Soap Store Dispensary Operators Will Come Out Clean
by Vanessa Nelson  
Wednesday, 20 February 2008

MODESTO, CA – Patience appears to have paid off for Shannon and Michael O’Leary.

The two brothers have been prosecuted in Stanislaus County Superior Court ever since the June 2006 raid of their medical marijuana dispensary, The Healthy Choice. Nevertheless, both O’Learys will be walking away from the case with no jail time.

To be precise, Michael will be walking away with an electronic monitor and a guilty plea on one count of maintaining a place for the manufacture or distribution of a controlled substance. This charge, defense attorney Omar Figueroa explained, is “reducible to a misdemeanor,” while the case against Shannon will be dropped entirely. In addition, the brothers will be given back all of the funds and the property seized, with the exception of the marijuana itself. The return of property provision was the final detail Figueroa mentioned while explaining the plea deal after court yesterday. “I almost forgot about that,” he said, smiling. “I get so focused on the freedom part that I forget about the money.”

But the chunk of change from the dispensary is no trifle. At the time of the raid, law enforcement agents inventoried the seizure of approximately $20,000 in cash.

Still, the O’Learys won’t exactly be living the fat life once they get the money returned. “I’ll need it to pay for the ankle bracelet,” Michael pointed out.

Not only is the electronic monitoring expensive, but the O’Learys must also contend with the costs of legal fees, failed investments and lost income. The bail set on Michael alone, for example, easily exceeded the amount of cash seized from the dispensary.

Defense Attorney Omar Figueroa has successfully negotiated a plea deal that keeps his client out of jail
The Healthy Choice was located in a small business center on Modesto’s busy McHenry Avenue. The reception area of the facility contained commonplace hygiene items that were offered for sale, inspiring law enforcement officers to claim that the O’Leary brothers were using a soap store as a front for a drug dealing operation. Such allegations contradict the brothers’ contention that The Healthy Choice was a legitimate dispensary that operated in compliance with the state’s medical marijuana laws.

California voters passed Proposition 215 in 1996, allowing patients with a physician’s approval to legally possess and cultivate marijuana. The initiative also made a provision for legal protections to apply to people who act as caregivers for these patients, thereby creating the basis of legitimacy for medical marijuana dispensaries. However, Senate Bill 420, which came into effect five years ago, put a great deal of regulatory power into the hands of each individual county. Stanislaus County, in which The Healthy Choice was located, has been notoriously hostile towards facilities that dispense medical marijuana.

The Stanislaus Drug Enforcement Agency, a local narcotics task force, tried to bolster evidence of illicit activity by interrogating the patients who arrived at The Healthy Choice during the raid. Agent Kelly Rea of the SDEA reported that about thirty people came to the dispensary at that time, but during questioning only half of these individuals showed officers evidence of a medical marijuana recommendation. This led Rea to assume that The Healthy Choice sold marijuana “to anyone and everyone.”

As for more conclusive proof of this accusation, it was left up to the courts to determine. The O’Leary brothers were arrested after the raid and held briefly at the county jail before release on bail. They have watched their case crawl through the legal system for nearly two years now, sometimes sitting for hours in a dreary, dilapidated courtroom amongst a cattle call of arraignments.

But patience has paid off for the defendants, as has their choice of counsel. Hiring San Francisco lawyers Omar Figueroa and James Clark gave the O’Leary brothers a sense of hope, and the defense attorneys seem to have delivered on the expectations.

Though essentially resolved, the case must still go through the formal change of plea and sentencing proceedings. These hearings have been put off for several weeks so Figueroa can find a private electronic monitoring company that will be approved by the court to provide Michael’s ankle bracelet surveillance. The defense attorney is reluctant to subject his client to the monitoring program offered by the Stanislaus County Sheriff’s Department, and is confident that he can find an acceptable alternative in the private sector. Nevertheless, certain conditions will likely be the same amongst all the companies, Figueroa says, including the requirement that Michael maintain a curfew, provide proof of employment and conform to defined work hours.

These details will be formalized during the final hearings, which will begin next month for the defendants. They have been scheduled to be back in court on March 25th, 2008, at 8:30am. Both brothers will appear in front of Judge Thomas Zeff in Department 5 of Stanislaus County Superior Court at 800 11th Street in Modesto, CA.

In general, the O’Learys’ attitude is one of overwhelming relief and optimism. Taking a plea deal can mean a compromise of principle for those who believe their actions were legally and morally right, but the alternatives can also be harrowing. There are plenty of cases for comparison, but one example seems particularly resonant and instructive. The Healthy Choice was raided nearly in tandem with another medical marijuana dispensary that was located on the very same busy Modesto Street. The operators charged in that bust, Luke Scarmazzo and Ricardo Montes, are currently being prosecuted in federal court. There, California’s medical marijuana laws will provide no defense, leaving the defendants facing life in prison if convicted.

After balancing the risks and benefits of the decision to plea, the O’Leary brothers are secure in their choice. And they are eager to start living the rest of their lives, out from under the shadow of prosecution.

Originally published at www.medicalmarijuanaofamerica.com (now defunct).