Bust You For It Now, Tax You For It Tomorrow: The Insanity of Marijuana Prohibition

 

Shock troops of prohibition: Oregon SWAT operatives conduct a marijuana raid.

Vale, Oregon

“I'm going to be burning weeds today – the right kind, that is,” Bill Esbensen wryly informed me as we met at his abandoned rental property. He was careful to obtain the required permit before igniting the assembled yard debris. Since he will be on probation until June 2016, Bill could wind up in prison for even the most trivial ordinance violation, the people running what passes for the “justice” system in Oregon’s Malheur County have an incontinent lust to send him there.

A few weeks earlier, in a courthouse a few blocks away from the rental home in Vale, the Malheur County DA's office briefly considered confiscating the property before deciding that it wasn't worth the effort. The two-story house had been remodeled to contain a greenhouse and a “grow room” for the production of marijuana. 

The college-age renters who abandoned the house while Bill was in jail grew and used marijuana legally and without harassment from the same people who put him behind bars, and have destroyed him financially.

Bill Esbensen in his abandoned rental property.

“I am wiped the hell out,” said Esbensen. “I have no money at all, and unless a miracle occurs I’m going to lose this house and the dispensary in Ontario. But I suppose that I’m fortunate, because unlike a lot of people I had properties to lose. There are plenty of people who have it worse than I do.”

The dispensary, or at least the attention it attracted from powerful and opportunistic people, was the source of his problems. The building – a repurposed butcher shop -- housed the 45^th Parallel medical marijuana co-op, which dispensed a legally recognized palliative remedy to qualified clients.  

On September 11, 2012, the co-op, along with more than a dozen other sites on both sides of the Oregon/Idaho border, was raided by the High Desert Drug Enforcement Task Force. Hundreds of pounds of marijuana – most of it still unaccounted for – were seized, along with a substantial amount of money and the co-op’s business records.

In June, following a bench trial, Bill and his former business partner Scott Kangas were convicted of “racketeering” under a law that was no longer in effect. Despite the ardent desire of Malheur County Deputy DA William Dugan, they were sentenced to probation, rather than prison. One condition of Bill’s probation is the requirement that he liquidate the 45^th Parallel Corporation, which he cannot do without access to his business and tax records. On October 15, trial Judge Gregory Baxter denied a motion requesting the release of those records.

“I’m ordered to liquidate the 45^th Parallel by the same judge who won’t let me have the records I need to carry out that order,” he pointed out to me. “I can’t just guess where the taxes are concerned. I need the records.” Caught between the pit and the pendulum, Esbensen at this point will either violate a term of his probation, or risk trouble with the IRS.

This is not the only way in which Esbensen is required to make bricks without straw. He has also been ordered to pay $18,000 in “restitution” costs to the Malheur County DA’s office, which had already seized tens of thousands of dollars from him through the state-licensed larceny called “civil asset forfeiture ,” and used the money to prosecute him. When Esbensen’s defense attorney, Susan Gerber, sought details about that seizure, Judge Baxter suffered a courtroom meltdown, and the DA’s office obtained a motion in limine forbidding her to pursue that line of inquiry.

“I sold my car lot in Idaho to begin this business several years ago,” Esbensen points out. “And it wasn’t as if the 45^th Parallel was a hugely profitable enterprise. Over the course of three years I cleared about $18,000.”

That figure translates into about $500 a month, which doesn’t suggest that Esbensen and his associates were building a narcotics empire.  Yes, he did expect that Oregon would soon decriminalize the recreational use of marijuana. 

The same is true of the people on the other side of the Malheur County criminal” justice” system. Esbensen was depicted in court as a “kingpin” – an embryonic Heisenberg or Tony Montana – by the same people who are positioning themselves to profit from the same “illicit” activity for which they sought to send him to prison.

Next week, barring widespread electoral fraud, Oregon will probably enact Proposition 91, a measure that will decriminalize (but alas, not deregulate) the recreational use of marijuana. On October 28, in anticipation of that development, the Vale City Council approved a measure imposing a 5 percent tax on gross sale of medical marijuana, and 10 percent on gross sales of recreational marijuana.

By this time next year – assuming that Oregon’s experience is in any way similar to those of Colorado and Washington – Vale’s municipal government will be reveling in marijuana-derived revenue. Vale is the seat of Malheur County, which abuts Puritanical Idaho. This means that county he potential for marijuana tourism is immense, as is the anticipated tax windfall for the county and city governments.

