While Aaron Sandusky and his supporters contend he committed no crime
under California state law, he stands to spend many years — and
possibly the rest of his life — behind bars.
Sandusky was president of Upland-based G3 Holistic, a medical marijuana dispensary, which in California, is legal.
In October, however, he was convicted in federal court of
eight counts related to growing, possessing and intending to sell
marijuana for profit.
His case, one of a handful in which federal prosecutors have
charged and convicted purveyors of medical marijuana in states where
such use is legal, highlights a fundamental conflict between state and
federal law at a time when public opposition to marijuana is waning.
"It really goes to the heart of federalism and the
relationship between state government and state rights and federal
government and federal power," said former U.S. District Court Judge
Stephen Larson. "It’s a classic contest between states’ rights and
federal power, and that contest needs to be resolved in courts and in
Congress."
While no meaningful challenge to federal law has been mounted,
18 states permit medical marijuana, and in the Nov. 6 election,
Colorado and Washington legalized recreational use of marijuana.
Still, dispensaries and their owners find themselves in the crosshairs of law enforcement.
California’s four U.S. attorneys in September announced they were taking aim at large-scale growers and dispensary owners
who falsely claim that their operations comply with state law. Many such
owners throughout Los Angeles County have found themselves caught in
this spotlight as has been the case for the past several years.
The conflict over state and federal law has led to confusion and
frustration by dispensary owners who believe what they are doing is
legal.
Perhaps Sandusky thought he was safe from federal prosecution
after President Barack Obama said the Attorney General would not
prosecute marijuana cases in states that had legalized it.
His attorney, Roger Diamond, attempted to make that argument in his defense, but the judge refused to consider it.
On Oct. 12, Sandusky was convicted of conspiracy to grow
marijuana, to possess marijuana with intent to distribute it and to
maintain a drug-related premises. He was also convicted of one count of
possession of marijuana with intent to distribute.
He faces a mandatory minimum sentence of 10 years in prison
and could receive as much as a life sentence, said Bruce Riordan,
assistant U.S. attorney.
His girlfriend, Darlene Buenrostro of Rancho Cucamonga, said
Sandusky is being held in Metropolitan Detention Center in Los Angeles.
"He has good and bad days," Buenrostro said. "He was just
shocked and didn’t anticipate (his conviction). I don’t know if you
could read the look on his face. He was still feeling positive. But once
the verdict was handed down, he was deflated."
A tangled tale
Sandusky’s story is not a simple one.
He opened G3 Holistic in Upland in November 2009, six months
after Obama, in a well-publicized interview with the Oregon
Mail-Tribune, said the government would not aggressively pursue medical
marijuana cases in states that had legalized it.
"I’m not going to be using Justice Department resources to try
to circumvent state laws on this issue," Obama said in March 2009.
In the same month, the Justice Department issued its own
policy statement, in which Attorney General Eric Holder said federal
investigators would only target suspects who appeared to be using
medical marijuana laws as a shield for illegal distribution, non-licensed distribution.
Whatever his intent, Sandusky did not receive a warm welcome in Upland.
The city, citing zoning laws banning dispensaries, sought and
obtained an injunction, forcing G3 to close less than a year after it
opened. Upland has a zoning ordinance on the books that bans
dispensaries. The city’s authority to ban dispensaries is being
challenged in state Supreme Court.
Undeterred, Sandusky opened additional clinics in nearby Colton and Moreno Valley, even as he appealed Upland’s injunction.
A few months later, in February 2011, he filed a federal
lawsuit, accusing Upland’s mayor, John "JP" Pomierski, of extortion,
bribery and racketeering.
In March, federal agents arrested Pomierski and charged him
with conspiracy, bribery and extortion, accusing him of demanding bribes
from unnamed Upland businesses that appeared to be G3 and a local
restaurant that also had filed claims against the city.
Sandusky continued to fight the city, winning a stay on the injunction from an appellate court in June 2011.
In November 2011, the court ruled that the city’s injunction
was valid on the grounds that the dispensary violated the city’s zoning
ordinances.
In December, G3 re-opened in Upland pending appeal to the state Supreme Court based on Diamond’s interpretation of the law.
A start date for the trial has not been set.
Over the past year, the dispensary has closed and opened
several times, as motions fly back and forth between the city and
Sandusky’s attorney, who contends Upland’s goal is to ban dispensaries
entirely, which is contrary to state law.
"Aaron wants that case to be pursued and I’m going to pursue
it," Diamond said in October shortly after his client was found guilty
and added nothing had changed.
"We’re waiting for oral arguments" in Supreme Court.
As for the mayor, Pomierski ultimately accepted a plea bargain
before his case could go to trial and he was sentenced in August to two
years in prison for accepting a $5,000 bribe in return for the city’s
granting of a permit to a local business.
Pomierski’s successor, Ray Musser, sought federal assistance
in the city’s fight against Sandusky, writing on May 5, 2011, to U.S.
Attorney Andre Birotte, Jr., asking the federal government to help the
city "prohibit the commercial cultivation and dispensing of `medical
marijuana."’
