Oklahoma Criminal Defense Blog

After an 8-year investigation, a 12-day trial with more than two dozen prosecution witnesses presented and finally 4 days of jury deliberation, the United States government finally obtained a conviction of Barry Bonds, but just barely.  The jury convicted Bonds of Obstruction of Justice but could not reach a verdict on the other three counts tried.    U.S. District Judge Susan Illston declared a mistrial on those counts on which the jury could not reach a unanimous verdict.  Whether the government will take those counts to another jury has not been announced.

The Department of Justice investigation of the Bay Area Laboratory Co-Operative (BALCO) illegal, trafficking in steroids led to Bonds’ indictment in 2007.  During that investigation, Bonds appeared before the grand jury in 2003, and he was acdcused of lying to them in his testimony.  Bonds testified to the grand jury he never knowingly used performance-enhancing drugs.  He admitted having taken steroids but said Greg Anderson, his personal trainer, had told him they were flaxseed and arthritis cream.

Bonds did not testify on his own behalf or present any other witnesses at this trial.  Observers speculated indicated Bonds’ criminal defense lawyers’ this indicated confidence in the weakness of the government’s case, but such a decision can be made for other reasons.  That is the kind of intuitive judgment call lawyers have to make in the flow of the trial, and one which can sometimes be critical.

Bonds’s indictment came in 2007, 50 days after he made his last appearance in the batter’s box and 100 days after Bonds bettered Hank Aaron’ 755 career home run record with 762 home runs as a member of the Pittsburgh Pirates and the San Francisco Giants.  Bonds had already set the Major League Baseball season record when he hit 73 home runs in 2001.

Whether Bonds will serve any prison time is doubtful, assuming the conviction withstands appeal, in light of how this judge has sentenced others from this investigation.  Judge Illston sentenced Greg Anderson in 2005 to 3 months in prison and 3 months home detention upon his plea of guilty to one count of money laundering and one count of distribution of steroids.  He was then jailed for about a month until the conclusion of the trial for contempt of court, namely for his refusal to obey the judge’s order to testify against his life-long friend, Barry Bonds.  Regardless, whether Bonds does time, his chances of ever reaching the Baseball Hall of Fame took a serious hit, regardless of his records, including winning the Most Valuable Player award for an unprecedented seven times.

The investigation hit the headlines when I.R.S. agents raided BALCO and Greg Anderson’s condominium in 2003.  They seized evidence of what agents claimed showed conspiracy to distribute designer steroids that were undetectable even in the latest drug tests.  As time went, 4 sports figures, including Olympic sprinter Marion Jones, and 6 steroid dealers were convicted.  Major League Baseball hired retired U.S. Senator George Mitchell to investigate, and his report identified 86 ball players who were users of outlawed drugs.

Jeff Novitzky, the federal agent who started the investigation of BALCO, wanted the BALCO probe to be widened, but the Ninth Circuit U.S. Court of Appeals ruled last year that the urine samples and records seized in 2004 of 104 baseball players were seized illegally.  Novitzky was also instrumental in the developing the government’s case against Roger Clemens, the record-setting baseball pitcher who is scheduled for jury trial for lying to Congress about his use of performance-enhancing drugs and for investigating pro cyclists, including Lance Armstrong.

She is 25 years old and has children 1, 3, 4, and 9 years old.   She has never been arrested before, but she sold marijuana one time, so she’s headed to prison.  Too harsh?  She certainly thinks so.  She was startled at the sentence she received.

Patricia Spottedcrow lived with her husband, 4 children and her mother, Delita Starr.  She sold $20 worth of marijuana to someone who was an informant for the police.  Two weeks before that, the informant had come to the home to buy marijuana.  On that earlier occasion, it was Starr who sold the informant $10 worth of marijuana, a “dime bag.”  At that sale,Starr directed her 9-year-old grandson to fetch the marijuana.  Thereafter, both Spottedcrow and Starr were arrested and charged in Kingfisher County District Court with distribution of a controlled dangerous substance, marijuana.  Added to those charges, both were charged with possession of a controlled
dangerous substance in the presence of a minor.

