Monday, September 1, 2014

If We Prick the State, Does It Bleed?

Yes, these are Oregon Sheriff's deputies,

“The taxpayers are entitled to everything Mr. Esbensen cost them,” declared Malheur County District Attorney Dan Norris, affected piety suppurating from every syllable, during an August 28 hearing before visiting Judge Gregory Baxter in the County Court. 

William Esbensen, the man from whom Norris and his office was seeking tens of thousands of dollars in “restitution,” had not cost the tax victims of Oregon’s government so much as a fraction of a cent. He had neither the means to extract money from them by force or fraud, nor the inclination to do so. 

Norris and his comrades, on the other hand, spent hundreds of thousands of dollars to prosecute Esbensen and his associates for the supposed crime of providing medical marijuana – recognized as a legitimate palliative remedy under Oregon law -- to willing clients on terms agreeable to both parties. This was a purely discretionary prosecution, given that by the time Esbensen and his business associate Raymond Scott Kangas went on trial this spring, the statute under which they were indicted had lapsed

For operating the 45th Parallel medical marijuana co-op in Ontario Oregon, Esbensen and his professional associate, Raymond Scott Kangas, were convicted of “racketeering” on June 6 following a bench trial. The public weal did not benefit from that conviction, nor was the public fisc depleted by it. To the contrary: Both the Malheur County DA’s office and the Malheur County Sheriff’s Office have profited tremendously as a result of fines and money seized through “asset forfeiture.” 

Norris and his special deputy DA, Michael T. Dugan, had originally hoped to send Esbensen and Kangas to prison. However, Dugan committed an amateurish tactical error: He prosecuted the pair for a “level 4” RICO felony, while asking Judge Gregory T. Baxter to sentence them under “level 8” guidelines. Judge Baxter refused to sentence the defendants under the higher standard – but he did grant the prosecutor’s request for “restitution” costs.

What this should have meant, at very least, would be a detailed and fully transparent accounting of the expenses involved in trying to imprison Esbensen and Kangas for no compelling reason. Norris and Dugan have spared no effort to prevent that kind of disclosure, and in doing so they have oscillated between furtiveness and fury in a fashion strongly suggestive of a bad conscience. 

During a “restitution hearing” that began on August 20, Dugan was voluble about his demand that the defendants pay a sum of between $28,000 and $34,000. This was justified, he insisted, because of his own legal fees, the expense of paying the DA office staff, and rental of office space within the Malheur County Courthouse.

Under cross-examination by defense counsel Gary Kiyuna, who represented Kangas, Dugan admitted that the DA’s office staffers are salaried employees who represent a constant expense. Similarly, the office space used to prepare for the 45th Parallel case was already paid for. Norris cryptically insisted that imposing “rental” expenses on the defendants was justified under the terms of a “federal grant” provided to the DA’s office.

When her opportunity arose to cross-examine Dugan, attorney Susan Gerber, who represented Esebensen, was permitted to ask a single question: How much money did the DA’s office receive from the Malheur County Sheriff’s Office?

The question had barely escaped Gerber’s lips when Norris vaulted to his feet to lodge and objection. 

Gerber patiently tried to explain that since her client was expected to pay prosecution costs, it was entirely appropriate to ask whether those costs had already been paid – and that there was evidence of potential “double-dipping” by the DA’s office. This would include tens of thousands of dollars seized from Esbensen and given to the Sheriff’s office in the form of “asset forfeiture” – at least some of which had been turned over to the DA. This was why she suggested it might be necessary to depose Norris himself about the financial workings of his office.

At that point Judge Baxter erupted in fury, complaining that Gerber’s question suggested an intention to “drag this out for another six weeks.” He tersely announced that the hearing would be adjourned and re-convened on August 28—and then stormed away from the bench. 

The astonished silence prompted by Judge Baxter’s departure was broken a second later by Norris’s hissing, derisive parting remark to Gerber that her question was “The most unprofessional thing” he had witnessed during his decades of legal practice. 

The “professional” course of action, apparently, was for Gerber to demur while her client was saddled with tens of thousands of dollars in “restitution” costs to which the DA’s office was probably not entitled by statute, and for which it could not demonstrate a financial need – and that were generated by a gratuitous prosecution based on an outmoded statute.

