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United States v. Ken Hayes and Rick Watts (2001-2009)

posted Jan 28, 2013, 4:20 AM by The Editor   [ updated Jun 6, 2013, 4:52 AM ]
Ken Hayes, Rick Watts, and Ed Rosenthal were all indicted Feb 12, 2002, after the DEA raided the Sixth Street Harm Reduction Center in San Francisco.  Charges against Watt were dismissed in 20007.  Hayes faced charges of conspiring to grow more than 1,000 marijuana plants, but was in Canada at the time of his indictment and remained out of the country until late 2008. On April 29, 2009, Hayes pled guilty to maintaining a building where marijuana was distributed and filing a false tax return.  He was sentenced on September 9, 2009 to time served with  three years supervised release following 6 months' home detention by US District Court Judge Charles Breyer.

Watts, whose trial was delayed because of injuries from an auto accident, saw some of his most serious charges dismissed when the U.S. Attorney failed to prosecute him within the statutory timeline. Remaining counts were resolved through a plea agreement.  Rosenthal, whose cultivation books and advice columns earned him the nickname “the Guru of Ganja,” took a different route in fighting his case. The result has been an ongoing legal saga in which Rosenthal lost two jury trials, won one appeal and is currently fighting another.

Last updated January 31, 2013 by Lex Libreman based on information originally posted by Vanessa Nelson at www.medicalmarijuanaofamerica.com (now defunct).


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Time Served for Ken Hayes, Medical Marijuana Activists Applaud Sentencing
by Vanessa Nelson  
Thursday, 10 September 2009

SAN FRANCISCO, CA -- Medical marijuana activists turned out for the sentencing of former dispensary operator Ken Hayes yesterday, and it proved to be a dramatic event.

Supporters waited anxiously in their courtroom seats, rose to their feet in unison when the case was called and erupted in enthusiastic applause when the judge handed down a sentence of time served.

Hayes was visibly relieved by the sentence, and the activists were so elated that they even cheered the prosecutor afterwards.  Still, the outcome was hardly a surprise.  The probation department had recommended Hayes get time served and the government hadn’t pushed for any additional time.

This doesn’t mean total freedom for Hayes, though.  He now faces three years of supervised release, which includes six months of house arrest.  Due to a recent death in his family, he will begin the period of home detention next week.

The consequences for Hayes could have been far worse, given that he’s been in a perilous legal situation ever since opening a medical marijuana dispensary in San Francisco nearly a decade ago.

When he started the Harm Reduction Center back in 2000, he was relying on California law that allows marijuana to be grown and possessed under a physician’s approval.  In spite of the controversy that surrounded some of the facility’s other activities, like the provision of counseling services to those addicted to harder drugs, Hayes was able to maintain the public support of several local government leaders.

No matter how much protection state law gave Hayes, however, federal authorities considered the marijuana distribution to be unambiguously illegal.  And in late 2001, right after winning an acquittal on state charges for growing 899 marijuana plants in Sonoma County, he began to sense that he was on the radar of federal authorities.

Hayes reacted by packing up his family and making a break for the Canadian border in early 2002.  He hoped to make it out of the country before he was hit with federal charges, and even though things didn’t go exactly as he planned, he eventually made it to Canada.   Hot on his heels was the federal indictment that netted associates Ed Rosenthal and Richard Watts.  As Hayes made a new life in Canada and fought for refugee status, he was the missing element in the prosecutions that ensued.

During a highly-publicized jury trial in 2003, Judge Charles Breyer ruled that the federal jurisdiction precluded Rosenthal from presenting evidence about his compliance with state medical marijuana law.  Jurors found Rosenthal guilty on a host of cultivation-related charges, but many of them later recanted their verdicts when they learned that medical marijuana evidence had been intentionally suppressed.  Judge Breyer handed down a sentence of one day, time Rosenthal had already served, but it wasn’t the end of the legal saga.

After learning that one of the jurors had consulted with an attorney during deliberations, an appeals court reversed Rosenthal’s initial conviction and remanded the case to trial court.  There, the prosecutor tried to subject Rosenthal to additional prison time by bringing financial charges against him, but this tactic failed and those charges were dismissed as vindictive prosecution.  In 2007, the public watched as Rosenthal was once again tried, convicted and sentenced to one day time served.  His current appeal, which argues about the suppression of evidence, is still in the process of being addressed in the higher courts.

For Watts, legal resolution was delayed due to severe injuries he sustained in an automobile accident.   He ended up taking a plea deal shortly before Rosenthal’s 2007 trial, agreeing to testify for the prosecution during the upcoming proceedings.  Watts’s actual testimony, however, ended up being far from helpful for the federal government.  An informant had told prosecutors that Watts owned one-third of the Harm Reduction Center, but on the stand Watts claimed that he just did carpentry work at the facility and was largely oblivious to the activities there.

Meanwhile, Hayes was far from the fray.  Although he was denied refugee status in Canada, he remained there until a departure order forced him to leave three years later.   Unwilling to return to the United States and face what he considered to be an unjust prosecution, Hayes set out on the life of a wandering humanitarian.  He participated in various rescue missions across Southeast Asia, from tsunami relief to managing the AIDS health crisis.

Romania was where Hayes ultimately settled to pursue his dream of becoming a doctor.  He was going to medical school there when his latest bust went down – he was arrested by Romanian authorities for growing ayahuasca plants.  In spite of the fact that the plants contain a schedule I controlled substance, a 2006 ruling in the U.S. Supreme Court upheld religious use rights for a group following the practices of native Brazilians.  Hayes, however, was in Romania, where he had no hope of raising any such defense.  “It turns out [ayahuasca] is very illegal there,” he said. 

