Pubdate: Thu, 09 Sep 2010
Source: Chico Enterprise-Record (CA)
Copyright: 2010 Chico Enterprise-Record
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Website: http://www.chicoer.com/
Details: http://www.mapinc.org/media/861
Note: Letters from newspaper's circulation area receive publishing priority
Author: Terry VAU Dell

JUDGE WON'T RETURN MEDICAL POT TO CONCOW MARIJUANA COLLECTIVE

OROVILLE -- Backing the idea that an earlier proposed court order had 
been a joke, a judge Wednesday formerly denied a defense motion 
seeking the return of large amounts of seized medical marijuana 
plants to a Concow collective.

Assigned Judge William Lamb pointed out no members of the purported 
collective had petitioned the court for the pot's return, and that in 
any event, he felt the amount confiscated by sheriff's officers 
exceeded what was medically necessary by the group.

A jury earlier this year had acquitted Michael Kelly and his father, 
Sean Kelly, of identical felony charges of illegal cultivation and 
possession of marijuana for sale.

Jurors said they believed the pair were growing the marijuana on 
their Concow property as part of a loosely-organized but lawful 
16-member medical marijuana collective, several of whose members 
testified during the pair's trial.

Michael Kelly was found guilty by the same jury of a related 
misdemeanor charge of illegally diverting water from a small creek to 
irrigate the plants.

When he failed to appear as directed for sentencing on the water 
diversion count Wednesday, the judge postponed the matter until Sept. 29.

Lamb agreed, however, to hear a motion filed by Kelly's attorney, 
Jodea Foster, seeking return of some 56 marijuana plants and more 
than 200 clones, which sheriff's officers had removed during two 
successive raids in 2008 and 2009 on two Concow parcels owned by the 
father and son.

Last month, the assigned judge had presented a "proposed order" to 
both sides during a meeting in chambers agreeing to return "52 
ounces" of the seized pot to each member of the Concow medical 
marijuana collective, but later insisted it was intended only as an 
inside joke.

The unsigned typed document stated in part: "The court does not 
warrant the medical efficiency of the substance provided" and added 
the order would "remain in effect for 30 days or as long as supplies 
last, which ever first occurs."

Kelly's attorney, Jodea Foster of Chico, told the Enterprise-Record 
he was not led to believe at the time the proposed court order was 
anything but real.

On Wednesday, Lamb told Foster and Assistant District Attorney Helen 
Harberts that Michael Kelly had not shown himself during his trial to 
be the lawful owner of the confiscated marijuana, and no members of 
the purported collective had filed petitions with the court asking 
for its return.

In any event, the judge told the lawyers that he believed the amount 
being grown "was in excess of the needs" of the Concow group and thus 
"was not subject to return."
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MAP posted-by: Keith Brilhart