The Convoluted Predicament of David McDonald

“Things are not what they seem. They never have been.”

Fairfax resident David McDonald wrote those words on a piece of paper and pressed it up against the glass in a visitor’s room at the Marin County Jail on a recent afternoon.

He was speaking to the community, particularly to his fellow Mill Valley business owners downtown, where his  novelty gift and adult video shop has resided for more than 48 years. He hoped they hadn’t lost faith in him, despite his  on a  that shocked many who have known the 70-year-old merchant for years.

But while McDonald’s words focused on those charges, they were illuminating about nearly every aspect of his current predicament. Everything is not exactly as it seems, and it’s all complicated.

In addition to the very serious criminal charges facing him, there are also a number of personal challenges for a 70-year-old man three months into his first stint in jail, having lost 30 pounds because he can’t get the vegetarian diet he’s eaten for more than 40 years.

McDonald’s hasn’t been able to post bail because he has no liquid assets (he said it was all seized in the raid). But he owns a home in Fairfax and has an overwhelming amount of inventory – jewelry, figurines, an assortment of media, among others - in his shop, his home, the apartment he rents in Fairfax and multiple storage units. His requests to put up his house as equity for a bond on his $50,000 bail have been denied because of questions about the home's condition and appraised value.

McDonald’s landlord for his shop at 74 Throckmorton Ave., former Pacific Sun publisher , evicted him at the end of March for failure to pay rent. McNamara issued a final notice of eviction Tuesday, and has “graciously given him 30 days to get his stuff out,” according to Melvin Caesar Belli, an attorney and friend of McDonald’s who is helping him sort out the mess.

“The business is obviously finished at that location,” said Belli, the son of legendary lawyer Melvin Belli. “Hopefully we have enough time to get all of his stuff out of the store. It’s going to be a lot of work and obviously David’s not around to supervise.”

While the eviction and the need to raise some cash to get out of jail are pressing matters, the criminal charges facing McDonald are a far more severe. He had a preliminary hearing Wednesday before Marin Superior Court Judge Paul Haakenson, who sent the case forward with an arraignment set for July 19 and a trial in August.

The charges against McDonald spawned from a  on March 23 by a slew of law enforcement agencies after he allegedly sold nearly one pound of a substance purported to be methamphetamine and approximately three pounds of a substance purported to be ephedrine, a precursor to meth used in its production, to an undercover agent.

Again, not exactly.

What were once eight felony charges centered on the possession and intent to sell illegal drugs have been whittled down to three, largely because all of the substances McDonald allegedly sold to an undercover agent tested negative for what they were purported to be, according to testimony Wednesday.

The substance purported to be ephedrine did test positive for some smaller amounts of Phenylpropanolamine, another known meth precursor, according to Scot Barr, a special agent with West Contra Costa County Narcotic Enforcement Team (West-Net), a multi-agency narcotic task force that includes officers from seven East Bay agencies and is managed by the state Bureau of Narcotic Enforcement.

McDonald faces two felony counts of possession of Phenylpropanolamine with intent to sell it knowing that it would then be used to manufacture methamphetamine. He faces another felony count of selling a substance in lieu of a controlled substance, in this case a powder that wasn’t the meth he allegedly intended to sell.

Barr’s agency was led to McDonald by a confidential informant who said he’d purchased ephedrine from him, according to Anthony Souza, another West-Net special agent. Souza said he made a series of visits to the Pleasure Principle over the course of one month, each time either purchasing the purported substances or negotiating the next transaction.

Souza said he met with McDonald the day before the raid, arranging to buy one pound of methamphetamine and eight pounds of ephedrine for a total of $28,000. Souza said they never used those words aloud except for Souza’s one-time reference to “crank,” a slang for meth, and a brief discussion of the heating process of converting ephedrine to methamphetamine.

McDonald preferred written communication, Souza said. They referred to a pound of the ephedrine as a “whole one” and a pound of meth as a “whole one of the special one.” Souza said McDonald wrote “ephedrine” on a piece of paper and an “M” to indicate meth, but that he crossed out the “M” and tore off the part of the page containing “ephedrine” when Souza asked if he could take the paper.

Although McDonald said he “came up a little shy” of the agreed upon amount of substances for the March 23 deal, according to Souza, the pair went ahead with it. Before they completed the deal, Souza said he had to go get the money, and he returned with a team of agents and police officers and took McDonald into custody.

McDonald didn’t testify at the preliminary hearing, but he denied the charges in an interview.

“I never sold anything illegal or in the wrong way,” he said, characterizing the substance as a “generic unclassifiable, innocuous white substance which I had not thought of marketing for years but was looking at the possibility of having to get rid of it because I was losing the store.”

Haakenson allowed the charges to proceed, saying he wasn’t dissuaded by the lack of direct reference to ephedrine or methamphetamine.

“Most savvy drug dealers don’t say the names of the controlled substances they are selling,” he said.

But although Barr’s preliminary tests on the seized substances indicated they were indeed ephedrine and meth, subsequent tests at crime labs proved McDonald wasn’t actually selling the illegal drugs agents thought they were buying – just pretending to do so.

“He’d probably done something a little weird,” Belli said. “But that’s David. He’s weird. He’s one of the few oddballs left that make Marin what it used to be. But he ain’t a drug dealer.”

Haakenson agreed to revisit the issue of keeping McDonald in custody at the July 19 hearing. He  to be released on his own recognizance.

Because he doesn’t have any access to money, McDonald is being represented by Camille Bosworth from the county public defender’s office. But because of his home ownership, Haakenson said he’d like schedule a hearing after the trial “to see if you should reimburse the county - you might end up having to pay a legal bill after all.”

Alan Chu, a longtime family friend who is retrieving much of McDonald’s stuff for him and helping him figure out what to do with the mountain of stuff that might ultimately help him raise some money, said he doesn’t buy the charges against McDonald.

“It’s totally contradictory to David’s way of life,” he said.

McDonald said the handful of friends that are helping him through his ordeal “have been incredible people to me.” He said getting out of jail will allow him to prepare for the trial and deal with the swarm of logistical hurdles he faces in getting himself and his business back on its feet.

“Please don’t lose faith in me,” he said.