On the following day, Dugan issued a notice that the Malheur County DA’s office would be filing a motion in limine to forbid “any argument regarding the use of County General Funds” – which would include “forfeiture” proceeds shared with the DA by the Sheriff. When the “restitution” hearing re-commenced on August 28, Baxter eagerly granted that motion, thereby suppressing any inquiry regarding transfers of the “forfeited” money from the Sheriff to the DA, or any suspected financial improprieties.

As it happens, Dugan had already acknowledged, in his sentencing memorandum, that the Malheur County Sheriff had “received, through equitable sharing … $30-$40,000” in cash stolen by police during a search of Esbensen’s home. “Equitable sharing” is the process through which local police agencies turn over stolen money and property to their federal “partners” – usually the DEA – in order to place the plunder beyond the reach of state law. The Feds take a cut and then give the remainder back to the local affiliates of their criminal syndicate.

From the beginning of the 45th Parallel case, the Malheur County DA’s office had planned to use at least some of the money stolen from Esbensen to prosecute him. During an April 10, 2013 County Commission meeting, according to the official minutes kept by the County Court, “Mr. Norris suggested that a portion of the forefeiture funds in the task force budge could be used to assist with Mr. Dugan’s contract; Mr. Norris indicated he had previously visited with Sheriff Wolfe about this.”

When the Commission discussed the DA’s budget on January 29, of this year, Norris was apparently feeling pretty flush.

“There’s money in the payroll costs line item” to pay for the 45th Parallel prosecution, Norris assured the commissioners. “I looked at it before I hired him to make sure that I had the money. That’s why I … underspent in the salary cost line item, which is more than enough money to do what we agreed on in the April 10th meeting.”

“I’m not asking you for another dime in my budget,” Norris insisted a few minutes later.
In the interest of specificity, City Judge Don Hodge said to Norris, “you’re telling me you’ve got enough money in your budget to do that.”

“I’ve got enough money in my budget to [do] that,” Norris confirmed. “I am underspent on a $279,935 line item by 8% right now.”

The fiscal situation had clouded up a bit when Norris met with the Commission again on February 12. Despite the fact that Norris claimed once again that “I am not coming and asking for money,” he asked the commissioners to hit up their tax victims for another $28,000 to pay for Dugan’s contract as a deputy DA. He also assured them that “we are going to have a discussion in a few weeks when I have my other partners in the room regarding the forfeiture money and where we’re going in the next fiscal year.”

Owing to what appeared to be the Commission’s growing unease over the 45th Parallel case, Norris had Dugan address the body during its April 9 meeting. Dugan bragged that the High Desert Drug Enforcement Task Force had “recovered a number of globs of money so to speak” including “some $53,000 in cash [that] was seized; that was subject to federal forfeiture…. I believe Sheriff Wolfe received about 40 grand of that.”

By prosecuting the 45th Parallel defendants under the RICO act, “the state can recover the costs of its prosecution,” Dugan continued. In previous agreements with 45th Parallel defendants “we settled I think about 10 of them with some significant compensatory fines or fines that cover the costs of prosecution; those went into the Sheriff’s forfeiture account to help cover the cost of prosecution and investigation. I do not know the total figure of money that we’ve already recovered but I think it is in excess of 79 or 78,000 dollars and there is still some additional opportunity to recover more.”

Among the anticipated “opportunities” mentioned by Dugan were an estimated thirty-five thousand dollars “in prosecution costs that I’m asking the judge to impose against the first RICO defendant” – meaning Esbensen -- and “another 2,000 or 3 for the second RICO defendant and it just keeps going up that way.” While Dugan specified that “for the most part we’re doing cash” seizures, he suggested that the Commission might want to target some of Esbensen’s properties in Idaho for confiscation as well.

During that meeting, Norris told the commissioners that “the only thing that we need to deal with today is the Sheriff and I have communicated about using some of the money that’s already been collected to put $7,000 into whatever line item it takes to pay for 200 more hours so that Mr. Dugan can finish the 45th Parallel case.” Once the case is concluded, he explained, it would be possible to “have more in-depth discussions about additional collections and additional use of that money to see things through and do forfeitures next year. Which I think, from a business standpoint would make sense.” (Emphasis added.) 