When they got to court, Spottedcrow decided to decline the District Attorney’s plea bargain offer of a two-year sentence, two years in prison.  Spottedcrow, after talking it over with her lawyer, thought her clean record and the small amount of drugs involved ought to give her a chance at probation.  Thus, she turned down the offer to agree to a sentence and threw herself on the mercy of the court.  She “pled blind,” that is, she pled guilty without any limitation on the high or low end of the sentence she could receive, so long as the sentence she received was within the range of punishment set out by statute.  That range is from 10 years to life imprisonment for the distribution charge.

Obviously, she believed her circumstances, perhaps including having young children at home, gave her a very good chance of probation.  Added to this, her sentencing was scheduled just before Christmas and the judge was due to retire a few days later.

The judge gave Ms. Spottedcrow a sentence of ten years in prison.  No probation.  Her 50-year-old mother, Delita Starr, received probation for 30 years, along with a fine of $8,600, making her available to take care of the children.   “Never in a million years did I think I’d be here 10 years,” Ms. Spottedcrow said later from Eddie Warrior women’s prison in Taft.  She said when she went to court for her sentencing she just knew she would receive probation.

That was the problem, She never seemed to take it seriously in the eyes of the judge.  Judge Suzie Pritchett, who retired last December and was not a harsh judge, said later she thought the sentence she gave was lenient under the circumstances.  She said, “It was a way of
life for them,” referring to Spottedcrow and Starr selling drugs.  Of course, that’s what the drug agents often tell judges.  But it is clear these were not the only sales the two had made.  Both sales were made by a confidential informant, meaning that the sale was set up in advance, which means the police already had information they had already been selling.  Otherwise, they would not have had a reason to set up these two controlled sales. And after acknowledging that suspended sentences are often given in cases involving first time offenders, the judge also said:  “When kids are involved, it’s different.”  The children in this case, because they were present and even involved in the sale, did not help Ms. Spottedcrow get a lesser sentence.

As usual when a judge is the one to make the decision on what sentence a defendant should receive, the judge in this case ordered a presentence investigation and report to be made.  As part of that, the probation officer who writes the report interviews the defendant about what happened.   The report in this case reported, “It does not appear the defendant is aware a problem exists or that she needs to make changes in her current behavior.. and she makes justifications for her actions.”

As any criminal defense lawyer will tell you, that is the absolute last thing a defendant wants a judge to read.  It is fatal for a judge to believe that a defendant does not accept responsibility for her actions or is not contrite.  That means she not just sorry that she got caught, especially when the judge is in a position to give a maximum sentence.

If there were any doubt whether Ms. Spottedcrow had taken serious the sentence she was facing, any doubt whether she had gotten the message, a discovery immediately following her sentencing ended such doubt.  As Ms. Spottedcrow was led away from the courtroom to the jail, a deputy sheriff searched her pockets and found marijuana in Ms. Spottedcrow’s pocket.

Angel “Fat Boy” Ortiz had a meeting near the North Philadelphia Amtrak station.  He met with James Venziale to discuss some business. The idea was to steal some heroin from Miguel Santiago with the help of Philadelphia police officers and then sell the heroin to drug dealer.  The problem was that the intended purchaser, the drug dealer, was an undercover DEA special agent.

Now three Philadelphia police officers are facing federal charges of planning the theft of 300 grams of heroin and selling it to a drug dealer.   Robert Snyder, Mark Williams, and James Venziale are Philadelphia police officers. ‘They are charged with four other people, including three reputed drug dealers and Snyder’s wife, Christal.

The Police Commissioner was aghast. He was planning to terminate the three police officers.

The police officers met with “Fat Boy” over several weeks and another apparent drug dealer, Zachary Young.  Their plan was for the police officers to stop a vehicle to make it appear to Santiago that the drugs were being lawfully seized by law enforcement.

Officers Venziale and Williams, on duty and in uniform, stopped a car occupied by Ortiz and the undercover agent.  Ortiz had just received the heroin from a courier.  Venziale and Williams handcuffed Ortiz and permitted the undercover agent to drive with the 300 grams of heroin.  Venziale and Willams then drove Ortiz away and later released him. Venziale and Williams later met with Ortiz, who paid the two officers $6,000.  Ortiz also met with Christal Snyder and paid her an unknown amount of cash.

