Marijuana sentence riles DA

By Gabrielle Porter

A judge’s refusal to order prison for a Grand Junction couple who ran an unlicensed, purportedly nonprofit marijuana operation where they exchanged small amounts of weed for “donations” has dismayed prosecutors and highlighted diverging attitudes toward the marijuana industry.

Brianca Sutton, who was charged under her maiden name of Bishop, was arrested with husband Tavorus Sutton in January 2016 after months under investigation by the Western Colorado Drug Task Force for a marijuana delivery operation they ran.

The Suttons, who ran a website and Facebook page for 420 Supply Delivery, didn’t bring clients to their 2,000-square-foot home in the 400 block of Bulla Drive. Instead, they offered delivery of up to an ounce to local clients.

While they didn’t hold a marijuana business license, the Suttons theorized that as long as they only accepted “donations” that would be passed along to charities, and didn’t exceed the 1 ounce allowed as a “gift” in Colorado, they would be in the clear.

Law enforcement wasn’t convinced. Acting on a tip, investigators orchestrated several buys by undercover officers before arresting both Suttons and a third person on suspicion of felony drug distribution. Brianca Sutton said in an interview that she and her husband had good intentions.

“It was in the wrong place at the wrong time, we were (operating) prior to licensing and we had bad advice,” she said. “We did not intentionally break the law.”

Sutton said she and her husband planned to seek both official nonprofit status and a marijuana business license at some point in the future, although they never intended to have a storefront location.

Defense attorney David Eisner argued at Brianca Sutton’s sentencing Feb. 22 that she was following advice from an attorney.

“She thought that there was a legal way to try to make the donation business (work),” Eisner told Mesa County District Judge Brian Flynn. Prosecutor Bo Zeerip, who handled the Suttons’ cases, disagreed. He offered each of the couple plea bargains that each included felony drug distribution charges, and asked for harsh consequences.

“I believe that this offense is prison-worthy,” Zeerip told Flynn at the Feb. 22 hearing. “The excuse that the defendant thought this was legal is incredible.”

Flynn accepted the plea, and said 420 Supply Delivery was “illegal, of course.” But he refused in both Suttons’ cases to impose anything more than albeit steep court fines and fees— no probation, no prison.

“It’s kind of baffling to me, quite honestly, that an argument of prison would be made for you,” Flynn told Brianca Sutton, referencing her lack of criminal history.

Zeerip said in an interview that he thinks Flynn believed it was reasonable that the couple had sought an attorney’s advice.

The third person arrested during the raid at the Suttons’ home, then-40-year-old Antonio Cotton, was set to take his case to trial, but absconded while on bond, Zeerip said.

Mesa County District Attorney Dan Rubinstein said in a written statement that he was disappointed with Flynn’s decisions and with “the message that the sentence sends.”

“To treat organized efforts which subvert this heavily regulated business lightly fails to recognize the dangers presented by the illegal drug trade,” Rubinstein wrote. “Just like insider stock trading or loan-sharking, I believe that a message must be sent to others that this behavior will not be tolerated.”

The plea Zeerip negotiated with the defense allowed Flynn total sentencing discretion. Rubinstein said his office is prosecuting several similar cases, and his attorneys will consider Flynn’s decision when pondering future pleas.

“Certainly we have to view every case individually,” Rubinstein said. “Depending on the facts of a particular case, we may not be willing to give as much judicial discretion.”

Sutton said she bristles at law enforcement’s perception that 420 Supply Deliver was “a large black-market scheme.” She believes she offered a specialized product that helped people who couldn’t drive to the nearest dispensaries.

Sutton said some of the money that came in went to pay for business costs like running the website and paying some direct expenses for growers, who she described as local acquaintances who grew a few plants for their personal use. The rest of the income was donated, according to Sutton, although it would be tough to prove.

Sutton, who said her clients nicknamed her “Angel,” said in some cases she gave profits — often anonymously — to organizations like March of Dimes or St. Jude Children’s Research Hospital.

Other times, donations were even less formal — Sutton said she helped people pay rent, or bought gift cards from companies like Subway and gave them directly to homeless people in the Grand Junction area.

Sutton said she kept records in ledger books that were seized by law enforcement, but that she never thought about seeking receipts to prove the funds went to registered charities.

Zeerip said he doesn’t buy the story that the Suttons were operating as a nonprofit. He pointed out that during the investigation, undercover officers tried to make a buy with less than the recommended donation level, and they were turned down.