Is that it? Burying seized marijuana, 9/13/2012.
Briefly put: Norris was asking for a transfer of “forfeiture” funds from the Sheriff’s office in order to finish the 45th Parallel prosecution, so that his office continuing its ongoing “business” enterprise – which will involve further seizures of money and property. 

The “business” of the DA’s office is best described as federally licensed larceny, which arch-prohibitionists like Norris and Dugan consider a more respectable undertaking than providing marijuana to people suffering from chronic pain and similar conditions.

By the time Norris met with the Commission on June 4, the 45th Parallel case was nearly completed, and the relationship between the Commission and the DA’s office had degenerated dramatically. Norris peevishly complained that the Sheriff’s office controlled $15,000 in forfeiture funds used to pay Dugan for the prosecution, describing this arrangement as “a very personal insult to the district attorney and the office.”

“I don’t like that you continually insinuate that somehow we haven’t followed the budget rules,” County Administrative Officer Lorinda DuBois chided Norris at one point. The forfeiture money was in the task force budget and could be used to pay for prosecution expenses, she pointed out, and “there’s no muddy waters, except for what the district attorney is doing.” (Emphasis added.)

Why did Norris describe this arrangement as a “personal insult”? Why was he determined to have personal control over the forfeiture funding to pay the expenses of a prosecution for which he had supposedly provided an adequate budget at the beginning of the year? Why was he deliberately obfuscating what appeared to be a rather straightforward budget arrangement, as Commissioner DuBois observed?

Most importantly: Why didn’t Norris – who isn’t inundated with work – prosecute the 45th Parallel case himself, thereby minimizing the burden of the long-suffering taxpayers whose plight he so tenderly described during the August 28 “restitution” hearing?

Unless a forensic audit is conducted of the Malheur County DA’s office, the answers to those questions will not materialize. Given his holy zeal for the financial interests of Malheur County tax victims, Norris should welcome such an inspection – unless, of course, that solicitude was merely cynical courtroom posturing. Oh, heaven forfend that such a thing would be true.

By obtaining a court order forbidding questions about the use of “general County funds” in the 45th Parallel prosecution, Norris and Dugan provided cover for their partner in federally licensed larceny, the Malheur County Sheriff’s Office. In addition to an unspecified about of money seized through forfeiture, the MCSO had taken possession of a huge number of mature marijuana plants that were confiscated by the High Desert Drug Enforcement Task Force from at least eight locations in Oregon and Idaho on September 11, 2012.


Through a public records request, I obtained a disc containing what Undersheriff Travis Johnson described as “photo documentation of the marijuana” seized during the 45th Parallel case “being disposed of at the land fill in Malheur County.” 

No, really -- is that it?
The photographs provided to me display a quantity of marijuana that would be the yield from a relatively modest backyard “grow” – or so I’ve been informed by people involved in the legal cultivation of medical marijuana. Recall that the September 11, 2012 crackdown targeted at least eight locations. Obviously, there is a significant volume of a very lucrative cash crop that has yet to be accounted for by the MCSO.

Citing the official transcripts of County Commission meetings during the August 28 restitution hearing, Susan Gerber attempted to make an official appellate record regarding the DA office’s financial irregularities.

In his reply, Norris took refuge in the kind of language he would, in a different context, describe as a sleazy defense attorney’s verbal subterfuge: “There’s no admissible evidence supporting her allegations, Your Honor.”

Bear in mind that the non-admissible evidence, which Norris described as “hearsay,” was drawn from the same official County Court Minutes he clearly considered to be authoritative during his arguments with commissioners regarding the budget. 

Eight grow sites -- and THIS is the yield?
After Judge Baxter granted “restitution” costs to the DA’s office, Ms. Gerber asked that the fines be held in abeyance pending an appeal.

“This isn’t the old days when restitution was based on the defendant’s ability to pay,” insisted Norris. “This is about what it cost the State.”

