Autumn 2005
O'Shaughnessy's
Journal of the California Cannabis Research Medical
Group
|
Dustin Costa Re-arrested
Feds Take Over Prosecution of Merced Organizer
DUSTIN COSTA led members of the Merced Patients Group from
Rep. Dennis Cardoza's office in mid-July after setting up an appointment
to discuss medical marijuana. Costa had been arrested on cultivation
charges in February 2004 and was facing trial in Merced Country Superior
Court when he was rearrested Aug. 10 and his prosecution taken over
by the U.S. Attorney's Office. |
The ominous thing about the federal case against Dustin Costa is the
implicit warning it sends to those engaged in political activity.
Costa, leader of the Merced Patients Group, was arrested at his residence
on Wednesday, Aug. 10. He is being held at a federal detention facility
in Fresno as we go to press. Federal prosecutors have taken control
(from the Merced County district attorney) of the case against him.
The case stems from a February 2004 raid on his farm in Winton that
turned up some 900 plants, 8.8 lbs of dried marijuana (leaves and
shake), and a shotgun. In a federal trial the jury will not be
allowed to weigh
Costa’s claim that the cannabis was all destined for medical
users and dispensaries.
Costa, 58, is a Vietnam-era Marine Corps vet who has experience
as a union organizer. Instead of retreating after getting busted,
he
devoted himself to building the Merced Patients Group. It’s
a co-operative for which attorney Bill McPike wrote the by-laws
in conformance with
state law (created by Prop 215 and SB-420) and precedent cases.
McPike advised that the patients group could assign (hire) members
to grow
marijuana for those who were unable to do so for themselves.
“
DC was very confident that they were establishing a legal model that
would be applicable throughout the state,” says Tom O’Connell,
MD, who has seen patients in Merced. “His group was really
picking up momentum.”
“ Safer than aspirin...”
Willingness to do political work is one of the explicit conditions
for membership in Costa’s group. In July he led eight MPG members
to the office of Congressman Dennis Cardoza to protest Cardoza’s “no” vote
on an amendment that would have stopped the DEA from raiding growers
and distributors in states with medical-marijuana laws. Cardoza was
the only California Democrat to oppose the measure. Costa and crew
arrived at his office dressed in black t-shirts emblazoned front and
back with a bright marijuana leaf and blunt slogans: “Safer than
aspirin” on one side, “More effective than Ritalin” on
the other.
MPG members also had gone in their distinctive attire to public hearings in Modesto
and Stockton (where their input helped block extension of the local moratorium
on cannabis dispensaries). They twice attended San Joaquin County Superior Court
proceedings in support of Aaron Paradiso, a quadriplegic facing cultivation charges.
They launched a graffiti removal project that was written up favorably in the
Merced Sun-Star.
The group was there en masse when Costa appeared in Superior Court
in Merced and got a continuance of his trial till October —over objections from the
D.A. Ebullient after this small victory, Costa’s friends distributed
t-shirts to courthouse employees.
The looming question is: at whose initiative did the feds take over
the prosecution? Most of the explanations are ominous (and not mutually
exclusive). Congressman Cardoza could have expressed his displeasure
with Costa. A sheriff who had it in for Costa might have asked a federal
colleague, as a personal favor, to take him down. The Merced County
D.A. could have asked them, knowing that Costa was going to mount a
vigorous medical marijuana defense in Superior Court and the Central
Valley media. Or, the feds on their own could have moved against Costa
after identifying him as a leader in a political movement they are
determined to stamp out.
DEA Administrator Karen Tandy issued a revealing statement July 29
on the arrest of Canadian seed salesman Marc Emery: “Today’s
arrest of Mark (sic) Scott Emery, publisher of Cannabis Culture magazine
and the founder of a marijuana legalization group, is a significant
blow not only to the marijuana trafficking trade in the U.S. and Canada,
but also to the marijuana legalization movement. Hundreds of thousands
of dollars of Emery’s illicit profits are known to have been
channeled to marijuana legalization groups active in the United States
and Canada. Drug legalization lobbyists now have one less pot of
money to rely on.”
If the DEA is applying political criteria in deciding who to take
down in California, Costa would have been a prime candidate. He
was the leading activist in the
Southern Division of the Eastern District. “He was our ace and he was
trumped,” says Tom O’Connell.
Undoubtedly the DEA and federal prosecutors will claim that they had no ulterior
motives and that Costa is being prosecuted based on the number of plants he
had under cultivation.
Can Costa’s rearrest be considered a direct result of the Supreme Court’s
ruling in the Raich case? U.S. Attorney McGregor Scott was paraphrased thus
in the Merced media: “marijuana remains an illegal drug under
federal law, as affirmed by the U.S. Supreme Court last June.”
Assistant U.S. Attorney Karen Escobar will prosecute Costa, who was
indicted by a federal grand jury on three counts —manufacturing, possession of
8.8 pounds, and intent to sell— originating from his February ’04
arrest. He faces a mandatory-minimum five years and a fine of up
to $2,000 for each drug charge. The gun charge adds a mandatory consecutive
five-year
term.
“
Costa has been flouting the law for months now under the guise of Proposition
215,” Merced County Sheriff Mark Pazin told the Star-Sun. “What
Costa has done is take the original intent of medical marijuana
and has used it for his own agenda.”
O’Connell was concerned by word that Costa, a diabetic with a problematic
ticker, had gone on a hunger strike. He reached him by phone at the Fresno
jail to advise against it. Attorney Bill McPike estimates that he and Dennis
Roberts had made some 20 appearances on Costa’s behalf over the past
year and a half. He says at least one deputy at the jail was “upset and
sympathetic” upon learning that Costa’s arrest was
actually a rearrest in an ongoing state case.
Double Jeopardy?
In plain English, Costa has been put in double jeopardy, which
most Americans assume to be illegal. “Not according to the courts,” explains attorney
Joe Elford. “First, there is the fiction that the state
and federal governments are separate sovereigns, so they can
each attempt
to prosecute
once without
any double jeopardy problems. Double jeopardy only prevents successive
prosecutions by the same same sovereign. (This is how the Rodney
King police were convicted
in federal court after being acquitted in state court.) Second,
the prohibition on double jeopardy attaches only after the jury
is sworn.
Because Dustin
made bail, there was no jury trial, so there could be no double
jeopardy.”
But Dustin Costa sits in a cell in Fresno —in the real world, doing real
time— having been arrested twice for the same “crimes.”
Costa communicated to a third party that conversations with fellow
prisoners confirm Dr. O’Connell’s findings about marijuana use patterns.
Costa says he has interviewed 30 people who had tried marijuana in their teens
or earlier, “all of them to relieve stress or anxiety.
90% say it helps them focus, 90% say it helps with anger management,
most of
them
use it as
a sleep aid, 3 of them have been diagnosed bipolar, 2 diagnosed
ADHD, and 1 diagnosed PTSD.”