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Borzou Baniani

Other Drug Exonerations Where No Crime Was Committed
In October 2010, 27-year-old Borzou Baniani, owner of the Herbal Run Marijuana Collective, a medical marijuana dispensary, was indicted by an Orange County, California grand jury on charges of the illegal sale and possession of marijuana.
 
The indictment charged that on March 23, 2010, Elijah Hayward, an undercover narcotics detective, used fake identification to obtain a physician’s recommendation to use medical marijuana and then purchased one-eighth of an ounce of marijuana from an employee named Sean at the Herbal Run Marijuana Collective office in Newport Beach, California.
 
Two weeks later, on April 7, 2010, Newport Beach police officer Brian Mack was dispatched to the Collective’s office based on reports of the smell of burnt marijuana at the location. Mack said that 27-year-old Borzou Baniani allowed him to enter the office and when he said he was investigating for the presence of marijuana, Baniani said that he operated the marijuana dispensary in nearby Costa Mesa, California and used the Newport Beach office as a storage facility.
 
Baniani permitted a search of the premises and police found 78 pre-rolled marijuana cigarettes, seven lollipops labeled “candy containing marijuana,” 24 chocolate bars containing marijuana, 12 plastic packets of salad dressing containing marijuana, a glass jar containing a pound of marijuana, a silver canister containing 16 grams of marijuana, and a plastic bag containing marijuana “shake.” A white dry erase board listing strains of marijuana and prices for the different strains was on the wall. Additionally, the police found a three-ring binder containing a ledger of business transactions, and $310.
 
Baniani went to trial in Orange County Circuit Court in December 2012.
 
Hayward testified that after he entered the office waiting room, he gave his identification and physician’s recommendation to an employee named Sean, who then went into another room. After Hayward heard what sounded like a copying machine, Sean came back and returned his identification and physician recommendation. Hayward said Sean gave him a two-page membership application for the collective. Hayward said he signed it and gave it back to Sean, who took it back to the same room where Hayward had heard the copying machine.
 
Hayward said Sean then took him to another room, which contained a countertop and two refrigerators with clear, glass doors.  Hayward said there were a number of jars of marijuana on display and a dry erase board on the wall.
 
Hayward testified that the board contained the names of different strains of marijuana and their prices. Hayward told Sean he wanted an eighth of an ounce of one of the strains.  Sean weighed it out and Hayward paid him $60. Hayward said Sean placed the container of marijuana in a bag and gave Hayward a marijuana cigarette and a small brownie, neither of which Hayward requested.
 
Baniani told the jury that his business was legal under the California Medical Marijuana Program Act. He testified that he had a physician's recommendation to use medical marijuana, that he ran a medical marijuana cooperative in compliance with the Act, and that he was not present on the date of the sale by his employee, Sean, to the undercover officer.
 
Baniani testified that to join the collective, individuals would call the telephone number on the Web site. A member of Herbal Run would then take down the individual's information, including name, address, identification number, and the recommending physician's name and telephone number.  Baniani said the recommendation would then be confirmed with the recommending physician before an appointment was made for the individual to come into the office. At the appointment, an Herbal Run member would review the bylaws with the individual and find out what the person could contribute to the process.  Individuals who refused to contribute were not permitted to join, Baniani testified.
 
Baniani said that Sean, who had since been dismissed, did not comply with the protocol of the cooperative. He said that the two-page document Hayward said he signed was “not [a] complete document.” Baniani said he searched the collective’s files, but could not find the two-page document Hayward said he signed.
 
Baniani said that he retained all his “patient” records. There was no record from March 23, 2010, and Sean never told him about the transaction. Baniani testified that Sean should not have permitted an individual who had not gone through prescreening to enter the office, let alone purchase marijuana.
 
