The Ongoing Criminal Case Against a San Diego Marijuana Law Attorney
Back in May 2017, the San Diego County District Attorney filed criminal charges against a medical marijuana dispensary (Med West) for allegedly producing concentrated cannabis oil using dangerous chemicals. I discuss the key statute involved in the case on pages 305-07 of my book.
Even more notably, the district attorney also filed charges against the dispensary’s attorney, Jessica McElfresh. (McElfresh is a prominent marijuana law attorney in California.) The charges against McElfresh stem from her alleged efforts to conceal the dispensary’s manufacturing operations from state and local inspectors. In particular, the criminal complaint alleges that:
On or about April 27, 2015, JESSICA MCELFRESH, acting as the attorney for MedWest, visited 8210 Engineer Road [the dispensary’s location] to ensure all evidence of the manufacturing and possession of concentrated cannabis was removed before the scheduled inspection of April 28, 2015.
On April 28, 2015, during a city inspection of 8210 Engineer Road, JESSICA MCELFRESH, acting as the attorney for MedWest, and for the purpose of concealing the chemical extraction of concentrated cannabis conducted on site, told a city investigator that MedWest did not operate on site and led inspectors to believe the business was only a packaging and paper company.
On April 28, 2015, MedWest attorney JESSICA MCELFRESH kept a close eye on one of the inspectors, to wit: retired SDPD investigator Gary Jaus. McElfresh tried to keep Jaus focused on her and the papers, with the goal of having inspectors leave under the theory that no actual marijuana was on site.
On December 24, 2015, MedWest attorney JESSICA MCELFRESH emailed JAMES SLATIC [the owner of Med West] about the inspection that occurred on April 28, 2015. McElfresh told Slatic that the inspectors “were clearly suspicious.” McElfresh continued to say “I had to keep a very, very close eye on the retired SDPD investigator…Gary Jaus…. He’s a very smart man, and I had to walk a very fine line between being very nice and trying too hard to keep him focused on me.” McElfresh continued to say “I didn’t flirt (wouldn’t have worked), but I just kept focusing on the papers…. I’m convinced they walked away knowing it wasn’t a dispensary in the typical sense… but it probably seemed like something other than just paper. That just wasn’t what they were under mandate to look for, and hey, we did a very good job.” McElfresh continued to say “they’ve been there once and went away, operating under the theory that no actual marijuana is there. We did a really, really good job giving them plausible deniability – and it was clear to them it wasn’t a dispensary. But, I think they suspected it was something else more than paper.”
McElfresh is contesting the charges in pre-trial hearings, the latest of which was held this week. Among other things, McElfresh is claiming that at least some of the evidence the DA is using against her is subject to the attorney client privilege. Pursuant to a search warrant, the police had seized McElfresh’s files. The DA is claiming that the crime-fraud exception to the attorney client privilege applies to those files, including ones unrelated to the Med West investigation. The court has appointed a special master to review the files and to determine the applicability of the privilege (and the exception).
The DA’s move has raised alarms among marijuana law attorneys who fear that exposing communications between attorneys and cannabis clients could chill the provision of legal services to the cannabis industry. The National Cannabis Bar Association has also just submitted an amicus brief supporting McElfresh’s assertion of the privilege.
I will post on major updates in the case as it develops. In the meantime, you can get further information about the case at the following places:
- the full criminal complaint
- more background on the case from the San Diego Union Tribune (here and here) and from Leafly (here)
- the NCBA brief
- additional court filings in the case, from the NCBA website