Michael Lombardo, 49, was arrested by DEA for growing medical marijuana for five patients at his home in Smartville on September 11, 2007.  Lombardo, who has no prior record, was charged with growing over 100 plants, but claims fewer were on his property. The government has also moved to forfeit Lombardo's home. (It was one of three marijuana busts referred to the DEA by the Nevada County Sheriff.) Judge Lawrence Karlton sentenced Lombardo to one year and a day in federal prison in March 2011 and allowed him to use medical marijuana while on supervised release. Lombardo surrendered and was imprisoned on May 10, 2011.


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A Light at the End of the Tunnel for Michael Lombardo?
by Vanessa Nelson  
Wednesday, 30 March 2011

Federal Judge Gives Pot Grower Permission to Use Medical Marijuana on Probation

SACRAMENTO, CA -- It was a mix of good and bad news for medical marijuana grower Michael Lombardo in federal court yesterday.

The good news is that he wasn’t ordered directly to prison.

The bad news is that he’s scheduled to go there in six weeks.

The good news is that he was able to avoid the five-year minimum sentence that’s the usual punishment for growing over a hundred marijuana plants.

The bad news is that he was still sentenced to a year and a day in prison.

But, for now, it appears that the best news of all is that he’ll be allowed to use medical marijuana when he gets out.

After several long pauses and many signs of internal conflict, Judge Lawrence Karlton decided yesterday that state law – not federal law – shall apply in determining the legality of Lombardo’s substance use while on supervised release.
 
“The defendant shall not illegally possess controlled substances,” Judge Karlton said while listing Lombardo’s probation conditions.  He then added, “The legality in these circumstances applies to state law.”
 
That announcement elicited a collective murmur from Lombardo’s courtroom supporters, and understandably so.  State laws allowing medical marijuana are typically given the brush-off in federal court, where a uniform prohibition on marijuana usually reigns supreme.  For a federal judge to explicitly give state law authority over a probationer’s drug use is such an extraordinary occurrence that many observers wondered if they’d misheard the order.

Judge Karlton didn’t permit much time for disbelief, however.  In his next breath he applied the same principle yet again, saying Lombardo shall not use controlled substances while on supervised release, “except as permitted under state law.”

Assistant U.S. Attorney Michael Beckwith tried in vain to make the judge reconsider his decision, ominously warning that the probation officer wouldn’t be able to supervise Lombardo if she didn’t have the ability to test him for narcotics.

It was a threat that didn’t scare Judge Karlton much, and rightfully so.  Lombardo has successfully survived five decades of life without such supervision, after all.  And he had done a fine job of it too, as the judge readily acknowledged.  “This is not your typical nobody,” Judge Karlton said of Lombardo in court yesterday.  “This is a man who has stature in the community.”

Ultimately, however, it appears that it was what Lombardo said about himself that influenced Judge Karlton the most.  The judge listened intently as the defendant made a moving speech in court yesterday about his work-related injuries and the reasons he sought marijuana as a remedy for his chronic health problems.

Lombardo said he began experiencing symptoms of physical strain while working as a logger in Washington state, following his service in the U.S. Air Force.  He eventually switched to a career as an electrician, which he hoped would better preserve his health and allow him to adequately support his two sons.  This plan worked fairly well for Lombardo, until the day he ruptured a disc in his spine while pulling wires on an electrical job.  It was a devastating injury that left him with pain and partial paralysis.

As he explained to the court, Lombardo had good reason to be cautious about the methods he used to medicate his pain.  Alcohol abuse had destroyed the lives of several close family members, he said, including a favorite uncle who died of cirrhosis of the liver and a mother who “would get drunk and chase me around the house and hit me.”  When Lombardo discovered medical marijuana, he considered it a non-toxic alternative that would help him to “break the hereditary cycle” of alcohol abuse.

With marijuana, Lombardo disclosed, his problem was the high cost of buying it.  He therefore decided to grow his own marijuana, and later, to also grow for other patients with debilitating illnesses.  One of these patients was his ex-wife, who reportedly contracted Hepatitis C from a blood transfusion she received during a botched hysterectomy.  Lombardo knew that growing marijuana meant taking a risk, but as he explained to the court yesterday, he believed he would be safe from federal prosecution if he grew fewer than a hundred plants.

To some degree, Lombardo was right.  It typically takes over a hundred plants for the federal government to consider prosecuting a cultivation case, since this number triggers mandatory prison sentences upon conviction.

However, this doesn’t mean a grower is legally safe with a garden of ninety-some pot plants.  Such a grower could be convicted of conspiring to grow more plants, which triggers the same mandatory minimum sentences as actually growing those plants.