The reaction to the indictment from many sectors of the community was disappointment.  Majeedah Rashid, director of the Nicetown Community Development Corporation, said the indictment diminished the community’s trust in the police.  “We work very closely with the community relations people there. It’s a long running relationship.  It’s unfortunate that this happens because you’re going to end up losing the trust of the community and we worked so hard to established.,” he said.

Ralph Wynder, an activist in the Allegheny West section and chairman of the Residents Coalition, a coalition of community groups in the Allegheny West and East Falls, said the indictment was troubling.  Wynder stated, “If the charges prove to be true, this will become a very disturbing series of events.”  He said his community has worked closely with the 39th District, the Police District to which the indictees belong, over the past 10 years.

Venziale, Williams, Robert and Christal Snyder, Ortiz, Young, and Santiago are all charged with conspiracy to distribute 100 grams of more of heroin and related counts, which include the charge against Christal Snyder of passing information between Ortiz and the three officers.  Santiago is in parts unknown.  The F.B.I. and the D.E.A. are looking for him.

Stephen Caracappa and Louis Eppolito were convicted three years before of acting as assassins for the Mafia while they were employed by New York Police Department.    Finally, [in March, 2009] they were sentenced in Brooklyn by U.S. District Court by Judge Jack Weinstein, Eppolito to life plus 100 years with a fine of $4.75 million, Caracappa to life plus 80 years and a fine of $4.25 million.

The judge said the two defendants likely had hidden assets to pay the fines.  One asset that will not be seized, however, is their police pensions.  Both men have been drawing tax-free disability pensions from the City of New York since they left the police department.  Caracappa retired in 1992 as a first-grade detective.  He receives $5,313 a month.  Eppolito retired in 1990 as a second-grade detective and receives a $3,896 per month in pension.

Both detectives, who joined the police force in 1969, retired before they were charged with anything, so their convictions do not interrupt their pensions from the city.  Although first reports of the detective’s corruption surfaced in 1979, they continued to receive promotions in the police department.  Implicated a  number of times, they were never charged until in this prosecution.  The pensions are not subject to seizure for the fines due the federal government.

Under New York law, pensions due former public employees are treated as property in trust for the employee. Efforts to exact forfeiture of such pensions as penalty for those convicted of corruption have failed in the past.  In 2009, 450 corrupt former officials, judges and police officers were reportedly still receiving pensions despite their convictions.

Caracappa, now 68 years old, is gaunt, with little color in his face.  Eppolito is 61 and doing better but still a wreck.   They will have little opportunity to spend their pensions in prison, but their families can.  The testimony of the families of some of their victims at the sentencing hearing did not prompt either of the men to give up their pensions.

Caracappa’s and Eppolito’s trial [in 2006?] lasted 3 weeks.  It was built around the testimony of Burton Kaplan, a wholesale garment dealer who was involved in a number of schemes with people in organized crime.  Jimmy Breslin wrote a book about Kaplan, entitled “The Good Rat, ” which describes how Caracappa, using a police computer, helped track down a man named Nicholas Guido for the Mafia.  Caracappa made a mistake, however, and gave a wrong address with the same name, who was soon shot to death.

Caracappa’s and Eppolito were charged with accepting $4,000 a month payments from the mob for spying, plus tens of thousands extra for the occasional kidnapping or murder.  They disclosed the identities of witnesses and leaked information, compromising investigations.  In their first mob killing in 1986, they used the siren on their unmarked car to pull over a jeweler on a Long Island road.  They told Israel Greenwald they needed him to stand in a lineup to investigate a traffic accident.  Then they drove him to a garage, where he was shot to death.

At their trial, the detectives were convicted of murdering a capo in the Gambino family capo in his Mercedes-Benz on the Belt Parkway in New York.  The jury also found them guilty of kidnaping a man, putting him in the trunk of their car, and delivering him to a mobster, who then tortured the man for hours before killing him.

