Tangoing with "The Man"
Tangoing with "The Man"
Weed is still illegal in the eyes of federal law enforcement, as much as we'd like to forget that.
A couple of weeks ago I was subpoenaed to testify in federal court as an expert witness in a criminal case.
“An expert pothead!” my dad said over the phone while laughing after I told my parents that, finally, their firstborn had become an expert in something. In this case, a federal judge qualified me as an expert in the Southern California cannabis industry, as well as an expert in the cannabis plant.
While, yes, trust me, I’m in on whatever jokes can be made about qualifying as an expert on weed in any context, I am not going to lie, this “request” hit me like a ton of bricks. Anything dealing with the federal government is a big deal, and even though federal weed cases are way down and there are now mechanisms in place to prevent the federal government from going after state-legal enterprises, cannabis is still actually illegal. But, apparently, I had information somewhere in my brain that the defense thought would be useful to their client’s case. Forget the legal exposure I might face, which is, in reality, minimal – a person’s life was hanging in the balance. It’s heavy.
I had been called to testify by the defense, whose client had been arrested somewhere in San Diego County for having on their person a good deal of dried green buds that had been identified by the cops as marijuana. Since the client was already on federal supervised release, instead of being a state charge, it was instead kicked up as a violation of said release. They were facing more time in federal prison.
The catch? The cops hadn’t tested the weed. Could I testify to the differences between hemp and marijuana?
“Of course,” I said to the defense team when they asked me about my credentials. “It’s kind of a trick question, actually, because the only way one can say for absolute certain whether something legally qualifies as hemp or marijuana is to test it for THC percentage,” I added. To which they said, “Great, that’s the whole point.”
The difference between hemp and marijuana is more of a legal distinction than a biological one. According to most laws, Cannabis Sativa L is designated as the hemp plant, which is required to test below 0.3% THC. Otherwise, it is classified as marijuana, which is on paper supposed to be Cannabis Indica L. Those lines have gotten pretty crossed over time, so the legal THC threshold rather than any kind of biological designation is the right way to think of hemp versus marijuana. If it’s over 0.3% THC, the cannabis is marijuana. If it’s below, the cannabis is hemp. I guess. I don’t make the rules, but that’s what the Farm Bill says.
While the appearance of some hemp varieties can be pretty tell-tale for those who spend a lot of time with the plant — typically, CBD-rich cannabis varieties can grow with huge fan leaves and tall stalks while Cannabis Indica varieties tend to pop out all bush-like — these guides can be misleading, thanks to the quirks of sexual reproduction. It’s entirely possible that two CBD-rich varieties are bred only to result in a THC-rich cannabis phenotype, for example. It’s just how the genetic rubric goes.
These days, thanks to the advent of smokeable hemp in the marketplace, hemp growers are selecting high-CBD genetic lines that produce dense buds more commonly associated with high-THC varieties for bag appeal alone. All of which is to say it’s impossible to say with certainty whether a plant is legally hemp or marijuana just by looking at it. The same goes for smell – drug-sniffing dogs can’t tell the difference, either. Testing is the only way and, frequently, cops don’t even bother.
So, a defense strategy was born and I was tapped to testify to what I know about the cannabis plant, in addition to best industry practices, like being able to explain why someone might have dozens of pounds of hemp in turkey bags in their car.
A few days after I was notified, I was due in court in Federal Plaza in downtown San Diego. I wore a pinstriped Stella McCartney suit dress, which, besides a small collection of nice suit jackets I now wear as blazers, is pretty much the only business formal attire I own anymore. A nose ring, tattoos – one on my left middle finger and another on my wrist peeking out from under my sleeves — and unruly, longer-than-it-should-be blonde hair belied the fact that I was trying earnestly to look professional but struggling to check all the boxes. At the last second, before leaving my house, I realized I needed to empty my bag of anything weed-related, which was mostly just actual weed.
After I got through security, I waited outside the courtroom for a couple of hours. The defendant’s family arrived — there were about seven people in tow. It quelled my nerves a little, seeing how many people clearly loved and wanted to support the defendant.
Then the cops arrived, along with a bunch of surprisingly poorly dressed suits, who I took to be lawyers and various other court professionals, and my anxiety spiked right back up to the high level it had been hanging at for the four days since I found out I’d be testifying.
When I was finally called, the defense attorney and the judge jockeyed over my resume and other credentials. Did I go to school for journalism? Negative. Am I a scientist? No. A lawyer? Also no. Do I have any degrees certifying my expertise in cannabis? No (when and where was I supposed to go to school for weed, exactly?).
Eventually, the judge decided that the combination of my clips; awards won; the fact that I have grown cannabis myself (which I admitted to despite its current illegality); my experience spending time on cannabis farms; and my various professional accolades and designations were all enough to make me an expert, which is also something I am now allowed to put on my resume.
The testimony itself was mostly uneventful, apart from the three times I was asked sternly to please slow down while talking. During cross-examination, which ended up being fairly mild, the prosecutor focused on running down a list of federal statutes. She asked me if I knew that the various things I had admitted to on the stand — growing weed, for example – was illegal?
“Yes,” I replied.
“What quantity did you grow it in?” she asked.
“Under six plants, per California regulations,” I said.
“And do you also know that, regardless of your personal feelings about them, you still have to follow the federal marijuana laws in this country?” she asked.
“Yes,” I replied, while the right side of my face twitched a little bit.
In the end, the judge accepted my testimony and concluded that without testing nobody can know whether or not the defendant was carrying marijuana or hemp. The defendant was granted a continuance during which the police were instructed to test what was inside the turkey bags. The deadline was set for two weeks, which happens to be today.
