An attorney who successfully returned money seized from a dispensary owner has now been changed with criminal action. The case is being called “vindictive prosecution.”
[dropcap]I[/dropcap]t appeared Bonnie Dumanis had lost. As San Diego’s district attorney, Dumanis had seized more than $324,000 from a local medical marijuana distributor during a January 2016 raid. But in May, with no charges filed against James Slatic, the operation’s owner, and no indication any charges were coming after almost a year and a half, a judge ordered Dumanis to return $100,000 seized from the personal bank accounts of Slatic and his family.
The money was expected within 10 days. For Dumanis, who is exiting the post on July 7 following a rare decision to resign mid-term, it would be an embarrassing footnote on her career.
Instead, within two weeks, Dumanis filed criminal charges after all — not only against the owners and employees of Med-West, a dispensary that operated in Kearny Mesa until the raid, but against Med-West’s attorney, Jessica McElfresh.
As the San Diego Union Tribune reported, Dumanis alleges McElfresh conspired to conceal “evidence of illegal activities,” by making sure that manufacturing equipment used at the dispensary was removed prior to a city inspection.
According to the criminal complaint, Med-West distributed more than $3 million worth of illegally manufactured hash oil across the country — charges that Dumanis said took 16 months to emerge because she wanted to “get it right,” she told the newspaper.
But for most observers, the curious timing — right after Dumanis was ordered to give Slatic his money back — is tell-tale evidence of a “vindictive prosecution” filed to escape the ignominy of returning money to a medical cannabis seller, and an ominous warning from prosecutors to all other marijuana defense attorneys: if you win, we’ll make sure you lose.
McElfresh has declined to comment on the story, and she may practice law in the meantime while the charges against her are pending. Since admitting guilt in a criminal case would likely mean punishment from the state bar association — up to and including losing the ability to practice — observers say that McElfresh will likely take the case to trial, a process that could take more than a year.
In the meantime, however, having a criminal charge hanging over her head may make it difficult for her to obtain new clients. And the chilling effect is likely to extend to other attorneys who handle marijuana cases.
“This is clearly a vindictive prosecution arising from the court’s order that they return the seized funds,” said Henry Wykowski, a former federal prosecutor who is now general counsel to the National Cannabis Industry Association, in comments to MJBizDaily. “As bad as that is in and of itself, this is clearly calculated to send a chill to the attorneys that defend cannabis businesses, that they can become targets.”
“This is just not proper.”
McElfresh’s client, Med-West, distributed cannabis oils and other products to other dispensaries in the San Diego area, which has long been considered unfriendly territory for the marijuana industry. Med-West was raided in January 2016, despite repeated official visits from city inspectors, politicians, and police, who found no evidence of wrongdoing.
Following an April 2015 inspection, however, McElfresh sent an email to her client that read in part, “I’m convinced they walked away knowing it wasn’t a dispensary in the typical sense… but it probably seemed like something other than just paper.”
“We did a really, really good job giving them plausible deniability — and it was clear to them it wasn’t a dispensary. But, I think they suspected it was something else more than paper.”
After the raid, agents seized $324,000 in cash found at Med-West as well as the $100,000 from the Slatic family’s accounts.
Along with racial profiling and police shootings, asset forfeiture is a hotly debated topic in criminal-justice reform circles. Law enforcement has long been able to seize money or property alleged to have been gleaned through the sale of illegal drugs, with little recourse for the owner.
Recent reforms have required defendants to be at least charged with a crime before their property can be seized, but these reforms have been unpopular with police and prosecutors, some of whom have brought their grievances to President Donald Trump.
California law enforcement, whose lobby wields great power in the state, has also long been opposed to the state’s legitimate marijuana industry. So, a case like McElfresh’s would serve as an example on multiple fronts.
Dumanis did not respond to inquiries about the timing of her prosecution, nor did she address the accusations of using her office vindictively. But in legal circles, just the “appearance of impropriety” is enough to impugn a prosecutor’s motives and have her dismissed from a case.
TELL US, do you think the charges against McElfresh are vindictive?