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(The First 18 Months) - by Peter Gorman
When Operation Green Merchant first broke 18 months ago, no one was sure of where it was going or what the extent of it would be. Now we know that its ostensible aim was to shut down this country's burgeoning indoor marijuana-cultivation industry; that during its execution the government decimated several of the freedoms guaranteed by the Constitution; that one magazine was put out of business and another thrown into financial straits; that several garden-supply stores and businesses were seized by the government without their owners being charged with criminal activity; and that more than 100,000 American citizens -- whose only connection with the operation was the purchase of gardening equipment -- came under federal investigation.
Green Merchant was designed to link the sources of information regarding indoor marijuana cultivation -- HIGH TIMES and 'Sinsemilla Tips -- with indoor growers in a criminal conspiracy. The connection of the two was thought to be that the gardening centers advertised in both magazines.
The logistics of the operation were these: during a two-year period beginning in late '87, the DEA sent agents to 81 stores and mail-order houses specializing in indoor-gardening supplies, asking for information regarding the growing of marijuana. While most of the store owners refused to have anything to do with the agents once they made their blatantly illegal requests, a handful responded positively , and a few of those apparently even provided seeds to the undercover agents.
Those few positive responses provided the DEA with the legal leverage it needed to subpoena UPS shipping records from a number of those stores. An investigation of a portion of the names provided by those records turned up a number of illegal indoor-marijuana growers.
For the DEA, the link had been made: They now had proof that some of the consumers who purchased indoor-gardening supplies from the stores and mail-order houses which advertised in HIGH TIMES and 'Sinsemilla Tips' were indeed using gardening equipment to illegally produce marijuana. The stage was set for the Operation to go public.
The government succeeded in shutting down 'Sinsemilla Tips'. Tom Alexander, whose Full Moon garden-supply store was seized during the early stages of Green Merchant -- without him being charged of anything -- was unable to continue publishing after all his advertisers either went out of business or were threatened with charges if they continued advertising with him.
HIGH TIMES continues to publish despite the loss of revenue from those same advertisers. But once it became apparent that HT would not fold, and in fact sales were increasing, a federal investigation was launched in New Orleans which attempted to make HT a co-conspirator with both the Seed Bank and the indoor growers. That investigation was dropped some months ago when the government failed to get an indictment.
On June 24, 1990, Nevil Schoenmakers, who legally operated the Seed Bank (another HIGH TIMES advertiser) in Holland, was arrested by the Australian authorities at the behest of the US government while visiting family in Perth. A 44-count indictment was lodged in New Orleans, charging him with the sale of marijuana seeds to undercover agents and indoor growers in the New Orleans area in 1989. He has been detained awaiting the results of an extradition hearing -- while not charged with anything -- in Australia since June.
George Warren owned six Northern Lights garden centers in New York, Ohio and Pennsylvania. On October 24, 1989, he was visited in his flagship store by a man who asked about purchasing lights and hydroponic systems. During the course of the conversation the man, who turned out to be a DEA agent, inquired about acquiring marijuana seeds. Warren told the man he wasn't in that business; the man persisted, and Warren told him there were probably magazines he could look into for that kind of information, then excused himself to answer a phone call in his office. The man followed him into the office and passed him a note asking for 200 seeds. Warren asked the man to leave the store.
The following day, the agent returned and made a small purchase, again sought seeds and was again informed that he couldn't get them there.
The next day, nine DEA, Alcohol Tobacco & Firearms and local-authority agents arrived at Warren's main store armed with a warrant for business records, grow lights, hydroponic systems and other inventory that might be used to grow marijuana. That same day, the process was repeated at each of Warren's stores; by evening he'd lost inventory valued at nearly $200,000. Warren himself, however, has never been arrested in connection with the seizures, and continues to fight for the return of his inventory.
Reached recently at home, Warren was furious. "My feeling is that if I've done anything wrong, arrest me. If not, give me back my merchandise. There's nothing illegal about lights. What are they going to do with them anyway?"
"Sell them at auction," he was told.
"Wait a minute," he replied.