“That was a ruse,” Zeerip told Flynn on Feb. 22. “This was a business.”

Zeerip also said some marketing cited 420 Delivery Supply’s delivery fee as $40. Brianca Sutton said it was $5.

Sutton said she doesn’t see how having set donation levels is any different than a nonprofit that gives away prizes or other goods for certain donation amounts. She said the amount the undercover officer was offering wouldn’t have covered her costs.

While no formal evidence was admitted about her purported legal adviser, Brianca Sutton in a letter to Flynn named Grand Junction attorney Jacob Caddas as the person she consulted.

Sutton said in an interview that Caddas urged her to keep detailed records and to follow all the laws she could dealing with product labeling, child protection and other operational details while operating without a license.

“He said, ‘Just be very cautious, this is a gray area of the law,’ ” Sutton said of Caddas. “‘This is not legal, but it’s not illegal.’ “

After being arrested, Brianca Sutton said she called Caddas, who told her to contact a criminal defender.

“I was dumbfounded,” said Sutton, adding she still believes Caddas was trying to help her. “It just boiled down to him not having enough information about (the) law.”

While Caddas, reached by phone Friday, wouldn’t confirm whether he had ever given the couple any legal advice, he said, “I never advised them to do anything illegal.”

When asked about his stance on whether an unlicensed marijuana operation that accepted donations in lieu of pay could ever be legal, Caddas said he doesn’t have a position.

In the view of Mesa County prosecutors and law enforcement, however, “it is not a gray area,” Zeerip said.

Investigators said cases like the Suttons’ are devouring resources. Grand Junction Police Sgt. Shawn Hasty said the drug task force spent about 370 hours investigating 420 Supply Delivery.

“The early notion that legalized marijuana would somehow save our officers time was preposterous,” Police Chief John Camper wrote in an email. “They are spending vast amounts of time on illegal grows and other operations like this that operate outside of the regulatory structure. The problem is so pervasive that it takes away from what little time they have to address meth and heroin trafficking.”

Camper said edible marijuana products distributed by unlicensed operations are particularly concerning because of the danger of overdosing.

“When someone smokes marijuana, for example, they get a fairly quick high,” Camper said. “The edibles, what happens is they’ll eat some of it, not feel anything, eat some of it, not feel anything … Then boom, they’re essentially overdosing.”

Sutton said the growers who supplied her with edibles had them processed at a licensed facility, acting as a middleman to 420 Supply Delivery. She doesn’t disagree that regulations are important in edibles.

“There are a lot of people who do not do their due diligence,” she said. “That’s scary.”

The Suttons, who have three children in their home, were each initially charged with child abuse because of the marijuana found in their home, some of it stashed in lower cabinets in edible cookie and sucker form.

Brianca Sutton said her young children couldn’t get into the marijuana; the edibles in her home were in childproof wrapping, sealed often in two heavy duty layers of plastic, then stashed in a plastic container.

Zeerip said he doesn’t know whether the wrapping was childproof, but said young children can easily figure out how to get at sweets. He described seeing the Suttons’ children playing near where the marijuana was kept during the raid.

“I find that extremely offensive,” Zeerip said

Sutton chose to take the higher level drug felony in exchange for Zeerip dropping the child abuse charge.

Tavorus Sutton, who had a felony armed robbery conviction from 1997, pleaded to lower felony distribution charges along with a misdemeanor child abuse charge and a weapon possession by a previous offender charge for a gun his wife owned that was found in an upper cabinet in their home.

Tavorus Sutton had a second case that he pleaded to involving a cocaine sale. Zeerip said in that case, Sutton didn’t handle the cocaine himself, but connected an undercover officer with a third party who sold the drug.

Brianca Sutton said she appreciated Flynn’s take on her case, but said she thinks mistakes were made. She said some of her business ledgers that were seized are now missing.

Zeerip said several ledgers are in evidence at the Grand Junction Police Department; they have to stay in custody because they’re considered contraband, but he said the Suttons and their attorney are allowed to view them.

In retrospect, Sutton said while she never intended to break the law, she doesn’t recommend anyone trying the 420 Supply Delivery model. After her arrest, her children were temporarily taken from her, which she described as terrifying.

“Don’t risk what you’re not willing to lose,” Sutton said. “I do not recommend anyone else to try this.”