By Van Smith
Published by City Paper, Oct. 17, 2012
Before the Sept. 11 start of the federal pot-conspiracy trial involving Daniel McIntosh, the erstwhile co-owner of Sonar nightclub in downtown Baltimore, prosecutors already had proven much about the alleged $30 million, Baltimore-based, cross-country marijuana business in which McIntosh is accused of participating (“Risky Business,” Feature, Aug. 15). They had, after all, secured guilty pleas from 10 co-defendants, who admitted to a large body of facts about the nearly decade-long scheme. But proving beyond a reasonable doubt to a jury the criminal accusations they’ve leveled against McIntosh and Keegan Leahy, the alleged operation’s pilot, who is also on trial, has been a complex undertaking – and not without pitfalls.
A central challenge for the prosecutors – assistant U.S. attorneys Deborah Johnston and Mara Greenberg – has been that, in essence, they are staging two trials: one against McIntosh and the other against Leahy, as the two men occupy distinct corners of the alleged conspiracy. McIntosh is accused of laundering drug money through Sonar and of picking up, delivering, and unloading pot shipments to Maryland-essentially a hands-on, street-level role in Baltimore, relatively far down the organizational chart. Leahy, meanwhile, is accused of helping to purchase, operate, and rent airplanes, which he piloted, to transport pot and cash across the country-a higher level role, involving some of the alleged conspiracy’s top leaders, and having very little to do with Baltimore other than occasionally touching down at airports in the region.
Putting on such a case has been further complicated by the efforts of McIntosh’s court-appointed attorney, Carmen Hernandez, to undermine the testimony of an important government witness: Timothy Green, an Internal Revenue Service criminal investigator.
Green probed the bank accounts of McIntosh and Sonar, ostensibly proving to the jury that, as he put it on the witness stand, McIntosh made “cash deposits commingled with proceeds derived from the sale of drugs.” To do so, Green prepared a summary chart of his findings, showing cash deposits made in six bank accounts, four of them in Sonar’s name, in 2007, 2008, and 2009. Even though Sonar was a cash-heavy business, based on its large crowd of alcohol-purchasing patrons, Green testified that such large cash deposits are evidence of drug-money laundering.
The problem, though, as Hernandez showed the jury, is that Green’s chart failed to include about $82,643 in cash deposits made in 2007 just prior to McIntosh’s control of the accounts-thus making it appear that large cash deposits only started after McIntosh took the reins. What’s more, the chart did not include cash deposits made to Sonar’s accounts during 2006, when Sonar’s bank accounts were controlled by its prior owner, Lonnie Fisher. During that year, Hernandez showed, Sonar’s accounts had $616,378.25 in cash deposits-more than the approximately $500,000 in cash deposits that were made during the entire three years that Green investigated when McIntosh controlled the accounts.
“McIntosh’s money was pot money, but Lonnie Fisher’s money wasn’t?” Hernandez asked. She added, “there were the same, or more, in cash deposits in 2006 – does that give you pause as to your conclusion [that McIntosh was laundering drug money]?” Green responded, “No.”
In addition, Green looked at McIntosh’s personal bank account and one in the name of another business he controlled, Independent Investments, Inc. The cash deposits made to McIntosh’s personal account amounted to $48,100 over three years, an average of $16,033 per year, Green testified. The Independent Investments account, meanwhile, had a total of about $40,000 in cash deposits during those three years.
“Doesn’t sound like 1,000-kilogram marijuana-conspirator money, does it?” Hernandez asked. Green demurred on that question, but when Hernandez pointed out that the man at the top of the conspiracy – Matthew Nicka (pictured), who remains a fugitive – made $16 million over one and a half years, Green confirmed the information. “I had heard that, yes,” he said.
McIntosh has much at stake in the trial. He has four prior pot-related convictions-three from 1998, when he was charged as a result of an investigation in Hanover, Pa., and one in 2005 in Baltimore County. Prosecutors will use them, presumably, to color McIntosh as a shameless, long-term pot dealer. The most dire consequence of McIntosh’s prior convictions, though, may kick in if the jury finds him guilty of possessing with intent to distribute 1,000 or more kilograms of weed. If that happens, federal sentencing law* dictate he serve a mandatory sentence of life in prison.
*Correction: McIntosh’s attorney, Carmen Hernandez, points out that federal law, not federal sentencing guidelines, require a mandatory life sentence should McIntosh be convicted of possessing with the intent to distribute 1,000 kilograms or more of marijuana, due to his prior convictions.