Podcast host Adam Kokesh appears to have joined the long list of victims of the US government’s drugs and guns prosecution trap. After a US Park Police raid on his Virginia residence last week, media reported Monday that Kokesh was charged with possession of a Schedule I or II drug under the federal Controlled Substances Act while in possession of a gun. After his arrest, a judge ruled that Kokesh is prohibited from owning or possessing a firearm through the end of his prosecution.
In the drugs and guns prosecution trap, when a defendant merely possesses a gun while allegedly in violation of the Controlled Substances Act, the government seeks to impose additional penalties for the gun possession. These penalties may be imposed even if the defendant did not use a gun in any violent activity or even in any activity related to drugs.
The drugs and guns prosecution trap can be used to pressure a defendant to plead guilty in return for a reduced penalty instead of exercising his right to a trial. As explained by Eric Stern, counsel to former Montana Governor Brian Schweitzer, the top US government prosecutor in Montana used gun possession charges “pervasively” as part of a strategy to intimidate Montanans who possessed marijuana in compliance with state medical marijuana laws into pleading guilty in plea-bargains. Stern elaborates:
And some of the government’s tactics in Montana were simply over the top. Charges were piled on high and thick, basic federal items like “possession with intent to distribute” or “conspiracy to manufacture,” carrying enormous penalties and designed to give the defendant little choice but to say “uncle,” and plea-bargain for a lesser sentence.
And one charge, used pervasively, was almost laughable if you know anything about Montana: “use of a firearm in furtherance of a drug crime,” by which was meant that a defendant kept a shotgun in his greenhouse, or in his truck that he used to transport seed and fertilizer, or that he carried a sidearm. Montanans commonly keep guns on their person, in their vehicles, at their homes, at their ranches, and at their place of business and especially if they have valuable wares on the premises. They require no permits. But the gun charge gave prosecutors powerful leverage because it carries mandatory prison time under federal rules.
Chris Williams is one of the few Montana medical marijuana defendants who went to trial instead of taking a plea deal. Reason.com writer Jacob Sullum relates how Williams, a partner in Montana Cannabis, was found guilty at a trial in which he was not allowed to even mention the state’s medical marijuana law. Sullum explains how the gun charges accounted for 80 years of Williams’s effective life sentence:
What explains this astonishing range of penalties, from zero prison time to nearly a century? Mandatory minimums. Specifically, prosecutors charged Williams, after he turned down a series of plea deals, with four counts of using firearms in furtherance of a drug crime, based on pistols and shotguns kept at the Helena grow operation where he worked. Federal law prescribes a five-year mandatory minimum penalty for the first such offense and 25 years for each subsequent offense. Furthermore, the sentences must be served consecutively. Hence Williams, who was convicted of all four gun charges, will get at least 80 years when he is sentenced in January, even though he was not charged with wielding the guns, let alone hurting anyone with them. In fact, having the guns around would have been perfectly legal had he not been growing marijuana.
After Williams’s arrest, incarceration, and rigged trial for trying to provide people with medial marijuana in compliance with state law, Williams was offered a second chance at a plea-bargain. This time, Williams agreed to drop his appeal in return for the prosecutor dropping three of Williams’s four gun charges and three of his four drug charges. As a result, the judge sentenced Williams to five years in prison for the first gun charge and 130 days of time already served for the remaining drug charge. Stern suggests that the prosecutor’s willingness to offer Williams a second chance at a plea-bargain was due to Williams having become “something of a cause célèbre” with “websites devoted to freeing him.” Williams explains that the primary factor behind his acceptance of the “very rare post-verdict compromise” was that the top US prosecutor in Montana “threatened to use legal maneuvering” to take away Williams’s ability to appeal.
The accounts of Kokesh’s housemates and colleagues in various news reports and on his podcast website relate a brutal, SWAT-style raid on their home and uncomfortable conditions in jail for Kokesh. This may be just the beginning of Kokesh’s problems now, as he is facing effectively limitless prosecution resources while caught in the drugs and guns prosecution trap.
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