"You mean they confiscate my merchandise because they think someone will grow pot with it, and then they sell it to someone else?"
"That's how it works."
The owner of a large West Coast mail-order gardening-supply center tells a similar story. On October 26, 1989, the DEA and state police arrived at his warehouse with warrants for business records and computers. They padlocked the warehouse and began forfeiture proceedings for the nearly $1 million worth of inventory, the warehouse itself and the property it was located on.
The owner, who asked to remain anonymous, was also never arrested. Ten months later, the prosecuter in the forfeiture case gave the owner's lawyer a list of 20 misdemeanors, which he said he would prosecute if the man continued to fight the forfeit. The choice was simple: Fight and lose thousands of dollars in legal fees -- as well as risk one year in jail for each count he might be convicted on -- or give up the fight and walk away. His lawyer advised him to walk away, suggesting that of 20 counts it wasn't unlikely that he could lose at least one of them, and conviction on even a single count would mean losing the forfeiture case anyway. The man took his lawyer's advise and walked.
While not all prosecutors are willing to go to such lengths to seize property, the federal and civil laws regarding forfeiture certainly make it appealing for them to do so in cases where the forfeited items are of value. In federal cases, the agencies involved receive 75 percent of the monies eventually generated through the auction of forfeited goods; the remaining 25 percent is divided between the prosecutor's office and any local agencies involved in the seizure. Civil forfeiture cases divide ALL the monies between the prosecutor's office and the local authorities involved.
Dan Viets, a defense attorney who has won a number of Green Merchant cases, says that while "the idea of forfeiture is not new, the idea of giving the money to the police and prosecutors is. Forfeiture is an abuse. A lot of people don't really understand that it's going on."
Forfeiture doesn't just affect businesses. One of Viets' clients, a former law-enforcement officer, stands to lose his whole farm because 37 marijuana plants were found growing on it. Another of his cases involved a couple found with four pot plants, who have had their 11 acre farm forfeited as a result. Viets is optimistic about both cases.
"A lot of people don't fight forfeiture because they don't think they can win," he says. "But even though the burden of proof is not very high of the state's part, they still have to prove that the forfeited items were at least probably derived from the monies generated by illegal activity. And that's not always easy."
The horror of the prosecution of Green Merchant case's wasn't limited to forfeiture: One couple had their parental rights terminated for growing pot at home; several school teachers and at least one nurse lost their state licenses; others simply got caught up in the legal system, and found that trying to extricate themselves nearly ruined them.
Tom and Sara Williams were visited because their names were on the one of the confiscated store mailing-lists. When the DEA arrived they tore the Williams' house apart, eventually finding seven plants. Though their case was later reduced from felony possession of an illegal substance to a guilty plea on one misdemeanor, paraphernalia-possession (the warrant was faulty), the Williams’ had to spend nearly $7,000 in bonds and legal fees.
The list goes on. There are hundreds of horror stories which came out -- and are still coming out -- of Green Merchant: People whose lives were disrupted or destroyed by the government in an attempt to shut down two magazines and a seed house.
While the obvious targets of the Operation were HIGH TIMES, 'Sinsemilla Tips' the Seed Bank, store owners, small-time growers and the thousands of people who were investigated, the real victim of Green Merchant has been the Bill of Rights.
The right of free speech is a cornerstone of our republic. History is full of people that spoke out advocating illegal positions in an effort to change the laws governing them -- from Thoreau's 'Civil Disobedience' to 'The Abolition Papers', from Freedom Marches to abortion rights. What 'Sinsemilla Tips' did, and what HIGH TIMES does -- advocate the legalization of marijuana -- is no different than what others have done throughout American history. The right to print what we choose to print is supposed to be inviolate.
The right to privacy is supposed to be protected as well. Yet the investigation of thousands of people -- based solely on their having purchased legal equipment from legal businesses which just happened to advertise, among other places, in pro-marijuana magazines -- has been continually defended by the Justice Department as necessary to their effort in the War on Drugs, despite its obvious constitutional infringement.
