Pubdate: Sun, 03 Jun 2012
Source: Sacramento Bee (CA)
Copyright: 2012 The Sacramento Bee
Author: Denny Walsh


Kelly J. Michael was an enemy of the United States in the war on 
marijuana for more than two years.

He was found in April 2010 by a U.S. Forest Service sleuth in the El 
Dorado National Forest with less than one-eighth of an ounce of pot 
in a jar. Nearby was a grinder to make it suitable for rolling a joint.

He and a friend were charged, although charges were dropped for the 
friend because of a doctor's recommendation.

But Michael had no such recommendation.

The ensuing battle royal over about a joint's worth of marijuana 
began and ended in a Sacramento courtroom, but not before it found 
its way to the highest court in the West, the 9th U.S. Circuit Court 
of Appeals.

Prosecutors' relentless efforts to hang a federal drug conviction on 
Michael were finally squashed last week when U.S. Magistrate Judge 
Kendall J. Newman dismissed the case.

An Arden Park resident, now 29, Michael didn't contest the charges, 
pleading guilty to misdemeanor possession of a controlled substance 
and ready to face sentencing in November 2010. First Assistant 
Federal Defender Linda Harter asked for a fine and unsupervised probation.

She pointed out that her client had undergone extensive treatment, 
including psychological counseling, for hyperhidrosis, a medical 
condition that causes excessive sweating, stress and depression. 
Michael found that marijuana eases his anxiety and, after the arrest, 
he got a recommendation to use pot from one of his doctors, as 
California requires.

Harter noted that Michael had recently completed a nine-month 
educational program on substance abuse as a result of a 2009 drunken 
driving violation, the only thing on his rap sheet.

But the judge handed down a sentence of a year's supervised 
probation, including frequent drug and alcohol testing and mental 
health treatment, plus a $1,000 fine.

That sentence "is a little bit much considering what happens down the 
street," Harter told Newman, referring to a bill just signed by 
then-Gov. Arnold Schwarzenegger that made possession of less than 
28.5 grams of marijuana  Michael had 2.4 grams  a civil infraction in 
California, punishable by a $100 fine.

Newman, however, said "I am not going to turn a blind eye and say 
please go forward and smoke marijuana, just don't do it on federal 
property." He also said "there may very well yet be ways to help this 
gentleman cope with his issues" other than pot.

Pre-judgment probation

As the judge was wrapping up, Harter interrupted and asked for 
pre-judgment probation  a mechanism for dismissing a case if a 
defendant abides by all the court's conditions during a term of 
probation. It relieves the defendant of a drug conviction.

At first, Newman seemed to like the idea. "I do not have an objection 
to that, and I will do it" with the same conditions.

But Catherine Chyi, a law student acting as prosecutor through a 
program in the U.S. attorney's office, objected because Michael had 
earlier rejected a suggestion of pre-judgment probation.

Probation officer Laura Weigel chimed in, saying she, too, didn't 
like it that he changed his mind.

Harter explained that she had wanted a chance to seek unsupervised 
probation. After Newman nixed that, she felt pre-judgment probation 
was appropriate.

The judge next declared she should have alerted the court two weeks 
earlier in her sentencing memorandum that she might opt for 
pre-judgment probation.

Newman then characterized Harter's thought process: "It was 'OK, 
let's see, oh, the judge is imposing everything. Let me now stand up 
and say sorry to interrupt your honor, but right before you ring that 
bell could we revisit?'"

So he sentenced Michael, who appealed to U.S. District Judge Kimberly 
J. Mueller, but she approved of what Newman had done.

John Balazs, representing Michael in his appeals, then went to the 
9th Circuit, arguing in a briefing that denial of pre-judgment 
probation just because it was sought at sentencing was procedural error.

"Neither the government nor the court has pointed to a single 
aggravating factor that would have made pre-judgment probation 
inappropriate," he wrote.

He also stressed the "enormous collateral consequences" of the lower 
court's action, including "possible loss of government benefits, 
student aid, employment opportunities, licensing restrictions, and 
limits on foreign travel."

Case sent back

Forty-four days after the final brief was filed and without oral 
argument, a three-judge panel issued a short unpublished memorandum 
remanding the case to Sacramento for resentencing.

"It is undisputed that Michael qualified for pre-judgment probation," 
the judges stated. "The district court denied Michael pre-judgment 
probation based on the mistaken belief that Michael was required to 
make the request before sentencing."

The case went back to Mueller, who passed it on down to Newman.

Undaunted, the government sought again the same fine and supervised 
probation Michael had completed while he appealed.

At last week's resentencing hearing, an indignant Special Assistant 
U.S. Attorney David Petersen told Newman the fact that Michael has 
paid only $590 of the $1,000 fine shows "an utter disregard for the 
seriousness of the offense."

After stating that his 2010 judgment had been correct at the time and 
good for Michael, the judge imposed pre-judgment probation, found 
that the time had been served, and dismissed the case.

Newman cited Michael's spotless record while under supervision as the 
reason he now qualifies for the resolution sought by Harter more than 
two years ago.

In a prepared statement that cited a policy "of not prosecuting 
misdemeanor violations against individuals found on federal public 
lands with personal-use amounts of marijuana if they are in 
possession of a doctor's recommendation," U.S. Attorney Benjamin 
Wagner said he "considers this matter closed."

"Awesome," was the first word Michael uttered as he walked out of the 
courtroom without a drug conviction. "I thought this would be a fine, 
that I might have to show up once."

He wanted to make clear he is not an activist and does not want to 
be. He said he simply wanted to take responsibility for his own 
actions and be treated fairly.

Standing next to him, Balazs shared his joy, but lamented what he 
sees as "a colossal waste of taxpayers' money."

Both he and Harter were court-appointed and paid by the government. 
Closely supervised probation costs $6,000 to $9,000 a year. Resources 
were expended by the courts, and a parade of lawyers from the U.S. 
attorney's office worked on the case.

"Does the U.S. Department of Justice really have the resources to 
fight the war on marijuana 2 grams at a time?" Balazs wondered aloud 
as he moved down the courthouse hall.
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