A mistrial was declared after the jurors were unable to reach a unanimous verdict. The jurors were split 6-6 on the sale charge and 9-3 in favor of acquittal on the possession for sale charge.
Baniani went to trial a second time in March 2013. At this trial, the prosecution successfully argued that Baniani should not be allowed to defend against the charges based on the provisions of the Medical Marijuana Program Act. The prosecution argued that sales are not protected by the Act and that Baniani was selling marijuana.
 
The judge rejected Baniani’s argument that the Act does not preclude the exchange of money for medical marijuana when the money is used to cover the costs of cultivation, and that any money that Baniani received was in fact used for cultivation and that there were no profits from sales. The trial judge granted the prosecution motion and precluded Baniani from raising the Act as a defense because he charged for the marijuana.  
 
At the second trial, Baniani again testified that he had a valid physician’s recommendation to use medical marijuana and a valid state medical marijuana identification card and caregiver license, which allowed him to supply marijuana to a patient with a recommendation for marijuana use.
 
He told the jury that he started Herbal Run after an uncle died of pancreatic cancer and that the collective was not for profit. Baniani said that the collective was established based on the advice of an attorney who filed non-profit articles of incorporation and that he obtained a seller’s permit from the state of California.
 
Baniani testified that his first indoor marijuana “grow” was with three other members of the collective in August 2009. The collective increased in size (by April 2010, there were 70 to 75 patient members) and each member was required to sign a membership contract. He said he invested money into the growing of the marijuana and that he did not intend to make any money from the sale of it. Members were asked to donate either time or money toward the growing process.
 
“Everybody would put together, if they can help with the grow, if they had any experience with the grow, if they can just water the plants or trim or make butter or cook cookies,” Baniani testified. He said all members who could not physically contribute to the cultivation of the plants donated money.
 
Baniani testified that he was not present when the undercover officer purchased marijuana in March 2010—he was in Iran visiting his grandmother. He told the jury that he never knew about the transaction Hayward described with Sean because there were no records of it in the files and Sean never told him about it.
 
The defense also called members of the collective, who testified about the requirements for obtaining medical marijuana from Herbal Run. Each testified to donating time or experience in exchange for medical marijuana.
 
On March 15, 2013, the jury convicted Baniani of possession of marijuana for sale and was unable to reach a unanimous verdict on the sale charge. The prosecution dismissed that charge after Baniani was sentenced to three years of probation.
 
In August 2014, the California Court of Appeals reversed the conviction and ruled that Baniani should have been entitled to present an affirmative defense under the Medical Marijuana Program Act.
 
The appeals court noted that the prosecution essentially contended that any money paid at the time marijuana was supplied to a patient was a “sale.” Under the prosecution’s theory, only money paid prior to the cultivation would be legal under the Act.
 
“The (Act) does not impose this limitation on qualified patients,” the court said. “We do not think the Legislature intended a seriously ill individual whose physician has recommended use of medical marijuana, and who is physically or otherwise unable to participate in the acts involved in cultivating medical marijuana, cannot simply pay money to his or her collective in exchange for the recommended medicine. It would be cruel for those whose need for medical marijuana is the most dire to require that they devote their limited strength and efforts to the actual cultivation of the marijuana, and then wait months for it to grow so they can use it, or to require that they make their monetary contribution and then wait months for the marijuana to be planted, grown, and harvested before they may lawfully be provided medical marijuana.”
 
The appeals court added, “Moreover, for some the cultivation and processing would not be completed until it was too late to provide any relief. The (Act) does not anticipate a patient who has received a physician's recommendation must thereafter wait months to lawfully acquire medical marijuana.”
 
The appeals court remanded the case back to the trial court for a retrial. On November 7, 2014, the Orange County District Attorney dismissed the charge.

– Maurice Possley

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Posting Date: 6/11/2015
State:California
County:Orange
Most Serious Crime:Drug Possession or Sale
Additional Convictions:
Reported Crime Date:2010
Convicted:2013
Exonerated:2014
Sentence:Probation
Race:Other
Sex:Male
Age at the date of crime:27
Contributing Factors:
Did DNA evidence contribute to the exoneration?:No