Pubdate: Wed, 09 Jul 2014
Source: Los Angeles Times (CA)
Copyright: 2014 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: Joe Mozingo

FACING DOWN POT'S INFLUENCE

The Acceptance of Medical Marijuana in the State Raises a U.S. 
Prosecutor's Concern About Biased Jurors in Weed Cases.

Julie Shemitz watched warily as the judge asked prospective jurors 
whether they or anyone close to them had a card for medical marijuana.

Ten hands lifted, a third of the jury pool.

"Look at all those hands," the judge said.

An assistant U.S. attorney, Shemitz knew that this would be a problem.

The defendant, Noah Kleinman, ran a North Hollywood pot dispensary. 
Federal prosecutors rarely targeted medical dispensaries these days, 
but they accused Kleinman of using the shop as a front to sell large 
quantities of marijuana to other distributors in Los Angeles and to 
street dealers on the East Coast.

Shemitz felt she had a strong case. Drug Enforcement Administration 
agents had emails, ledgers, surveillance records and witnesses, 
including Kleinman's partner, employees, growers and out-of-state buyers.

But she feared that the broadening acceptance of marijuana and 
California's medical pot laws would bias the jury into thinking that 
Kleinman had not committed a crime.

The judge, Otis D. Wright II, questioned the jurors. A young woman 
said she had a medical marijuana card for anxiety. Another used it 
for a personality disorder. A middle-aged man said his wife used it 
with chemotherapy. At least 10 others said they believed marijuana 
should be legal for medical use.

Shemitz - a 57-year-old soft-spoken, self-described "nice Jewish 
girl" from a liberal family in Connecticut who started prosecuting 
federal narcotics cases more than 20 years ago in Washington, D.C. - 
has no grievance with the plant or people who smoke it.

She wouldn't care if Congress made it legal. But it hasn't, and she 
believes the Justice Department, to remain credible, must enforce the law.

Even if that meant that Kleinman, 39, might spend the next 24 years 
in federal prison.

Federal law prohibits any use and sales of marijuana, classifying it 
as a Schedule 1 narcotic, more dangerous than methamphetamine, 
cocaine or Oxycontin. But 23 states and Washington, D.C., have 
approved pot for medical use, and two of them - Colorado and 
Washington - allow retail sales.

This has made it difficult for federal prosecutors in states like 
California to get a jury impartial to marijuana legalization.

After jousting over peremptory strikes, the jury was impaneled. All 
but one member was under 45, and most condoned marijuana for medical 
use. One woman, a geneticist, told the judge her niece smoked pot to 
help control a seizure disorder.

"This case is not about medical marijuana," Shemitz told the jury in 
her opening statement. "It's about drug trafficking."

She laid out the evidence she said showed that Kleinman was guilty of 
conspiracy to traffic more than 1,000 kilograms of marijuana through 
his North Hollywood store, NoHo Caregivers, and a nearby stash house.

She described how he had computer towers hollowed out and filled with 
vacuum-sealed packages of marijuana, then shipped them to contacts in 
Philadelphia and New York.

Defense attorney James Raza Lawrence, 36, opened by calling on jurors 
to make a decision they "could sleep with at night."

Shemitz winced each time he referred to the defendant as "Noah." The 
judge finally ordered the attorney to call his client "Mr. Kleinman."

Kleinman, looking affable in a gray suit and rimless glasses, watched 
the proceedings. Out on bail since his arrest in October 2011, he has 
been living in a Studio City condo and working as a cookware salesman.

His attorneys, Lawrence and Allison Margolin, 37, kept offices in 
Beverly Hills, and mostly defended clients accused of marijuana 
crimes in state and federal court.

Calling Kleinman "a regular family man," Lawrence played to jurors' sympathies.

It's not unheard of for a jury to ignore the law and go with its own 
beliefs about what is right and wrong. The legal system calls that 
form of civil disobedience "jury nullification," and it goes back to 
colonial juries who refused to convict Americans accused of violating 
unpopular British trade laws.

Jury nullification is making it increasingly difficult to prosecute 
marijuana cases in state as well as federal courts in California. 
Mendocino County's district attorney has said for years that unless 
guns, violence or environmental destruction were involved, it's been 
almost impossible to get a jury to convict on a state cannabis charge.