Undersheriff Travis Johnson

Renee Churchill, administrative manager for the Vale City government, told me that the marijuana taxation measure was approved by three members of the City Council – Travis Johnson, Heidi Zanotelli, and Randy Seals. Significantly, Johnson is both a member of the Vale City Council and Undersheriff Malheur County. His colleague on the City Council, Brad Williams, is a Malheur County Sheriff's deputy and was the chief investigator in the 45^th Parallel case.

Although Williams wasn't present for the October 28^th City Council vote (Churchill told me he was attending a function in Bend), there is no record that he opposed the marijuana taxation measure, which was actively supported by Johnson, his superior officer in the MCSO.

Deputy Williams was involved in every phase of the 45^th Parallel case. He was approached by Dustin Bloxham, a corrupt, Boise-based DEA agent, about mounting an investigation of the co-op. Williams was cc’d in the March 29, 2012 email from Bloxham to assistant US Attorney for Idaho Marc Haws after Esebensen had been subjected to a pretext traffic stop and illegal search of his car by the Task Force. During that search, the business records for the 45^th Parallel were confiscated.

“Thought maybe if you guys had a moment, you might be able to look through [the records] and see if they are doing some good business,” Bloxham suggested to Haws and Williams. “I had glanced over it and it appears to me that some decent money is coming out of the business.”

Acting outside his jurisdiction, and without authorization from US Attorney Wendy Olson, Bloxham targeted Esbensen and his business. In doing so he committed at least two acts of interstate wire fraud, and suborned a physician in Idaho to falsify medical records so he could qualify – under the pseudonym “Dustin Hankins” -- for an Oregon Medical Marijuana Program card. His marijuana purchases at the 45^th Parallel were made with petty cash provided to him by Deputy Williams out of the MCSO’s budget.

In those transactions, the personnel from the 45^th Parallel acted in good faith and in strict compliance with Oregon laws and regulations. If Bloxham couldn’t claim “qualified immunity” – which may not apply here, given that he acted without authorization from Wendy Olson, or being deputized by the MCSO – he would probably face prosecution for several felonies, as would Brad Williams, his accomplice.

It’s worth pointing out that Scott Kangas was charged with “racketeering” solely because he was Esbensen’s partner in a government-licensed business. (He was also being punished for turning down a deal in which he would testify against him). The same theory of criminal liability that justified the racketeering charge against Kangas should apply to Brad Williams’ colleagues at the MCSO – particularly Undersheriff Johnson, who was present for the marijuana tax vote on October 28.

The behavior of the MCSO and Malheur County DA’s office in this case was that of a privileged criminal syndicate. Rather than protecting the public, they were using the “justice” system to profit from “illicit” marijuana sales, until they would be able to accomplish the same thing through taxation.

 

Deputy Brad Williams

Brad Williams was in attendance during every day of Esbensen’s trial. When the guilty verdict was pronounced on June 6, Judge Gregory Baxter ordered that Esbensen be taken directly to jail. The officer who carried out that order – wearing full uniform and a triumphant, self-satisfied smirk as he handcuffed Esbensen – was Brad Williams.

By this time next year, as a member of the Vale City Council, that same Deputy Williams will be deeply involved in the same “criminal” activity for which Esbensen is still being punished: Receiving money as a result of marijuana sales. The most significant difference is that Esbensen received those proceeds through honest commerce, while Williams and his comrades will do so through the state-consecrated form of theft called “taxation.”

The Malheur County Sheriff’s Office, meanwhile, will continue to bank money it receives in the form of fines imposed on more than a dozen members of the 45^th Parallel. It has already taken in tens of thousands of dollars in fines and confiscated funds – and we shouldn’t forget that nobody has properly accounted for most of the hundreds of pounds of marijuana that were seized in the September 11, 2012 raids. 

Where's the rest of the weed?

The MCSO found another way to leverage funding out of the 45^th Parallel case: Earlier this month it was announced that Malheur County “has been listed among 26 counties in 11 states designated as high-intensity drug trafficking areas,” according to the Argus Observer.

Given what we know about the bureaucratic perversities that characterize drug prohibition, it’s likely that the HIDT designation was, to some extent, a reward for the 45^th Parallel case – and we can expect to see the MCSO do everything it can to duplicate that triumph. Sheriff Brian Wolfe explained that with the coveted HIDT designation his agency will receive funding to pay overtime costs and to “make larger purchase[s] that can lead to bigger drug busts.”  

