Pubdate: Fri, 24 Jan 2003
Source: Sacramento Bee (CA)
Copyright: 2003 The Sacramento Bee
Contact:  http://www.sacbee.com/
Details: http://www.mapinc.org/media/376
Author: Denny Walsh, Bee Staff Writer

U.S. JUDGE QUESTIONS MARIJUANA INDICTMENT

He Rules Charges Against A Couple May Be Due To Vindictiveness.

A federal judge has found there is evidence of vindictiveness on the part 
of the U.S. attorney's office in obtaining a marijuana and weapons 
indictment against a former Rio Linda couple. U.S. Magistrate Judge Dale A. 
Drozd ordered the U.S. attorney's office to turn over to the defense 
documents reflecting its communications with the Sacramento County District 
Attorney's Office regarding the referral of the case for federal prosecution.

U.S. District Judge Morrison C. England Jr. on Wednesday denied a request 
by prosecutors to overturn Drozd's decision.

Defense attorneys hope the material will bolster their argument that the 
indictment of Robert Whiteaker, 42, and Shawna Whiteaker, 41, is vindictive.

According to court papers, Robert Whiteaker has been an outspoken advocate 
of medical marijuana and, at the time of his arrest in May 1999, he had a 
doctor's recommendation for medicinal use of the drug.

He and his wife were hit with federal charges when they refused a plea deal 
in state court. It was offered after their attempt to get the evidence 
thrown out had put the case in doubt and discredited a controversial 
sheriff's deputy who was the prosecution's key witness.

In addition to communications between federal and local prosecutors, the 
magistrate judge in October ordered in the U.S. attorney's office to turn over:

* Documents regarding how the office decides to prosecute a marijuana case.

* Any evidence corroborating Assistant U.S. Attorney Samuel Wong's 
assurance to a state court judge that he was seeking approval to disclose 
pertinent grand jury information to the Whiteakers' attorneys.

* Any instructions given to the case's lead investigator precluding his 
disclosure of grand jury information.

Patricia A. Pontello, spokeswoman for the U.S. attorney's office, said 
Thursday the office had no comment on the matter.

Assistant U.S. Attorney Kenneth Melikian told England during a Tuesday 
hearing that his office felt compelled to appeal because "its integrity has 
been called into question."

England repeatedly said at the hearing that he might have decided the 
matter differently had it been before him initially. But, England stressed, 
he must decide a motion for reconsideration within a "narrow legal standard 
for review," that is, whether Drozd's ruling is "clearly erroneous or 
contrary to law."

"After reviewing the evidence, this court cannot say that the magistrate 
judge's decision was clearly erroneous, as that standard has been defined," 
England concluded Wednesday in a written order.

When it looked like the Whiteaker case was falling apart in state court in 
the face of a challenge to a search of the couple's home, they were given 
an ultimatum: take a plea deal offered by Deputy District Attorney Joy 
Smiley or face federal charges and draconian sentences. She gave them 48 
hours to decide.

Smiley offered Robert Whiteaker 28 months in prison and Shawna Whiteaker no 
more than a year in jail in return for guilty pleas to marijuana growing 
and possession for sale.

They rejected the deal, and were indicted by a federal grand jury a week 
later, charged with conspiracy, manufacturing marijuana, possession of a 
firearm in connection with drug trafficking, and possession of a 
short-barreled shotgun. Conviction on all counts would carry a minimum 15 
years in prison and a maximum of life without parole.

Drozd noted in his order that Smiley linked the "last-minute offer" and its 
"short reply deadline" to the Whiteakers' pending motion to suppress 
evidence. He also pointed out that she told the couple's attorneys the deal 
was being offered "after consultation with the U.S. attorney's office."

"These facts alone would constitute a prima facie showing of an appearance 
of vindictiveness," Drozd declared.

"There's really nothing I can say to respond to this," Smiley said Thursday.

The face-off in the Whiteaker case is the latest development in a 
years-long legal feud over Placer County Sheriff's Deputy Tracy Grant's 
aggressive efforts to eradicate indoor marijuana cultivation. His tactics 
have led to civil rights suits against Placer County on behalf of a number 
of targeted individuals.

Robert Whiteaker's attorney, William Panzer of Oakland, contends in court 
papers that Grant watched an indoor gardening shop on Auburn Boulevard, and 
ran the license plates of customers. He would then go to their residences, 
allegedly find marijuana in their trash, obtain electrical consumption 
records with federal grand jury subpoenas and get a state search warrant, 
according to Panzer.

Grant obtained a search warrant for the Whiteaker home on May 3, 1999, from 
Sacramento Superior Court Judge Gary Ransom. He relied on his alleged 
discovery of marijuana stems and leaves in a curbside trash can and power 
usage records.

When the warrant was executed, approximately 242 plants and the shotgun 
were seized.

Panzer moved to suppress the evidence, contending that Grant's search 
warrant affidavit contained numerous false statements and omitted 
significant information. He also argued that the same type of false or 
misleading information was submitted by Grant in connection with 23 
warrants in other cases.

Capt. Rick Armstrong, spokesman for the Placer County Sheriff's Department, 
said Thursday that no member of the department, including Grant, is 
authorized to publicly comment on court cases involving the deputy.

In February 2001, Sacramento Superior Court Judge Tani Cantil-Sakauye ruled 
"the whole truth" was not "presented to Judge Ransom." She also doubted 
Grant's authority to issue federal grand jury subpoenas.

A hearing on the suppression motion began on Oct. 29, 2001, before Superior 
Court Judge Gail Ohanesian, but Grant refused to respond to questions 
relating to the subpoenas.

A frustrated Ohanesian initially ordered Grant to answer. After a one-day 
recess, two assistant U.S. attorneys -- Yoshinori H.T. Himel and Wong -- 
were in the courtroom and took the position that Grant was prohibited by 
federal court rules from responding. Wong told the judge he had asked the 
U.S. Department of Justice in Washington, D.C., for permission to allow 
Grant to testify. He said he anticipated a green light within two weeks.

The hearing was reconvened two days later, with Himel and Melikian present. 
At Himel's direction, Grant refused to answer when asked whether he had 
used a federal grand jury subpoena to obtain records.

Ohanesian suggested that she might dismiss the case, or strike Grant's 
testimony, if he persisted in his refusal to answer.

Smiley told the judge that Wong had asked U.S. District Judge Edward J. 
Garcia to approve full disclosure by Grant, and that approval was expected 
within a week.

Ohanesian agreed to continue the hearing for a month pending the outcome of 
Wong's efforts.

Instead, Smiley faxed her ultimatum to defense lawyers 18 days later, 
warning that federal prosecution would commence prior to any further hearing.

"The ultimatum was clear," Drozd wrote in his order, "accept the newly made 
state court plea offer within 48 hours and give up the (challenge to the 
search) or be indicted in federal court on charges carrying far more severe 
penalties before the suppression hearing could resume."
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