Thursday, December 5, 2013

Busted In Winnemucca

A recent complaint filed by the Illinois Administrator alleges:

In late December 2012, Respondent traveled to  California to visit some friends for the New Year’s holiday. During the visit,  Respondent purchased 7.25 pounds of "sour diesel" marijuana from a friend, two  pounds of which he intended to distribute to other friends in Illinois and a  friend in Denver who had given Respondent money for the purchase. Sometime after  January 1, 2013, Respondent began traveling from California in his grey Subaru  Outback to his residence in Mount Morris, Illinois.

At or about 9:40 a.m. on January 3, 2013,  Respondent was traveling eastbound on Interstate 80 through Winnemucca, Nevada,  with the 7.25 pounds of marijuana, referred to in paragraph one, above, in his  car. At that time, Respondent was stopped by the Humboldt County Sheriff’s  office for speeding.

When approached by the officer, Respondent  handed him the vehicle registration and his business card, which identified  Respondent as an attorney. The officer smelled marijuana in Respondent’s car and  asked Respondent if he could search the vehicle. Respondent denied the officer’s  request. When the officer then explained that he had a drug-sniffing dog in his  car, Respondent stated that he did not have any drugs in the car.

Respondent’s statement to the officer was false.  As Respondent knew, he was carrying 7.25 pounds of marijuana in his car and his  statements and refusal to consent to a search were intended to conceal from the  officer that he had 7.25 pounds of marijuana in his car.

The officer then brought a trained drug-sniffing  dog from his police car and walked the dog around the perimeter of Respondent’s  car. The officer told Respondent that the dog had detected marijuana in  Respondent’s car. The officer then asked Respondent if his car contained drugs,  to which Respondent stated, "not that I know of." The officer asked Respondent  again if he could search the car and Respondent consented to a search of two  pieces of luggage in his car but not to a search of the entire car.

Respondent’s statement to the officer that he  did not know if his car contained drugs was false. As Respondent knew, he was  carrying 7.25 pounds of marijuana in his car and his statements and refusal to  consent to a full search were intended to conceal from the officer that he had  7.25 pounds of marijuana in his car.

The officer then obtained a warrant by phone to  search Respondent’s entire vehicle. After searching the vehicle, the officer  found a vacuum-sealing machine, supplies for the machine, vacuum-sealed brownies  containing marijuana and eight separate vacuum-sealed bags of marijuana  (totaling 7.25 pounds of marijuana) and $1,050 in cash. The officer then  arrested Respondent.

On or about January 8, 2013, the Humboldt County  District Attorney charged Respondent in the Justice’s Court of Union Township,  Humboldt County, Nevada, with a felony count of transporting a controlled  substance, and another felony count of possession of a controlled substance for  the purpose of sale. (State of Nevada v. Richard C. Folk, case number 13  CR 00016) A copy of the complaint is attached as Exhibit One.

On January 24, 2013, the Humboldt County  District Attorney filed an amended complaint against Respondent which dismissed  both felony counts described in paragraph seven, above, and charged Respondent  instead with one misdemeanor count of possession of marijuana. On or about  February 15, 2013, Respondent pled guilty in case number 13 CR 00016 to  possession of marijuana, a misdemeanor, in violation of NRS 453.336(4)(a) and  agreed to forfeit ownership of his Subaru to the Humboldt County District  Attorney’s office.

On March 26, Judge Letty Norcutt entered an  order in case number 13 CR 00016 sentencing Respondent to 19 days in jail with  credit for time served, and ordered Respondent to pay a $250 fine. A copy of the  docketing sheet order entry is attached as Exhibit Two.

Obviously, there are serious disciplinary violations here if the alleged facts are proven.

Notably, the Administrator alleges that lying to the police violated Rule 4.1.  As the rule requires that the false statement be "in connection with the representation of a client," that may be an overcharge. (Mike Frisch)

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The whole case seems like an overreach to me.

In the end, the attorney pled to a single misdemeanor count. And it sounds like he only did that so as to get out of jail after spending 19 days locked up. He basically handed them his car and, it sounds like, the cash that was in his pocket.

The allegation that he lied to the police officer and was unproven in court and the prosecution chose not to pursue the charge so one has to question whether that would have actually held up. Does the disciplinary commission really intend to fly the police officer in to testify to these facts? Is there corroborating evidence such as in-vehicle video? If not, then it would just be the officer's word against the attorney.

Rule 8.4(b) for one misdemeanor count of something that is now legal in some states? Indeed, Humboldt is a notorious marijuana county. Yeah, that's a stretch.

Rule 8.4(c) piggybacks on 4.1 and, as you point out, the attorney was not representing a client at the time. There is a split as to whether the “representing a client” provisions of the rules should be respected. Maryland and Virgina think not. The Board in D.C. also thinks not. But the D.C. Court of Appeals has so far avoided addressing the issue (including in my own case despite that I directly raised it). On the other hand, Connecticut strictly applies this provision. I have no idea if Illinois has considered the issue and how they have ruled if they have. In fact, that could ultimately prove to be the most interesting aspect of this case.

So the real question here is, should you really be publicizing these charges, which have readily apparent flaws to them and which appear to be based upon the actions of one of those bandit jurisdictions which stop and arrest people so that they can negotiate a settlement which involves the surrender of their property? Indeed, when I searched the Humboldt County Sheriff, the very first thing that popped up was this this story from October:

A Humboldt County Sheriff's Office sergeant was arrested early Friday morning on allegations that he sexually assaulted a woman while on duty.
Investigators with the Humboldt County District Attorney's Office arrested Eureka resident Jason Scott Daniels, 40, at about 5:30 a.m., and booked him into county jail on suspicion of sexual battery and sexual penetration with a foreign object. Both offenses were allegedly committed against a single victim while Daniels was on duty.


I wonder if this was the unnamed officer in the complaint?

So are these the sorts of unajudicated accusations that the Legal Profession Blog should be reporting?


Posted by: Stephen Williams | Dec 5, 2013 11:29:15 AM

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