What this will mean, in all likelihood, is that Deputy Williams and Undersheriff Johnson will tirelessly seek to ensnare people on drug charges during the day, while moonlighting as state-employed marijuana “kingpins.” Meanwhile, Bill Esbensen, like countless others, will continue to serve a sentence inflicted on him as punishment for doing something no longer considered to be a crime, even by those who foolishly believe that government has the authority to regulate what people freely choose to consume.

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Dum spiro, pugno!

Grant Gerber: Horatius on Horseback

Then out spake brave Horatius, the Captain of the gate –

To every man upon this earth

Death cometh soon or late;

And how can man die better, than facing fearful odds,

For the ashes of his fathers, and the temples of his gods?

Grant Gerber, who died on October 24 in Elko, Nevada while surrounded by his family, was a casualty of war. The 72-year-old, who served as a military intelligence specialist with the Army Special Forces in Vietnam, did not succumb to an ancient injury suffered in combat with the Viet Cong. His wounds were inflicted in early October during a peaceful counter-offensive against an immeasurably more powerful collectivist enemy – the U.S. federal government.

In the fashion of many combat veterans, Gerber died as the result of a battlefield accident. He was an organizer of the “Grass March Cowboy Express,” a 2,800-mile horseback expedition intended to draw attention to the plight of western landowners, and to petition the government for relief. His fatal injuries occurred in Kansas when the horse he was riding stumbled in a prairie dog’s den and rolled on top of him.

Although Gerber's death was not the result of a specific act of violence, it was nonetheless sustained in combat with an implacable enemy that – unlike the Viet Cong – is actually imposing communism on the home he held dear. Communism, as Marx's Manifesto helpfully explained, is “the abolition of private property,” an objective toward which federal bureaucracies have made considerable progress.

In defiance of the U.S. Constitution and in harmony with the Communist Manifesto, the federal government is, by a considerable margin, the largest landowner in the United States. In each of the western states, Leviathan owns the majority of the available acreage.  The Feds have possession of nearly ninety percent of the land in Nevada, which was obtained through an aggressive war with Mexico and steady expropriation of the Western Shoshone Indians. That pilfered property is administered by the Forest Service and Bureau of Land Management, which are systematically strangling what remains of the ranching industry. Similar policies have devastated the mining and logging industries, in Nevada and throughout the region.

Gerber, a personal injury attorney who was elected to the Elko County Commission in 2012, clung tenaciously to the earnest but mistaken belief that the U.S. Constitution protects private property and restrains government power. He spent decades of his life fighting to restore the constitutional balance between the states and Washington. His model was colonial organizer and agitator Samuel Adams, who, like Gerber had been employed by the tax-extracting sector before repenting and lending his talents to the cause of individual liberty.

Prior to 1976, the federal Leviathan recognized – albeit grudgingly – the authority of county governments to manage “federal” lands. The successor to King George’s distant, tyrannical government decided to celebrate America’s Bicentennial by enacting the Federal Land Policy and Management Act (PLPMA), which ended the pretense of actual federalism by announcing perpetual ownership of those lands by Washington. That same measure turned the BLM into a fully realized police force – a fact memorably displayed earlier this year in the agency’s paramilitary assault on Nevada rancher Cliven Bundy, his family, and their supporters.

Rather than submitting with expected docility to Washington’s land grab, western property owners – and, to their credit, many elected county officials – organized a revolt that came to be known as the “Sagebrush Rebellion.” Grant Gerber was among the first to enlist, and he quickly distinguished himself among his fellow rebels.

“Nevada is ground zero for the Sagebrush Rebellion,” observed the disapproving author of a paper published in 2002 by the amusingly entitled journal Public Integrity. “It is not always clear whether the Rebels’ goal is the privatization of federal lands or the overthrow of the federal government itself.”

Although both objectives are laudable, the Rebels seek only to restore the status quo ante 1976, when local lands were administered by county governments, rather than being occupied and controlled by federal usurpers. 

Since the revolt began in 1979, the rebels have been fighting – through litigation and public activism -- a desperate rearguard action against the Feds as they remorselessly drive ranchers and other producers off the land and close it down to public use.

In the mid-1990s, Bill Clinton issued a decree banning new road construction on 43 million acres of federally-occupied land with the objective of designating up to 60 million acres as “roadless.” What this means, in practice, is that the land would remain inaccessible until it could be sold or leased to a suitable, politically favored set of corporate interests.

