Pubdate: Fri, 04 Feb 2000
Source: Redding Record Searchlight (CA)
Copyright: 2000 Redding Record Searchlight - E.W. Scripps
Contact:  PO Box 492397, Redding, CA 96049-2397
Author: Maline Hazle


Accused Over U.S. Seizure Of Medicinal Pot

Shasta County Sheriff Jim Pope should be cited for contempt, perhaps
even jailed, for orchestrating federal seizure of medicinal marijuana
that a judge had ordered returned to Richard Levin, contends a
petition filed late Thursday in Shasta County Superior Court.

Also named in the petition are Undersheriff Larry Schaller and other
``as yet unidentified'' co-conspirators.

If Pope disagreed with Judge Bradley Boeckman's order he could have
asked the district attorney to appeal it to the state appellate court,
but ``the sheriff does not have the authority to simply overrule the
court, disobey the court's order or thumb its nose at the court,''
said the petition, filed by Redding attorney Eric Berg on Levin's behalf.

Schaller returned a call Thursday seeking comment from

``I would repeat what the sheriff has said,'' Schaller said. ``The
action taken was absolutely ethical and legal and in consultation with
(county) counsel. We'll certainly be glad to address that with the
court if they so inquire.''

In December, Berg won an acquittal for Levin, 49, of Redding on
charges of growing marijuana for sale. Jurors found that Levin was
entitled to grow and use pot under Proposition 215, the 1996
voter-approved law that permits medicinal marijuana use with a
doctor's permission, and that there was no evidence he intended to
sell the drug.

In early January, Boeckman ordered the release of the 41 long-dead
plants and 1 pounds of marijuana confiscated by deputies when Levin
was arrested in May 1998.

Sheriff's officials went back to Boeckman a week after his first order
to ask if they could destroy the marijuana, but the judge again
ordered it returned.

When Levin and Berg went to get the marijuana Jan. 21, they were told
that it had been seized moments earlier by a federal drug agent.

In the petition filed Thursday, Berg said that he originally had
arranged to pick up the marijuana at 1:30 p.m. on Jan. 21 but received
a call from the Sheriff's Department that morning telling him to come
in at 4 p.m.

When he got there at 4 p.m. the pot was gone, and he was handed a copy
of a seizure warrant that had been faxed from the U.S. attorney's
Sacramento office at 12:04 p.m., Berg's petition says.

Berg maintains his appointment time was changed ``in order to give the
DEA (Drug Enforcement Administration) agent time to drive from
Sacramento to Redding to seize the marijuana prior to the hour of 4
p.m. in order to interfere and frustrate Mr. Levin's effort to
retrieve his marijuana.''

Schaller disputed Berg's description of events.

``He set the date and time, then tried to move it up,'' Schaller said.
And even if Berg and Levin had arrived at 1:30 p.m., Schaller said,
deputies already had the seizure order and would not have released the

But Berg argues in the petition that the U.S. magistrate who issued
the seizure order exceeded his authority and the state constitution
specifically forbids an administrative agency from refusing to enforce
state law on the grounds that state and federal laws conflict.

Pope, who had publicly decried the court's decision, never intended to
return Levin's marijuana and ``never intended to obey the court's
order,'' Berg wrote. He charges that the sheriff asked the DEA to
obtain a seizure warrant so ``Pope would have a ready-made excuse''
for not obeying it.

And in refusing to obey Boeckman's order to return Levin's marijuana,
Berg wrote, Pope, Schaller and their department ``refused to enforce
state law.''

In order to ``deter such future misconduct on the sheriff's part,''
Berg said, ``it is essential that the court impose sanctions,''
including jail, a fine and an order to pay Levin's costs in the
contempt action.

Schaller said the sheriff is sworn to uphold both state and federal
law, and, along with law enforcement statewide, is ``in a quandary''
that can only be resolved by ``emergency'' legislative clarification
of Proposition 215.

Berg, who is defending another medicinal marijuana case in Boeckman's
court, was ill Thursday, but his staff said he will hold a press
conference about Levin's motion.

Jurors in the medicinal marijuana trial of Jim and Lydia Hall, a
mother and son from Redding, were sent home Thursday after an
associate told Boeckman of Berg's illness.

Dr. Frank Fisher, a potential witness in the Hall case, did show up, a
day after Boeckman had suggested that he could issue a bench warrant
if Fisher refused to honor a subpoena to appear.

Fisher, 46, who ran a clinic in Anderson, is charged with Medi-Cal
fraud and three counts of manslaughter in the alleged overdose deaths
of three patients for whom he prescribed an opium-based painkiller.

Fisher, of Redding, also recommended medicinal marijuana use for Lydia
Hall, according to testimony in the Hall case.
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