The charges carried a potential penalty of 24 years in the Romanian prison system, and such facilities were not exactly the type of “Club Fed” prisons mythologized in the United States.  Hayes got a taste of his future in Romania during the months following his arrest, as he spent his time in a dark dungeon whose amenities amounted to a single bucket.  Meanwhile, his young daughter Madeline was taken to a Romanian orphanage until her mother could arrive from the U.S. to rescue her.

Hayes’s new life in Eastern Europe had fallen apart, and at the end of 2008, he decided it would be best to be deported to the United States to finally face his old marijuana charges there.  By the time he was brought to court in San Francisco, the attorney who had prosecuted his co-defendants had retired and a new U.S. President had taken office.  These changes did not reduce the severity of the charges Hayes was facing, however, and he opted to negotiate a plea deal rather than risk the harsher punishments that can result from a conviction at jury trial.

This past spring, Hayes pled guilty to a count of tax evasion and a count of cultivating less than a hundred plants, and put his fate in the hands of the judge who had twice given his co-defendant Ed Rosenthal a sentence of time served.

Judge Breyer was mindful of this comparison, saying he sought “to avoid unwarranted discrepancies” in the sentences for co-defendants facing similar charges.  The thirty days Hayes spent in custody pre-sentencing was certainly more than Rosenthal’s single day, the judge noted, but not unreasonably so.

On one hand, Judge Breyer acknowledged the government’s claim that Hayes had been a fugitive from the law for seven years.  Nevertheless, the prosecutor appeared uninterested in pursuing any actual punishment or penalty related to this claim.  Instead, Assistant U.S. Attorney Kimberly Briggs seemed satisfied with the administration of a superficially-stern lecture in which she reminded Hayes that the government had been offended by his actions.

It would be tough to argue that Hayes has not suffered as a result of this case, however, and Judge Breyer discussed the period of Romanian imprisonment with appropriate gravity.  He also considered the fact that Hayes was now making restitution to the Internal Revenue Service for back taxes.  The judge said Hayes had made a series of poor decisions, but also concluded, “He’s paid for it.”

As for paying his lawyer, however, that was quite another matter.  Requesting a clarification in the pre-sentencing report regarding his hiring, defense attorney Bill Panzer revealed that he had represented Hayes pro bono and did so proudly.  “I’d like to say why,” Panzer began, eager to explain the reason he offered his services free of charge in this case.  But the judge would hear none of it.

To Judge Breyer, this decision-making process was irrelevant.  “Lawyers should represent clients whether or not they agree with them,” he said, heading off the defense attorney’s speech.  But the judge was also careful to avoid any accusation that he was making a gag order.  “If you want to give a press conference outside, Mr. Panzer, you’re welcome to do so… I’m not muzzling you.”

Hayes was then given the proper opportunity to make his own speech before the judge, and he did so with an earnest but tranquil demeanor.  “I’d like to apologize to you,” he said to judge Breyer, “and I’d like to apologize to the government, for delaying justice.  Hindsight being 20/20, I now see it was the wrong thing to do.”  Hayes also spoke of his lifelong dream of being a medical doctor, imploring the judge not to make any rulings that would affect his ability to attend medical school in the future.

Judge Breyer responded to these statements favorably, expressing appreciation for the defendant’s comments and his conduct.  “You have always been respectful,” he said to Hayes. “You have conducted yourself with great dignity.”

Nearing the pronouncement of the sentence, the judge reflected on the case as a whole.  It had a long history, he said, and the media spotlight had brought criticism from all sides.  Judge Breyer had his own theory about why the case had been so electrified, and he offered it readily.  “It’s about areas of law that might undergo change,” he speculated, adding that this determination would ultimately be up to Congress.  Nevertheless, he acknowledged without qualification,  “These are areas of law being re-examined.”

On the topic of changing laws, the judge had a few general comments.  “I am mindful of acts of civil disobedience,” he said, giving recognition to the country’s long history of such actions.  “But it doesn’t involve fleeing justice, becoming a fugitive and engaging in behavior that is not appropriate,” he concluded.

However, Judge Breyer assured Hayes there was nothing in his case that would prevent him from becoming a doctor.  Upon learning that Hayes wished to pursue his degree abroad, the judge expressed a clear enthusiasm to accommodate such efforts.  Once Hayes completes the period of home detention, the judge said, he could initiate proceedings to modify the terms of his supervised release in a way that would allow him to study overseas.  “I would be glad to,” the judge said.

“You could make a very positive contribution to the well-being of individuals,” Judge Breyer told Hayes.  “And I hope you will.”

With such affirmations as the preamble, the judge went on to pronounce the official sentence and thereby earn the activists’ applause.  The celebratory mood didn’t end there, though.  Assistant U.S. Attorney Briggs revealed that this was her last court appearance as a prosecutor.  She announced that she would henceforth be serving as a judge in Alameda County, for which she received a hearty round of congratulations from Judge Breyer and from her fellow attorneys.

Upon leaving the courthouse, however, Briggs appeared surprised to be greeted by sincere applause from the medical marijuana activists still lingering there.  One protestor in a red sequin cowboy hat smiled and happily rang a handheld bell in her honor, cheering.  And for an eerie moment it seemed it might be true that every time a bell rings a prosecutor gets her robes.

Originally published September 10, 2009 by Vanessa Nelson at www.medicalmarijuanaofamerica.com (now defunct).
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