Agents from the Drug Enforcement Agency raided G3 in March,
and in June Sandusky and five of his employees were arrested on
suspicion of violating federal drug laws.
While his employees pled guilty to lesser charges, Sandusky maintained the prosecution was unjust.
U.S. District Judge Percy Anderson refused, however, to admit
evidence or testimony related to conflicts between state and federal law
or to consider statements made by the president or the Justice
Department. Anderson refused because the matter was a federal case.
In October, Sandusky was found guilty.
Law of the land
Sandusky’s conviction drew national attention and coverage from
publications as diverse as the Washington Times, Huffington Post and any
number of medical marijuana niche publications.
Kris Hermes, spokesman for Oakland-based Americans for Safe
Access, the largest national member-based organization promoting safe
and legal access to cannabis for therapeutic use and research, said the
manner in which courts consider evidence is a roadblock to a fair trial
in cases such as Sandusky’s.
Federal law is such that the government doesn’t recognize the
medical value of medical marijuana, and there is no distinction between
medical use and non medical use, Hermes said.
Without that distinction, the government can effectively
exclude any evidence of medical use even if people being tried are in
compliance with local and state laws.
"That’s the situation with Aaron Sandusky," Hermes said. "As
with really every defendant that’s tried in federal court, the lack of a
defense is a huge problem. We’ve tried to introduce legislation on
several occasions to help a defendant with a reasonable defense but we
haven’t been successful on that front yet."
Hermes said his group has a lawsuit in Washington D.C. federal
court challenging the government’s position that marijuana has no
medical value and oral arguments for it were recently made.
"We’re hopeful that will begin a process that if we prevail in
court of establishing a more sensible health policy for medical
marijuana," Hermes said.
Larson, the retired federal judge, declined to speak
specifically about Sandusky’s case, but noted that in federal court,
it’s not unreasonable or unusual for arguments based on state law to be
prohibited.
"State law does not govern in federal court," Larson said.
"State law would not be admissible. It’s something the U.S. Congress
needs to resolve. The states cannot force the federal government to
change their law. This is something federal law will have to
accommodate."
Lanny Swerdlow, a Palm Springs resident and local advocate for
medical marijuana, believes that if courts could consider medicinal use
of marijuana or state laws, cases like Sandusky’s would end very
differently.
"That is the biggest," Swerdlow said of allowing the prohibited testimony.
"There is more of a likelihood that a defendant in federal
court could be acquitted by a jury if they’re allowed to present
evidence of medical necessity or compliance of state law. But it’s just a
formality for the court to side with the federal prosecution. The U.S.
Supreme Court has indicated no difference between medical and non
medical use of marijuana."
Bigger issues
The important issue Sandusky’s case reveals is not limited to medical marijuana, Larson said.
"I would hope that the courts and Congress take a longer view
on this issue and look beyond the particulars of whether or not medical
marijuana dispensaries are going to be lawful and consider the impact
this has for our constitutional form of government and what role the
states continue to play in that framework," Larson said.
Besides medical marijuana, there are numerous issues, such as
gay marriage, immigration, healthcare and energy that fall under the
same umbrella, Larson said.
"We saw that play out big time, and we see it going forward in health care," Larson said.
"The passage of Obamacare and challenge of states by the
mandatory nature of it. The federal government, the Supreme Court, found
that the tax and spending power of the federal government trumped
states rights. If you take an overview of the history of the U.S. since
the founding constitution, a general erosion of states rights and growth
of federal power, that’s been the general trend for 225 plus years. But
there are instances where there’s adjustments. It’s interesting to see
how this plays out."
Sandusky will be sentenced Jan. 7 in U.S. District Court.
Diamond, Sandusky’s attorney, said his client’s spirit was not broken despite the case.
"He feels strongly about the importance of providing medical
marijuana to people who need it," Diamond said. "He is extremely sincere
in his beliefs. And he has faith in the appellate system. I do, too."
Jeremy & Gerald Duval
Father
and son Gerald, right, and Jeremy Duval of Michigan were convicted in
May of conspiring to manufacture more than 100 marijuana plants,
manufacturing marijuana plants with intent to distribute them and
maintaining a place to distribute marijuana.
Sentence: They received 10 years in prison.
Charles C. Lynch
Charles
C. Lynch was convicted in 2009 of five marijuana-related offenses for
running a medical marijuana dispensary collective in San Luis Obispo.
Sentence: One year
Aaron Sandusky
Aaron
Sandusky of Upland was convicted in October on violating two counts of
federal marijuana laws and conspiracy to manufacture marijuana plus
intent to distribute.
Sentence: He is in custody awaiting sentencing in January, facing 10 years prison.
Christopher Williams
Christopher
Williams of Montana was convicted in September 2012 of eight counts of
conspiring to grow and distribute marijuana, possession with intent to
distribute and possession of a firearm during a drug-trafficking
offense, despite medical marijuana being legal in the state.
Sentence: Minimum of 92 years in prison.
