Mendocino County D.A. takes a new approach to marijuana cases
When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.
With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort.
“The system hadn’t broken yet,” Eyster said, “but it was dangerously close.”
That was a little over three years ago.
These days marijuana cases clear in about three months and the Sheriff’s Department is flush with cash, thanks to what some are calling “the Mendocino model.” To others, it’s the Mendocino shakedown.
The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County.
In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is “reasonable.”)
The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster’s “global resolutions.”
The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California’s somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.
Eyster said it’s a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit.
Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.
Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney’s office and local law enforcement.
Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as “extortion of defendants.”
A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney’s office declined to comment on the probe.
Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety.
“It suggests a two-tiered system of justice,” said Alex Kreit, associate professor at Thomas Jefferson School of Law in San Diego, “where people who don’t have the money for the restitution or don’t have assets they can use as a bargaining chip may get more severe criminal punishments.”
Eyster counters that he personally handles every marijuana case, and can opt to lower fines or not prosecute indigent suspects.
“The way we achieve consistency is that I do it,” he said. “You can’t pick every dandelion in the park.”
A search warrant at Nicholas Koulouris’ property last July turned up processed pot, a 171-plant garden, garbage bags of marijuana shake — or crumbs — and a 2006 Yamaha Grizzly.
By the time criminal charges were filed in January, a deal had been struck.
Koulouris received misdemeanor probation and paid the Sheriff’s Department $10,750. A settlement agreement on the forfeiture shows that he paid the district attorney’s office $5,000, the estimated value of the Yamaha, and got it back.
Neither Koulouris nor his attorney would comment on the case, which offers a road map to the global resolution approach.
Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a “wobbler,” prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.
He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.
He offers defendants guidance on how to stay within the law, and said paying restitution “shows a step toward rehabilitation.”
“A month doesn’t go by when someone doesn’t say: ‘Thank you for handling it this way,’” Eyster said.
Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)
Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix.
It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. “One hundred percent of the time, the defense wants to do a global resolution,” he said. “It’s saving a lot of time and costs.”
Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster’s program.
The district attorney, Faulder said, is “an innovator” who he believes is “operating in good faith when it comes to settling marijuana cases.” However, Faulder said, Eyster “has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna.”
That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county.
Earlier this month, D.A. investigator Butch Gupta helped serve a search warrant on a 1,300-plant grow, took possession of $45,000 seized at another and sent truckloads of forfeited goods to auction.
“The running joke here is that we’re breeding Toyota trucks,” Gupta said at the storage lot as a drug dog searched a Tundra.
Despite the legal separation of the forfeiture and restitution programs, Kreit said, Eyster’s combined settlement approach is worrisome. “It’s basically a unified payment system to buy your way to a lower level of punishment,” said Kreit, who added that the payoffs could motivate law enforcement treasure hunts.
Bob Alexander agrees.
The 57-year-old, who has an implanted spinal cord stimulator to control pain, was questioned by a patrol officer in August after he pulled his Mercedes up to a gas pump. (The officer said he’d been speeding.)
Alexander revealed that he had some marijuana in the car and presented his doctor’s recommendation. After the officer also learned Alexander had $10,788 in cash — money he said he planned to use to buy his daughter a car — the Mendocino Major Crimes Task Force was called in.
Alexander said he was cuffed to a table as investigators asked whom he worked for. One presented an asset seizure form.
“You can sign this paper and say this money isn’t yours,” Alexander quoted the officer as saying, “and we can just call it a day.” No criminal charges were filed. Alexander got his money back — eight months later.
The task force member who signed Alexander’s paperwork could not be reached for comment; an administrator said it was “not our policy” to pressure suspects into giving up cash.
Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: “If I wanted to use this as a business plan, I’d have 12 people on my eradication team,” he said. He has two.
But he credits restitution and forfeitures for a sheriff’s budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.
Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach.
He said that he had offered Melinda Haag, U.S. attorney for the Northern District, “first dibs on the prosecution of all marijuana cases in Mendocino County” but that she declined.
So “they should please leave us alone and let local enforcement tackle our own marijuana problems.”
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