‘No evidence’ as judge drops pot charge against Eagle county surveyor
June 21, 2017
EAGLE — There's not enough evidence to charge Ted Archibeque, the Eagle County surveyor, with one of the marijuana charges he faced, even by Colorado's low standards, a judge ruled.
Eagle County Court Judge Katharine Sullivan handed Ted Archibeque a victory Tuesday when she threw out the most serious charge, distribution, that he faced stemming from the raid on a grow operation in Sweetwater. Archibeque still faces a charge of illegal cultivation, a Class 3 felony.
To send a charge to trial, the evidence has to be viewed in "a light most favorable" to prosecutors, according to Colorado law.
Sullivan ruled that the evidence for a distribution charge against Ted Archibeque did not meet even that low standard.
“There was no evidence presented to the court that Theodore knew anything about possible selling or distribution of marijuana.”Katharine SullivanEagle County court judge
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"There was no evidence presented to the court that Theodore knew anything about possible selling or distribution of marijuana," Sullivan wrote in her ruling.
Ted Archibeque still faces a cultivation charge. His brother, Tom Archibeque, still faces charges of both distribution and cultivation.
The case stems from a Nov. 1, 2016 raid by local law enforcement and federal agents of property in Sweetwater owned by the Archibeques' mother. Medical marijuana was being grown on the property.
Federal officials declined to prosecute the case, so charges were filed by the Fifth Judicial District Attorney's Office, confirmed District Attorney Bruce Brown.
Pleading not guilty
Both Ted and Tom Archibeque say they'll plead not guilty and are anxious to make their case at trial.
"At this point, we intend to plead not guilty and litigate this case," said Jesse Wiens, Tom Archibeque's attorney.
Ted Archibeque's attorney, Bruce Carey, said he will ask for separate trials, adding that they'll plead not guilty and request their own jury trial.
A clerical error?
The whole thing began in August of 2016, when a government pilot in a government aircraft flew over a parcel of Sweetwater property owned by the Archibeques' mother, property that Ted Archibeque had deeded to his mother in March 2016.
The pilot claimed to have spotted marijuana growing and reported it. At the request of local law enforcement, the pilot returned and took pictures of the grow operation, according to testimony during the preliminary hearing.
During an August compliance check, officers wore body armor — as Eagle County Sheriff's Detective Aaron Veldheer said they do on compliance checks. They drove up to the Sweetwater site in unmarked SUVs to find people working the marijuana field, Veldheer said.
As the situation became more tense, deputies decided to leave and handle it another way, Veldheer testified.
On Nov. 1, 2016, DEA and local law enforcement got a search warrant. Before heading up to Sweetwater, federal agents showed up at Ted Archibeque's surveying business in Eagle, demanding help to execute their search warrant, witnesses said.
When agents raided the Sweetwater property, the federal Drug Enforcement Administration found 28 marijuana plants growing on the property.
Tom Archibeque produced licenses for 36 medical marijuana plants, Wiens said. Of those 28 medical marijuana plants, 12 were for a doctor, 12 were for another legal provider, and four more plants were for other patients, Wiens said. Multiple people can grow marijuana in a single location, Wiens said.
'No evidence it was legal'
Chief Deputy District Attorney Joe Kirwan, who was with agents during the August compliance check, asserted that the defendants possessed more than 50 pounds of marijuana for sale.
"There is no evidence that it was a legal grow," Kirwan said.
Detectives, working from aerial photographs, say they counted more than 100 plants.
The case now moves to District Court and Judge Paul Dunkelman. Ted Archibeque makes his first District Court appearance July 12. Tom Archibeque's first district court appearance is July 19.
Dunkelman will rule on Carey's request for separate trials for the brothers as the case progresses.
Because Kirwan rode along with the agents during the August compliance check, Wiens made a motion to disqualify local prosecutors from working the case.
Staff Writer Randy Wyrick can be reached at 970-748-2935 and email@example.com.