In a hearing earlier today, the court was informed that police department wasn’t able to test the buds — they confirmed under oath that my testimony stating that one cannot tell the difference between hemp and marijuana merely by looking at or smelling it, and so they were not able to provide a court with an answer. So, now it’s being handed off to another federal agency, which has 30 days to test it.
Who knows what will happen next. If the buds are marijuana, maybe the police department stored it poorly, which could make testing unreliable, but that is unlikely. Maybe the federal agency tasked with testing the buds won’t be able to prioritize that task and it falls through the cracks in the next 30 days, setting the defendant free. Maybe it gets tested, comes back positive for over 0.3% THC and the defendant goes back to federal prison.
“You stymied them; well done!” my lawyer told me via text today when I gave him the update.
All I had to do was tell the truth.
Edited to add: No, I was not paid for this, though now I am much more aware that the somewhat fascinating cottage industry of expert witnesses exists.
Last week, a photographer I know, work with and consider a friend sent this story to me out of the blue. He is Mexican and lives in Tijuana but works frequently in the United States. The story details a tense border crossing he experienced after returning home from San Diego a few months ago. He wasn’t sure where he could publish it, so I offered to pay him to share it here.
Marihuana in Tijuana
by Gonzalo Pacheco
“How much are you comfortable taking?” asked Jackie.
“As much as you are willing to give me,” was my response. Jackie Bryant is a well-known cannabis journalist. We met at her home in San Diego for a photoshoot for an article she was featured in.
My task was to capture Jackie in her natural state. We went to her back patio to a table set up with multiple bongs, pipes, papers, a small metal tray, grinders, her Macbook laden with stickers, and more. Her wiener dog, Romeo, ran around the backyard and barked at the suspicious stranger pointing a camera at her owner. It was already dark, less than ideal conditions for photos.
Though I’m an avid smoker, I did not smoke with Jackie that night. I had to drive back home to Tijuana after the photo shoot.
After the photo shoot, Jackie offered goodies to go. She gave me four pre-rolls of Paradiso in a colorful tin container and three different eighths: two of Paradiso, strain Wild Cherry Punch, and Acai Gelato and Animal Cookies by Dovetail (all in their respective plastic containers). “I never let anyone go hungry,” she said as she handed me the packages. I appreciated it as I only had less than a gram waiting for me at home.
At first, I put them in the pockets of my puffy jacket. While driving down, I thought I looked ridiculous inside my car with a jacket on. I took my jacket off and put the pre-rolls inside my socks and the other three containers in the pockets of my jeans. The bulge of the containers in my pockets was obviously visible.
As I approached the border I saw the sign that reads “Medical Marihuana Prohibited into Mexico.” There was a San Diego Reader article about that sign back in 2014. Though I have crossed with marihuana before, it is usually an edible or a cartridge.
Marihuana is readily available in Tijuana, though it is not technically legal in Mexico. Yet the flux of cannabis from north to south still happens in small quantities like from me, and others that dare cross with larger quantities. I don’t have issues getting quality marihuana delivered to my home with just a phone call. But, every once in a while, I prefer the comfort of a dispensary. Or I get free cannabis from a friend in the industry.
It is rare to get stopped crossing south to Tijuana when driving. Of the thousands of times I’ve crossed in my life, I’ve only been stopped a handful of times.
This night was one of those nights.
After the barrier that gives a green light to almost every car, I made eye contact with the SAT agent. He flashed his light my way indicating me to pull over. SAT is the agency in charge of taxing imports (the IRS equivalent in Mexico). I pulled over to the detention area at the Mexican border.
A different agent from SAT approached me and asked for the car registration. I opened the glove compartment and fumbled with the disarray of papers as I noticed a soldier approaching the passenger seat.
The agent asked me to unlock the car as I handed him the papers. I hit the unlock button on my door, forgetting that if I don’t click the car remote, the alarm rings. The soldier opened the door, my alarm car started beeping noisily. I told them to close the doors so I can hit the clicker and undo the alarm.
I got nervous, so I dropped my keys between my legs. As soon as I was able to unlock the doors, the soldier opened the door and started searching under my glove compartment and proceeded to snoop around my car.
While the SAT agent questioned me, another soldier joined the snooping, going through my car. They never asked me to get out of the vehicle.
The agent handed me my registration after answering his usual questions: where I was going, who’s car it is, and my nationality. As they were rummaging through my things, they asked permission to open my briefcase. They saw my camera and other photography gear. The conversation switched to my photography work.
“There are some photos here that are getting ruined,” the agent said in Spanish as he went through my trunk. I told him he could keep them. He declined, saying he couldn’t. There were old prints that I was planning to throw away, but I could tell the agent was a fan. I showed him more of my photography work and after small talk about El Nevado de Toluca, out of all places, he let me go.
Things I’ve published or appeared in (besides court):
I wrote the April delta-8 newsletter for Leafly.
For the San Francisco Chronicle I wrote a piece about a debated new state medical marijuana bill that had activists worried. After publish (and alongside lobbying by various activists, like Weed 4 Warriors), Sen. Wiener amended the bill’s language to assuage the concerns I mentioned in the piece.
Last week I received a little industry scoop: March & Ash and CannaCraft have merged.
For MJBizDaily I wrote about localities enacting cannabis tax reform in the absence of state action. We even made a map.
I went to Barcelona last month to check out ICBC and Spannabis and wrote about it for CannabisNow.
I was a guest with host Nicholas Gill on the New Worlder podcast.
I was profiled in Alice Moon’s Moon High LinkedIn newsletter.
My link tree is here, which links out to all sorts of stuff I’ve done in the past.