Activists' Cases Riding on Raich and Booker
By Ann Harrison O'Shaunessy's
Stephanie Landa, Kevin Gage
and Tom KikuchiIn February 2002, Stephanie Landa, and Kevin Gage attended a San Francisco Medical Marijuana Task Force Meeting to get information about the city’s medical cannabis policies. They claim they were told by SFPD Capt. Kevin Cashman that if they kept their proposed medical cannabis grow within city limits and sold only to dispensaries, they would have no trouble. According to Landa, Cashman, who attended the meeting with Sgt. Marty Halloran, also told them that the SFPD would not cooperate with federal law enforcement.
Landa, Gage, and Tom Kikuchi moved from Los Angeles, rented a warehouse for an indoor garden, and began growing 40 strains of cannabis three blocks from police headquarters. Four months later, they were raided by San Francisco police, led by Sgt. Halloran. Two weeks later they were indicted on federal charges of growing more than 1,000 plants with intent to distribute. In their plea agreement, Landa and her partners were not allowed to mention the roles of Halloran and Cashman and were forced to sign away their right to an appeal.
Kikuchi was sentenced to 37 mnths, Gage and Landa to 41 months. The two men have been serving time in Oregon. Landa, who two prior convictions —one for transporting 29 grams of marijuana and another for smuggling heroin 30 years ago— could begin serving her entence sometime next year. Landa and Kikuchi are now appealing their convictions on the grounds of ineffective counsel.
According to attorney Allison Margolin, who now represents Landa, the U.S. Attorney’s office has been deposing the allegedly ineffective attorneys who represented the three, David Nick, Bill Panzer and Zenia Gilg. Margolin says her clients want to withdraw their plea and ask for a new trial. Landa charges that Nick did not call crucial witness Rose Galati (whom Nick was representing in an Oregon state cannabis case) because he falsely claimed he could not locate her. Nick denies the claim and says Gilg, Landa’s attorney of record, was free to subpoena Galati if she wished.
Margolin said that the Booker decision could impact the case because if Landa gets a new trial, Judge William Alsup has wider opportunities for sentencing, even though he has rejected Landa’s jurisdictional arguments from the Raich case.
“If he wanted to sentence her under the new guidelines, he could allow her to withdraw the plea, reopen the case, and just grant her probation,” said Margolin. “He’s not bound by sentencing guidelines, so it’s a big deal. He could do a lot.”
Landa and Kikuchi are continuing to appeal their convictions on grounds of ineffective counsel. At a hearing on February 15, Judge Alsop admonished prosecutor George Bevan for failing to depose attorneys David Nick, Bill Panzer and Zenia Gilg. Alsop demanded that Bevan depose them and Rose Galati, who allegedly held medical cannabis recommendations that Landa and company needed to prove that their grow was medical.
Prosecutor Bevan replied that he was considering transferring the case to another attorney. “You’re Mr. Marijuana for the U.S. government,” said the judge to the prosecutor. “Can you retract that,” asked Bevan. “I don’t want to be known as that.” Alsup retract the statement for the record.
Landa says that Gilg and Panzer were both paid $25,000 up front to defend Kikuchi, and Nick was paid $50,000 up front to represent Gage and be lead attorney in the case. In a deposition for the case, medical cannabis expert Chris Conrad said he had been hired by Panzer to count the seized plants and found 880 “rootballs.” But when Landa and her partners were charged, Bevan and the attorneys settled on 1,245 plants, well above the 1,000 plants needed for a 10-year mandatory minimum sentence. Landa says she and her fellow defendants were never told about the discrepancy in the count and Conrad was not asked to give a declaration. “That plant count was purely a compromise, it was not ineffective counsel,” Bevan told the judge.
“Kevin and Tom have been doing prison time they didn’t need to do based on that plant count,” counters Landa.
Landa’s attempts to depose Sgt. Marty Halloran and Lt. Kevin Cashman has been met with resistance by Bevan, who filed a motion to dismiss the request for abuse of process and quash the subpoenas. Bevan argues that the depositions violate Landa’s plea agreement in which she promised not to mention the role of the police in the case. Landa argues that the depositions are essential to her ineffective-counsel case. If her lawyers had deposed the police, it would have established that the growers had inquired about medical cannabis guidelines and might have helped convince the judge who rejected the argument that they were growing for patients. Alsop said he would consider allowing Landa to depose the police based on the information that she gathers in her depositions of the attorneys.
Panzer acknowledges that Conrad counted fewer than 1,000 plants. But Panzer said the police claimed that there were more than1,000 plants in the count. (Conrad noticed that branches had been hacked off some larger plants, which could account for the inflated number.)In any event, observes Panzer, the count was well over 100 plants, which triggers a five-year mandatory minimum sentence —which would have been doubled since all the defendants had prior convictions. Instead of triggering the mandatory minimums with a cultivation charge, Panzer said the prosecution agreed to charge the group only with maintaining a place to cultivate, which carries no mandatory minimum sentence and gives the judge a chance to do a downward departure on the sentences.
“The tradeoff was to plead to a different charge without the mandatory minimum. We would concede to how many plants the police counted and they would dismiss the cultivation charge which does carry the mandatory minimum trigger,” says Panzer.
Panzer disputed Landa’s claim that the defendants were kept in the dark over the deal. “They knew exactly what was going on,” said Panzer, “My client Kikuchi knew it and they knew it too.”
Panzer says he has not received notice that he is to be deposed in the ineffective counsel case, but he did give Landa’s attorney a declaration saying that he had not investigated Rose Galati. Panzer is worried that if Landa gets a new trial, a jury could still find her guilty of cultivating over 1,000 plants and sentence her to life in prison based on her prior convictions, or impose a mandatory minimum sentence of 10 or 20 years. “If there is any way that I could fall on my sword and get those people out of jail, I would do it,” Panzer says. “But I worry that they would win the battle and lose the war. The worst thing that could happen for Tom and Stephanie is to win this case. Then they are really in a bad situation.”