Those words were commendably free of pretense: Norris didn’t care about the expenses inflicted on the productive people whose property is mulcted to pay his salary; he was interested only in maximizing the drug-related profits acquired by people acting in the name of the “State.”

Norris seems to conceive of the State as living composite being, a personage suitable for an adapted version of Shylock’s famous soliloquy – it is “fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer,” as the rest of us.

If you were to prick the state, Norris might ask, does it not bleed?

In substantive terms, the State is a malignant fiction invoked to justify seizing the property of people like Bill Esbensen and Scott Kangas, who have done no injury to anybody – least of all tax-fattened hyenas like Dan Norris and Michael Dugan. Of their ilk we might appropriately ask: If they bleed us, are they not pricks? 

If you can, please contribute to keep Pro Libertate on-line. Thank you so much! 

Dum spiro, pugno!


Luton Ian said...

Thank you for meticulously researched and reasoned piece.

I suspect that a forensic audit of their books would be almost as welcome to them as another positive HIV test would be in the Californicated porn film industry

except that the work of the pornographers is consensual, neither picking pockets, nor breaking legs, and they are producing a product which must remain within the budget that their customers choose to pay for...

I'm seeing worrying reflections in the conversations which you quote - of something which I saw a few days back in the comments to Jeff Deist's piece about police states over on

That was a fallacious "cost of production theory of value" from a commenter posting as "friend of cops"

The gist of the half formed argument appeared to be that because policing is a dangerous job, the service provided is valuable.

clearly that's fallacious on both grounds - cop is not a particularly dangerous job (it occasionally makes it into the top ten most dangerous job categories, far behind construction, mines and quarries, forestry, commercial fishing, farming...), and the effort expended to polish a turd, in no way increases that turd's value.

There also appeared to be an implication that by making policing more dangerous (or more costly) that the service provided would somehow become more valuable.

I think that we can guess which class in society, our cop sucking friend would expect the increased costliness and danger to fall upon - and which would hope to enjoy the supposed increase in value.

rkshanny said...

Reefer Madness, indeed. I've watched the comedy-horror movie by the same name and found it entertaining in the same way I find good ole sci fi and horror schlock entertaining. This Reefer Madness exercised by 'our' uniformed 'polished turds' is NOT entertaining! I really hate it when the 'zombies' running amok in our lives are real ones, whose "value" I am forced to pay for!

Wraith said...

It is said that when the armed robber attacks a person for their money, the robber has already convinced himself that the victim's money is HIS.

Sounds very like a by-proxy version of the attitude on display here, no? Apparently, the victim, going about his business of trading freely with other people, somehow cost someone else money. I'm going to need a whole bunch of drugs for this to make sense.

Anonymous said...

This is typical (unfortunately) cooperation between two agencies that should never be this close. But when MONEY is concerned to hell with honoring your pledge to defend the citizens of your state. The local police in this case have made no effort to cover up this shady crap that they pull. As for being really good friends with a bunch of feds that part means that your local sheriff will NEVER use his authority to boot the feds out of his territory for anything that they happen to want to do. A sheriff has the authority to keep the feds out if the feds want to arrest someone or serve a warrant in his territory. Did you know that?

Anonymous said...

The sad part of all of this is, they will get away with it. If a real investigation was done (not a snowball's chance) and showed the truth and the criminal actions of the people working for the state. It would shine light where darkness is the cover needed for many government employees. The people's government has been hijacked by criminals that hide behind their government employment.
This situation brings up questions about the courts. So how can such victims of crimes go to a court seeking justice? What lawyer would want to put their careers on the line going up against such a criminal enterprise?
And one of the larger questions of this whole matters is, where is the investigating media with the newspapers, tv and radio stations?
Its going to get a whole lot worse and a lot of innocent folks are going to have crimes manufactured against them. Because they have something the government employees want to steal.

Gil said...

His only "crime" was committing a criminal offence (again).

Anonymous said...

Mr Grigg, I tried to send this when it was current but your email bounced and I didn't have access to blogs:
"sheriff busted over brutal road rage traffic stop" (N. Mex)
"judge orders more prison time for cop who beat motorist" (Iowa)


Anonymous said...

git wrote:
"His only "crime" was committing a criminal offence (again)."

and how many has git committed in the past 24 hours?