Shemitz had wanted the judge to tell the jurors at the opening of the 
trial that they would be violating their oath if they didn't follow 
the law. But Judge Wright held back. He had already barred the 
defense from presenting any evidence about medical marijuana or 
patients - or even using such terms. Adding a jury nullification 
instruction could prejudice the jury against the defense.

The verdict, Shemitz believed, could hinge on semantics. Medical 
marijuana activists had long ago started to soften the language of 
dope. Stoners taking bong rips of ganja were now patients consuming 
medical cannabis. To abide by the new law in California, stores were 
called "collectives," and transactions were "donations" and "contributions."

As Lawrence finished his opening, he took a risk. Kleinman "may have 
been involved with dispensaries, just like you see all over L.A.," he 
said. "Convicting him would be like convicting any patient at one of 
those dispensaries."

Shemitz stood to object as the judge cut Lawrence off.

When the jury left for a break, Wright, 70, stood up and glared at 
Lawrence. "I hope it was worth it counselor because you just bought 
yourself a jury nullification instruction."

Shemitz's strategy was to paint NoHo Caregivers as a profitmaking 
operation that bought and sold marijuana, not a nonprofit dispensary 
collectively owned by patients.

Her main witness was Kleinman's business partner, Paul Montoya, 39, 
who had pleaded guilty to the same charges, for a recommendation of a 
shorter sentence.

He testified that Kleinman sold and shipped marijuana for profit from 
2006 to 2010 through several stores. Shemitz introduced emails that 
Kleinman had written: "Noho did 6750 today. How bout that." Montoya 
emailed back: "Let's keep that loot for us."

On cross examination, Lawrence's co-counsel, Margolin, asked Montoya 
when he started using the term "marijuana stores" - an effort to 
suggest that someone, either the DEA or federal prosecutors, had coached him.

"I started using that in the last few months," he replied, 
acknowledging that he had previously called them dispensaries.

Margolin presented a membership agreement that customers had signed, 
paperwork used to show their stores are in compliance with state laws.

She asked if every patient at the store signed a provision that the 
marijuana was owned collectively by all the patients. She was trying 
to suggest that Kleinman didn't own the pot, that all the members 
did, and thus he did not possess even a fraction of the 1,000 kilos 
that carries a minimum 10-year sentence.

Montoya confirmed that the members signed this paper.

"Who benefited from the profits at NoHo?" Shemitz asked Montoya.

She knew the answer would cut through the confusion.

He said he and Kleinman did. "We didn't share the profits or proceeds 
with our customers."

The judge clarified even further with his own question: "Is it true 
that the customers who signed that agreement jointly owned the marijuana?"

"No, they didn't own the marijuana."

During the five-day trial, marijuana activists, some with canes, 
wheelchairs and walkers, filtered into the gallery. Shemitz worried 
that their presence would reinforce the perception that Kleinman was 
a provider of medicine. She had to make sure that the jury would not 
put the law itself on trial.

In her closing, she emphasized that the case was about the NoHo store 
operating as a front to sell and ship "enormous quantities of marijuana."

Margolin took a traditional approach to closing. Why were there no 
surveillance photos of Kleinman or seizures of actual marijuana or 
cash, she asked. How credible is Montoya, who used cocaine and heroin 
when he worked with Kleinman?

The jury deliberated for a little over two hours. Guilty on all 
counts. Kleinman looked shocked, face drawn, blinking slowly. He was 
ordered to return for sentencing Sept. 29.

The defense's tactic to play up the state medical marijuana law - and 
not the federal ones that applied here - didn't work. But it came close.

Afterward, the foreman, a college design professor who asked that his 
name be withheld, said that the jury was sympathetic to Kleinman and 
didn't understand why the defense hadn't introduced permits and other 
paperwork that would show NoHo Caregivers was a state-sanctioned dispensary.

He didn't know the judge had barred any such evidence, and by law, it 
should have had no bearing on the case.

"We really tried hard to find an out for him," he said.

Based on federal sentencing guidelines, Kleinman faces about 24 years 
in prison without the possibility of parole.

Shemitz had offered him a plea deal before the trial that could have 
resulted in the minimum sentence of 10 years - the same deal she made 
with Montoya.

She didn't relish the outcome - Kleinman was a father of two young 
children - but she didn't second guess her work.

"As a prosecutor, the thing we will not stand for is when someone 
doesn't take responsibility for what he does," she said after the 
trial concluded. "He's going to get a lot of time, and he should."
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