Vale, Oregon —
“This is unbelievable,” declared the tall, slender, dark-complexioned young man outside the Malheur County Courthouse, disgust and incredulity coloring his words. “They don’t deserve this.”
Donny Alves-Fortes, a native of the Netherlands who recently graduated from college with a degree in psychology, was one of roughly a dozen people gathered at the courthouse to hear a guilty verdict in the trial of William Esbensen and Raymond Kangas, who co-founded and ran a medical marijuana co-op called the 45th Parallel in nearby Ontario.
“They are some of the best people I’ve ever met,” Alves-Fortes said of the Esbensens, who had served as his host family. His native country has embraced a relatively civilized perspective on marijuana use, and he was understandably perplexed by the fact that Esbensen and Kangas, who are both in their fifties, may see several years of their lives stolen from them in the name of drug prohibition.
Neither Esbensen nor Kangas was accused of harming or defrauding anybody, which means that they didn’t commit an act that could honestly be called a crime. Judge Greg Baxter ruled that they had provided medical marijuana “for consideration” by incorporating what he described as “statutorily unauthorized” storage and handling fees into the club’s price structure.
Reduced to its essence, the defendants’ supposed crime was to provide a substance legally recognized as medicine to people who needed it – most of whom were senior citizens with chronic pain or similar conditions – through free exchanges at a rate the police regarded to be excessive. Through the perverse alchemy of prosecutorial ambition, this was transformed into “racketeering.” This isn’t to say that the case was devoid of genuine criminal behavior, including federal offenses.
A DEA agent in Boise, acting outside his jurisdiction and without the support of US Attorney for Idaho Wendy Olson – an official not noted for her sense of restraint – instigated a year-long operation targeting the 45th Parallel. In order to do so, the agent committed at least two felonious offenses – interstate wire fraud and falsification of medical records to obtain an Oregon Medical Marijuana Program card.
Working with the High Desert Drug Task Force, the DEA agent conducted multiple purchases of marijuana and cultivated at least one cooperating informant. The operation ended with multiple arrests and confiscations carried out by several agencies on September 11, 2012.
Esbensen and Kangas were denied a jury trial. Citing extensive and uniformly negative pre-trial publicity, Esbensen’s attorney, former Oregon assistant attorney general Susan Gerber, filed a motion for a change of venue. That motion was denied. The result was a bench trial – – if the term “trial” can apply to a proceeding in which the defendant’s guilt is assumed: Several thousand dollars that were stolen (or as the police would say, “forfeited”) from Esbensen were used to pay the cost of his prosecution.
Both on the witness stand, and in lengthy interviews with me, Esbensen insisted that he had taken exceptional care to follow Oregon’s needlessly complicated and deliberately ambiguous medical marijuana statutes. During the bench trial, Gerber attempted to subpoena incumbent Attorney General Ellen Rosenblum, who had stated on record that the state medical marijuana law was largely opaque even to those required to enforce it.
Judge Baxter refused to allow that testimony, which was certainly relevant to the defendants’ state of mind and their intentions. In his verdict today – delivered via video, so as to spare him the experience of looking directly into the eyes of the defendants – Baxter claimed to have discerned the “mental state” of the defendants, and ruled that they “knew they were operating outside the law” in the creation and operations of the 45th Parallel. Bear in mind, once again, that the law in question wasn’t entirely clear to the state Attorney General.
On the day before the crack-down, a woman who was almost certainly a cooperating informant filed the necessary paperwork to open her own medical marijuana facility in Ontario. It remains in business today, despite the fact that the city imposed a moratorium on medical marijuana in April. The Task Force is aware of that facility, and that its owner has a narcotics-related criminal history that legally disqualifies her from running it. They are aware that it is located less than 1,000 feet from a school, which would under ordinary circumstances result in criminal charges.
The owner of that new clinic, who has been blessed by the uncharacteristic forbearance of local law enforcement, was a key witness against Esbensen and Kangas during the bench trial in Vale. When defense counsel laid out the litany of prosecutable offenses in which the witness was involved, trial Judge Greg Baxter shrugged his shoulders.
“If she needs to be prosecuted, she needs to be prosecuted,” Baxter blithely commented, overruling defense objections. That clinic remains open today, perhaps to facilitate entrapment operations for out-of-state medical marijuana users. The High Desert Drug Task Force will continue to profit from predatory operations targeting marijuana users on both sides of the Oregon/Idaho border – and on non-users who are targeted for highway “pretext stops” if their vehicle has license plates from a state with a relatively enlightened marijuana policy.
This is a brief and thoroughly inadequate overview of a very large and complicated story that will be covered in depth here.3:40 pm on June 6, 2014