The World Health Organization recommends at least 5 a day, as part of a healthy lifestyle.

If every offence against piece of paper were punished, we'd all be suffering expropriation and caging.

What git (who is probably the dullest witted troll of all that comment on abolitionist sites) fails to work out -is that following his logic, the police state and its costumed goons has a pretext to take any of us at any time.

The page number of the piece of paper which they have supposedly offended against to end up being abducted, caged and expropriated, is simply a reflection of the priorities of the bureaucrats at that time. It bears no relation on any objective aggression committed against individual human beings or their property.

In the present case, the priority appears to have been value of assets which could be stolen.

In other cases which Mr Grigg has researched and reported, it has included attractiveness to a sexual abuser, or satisfaction of beating and murdering to predatory sadistic psychopaths.

Pray that you don't tick any of the boxes du jour, git.

Luton Ian

Gil said...

Poor L.I. you sound as though: "I want to be a low-level criminal who engages in what I feel are 'victimless' crimes and expect the cops to leave me alone and focus on the 'real' crimes."

Anonymous said...

git; dim witted as ever.

Luton Ian

joyce said...

In this case, the neighboring state fabricated official looking documents to trick someone from legally selling medicine.

William N. Grigg said...

Joyce, the forgery -- as well as interstate wire fraud and subornation of perjury -- were actually committed by Boise-based DEA Agent Dustin Bloxham, aka "Dustin Hankins" --

Bloxham's intent was to defraud people in order to steal from them, which means his offenses -- unlike those of Esbensen and Kangas -- were actual crimes.

It's worth reiterating that he did not have authorization from Idaho's US Attorney, Wendy Olson, nor was he deputized by the Malheur County Sheriff's Office, which would be necessary in order for him to operate within their jurisdiction.

Gil strikes me as the kind of Punitive Populist who reflexively identifies with high-level criminals like Bloxham, while taking vindictive pleasure in the suffering of harmless businessmen like Bill Esbensen and Scott Kangas.

joyce said...

Thank you, Mr. Grigg. Apologies for misremembering your previous articles. I should have gone back to confirm, but I was lazy ;-)

Thanks again for your work.

Michael Price said...

.that the Malheur County Sheriff had “received, through equitable sharing … $30-$40,000” '
You keep using that word "equitable", I do not think it means what you think it means.

William N. Grigg said...

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean — neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master — that’s all.”

Michael Price said...

Can you imagine a private citizen trying to get away with this? "Oh I demand he recompense me for my costs. What you want me to account for those costs? How unprofessional!". The judge would kick his ass out of the courthouse so hard he'd bounce.

William N. Grigg said...

Oh, it gets worse -- it always gets worse....

Just today I was able to get a copy of the "Amended Judgement" against Bill Esbensen, which set out in detail the "restitution" process and the terms of his two-year probation.

The "Payee" is listed as "Malheur County District Attorn" [sic], who is said to be entitled to $18,097.95 in "restitution."

The document specifies that "Restitution shall be dispersed by the court clerk so that victim(s) each receive an equal amount of each payment."

How, exactly, is Dan Norris or anybody in his office a "victim" in this matter?

The "Judgment Creditor" in this arrangement is "State of Oregon," and the "Judgment Debtor" is William Esbensen. This means that we're supposed to pretend that Esbensen borrowed, or otherwise, contracted a debt with the "State of Oregon" -- and we're also informed that the court's ruling "creates a judgment lien" on his property.

And yet it still gets worse:

"The court may increase the total amount owed by adding collection fees and other assessments. These fees and assessments may be added without further notice to the defendant and without further court order"

So at a time of his choosing, subject to no oversight or accountability whatsoever, and most likely as a result of ex parte action by the DA's office, Judge Baxter can pull a new "assessment" from his tax-fattened retreating orifice and impose it on Esbensen -- and then enforce it by sending him to jail, adding whatever "collection fees" he pleases if the victim can't make timely extortion payments.

Bear in mind, all of this is being done to someone who provided a legally recognized medicine to willing clients, and was prosecuted under a now-invalid state ordinance.