Following the trial in which they were convicted of racketeering conspiracy, the trial judge issued but did not impose a life sentence for each detective.  The judge stated he believed the five-year statute of limitations had run on the crimes the defendants had committed and therefore overturned the convictions.  The most serious crimes of which the two detectives were accused occurred in Brooklyn, including murders, in the 1980s and 1990s, prosecutors used more recent and less serious crimes, such as money-laundering and dope distribution in Las Vegas, Nevada, in 2004-2005, to bring the earlier acts into the conspiracy net as an ongoing criminal enterprise.  The judge did not believe the conspiracy could include the earlier acts, but the United States Court of Appeals differed and reinstated the convictions.

So many federal agents were moved to counter-terrorism investigations after the 9/11 attacks that the prosecution of more traditional crimes could not be given much attention.  Carter Stewart, newly-appointed United States Attorney for the Southern District of Ohio is going to change that.

Stewart’s district includes Cincinnati, Columbus, Dayton and all of southern Ohio.  “I would like to have more resources go back to our bread-and-butter cases,” Stewart said.  By “bread-and-butter,” Stewart referred to his priorities: financial crime, mortgage fraud, public corruption, environmental crime and the exploitation of children.  Criminal defense lawyers know those are traditional areas of federal prosecution because local law enforcement usually do not have the expertise or resources to pursue crimes in those areas.

Financial crimes and mortgage frauds obviously require experts in tracking down long, often sophisticated paper trials, sometimes in dealings local law enforcement personnel have never heard of.  Public Corruption focuses on the wrong-doing of state and local politicians, so state and local prosecutors have an obvious conflict, assuming they even want to pursue the wrong-doers in any given case.  Environmental crimes require specific expertises and can cross state lines.  Exploitation of children, most commonly prostitution of children, often requires investigations across state lines as the prostitutes are moved to locations like truck stops in various cities.

In Oklahoma, federal prosecutors have continued to prosecute the crimes they traditionally pursued, in addition to national security/counter-terrorism: more commonly those in the areas of drug distribution conspiracies, violent crimes, public corruption, and white collar crimes, child computer crimes, and gun possession charges on previously-convicted felons.

The headquarters of the F.B.I. for years after 9/11 decreed that counter-terrorism shall dominate all resources.   What was surprising was how much withdrawal there was from other areas of investigation in some districts.  In those years after 9/11, Ohio had several cases of alleged terrorism since 2001, including the case involving three men from Toledo convicted last year of plotting to recruit and train terrorists.  Authorities also prosecuted three loosely-linked terrorists over four years, including Iyman Faris, also known as Mohammad Rauf and sometime F.B.I. double agent, was convicted of helping in a plot to destroy the Brooklyn Bridge at the request of Khalid Sheikh Mohammed, the alleged architect of the 9/11 attacks.

Carter Stewart is following the lead of U.S. Attorney General Eric Holder, who has instructed new U.S. Attorneys to return to basic areas of prosecution.  Stewart’s top priority is still counter-terrorism but he has not decided on this next most important emphasis. But he is taking a close look at financial crimes.  “With today’s economy and the issues that we’re facing, I think that’s a direct result from fraudulent activity,” he said.

Marijuana stores are everywhere now in Los Angeles, flourishing under the new state law permitting medical use of marijuana.  They are found next to dry cleaners, restaurants and gas stations.  Advocates claim there are 800 of the stores.   Law enforcement claims the number over 1,000.  There are now more marijuana stores in Los Angeles than public schools, and everyone agrees the number is too high.  Los Angeles has more marijuana stores than any other.

These are medical marijuana dispensaries, and the police promise to crack down on the ones that make a profit.  The police are making noises about conducting raids, and some say this is an effort to influence the City Council to adopt stricter regulations.   It may be working.

The Council was pondering implementation of an ordinance that had been negotiated with medical marijuana supporters, but the city attorney, Carmen Trutanich, has persuaded the Council to adopt instead an his office has drawn up.  This proposed ordinance would provide for  dispensaries to have renewable permits, submit to criminal record checks, register the names of members with the police and operate on a nonprofit basis.  It would result in the closing of hundreds of the existing marijuana dispensaries.

