After a week of testimony, the on three felony drug charges looks to wrap up Tuesday.
But before it does, attorneys in the argued Monday in Marin County Superior Court over the role that McDonald's intent played in his of substances that undercover agents thought were illegal narcotics. The for what they were purported to be, namely methamphetamine and ephedrine, a precursor to meth used in its production.
Those negative tests dictated a change in the charges facing McDonald, the 71-year-old former owner of the shop on Throckmorton Avenue. He now faces one count of selling a fake narcotic and two counts of possession of phenylpropanolamine with intent to sell it knowing that it would be used to make meth. Those charges stand in stark contrast to the , when law enforcement authorities said McDonald was found in possession of 15 to 20 pounds of methamphetamine or meth precursor ephedrine. He initially faced eight felony charges.
Deputy District Attorney Sean Kensinger and public defender Michael Coffino spent most of their time before Judge Paul Haakenson Monday digging into the legal criteria used to determine McDonald's possible guilt.
Coffino argued that it is unclear whether the bag of "white, powdery susbtance" that McDonald allegedly offered to Anthony Souza, an undercover agent with the multi-agency West Contra Costa County Narcotic Enforcement Team (West-Net), actually contained phenylpropanolamine. Of the nearly 50 bags of white powder seized by agents, Coffino said, only five tested positive for phenylpropanolamine, while the others tested negative. Phenylpropanolamine is considered a possible precursor to methamphetamine but it reportedly was not one of the substances involved the sale.
Coffino said that in order for McDonald to be found guilty, the substance he sold to Souza had to be illegal. Possesion of phenylpropanolamine alone is not enough to show that McDonald intended to sell it, Coffino said.
Kensinger countered that of the 50 containers in McDonald's shop, very few resembled the physical description of those offered to Souza. After Souza's initial visit to the shop, McDonald was aware that the officer planned to return to buy, so the items behind his shop's counter were one pound bags intended to be sold to the officer, according to Kensinger. At least two of the bags offered to the officer contained phenylpropanolamine, he argued.
Judge Haakenson listened intently and said the question of whether or not McDonald could be convicted for offering phenylpropanolamine to an undercover officer is an open one. Haakenson noted that the underlying charge needed to identified before moving forward with the case.
Kensinger argued that McDonald was aware that the substance he was selling was phenylpropanolamine, and whether the substance is phenylpropanolamine or ephedrine, there are still grounds for a conviction, he said. McDonald didn't need to know for certain that the substance he was selling was illegal, he just had to believe it was illegal for a conviction, according to Kensinger.
Coffino then argued that phenylpropanolamine itself is not a direct pre-cursor to meth, and without proving that McDonald knew it was phenylpropanolamine, they can't charge him for believing what he was selling would be turned into meth.
The central issue of the day was McDonald's intent and whether or not McDonald is guilty if he believed the substance he sold would be used to manufacture meth.
Attorneys are set to deliver their closing arguments Tuesday.