The rights to privacy were further compromised by the thousands of warrantless searches made in that investigation. While many people allowed those consent searches to be performed, others were intimidated into them. To date, dozens of government cases have been dropped as a result of those unlawful entries.
Perhaps the rights most abused in the execution of Operation Green Merchant involve personal property and the right to be innocent until proven guilty. The use of forfeiture during the government's prosecution of the Operation has absolutely shredded these basic rights. That store owners could have their businesses seized by federal agents, without there being enough evidence to charge those owners with any criminal activity whatsoever; is a terrifying concept; that people found to be growing marijuana in the privacy of their homes could have those homes seized by government agents before they were ever brought to trial is unconscionable. And yet this was one of the recurring themes of Green Merchant: confiscate property; threaten charges which would bankrupt the defendant to defend; and then make an offer to withdraw the charges if they agree not to fight the forfeiture.
The government not only denies ever trying to put either HIGH TIMES or 'Sinsemilla Tips' out of business by gutting their advertising, it has defended the actions of the federal, state and local authorities in every phase of Green Merchant as integral to the success of the War on Drugs. Terrance W. Burke, the Acting Deputy Administrator of the DEA, suggests that "there is no such thing as a casual or innocent drug user of illegal substances. Users are a major factor in the drug-trafficking problem, and they are going to be held accountable."
Steve Hager, HT's Editor-in-Chief finds fault with that argument. "The whole reason we told people to grow their own pot was to get rid of the criminal element. We said, if you want this -- to eat it, to smoke it, whatever -- that's your God-given right, and we'll tell you how to grow it. Don't give your money to the narcotic traffickers. Don't support the criminal drug trade."
Marijuana is illegal today not because it's unsafe to drive while high, or because some religious and temperance groups think it's the devil's weed; it's still illegal only because the big boys haven't yet seen their way clear to corner the market once it does become legal. But you can bet they are working on that; both marijuana for smoking and hemp for its thousands of commercial uses -- from plastics to pulp, paper to pesticides, from food to fuel, fiber to pharmaceuticals -- are just too valuable to be kept of the market forever. It's just a question of working out the details -- among which is ridding the marketplace of as many independent growers and as much information as possible. That part of the plan went into effect on Black Thursday -- October 26, 1989.
In the final analysis, Operation Green Merchant has done nothing but ruin the lives of thousands, destroy the Bill of Rights, obfuscate the potential commercial and medical uses of hemp/marijuana by continuing to demonize it, raise the price of pot and invite the criminals to take charge of its production.
Way to go boys...
During a two-week period beginning on October 26, 1989, the DEA raided gardening centers and private homes in 46 states. The results of that first phase of Green Merchant -- released on November 9, 1989 -- were:
o 377 arrests of private citizens for marijuana cultivation;
o 42,677 marijuana plants seized (the Justice Department counts un-sprouted seeds in soil as marijuana plants);
o 875 pounds of packaged marijuana seized;
o 2.5 pounds of methamphetamine seized;
o 5 pounds of mushrooms seized;
o 280 indoor grow-sites seized;
o 19 stores and warehouses seized;
o 11 store owners arrested (8 store owners had their businesses seized without being charged of any criminal activity);
o $7,318,000 in total assets seized.
o 19 stores closed down: 7 stores forfeited, 11 currently under forfeiture litigation, 1 store no explanation;
o 16 store owners arrested;
o $9,208,928 in total assets seized.
(No new statistics on either quantities of packaged marijuana or other illegal substances seized.)
The Operation was far from over. During the past 18 months the DEA has continued its Green Merchant investigations. The most recent figures -- released by the Justice Department on February 1, 1991 -- are:
o 443 arrests of private citizens for marijuana cultivation;
o 50,794 marijuana plants seized (including un-sprouted seeds in soil);
o 358 indoor grow-sites seized
Of all the arrests made in Green Merchant thus far, only two people had illegal substances other than marijuana in their homes; one man with 2.5 pounds of methamphetamine, and another with 5 pounds of mushrooms. Indeed indoor pot-growers don't appear to be supporting the criminal drug trade.