The city attorney argued that state law permits the exchange of marijuana between growers and patients on a nonprofit and noncash basis only. Marijuana advocates say that interpretation would regulate dispensaries out of existence- against the will of voters who approved medical cannabis in 1996.

State laws that are increasingly allowing medicinal use. Thirteen states have laws supporting medical marijuana, and others are considering new legislation, yet federal laws that still treat marijuana as an illegal drug.  California is the testing ground, as police officials and marijuana advocates everywhere watch this experiment play out.

Criminal defense lawyers in California, accustomed to defending their clients from relatively clear  statutes prohibiting most of the cannabis family of plants, now have a lenient state law side-by-side with the standard prohibition of the federal law.  The medical use of marijuana is the only use permitted by this law, but California law is otherwise more lenient than many states.

Speaking at a training luncheon for regional narcotics officers, Los Angeles District Attorney said, “About 100 percent of dispensaries in Los Angeles County and the city are operating illegally… The time is right to deal with this problem.”  Mr. Cooley is up for re-election next year.   The training was titled “The Eradication of Medical Marijuana Dispensaries in the City of Los Angeles and Los Angeles County.   Cooley said state law does not allow dispensaries to be for-profit enterprises.

The Los Angeles city attorney, newly-elected Carmen Trutanich, claims dispensaries are prohibited from accepting cash even to reimburse growers for labor and supplies. He said that a recent California Supreme Court decision, People v. Mentch, banned all over-the-counter sales of marijuana.  Not surprisingly, other officials and marijuana advocates disagree with that interpretation.

Prosecutions of marijuana dispensaries in Los Angeles so far have been limited to about twelve in the last year, Mr. Cooley’s spokeswoman said. But police are expecting to be called on soon to raid collectives.

As to the collectives, Don Duncan, a spokesman for Americans for Safe Access, a leader in the medical marijuana movement, said marijuana collectives do need more regulation and there need to be fewer of them. He also said dispensaries should be nonprofit organizations, but that over-the-counter cash purchases should be permitted.  “I am under no illusions that everyone out there is following the rules,” Duncan said.  He runs his own dispensary in West Hollywood. “But just because you accept money to reimburse collectives does not mean you’re making profits.”

More than 300,000 doctors’ referrals for medical cannabis are on file, most of them from Los Angeles, according to Americans for Safe Access. The movement has had a string of successes in the Legislature and at the ballot box.  About 40 cities and counties have medical marijuana ordinances.

But last June, a federal judge sentenced Charles  Lynch, a dispensary owner north of Santa Barbara, to one year in prison for selling marijuana to a 17-year-old boy whose father had testified that they sought out medical marijuana for his son’s chronic pain. The mayor and the chief of police testified on behalf of Mr. Lynch, who was released on bail pending appeal.

And last month, San Diego police officers and sheriff’s deputies, along with agents from the Drug Enforcement Administration, raided 14 marijuana dispensaries and arrested 31 people. In an interview, Bonnie Dumanis, the district attorney for San Diego County, said that state laws governing medical marijuana were unclear and that the city had not yet instituted new regulations.  Ms. Dumanis said that she approved of medical marijuana clubs where patients grow and use their own marijuana, but that none of the 60 or so dispensaries in the county operated that way.  Marijuana supporters worry that San Diego may provide be the future for Los Angeles if raids there become a reality.

But many look to Harborside Health Center in Oakland as a model for how dispensaries could work.  “Our No. 1 task is to show that we are worthy of the public’s trust in asking to distribute medical cannabis in a safe and secure manner,” said Steve DeAngelo, the proprietor of Harborside, which has been in business for three years.

Harborside is one of four licensed dispensaries in Oakland run as nonprofit organizations. It is the largest, with 74 employees and revenues of about $20 million. Last summer, the Oakland City Council passed an ordinance to collect taxes from the sale of marijuana, a measure that Mr. DeAngelo supported.  Mr. DeAngelo designed Harborside to exude legitimacy, security and comfort. Visitors to the low-slung building are greeted by security guards who check the required physicians’ recommendations. Inside, the dispensary looks like a bank, except that the floor is covered with hemp carpeting and the eight tellers stand behind identical displays of marijuana and hashish.

