Sacramento man wins chance to wipe his marijuana record clean

Published: Sunday, Jun. 3, 2012 - 12:00 am | Page 1B
Last Modified: Sunday, Jun. 3, 2012 - 11:29 am

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 18 months 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.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Denny Walsh



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