If We Prick the State, Does It Bleed?

by William Norman Grigg
Sep. 03, 2014

[Pictured: 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 or even triple-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 months.” 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?
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William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program. Follow him on Twitter.