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November 24, 2005

The Weekly Wrap

Our gray electorate
Plus: When is a Republican a Republican?

8 Questions for Glennn Goldan

The Weekly Wrap


TICKERTAPE: The Trinidad Police Department ended its investigation of local leftie political consultant Richard Salzman last week, forwarding the case to the state attorney general's office for possible prosecution. (Such a case would normally be handled by a district attorney, but Salzman was DA Paul Gallegos' campaign manager.) TPD Chief Ken Thrailkill was investigating the possibility that Salzman misappropriated other people's identities for use in a fake letter-writing campaign to local newspapers (see "Web of Lies," Sept. 1).

A car crash at the corner of Buhne and Union streets in Eureka took the life of Joanne Gummer, a Bay Area resident. Gummer was the passenger in a vehicle being driven by 55-year-old Eureka resident James Linville, who was arrested on suspicion of driving under the influence.

An anti-war, anti-military recruiting protest went off with relatively few hitches Friday, at least in comparison with an earlier protest on Nov. 2. On that occasion, four bicyclists associated with the group Critical Mass, which staged a ride from Arcata to Eureka in support of the downtown Eureka rally, were arrested by officers from the Eureka Police Department and the California Highway Patrol. Critical Mass rode again this time, but organizers said that the bicyclists stayed to the shoulder of Highway 101, and no arrests were made.

Federal prosecutors in Sacramento announced last Tuesday that a settlement had been reached in the Redding Medical Center case, which stemmed from allegations that heart surgeons for the center -- which was formerly allied with Mad River Community Hospital in Arcata -- performed harmful and unnecessary surgery on patients. Surgeons Chae Hyun Moon and Fidel Realyvasquez Jr. each agreed to pay the federal government $1.4 million in exchange for the dropped criminal charges. Several Humboldt County residents were part of a class-action lawsuit against Redding Medical that settled late last year. (See the Journal's Nov. 20, 2003, cover story, "In Their Hands," for more background on the story.)


OLD TOWN SECURITY: Last week the Eureka City Council approved a pilot project to put a couple of Pacific Coast Security guards on patrol in Old Town, starting this week, from the bay to 4th Street, and from Commercial to R streets. The idea, police chief Dave Douglas told a community gathering Thursday night on the west side of town, is for the guards -- who will not carry weapons nor have police powers -- to be "the dedicated eyes and ears for us. One thing we'll be able to do is identify people who are moving into this area ... we'll be taking license numbers and vehicle descriptions."

The council agreed to use redevelopment funds to pay for the security service for eight months. Charlotte McDonald, executive director of Eureka Mainstreet -- a downtown revitalization program -- says it's "a great idea." "We're real excited over the extended services," she says. It isn't that crime's been terribly rampant. "When you look at the calls for service, we don't really have a lot of problems." But it's a perception thing, McDonald says, that will help make the people who live in Old Town feel safer at night. The two guards will patrol from early evening till the wee hours of the morning.


WHUP-WHOOPING: You probably don't want your baby to act like a whooping crane: eating leeches and frogs, larvae and snakes -- even small rodents -- and whooping that gaspy, can't-breathe cry. Now, your baby's food choices you'll just have to monitor yourself. But the whooping you can prevent easily by getting the kid vaccinated by as early as six weeks of age -- which is recommended, especially this year, says Mary McKenzie, a public health nurse with the Humboldt County Department of Health and Human Services.

Cases of pertussis -- whooping cough -- have increased dramatically across the nation, including in Humboldt County. While there were only two or three cases in Humboldt last year, this year there've been 53 cases of whooping cough since January, says McKenzie. Fifteen percent of those cases were teenagers, she says, and nine were infants who required hospitalization. "Fortunately, none of our infants died," says McKenzie. Pertussis is most dangerous -- even lethal -- to babies. "What pertussis does is the bacteria will secrete a toxin that kills cells in our airways. So that affects how we're able to cough, clear our lungs and breathe." Even the proper antibiotics won't necessarily bring an infected baby out of the woods, says McKenzie. They'll "knock the infection out in five days, but then to stop the coughing takes longer because the body has to heal the damage to the airway. And infants, their bodies being so tiny, the injury is sometimes deadly to them."

