco Chronicle, adding he would not be surprised at a crackdown. "I would only hope they would coordinate with local law enforcement and that they are aware of the new regulatory system we have in place, and are sensitive to it."

Dispensary operators, however, were not quite so sanguine. A previously little known industry grouping, the Union of Medical Marijuana Providers, last week joined the Los Angeles area Arts District Healing Center in filing a federal lawsuit charging the DEA with extorting landlords. The lawsuit seeks an injunction to bar the DEA from sending any more threatening letters.

Dispensary operators and their supporters are also looking forward to hearings on the issue in the House Judiciary Committee. In response to complaints from California, last Friday, committee chair Rep. John Conyers (D-MI) announced he would hold hearings on the issue.

"I am deeply concerned about recent reports that the Drug Enforcement Administration is threatening private landlords with asset forfeiture and possible imprisonment if they refuse to evict organizations legally dispensing medical marijuana to suffering patients," Conyers said in a statement. "The committee has already questioned the DEA about its efforts to undermine California state law on this subject, and we intend to sharply question this specific tactic as part of our oversight efforts."

"When I saw Representative Conyers statement regarding the DEA's abuse of their power in order to thwart California's law, I knew that our legal efforts were beginning to pay off," said James Shaw, executive director of the Union. "The DEA has alienated too many citizens with their heavy-handed 'above the law tactics' for too long. We welcome all the support we can find in our efforts to ensure our rights are protected."

Steven Schectman, the Union's chief counsel, said he has contacted Representative Conyers' office in order to provide his staff copies of the litigation that was filed in both state and federal Court. "I am hopeful we can support the Judiciary Committee in any way possible. As a result of our research and investigation of the DEA's threatening letter campaign, in preparation of our litigation, we have become the most knowledgeable group, outside the DEA, who best understands the scope and import of their tactics. We are here to help."

A routine audit of the Fulton County (Atlanta) district attorney's office has turned up questionable spending of money seized from drug suspects under asset forfeiture laws. Less than a month ago, similar apparent abuses were uncovered in the Austin, Texas, police department.

According to auditor's reports, almost one-third of the 376 checks written out of the asset forfeiture account in 2006 were either questionable or not allowed under federal guidelines. Those questionable expenses totaled more than $2 million.

Under federal asset forfeiture laws, money seized by the feds and handed over to state law enforcement may only be used for law enforcement purposes. But District Attorney Paul Howard has a very expansive view of just what that means. According to auditor's reports gathered by the Atlanta Journal-Constitution under the state open records act, Howard's asset forfeiture fund spending included:

• $1,500 to sponsor the Georgia Association of Black Women Attorneys;
• $5,150 for benefits, dinners, football tickets, fundraisers, and balls sponsored by various civic organizations -- none of them directly related to law enforcement;
• $5,500 spent on rent and catering for a staff Christmas party;
• $89 for a Superman-style red cape with "Super Lawyer" printed on it that an assistant prosecutor was encouraged to wear at the Christmas party;
• $150 for a dinner party to celebrate the conviction of a murderer; and
• $9,100 for Howard's perfect attendance program for students in Atlanta's public elementary schools.

DA Howard defended the expenditures, saying they were tools for fighting crime and boosting office morale. "We cannot pay our employees bonuses. We can't pay overtime," Howard said. "I tried to come up with ways to increase morale."

But county auditors questioned the propriety of the spending, saying Howard may have violated federal asset forfeiture rules. Auditors also raised flags about Howard's mixing various types of funding in the same account.

"This account has several types of funds commingled," the auditor wrote. "These commingled funds include victim witness funds, federal equitable sharing agreement funds and regular operating funds. Commingling these funds is strictly prohibited since all these funds are for a specific purpose."

Howard said there is nothing wrong with putting money from different sources in one account. "We tracked the money," Howard said. "The money was not misused." But he has since created separate accounts for the different funds.

The auditor's reports are not final. They are now being reviewed by a private auditor.