Shortly after Clinton signed the executive order, the U.S. Forest Service announced that it would not repair a washed-out road near Jarbidge, a town of 14 people in Elko County. This decision was supposedly taken to protect the habitat of an unremarkable fish called the Dolly Varden or “bull trout.” In substance, however, it was a way for the USFS to assert dominion over lands within Elko County.

As Aristotle observed, when something is owned by everybody, it is equally neglected by all alike. Since the USFS, acting in the name of the collective “American people,” refused to fix the road, the Elko County Commission dispatched a crew to carry out the required maintenance. USFS regional commissarina Gloria Flora obtained a restraining order to prevent repairs from proceeding.

The Red lady in red: Flora at a Hollywood eco-fundraiser.

Denied any other means of redress as  the unaccountable USFS proceeded to lock up local lands, the Elko County Commission urged local residents "to let the Forest Service know what you think about this by not cooperating with them. Don't sell goods or services to them until they come to their senses." 

What this meant, of course, is that local merchants willing to forego potential profit in exchange for making a political statement in the service of their values freed up economic opportunities for others in Elko.

Plumbing the language of self-pity, Flora depicted herself and her khaki-clad chekists as victims of “discrimination,” and she demanded a congressional investigation of what she called “irresponsible Fed-bashing” in Elko County. When Congress reacted by scheduling on-site hearings to be led by the late Idaho Rep. Helen Chenoweth, Flora – prefiguring the conduct of a similarly petulant administrator, Lois Lerner, the former head of the IRS’s exempt organizations unit – denounced what she called a “public inquisition of federal employees,” and resigned.

On Independence Day 2000, a few months after Flora’s very welcome departure, Grant Gerber and his associates organized a volunteer group called the “Jarbidge Shovel Brigade.” Hundreds of people from across the country converged on the remote stretch of road in northern Nevada in order to remove an immense boulder and an earthen berm that the USFS had thoughtfully placed across the disputed road.

“They arrived in vintage Jeeps and new Mercedes Benzes and rental sedans, driving across 30 miles of treacherous, single-lane gravel roads to get here,” recounted the Los Angeles Times in a dispatch heavily flavored with condescension. “Hundreds were shuttled in school buses from 30 miles away, in Idaho. They displayed signs reading `I love my country but fear my government,’ `Shovels for Solidarity,’ and `The Lord giveth, and the government taketh away.’ They pledged allegiance to the flag and sang `The Star-Spangled Banner’ and listened to a song about the importance and symbolism of roads. And then they removed the final obstacle, a four-ton boulder that they called Liberty Rock.”

This was accomplished through muscle power: Three huge ropes were attached to chains that girdled the immense rock, and two hundred men pulled in unison, dragging the stone a distance of 35 feet in two-foot surges.

“When they were finished, they not only had defiantly reopened the road, which the U.S. Forest Service closed in 1998, but had symbolically lashed out at federal bureaucrats,” observed the Times report.

Gestures of this kind have buttressed Elko County’s entirely commendable reputation for unqualified hostility toward the federal government – and wherever principled troublemakers assembled, Grant Gerber was always one of the ringleaders.

The “Grass March Cowboy Express” was inspired by the same muse that prompted creation of the Shovel Brigade. In this instance the proximate grievance was an order issued on July 23 by BLM District Manager Doug Furtado requiring ranchers to remove their cattle from Argenta grazing allotment on Mount Lewis. This was supposedly done in response to incipient drought conditions. However, the cattle were to be relocated – on just a few days’ notice -- from an area where water and forage were abundant, to a drought-stricken flatland. As a “conservation” initiative, that order made no sense. It made perfect sense, however, as part of an ongoing bureaucratic war to extirpate the ranching industry.

The Cowboy Express would prove to be Grant Gerber’s last skirmish with the Feds in what for him was a peaceful war of righteous defense. I should acknowledge that Gerber was my wife’s maternal uncle, and that we had some very pronounced disagreements – over the wars in Iraq and Afghanistan, in particular. But I had tremendous respect for someone who had done a great deal to drive one federal commissar out of his county, while driving scores of her comrades into fits of impotent fury. He may – let us hope – enjoy a posthumous victory, if his colleagues succeed in removing Furtado from his current post.

An abstemious Mormon who was running half-marathons well after retirement age, Gerber probably had decades of life ahead of him when he suffered his fatal injury, which he could have avoided by eschewing a dangerous 2,800-mile horseback trek at age 72. Like Horatius, however, Grant was the kind of man who preferred to meet death while “facing fearful odds, for the ashes of his fathers, and the temples of his gods.”


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Dum spiro, pugno!