She says the health department recognizes that some parents choose not to immunize their infants. Those parents, she says, should be "hyper-vigilant" about keeping their babies away from anyone with cold symptoms or a cough. The early stages of pertussis look like a cold, and it might take two weeks before a person starts coughing. The health department recommends that people with coughs and colds avoid contact with infants, expectant mothers and immuno-compromised individuals. By the way, pertussis is no fun for adults, either: "You're miserable, you cough till you throw up and pee your pants," says McKenzie.


TREESIT LIMBO: Over the past couple of weeks, the news releases have sped with increasing frenzy over the Internet with the cry that Pacific Lumber Co. has begun felling giant, ancient trees in the Nanning Creek Grove, about a mile east of Palco's town of Scotia. "Pacific Lumber recently got the nod to log a virgin stand of old growth from the U.S. Fish & Wildlife Service," starts a Nov. 17 e-mail from the Old Growth Campaign's Eric Hammond. The logging began Nov. 11. Hammond's e-mail urges recipients to call, and gives numbers for Palco's president Robert Manne, and also Chuck Center and Chris Manson (communications and government relations staff) and ask them to stop the logging.

So far, no stopping, despite pleas from Sierra Club members as well as from the Environmental Protection Information Center. Susan Moloney, with the Campaign for Old Growth, says she met with Palco's Center, Manne and Adrian Miller just before the logging began on what they're calling the "Bonanza harvest plan." She asked them to refrain from logging the area "for one to three months" to give the forest activists time to raise enough money to buy the grove outright from Palco. They told her they'd "consider" her request, but "they didn't specifically say they'd sell it," Moloney says. "But I think they would."

She says she doesn't know how much the grove is worth, but that Palco's top brass told her they had 6.8 million board feet in there. Whatever the cost, actually getting the money may prove tough. So far, the activists have struck out with their cries for funds. "There's no money yet," Moloney says. "We're approaching all the usual suspects ... Save the Redwoods League, Sanctuary Forest. It'd be great if Bill Gates would step forward." Meanwhile, says Moloney, three people are sitting high up in the trees in protest, and the company has logged at least "a hundred trees."


Search and seizure
Garberville man beats feds, Wyoming state troopers


In the wee hours of July 13, 2004, a Tuesday, Garberville resident Gary Abena was speeding though the Great Plains on Interstate 80, westbound and headed for home.

Three days out of Philadelphia, Abena had just spent the night at a Super 8 Motel in Cheyenne, Wyo. Now, at about 7:15 a.m., he was back on the road, doing 84 in a 75 m.p.h. zone through Albany County. He was driving a rented 2004 Chevy Impala, maroon in color. In the trunk of the car: Three bags of fireworks, presumably picked up at some Midwestern roadside pyrotechnic emporium.

Under the passenger seat: A padlocked duffel bag containing a cool $190,000 cash.

Three minutes later, Wyoming State Trooper Dan Dyer, blasting classic rock from 101.9 KING-FM in his patrol vehicle, pulled up to within range of Abena's rearview mirror and flipped on his lights. Abena pulled over. Dyer got out of his vehicle, walked up to the Impala's drivers' side window and asked for Abena's license and registration.

The strange series of events that followed -- the arrival of two other troopers, a federal agent with the Drug Enforcement Agency and a drug-sniffing police dog -- lasted over two hours, and eventually became the subject of a year-long court case. The case was recently settled, and in the process, Abena -- who in 1989 was convicted on six felony counts relating to the trafficking of LSD -- earned some strong praise from a federal district court judge for his willingness to demand basic constitutional rights.

Abena did not return calls seeking comment on this story. His attorney, Richard M. Barnett of San Diego, was in Europe last week. Several messages left at the U.S. Attorney's Office in Cheyenne were not returned. But Trooper Dyer recorded the whole incident on a dashboard-mounted camera, and after audio specialists removed Dyer's radio music from the recording, the transcript of the tape entered into the court record.

According to these court records, the initial confrontation between Dyer and Abena was friendly. The officer asked for Abena's license and his car rental agreement, and was satisfied that they were valid. They chitchatted about "the small population, large size and natural beauty of Wyoming." The officer seemed content to let Abena off with a warning about his speeding.

Dyer stood up and bid Abena farewell. "Yeah, well, have a good day," he said.

According to later court documents, there was a very slight pause here. Then Dyer continued: "And, uh, do you mind if I ask you a question?" Abena said he didn't, and Dyer asked him if he was carrying anything illegal in his vehicle. Abena said that he wasn't.