There is a laboratory where technicians determine the potency of the marijuana and label it accordingly. (Harborside says it rejects 80 percent of the marijuana that arrives at its door for insufficient quality.) There is even a bank vault where the day’s cash is stored along with reserves of premium cannabis. An armored truck picks up deposits every evening.

City officials routinely audit the dispensary’s books, and “surplus” cash (no profits here) is rolled back into the center to pay for free counseling sessions and yoga for patients. “Oakland issued licenses and regulations, and Los Angeles did nothing and they are still unregulated,” Mr. DeAngelo said. “Cannabis is being distributed by inappropriate people.”

But even Oakland’s regulations fall short of city attorney Trutanich’s proposal that Los Angeles ban all cash sales.  Christine Gasparac, a spokeswoman for State Attorney General Jerry Brown, said that after Trutanich’s comments in Los Angeles, law enforcement officials and advocates from around the state had called seeking clarity on medical marijuana laws.

Jerry Brown has issued legal guidelines that allow for nonprofit sales of medical marijuana, she said. But, she added, with laws being interpreted differently, “the final answer will eventually come from the courts.”

To the horror of the “zero-tolerance-for-drug” people, the Republic of Mexico has decided to be lenient with those caught with small amounts of drugs.  The new laws allow up to about four joints of marijuana for personal use and about one-half gram of cocaine, which translates into about four “lines” of cocaine or half the weight of a paperclip.  The limits for heroin and methamphetamine are about half the size of a pencil eraser, for LSD about enough to make a few grains of salt.

Oklahomans must even show identification to purchase some cold medications at a pharmacy because those medications contain ingredients used to manufacture methamphetamine.  Previously such cold medicines were purchasable over the counter.  No more.  And some credit this tightened policy with a significant drop in the number of meth labs making methamphetamine in Oklahoma.

“That’s just a reckless policy to have,” said Mark Woodward spokesman for the Oklahoma Bureau of Narcotics about the new Mexican policy.  It takes away a huge deterrent away from someone using drugs.”  No surprise that this agency is completely against backing up one inch in the “War on Drugs.”

Are we winning the “War on Drugs?”  Most criminal defense lawyers in Oklahoma would be skeptical.  I guess the argument to continue the “War on Drugs” is that the drug situation would be even worse if we ever let up, if we ever stop prosecuting to the maximum against any use of any drugs at any time in any place no matter what.  That is one reason the United States allows those in serious, genuine pain to suffer so much, unlike European governments, because “drugs” are medically indicated to address pain and “drugs” are seen in the United States as inherently evil and criminally tainted, something to prosecute rather than to use as a medical tool to alleviate suffering.

The new Mexican laws do not make it strictly legal to possess the enumerated small quantities of drugs, but such users arrested face drug treatment instead of jail, so long as no violence is involved.

About 90-95 per cent of the illegal drugs entering the United States come across the Mexican border.  That is why drug enforcers in the United States worry about the more permissive law in Mexico.  “I think it’s going to increase the work of our customs agents,” Oklahoma Attorney General Drew Edmondson said.  Law enforcement commonly develop a prosecution for large amounts of drug distribution or trafficking from witnesses prosecuted for possession of small quantities.  Without the arrests for smaller amounts, the thinking goes, the potential for larger prosecutions diminishes.  Whether those arrested for the smaller quantities possess the smaller amounts for personal use or not, law enforcement will lose the leverage over them to reach up the distribution ladder without the threat of jail on the smaller fish.

The new law allowing possession of smaller amounts in Mexico is intended to concentrate on catching and prosecuting the big dealers rather than the smaller possessors of drugs.  Mexican President Felipe Calderon reportedly hopes the new law will help with the increasing drug addiction in Mexico.

Mexico has seen a doubling in drug addiction in six years to 307,000, according to a Mexican government study.  Meanwhile drug use in the United States has remained fairly constant at around 10 million from 2002 to 2007, according to the National Survey on Drug Use and Health.   The number of Mexicans who have tried drugs, which is not the same as “drug use” and certainly not “drug addiction”, rose to 4.5 million.  Mexico has a population roughly one-third that of the United States.