A small-time grower could also be tied to multiple cultivation sites at once, or, more subjectively, the government might decide that there’s some compelling reason to prosecute a grower regardless of the severity of the charges.  The latter is especially common in cases that involve multiple defendants.  Minor players in these cases are hit with felony charges for relatively trivial criminal activities, then offered lenient plea deals in exchange for their testimony against the targeted kingpins of the operation.

Alternatively, prosecutors could reach a hundred by adding together the plant counts from all growing sessions that occurred over the course of five years, which is the statute of limitations for cultivation.  This is what Lombardo says happened to him during his bust in September 2007.  At that time, he claims, the agents seized a large pile of dead plants from the previous year’s harvest, along with all the living plants that were growing in that year’s garden.  Whether living or dead, however, a plant with a rootball counts as a plant to the feds.  In this way, Lombardo’s trash heap cost him dearly, doubling his plant count and putting his total far above the hundred mark.

“I never expected to find myself here,” Lombardo lamented, adding that lately he’s begun informing others about the legal reality of cumulative plant counts.

He may not have anticipated ending up in federal court, but Lombardo handled his situation with dignity and heart yesterday.  He explained calmly that, if he wasn’t allowed to use marijuana, he expected to be in pain for the rest of his life.  “I would rather live in pain than go to prison,” he concluded.

Lombardo’s request seemed to work like reverse psychology.  He had said he would rather avoid prison and live the rest of his life in pain.  Instead, he was given a prison term but also granted conditions of probation that would allow him to ease his pain with his preferred natural remedy once he’s released.

“Thank you for your compassion,” Lombardo told the judge at the end of yesterday’s hearing.

Activist Group Sac Patients Held A Pre-Sentencing Rally For Mike LombardoIn spite of the positive outcome, medical marijuana advocates may want to be cautious about prematurely celebrating Lombardo’s probation conditions as a victory.  It still remains to be seen whether the government will challenge the judge’s decision on that matter.  Nonetheless, yesterday’s events may signal a more general sense of progress when it comes to the medical use of marijuana gaining small measures of acceptance in formerly hostile environments.

From the prosecution’s side, however, it’s hard to see yesterday’s hearing as anything but a setback.  In addition to making the unorthodox probation orders, Judge Karlton largely disregarded the government’s sentencing recommendations, including prosecutor Beckwith’s insistence that the minimum applicable sentence for Lombardo was two years in prison. 

Similarly, the judge scoffed at Beckwith’s attempts to paint Lombardo’s garden as something threatening or criminally serious.  Judge Karlton breezily described the garden’s location -- northern California’s Nevada County -- as a place “where growing marijuana is just another business.”

Beckwith then tried to use this perception to his advantage.  He argued that since Nevada County was “replete with marijuana,” Lombardo’s garden must have been monstrous.  After all, it stuck out enough to prompt a complaint to the sheriffs, and the sheriffs had been sufficiently frightened that they felt the need to call federal agents in to raid the grow.  “If a citizen in Nevada County is concerned,” Beckwith posited, “that’s saying something.”

“No,” Judge Karlton retorted. “I think it means there’s a guy up there who doesn’t understand the culture.”

Beckwith was again shot down when he tried to argue that Lombardo’s garden didn’t comply with state medical marijuana laws.  As Beckwith calculated it, the grow contained up to 31 times the maximum number of mature plants that Nevada County regulations allow for each patient.  Judge Karlton countered that it was “highly unlikely” the case would be prosecuted under state law and maintained that the district attorney probably has “bigger fish to fry” than Lombardo.

Such a comment, though, inevitably raises the question of why the federal government was putting its time and effort into frying such a small fish.

In answering this question, it’s important to consider that Lombardo’s case may have looked much bigger when it was on the hook than it did coming out of the frying pan.

For instance, the feds were also poised to keep nearly $5000 seized in the raid, claiming that it was drug money that was subject to forfeiture.  After Lombardo’s ex-wife made a valid claim to the majority of those funds, however, the government was left holding barely more than a thousand bucks.

Another forfeiture order granted the government title to Lombardo’s home, a three-bedroom house on 217,800 square feet of land in the Sierra foothills town of Smartsville.  This seizure initially looked like a jewel for their forfeiture crown, but it ended up being more like a dreary consolation prize.  With only $15,000 in equity currently in the property, Beckwith revealed in court yesterday, “there’s a question about whether we can proceed on it.”

In matters of principle and practicality, the Lombardo case appears to have played out as a series of disappointments for the government.  For now, the US Attorney’s Office will have to be content to have won a single felony conviction and a short prison term for the offender.

As for Lombardo, he is tentatively scheduled to go into custody in six weeks.  He hopes to be designated at the federal prison camp in Lompoc, CA.  If his attorney, federal defender Tim Zindel, is unable to submit convincing legal authority for the six-week delay, Lombardo could be ordered into custody as early as next week.

In the meantime, Lombardo’s self-surrender date is set for May 10th, 2011.

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