Daniel McIntosh, the erstwhile co-owner of the erstwhile downtown nightclub Sonar and Hampden's McCabe's, is a thrice-convicted pot dealer, currently jailed and awaiting a possible life sentence for his part in a massive cross-country pot conspiracy involving 16 defendants, four of them still fugitives, that City Paper covered to death until the trial ended last fall. If McIntosh ever does leave prison, he'll still be on the hook for $6.3 million-the amount U.S. District Judge Roger Titus, after hearing arguments from Assistant U.S. Attorney Deborah Johnston, ruled is attributable to McIntosh's involvement in the scheme, and thus the amount McIntosh owes the government.
Geez, it's just pot. A lot of it, yeah, but the Nose thinks this is a case of prosecutorial overkill-and defense attorneys recently pointed to evidence that it may even be a case of prosecutorial misconduct.
In this age of pot-law liberalization in numerous states, including Maryland, what's going on in the McIntosh case looks way out of proportion. First off, there's no hint of violence here, and absent that, the Nose thinks even repeatedly convicted pot dealers should be given a chance to someday resume their lives with the liberty that allows them to be productive. McIntosh is now 37, so a prison sentence much longer than the mandatory minimum of 10 years would hamper his chances of paying off the punishing financial debt he'll owe the government.
Titus, in coming up with the $6.3 million figure, ruled that McIntosh procured the services of a truck driver, Phillip Parker, who on six occasions brought 300 to 600 pounds of pot from California to Maryland, and that McIntosh oversaw the delivery of another 304 pounds of pot from Canada. The jury also found that McIntosh participated in the conspiracy's money-laundering activities but did not do so with respect to Sonar, in which the lead conspirator-Matthew Nicka, who's still at large-is alleged to have been a shadow partner.
Thus, McIntosh helped set up a multi-trip pot-trucking scheme and was in charge of one large shipment. One would think helping such high-volume movements of high-value contraband would yield a gold mine. But anybody who has even a faint familiarity with McIntosh's lifestyle-while he was quite effective at making himself into an attention-grabbing vortex of nightlife buzz, the Nose believes McIntosh was devoid of millionaire pot-dealer trappings-would roll their eyes at the idea that McIntosh has ever been close to anything approaching $6 million. More like $60,000, maybe. Even then, the chump change likely would've disappeared into one of his skin-of-his-teeth entertainment schemes, leaving him virtually penniless.
By all appearances, McIntosh was a bit player here. Even if the Nose buys into the $6 million argument, compare that amount to what the conspiracy made. Prosecutors put its value at $30 million over about a decade, but that's likely a major undercount. The Nose recently spoke to a person who was in the pot business with the defendants, and asked to remain anonymous, who estimated that the overall conspiracy pulled in $150 to $200 million a year. That'd make it more like a billion-dollar enterprise, with only $6 million tied to McIntosh.
It seems to the Nose that the lead prosecutor, Johnston, feels that McIntosh's real crime was fighting the charges. Only McIntosh and one other defendant-Keegan Leahy, who was convicted for piloting aircraft that transported the conspiracy's weed and cash, and in April was sentenced to 36 months in prison and ordered to pay $775,096.31, the amount Titus ruled was attributable to Leahy's involvement-didn't cop a plea. And for that, McIntosh, it seems, is paying dearly.
McIntosh was scheduled to be sentenced on June 12, but his attorney, Carmen Hernandez, won a motion for postponement (it's currently scheduled for Sept. 18), in part because there was an outstanding "motion to disclose intercepted communications" to which Johnston had referred during Leahy's April 1 sentencing. Then, on June 12, Leahy's attorney, Michael Montemarano, went further, asking the judge to chuck the entire case "due to governmental misconduct" because "communications involving counsel, which referenced trial strategy, were intercepted and overheard by the government."
The basis for the misconduct allegation arose during Leahy's sentencing hearing, when Johnston stated that the government knows "for a fact that there's been telephone communications" between defense attorneys and a Philadelphia lawyer named Michael Farrell. The statements suggest the government listened in on lawyers' conversations about the case, and that's a no-no that, if proven, may breach attorney-client privilege and poison the integrity of government's entire case.
In response, Johnston said that DEA special agent Cindy Buskey did not find any improperly intercepted attorney-client communications when she reviewed case materials. Montemarano on June 20 shot back that Johnston's response "entirely fails" to address the issue because it was Johnston, not Buskey, who had revealed the information.
"There is of course another possibility" in play here, Montemarano added: that Johnston's "claims of purported knowledge" about the attorneys' communications "could have been false, and knowingly so, when she made them on April 1." Indeed, given Johnston's response-that Buskey's search yielded negative results -Montemarano wrote that "based upon the record, such falsity is the only alternative possible explanation" for Johnston's statements.
In other words, Montemarano argues that Johnston either told the court false information about the attorneys' communications or she's failed to disclose how she could have known about them.
To risk torpedoing years of investigative and prosecutorial work in the case by providing ammunition for such dire defense claims seems like a prosecutorial mistake-but one that, given the out-of-whack penalties in the offing for McIntosh, may serve the larger interests of justice. After all, it's just pot.