Dyer asked him what he was carrying in the trunk, and Abena told him that he had some fireworks. Dyer asked Abena to open the trunk, and he agreed. Then Dyer began asking him what he was carrying in the cabin of the Impala -- whether there was anything illegal in the cell phone bag he was carrying, or in another bag on the floor of the back seat. Abena said that there wasn't, and Dyer asked if he could search the vehicle. This time, Abena did not agree, and asked to be allowed to go.

Dyer continued to quiz him, asking if he carried drugs, explosives or money. Abena again denied carrying anything illegal, and invited Dyer to bring a drug-sniffing dog to the scene if he wished. Dyer agreed to do that.

Several times throughout the stop, Dyer would repeat the phrase "There's something fishy here," both to Abena and his fellow officers, who would arrive on the scene at about 8:15 a.m., bringing "Todd," the K-9 unit, with them. A DEA agent also arrived.

The dog sniffed around the sides of the car, giving no indication that it detected anything unusual. From there, the officers took turns asking Abena simply to let them search his car, at which point he would be free to leave. Abena continually refused to do so.

Finally, just before 9 a.m., the officers and the DEA agent held a conference near Dyer' patrol vehicle. They had no probable cause to search Abena's vehicle, they realized. But one trooper offered a suggestion: They did not need probably cause to search the car if they had a "reasonable suspicion" -- a lower legal standard -- that Abena might be carrying a firearm. Dyer pounced on this suggestion.

"Come on over," Dyer beckoned to Abena. "We, uh, are afraid for the next guy that might stop you."

"What do you mean by that?" Abena asked.

"We're not going to go through this again, and there's something fishy," Dyer said. "You probably got a firearm and you're going to blast somebody." The officers proceeded to search Abena's car. They didn't find any guns or drugs, but they did find the money.

All told, the troopers took $204,960 out of the Impala, from the bag under the seat and another, smaller parcel in the cabin. They confiscated the money and deposited it at a local bank. Shortly after, they found Abena's 1989 LSD convictions in the state of Missouri, for which he was sentenced to 144 months in prison. Also, they discovered that in 1986 the California Bureau of Narcotics seized $22,000 of suspected drug proceeds that were confiscated at his home.

To the troopers, Abena's recent pattern of travel also seemed suspicious. Though he told Dyer that he had decided to drive, rather than fly, back to California at the last minute, because the Department of Homeland Security had recently raised the terrorism threat level, troopers discovered that in 2003 he had twice before made the same trip -- flying to the East Coast, renting a car to drive back.

In December 2004, the U.S. Attorney's Office in Cheyenne opened proceedings that would have permanently impounded Abena's $204,960. Perhaps to their surprise, Abena fought back. In legal briefs, Abena's attorney -- an expert in forfeiture law -- argued that the search of Abena's car violated his Fourth Amendment rights.

On Sept. 26 of this year, District Court Judge Alan B. Johnson sided with Abena, saying that because the search of his car was done on an illegal pretext. He noted that before the officers came up with the idea of searching the Impala for guns, they had not exhibited any suspicion that Abena could have been armed. The ruling meant that evidence relating to the search itself could not be brought up in any future trial relating to the disposition of Abena's money.

"At one point during his two-hour detention, Mr. Abena explained to the officers that citizens `are supposed to have rights in the United States' and that `[t]he Constitution is still supposed to work," Johnson wrote in his ruling. "Perhaps to the officers' surprise, Mr. Abena asserted his constitutional rights to a degree most laypersons would not dare assay. On the other hand, perhaps this traffic stop is but a brief example of the difficult work that law enforcement entails.

"One fact, however, remains clear: This case is a modern-day illustration of the tension our founders created when drafting the Constitution -- the difficult and often times frustrating balance between liberty and law. This tension is a reminder that the Constitution does work.

"On that early summer morning in Wyoming, July 2004, Gary Abena recognized what this Court does today: His Fourth Amendment rights were violated."

One month after this judgment was entered, the federal prosecutors and Abena agreed to settle the case, with the government keeping 60 percent of the confiscated money and 40 percent returned to Abena and his attorney.

The troopers testified in court that Abena told them that the money came from his business as a dealer of turquoise. Local campaign finance disclosure forms show that Abena listed himself as an owner of a turquoise mine when he made a $100 donation to the Friends of Paul Gallegos in 2003.



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