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Sheriff not in Contempt

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Apr. 2, 00
Record Searchlight
By Maline Hazle
A Trinity County Superior Court judge has thrown out contempt of court allegations against Shasta County Sheriff Jim Pope for surrendering a Redding man's medicinal marijuana to a federal drug agent. Pope and Undersheriff Larry Schaller ''could not have willfully failed to obey a specific provision'' of Shasta County Superior Court Judge Bradley Boeckman's order to return the marijuana because the document did not say precisely when or where the return should occur, Judge John Letton said in his written order. ''Contempt of court 'can only rest upon clear, intentional violation of a specific, narrowly drawn order. Specificity is an essential prerequisite,''' Letton, citing a 1987 state appellate court ruling, wrote in the order made public Thursday.
Letton was assigned the politically sensitive case after all nine Shasta County judges removed themselves. ''That's wonderful,'' Deputy Shasta County Counsel John Loomis said when he learned of the ruling Thursday. ''I always felt that our legal and factual position was strong, but you never know what a judge is going to do.'' Sheriff Pope said Thursday evening he was pleased with the ruling. ''I always thought what I did and what we did was legal, ethical and the right thing to do,'' he said.
On Thursday afternoon, Schaller submitted to the Record Searchlight a letter to the editor that provided new details of how the seizure came about. It described the undersheriff's desire to return the marijuana to Richard Levin in the presence of Drug Enforcement Administration agents. ''My specific request was that the DEA seize the contraband from the defendant (Richard Levin) immediately after we complied with the local court order,'' Schaller wrote. ''It was the DEA's decision and prerogative to make the seizure, pursuant to a federal warrant, from the Sheriff's Evidence (lab) and not from the defendant.'' Levin, 49, was acquitted of cultivation of marijuana for sale in December after a jury found he grew it legally under the state's Compassionate Use Act, Proposition 215. The law does not specify how many plants or how much marijuana a patient is allowed, only that patients need a doctor's recommendation. Pope and others in the law enforcement community say more specific guidelines are needed. Levin's attorney, Eric Berg of Redding, said Schaller's letter suggests that having lost the case in Superior Court, the sheriff wanted to retaliate by having Levin arrested on federal charges. ''I presume they would be seizing it because it was illegal to have it; that would mean they would be arresting Mr. Levin for having it,'' Berg said. ''But then why not arrest the sheriff for having it? Because he had it legally, just as Mr. Levin would have under the state's Compassionate Use Act.'' Berg said Schaller's letter shows ''what we have been contending all along'' and is more evidence that the sheriff's office intended to ''undermine the court's ruling and undermine the Compassionate Use Act.'' Berg said he and his client are debating whether to appeal Letton's ruling or ask that the case be heard again.
The ruling angered Levin. ''There's obviously a huge conspiracy up here (in Shasta County) to break the law,'' Levin said. ''Why don't they go through legal channels and get it on the ballot if they want to change this law? I don't want to live in this Nazi town anymore.'' After Levin's acquittal in December, Berg asked Boeckman, the trial judge, to order Pope to return marijuana, guns and other items seized when sheriff's deputies raided his home in 1998. Boeckman ordered the release of Levin's 1 pounds of marijuana and 41 dead plants, and sheriff's deputies returned to court to ask if they could destroy it. Boeckman clarified his order and said the marijuana should go to Levin but did not set a time for the return. Berg and Levin did not ask the judge to set a specific time, Letton noted in his order. Berg then arranged to pick up the marijuana at 1:30 p.m. Jan. 21, but that morning a sheriff's representative called Berg to change the time to 4 p.m., according to court documents. Meanwhile, in Sacramento, U.S. Magistrate Dale A. Drozd issued a federal seizure warrant at 11:23 a.m., court documents show. A copy of the warrant was faxed to the sheriff's office at 12:04 p.m., and when Berg and Levin showed up to retrieve the marijuana at 4 p.m. they were told a federal agent had just left with it, the court documents say. Berg argued that the sheriff engineered the federal intervention because he does not believe in Proposition 215 and then changed the pickup time to give the federal agent time to drive to Redding from Sacramento. Letton's ruling said that was not relevant in this case. ''The suggestion that the respondents solicited the federal warrant, even if proven at a hearing, would not change the inevitable conclusion.'' Citing another appellate court ruling to back his decision, Letton said the federal magistrate, not Pope and Schaller, ''chose to issue the seizure warrant (for Levin's pot) after considering the affidavit of the DEA agent.''

© 2000 Record Searchlight - The E.W. Scripps Co