Pubdate: Wed, 26 May 1999 Source: Anderson Valley Advertiser (CA) Copyright: Anderson Valley Advertiser Contact: Fax: 707-895-3355 Author: Mark Heimann THE WAR ON DRUGS, THE MENDO FRONT In a San Francisco federal courtroom last Wednesday and Thursday, Redwood Valley's John Dalton finally got a hearing to dismiss all charges against him because of the government's outrageous conduct in its pursuit of the man they seem to believe is the Northcoast's Mr. Big of the thriving marijuana business. Federal prosecutors and law enforcement easily met their reputation for outrageous conduct by behaving with true-to-form disregard for the rules during the two-day hearing. The attentive and even handed officiating of US District Court Judge Susan Illston, and the staid US Marshals who serve as her bailiffs, stood between a cadre of tax-paid cops and lawyers who seem indifferent to the standards of police behavior which are supposed to prevail in democratic states. The Drug Enforcement Administration has charged Dalton with a continuing conspiracy to manufacture marijuana and has kept him in the federal prison at Dublin without bail for two years and eight months. But the DEA itself was on trial last week in the Federal Courthouse in San Francisco. The government is desperately worried about this case and the desperation shows. The DEA and federal prosecutors reached way down into their bag of dirty tricks for even more outrageous conduct including harassment and intimidation of defense witnesses and courtroom spectators. (They assigned a DEA agent to follow this reporter outside the federal building. They're not nearly as slick as they think.) Additionally, there was a deliberate attempt to misrepresent to the court the contents of the DEA's own policy and procedures manual; an attempt to arrest a defense witness on a specially-contrived bench warrant out of Mendocino County; "lost" potentially exculpatory evidence (a recording of Victoria Horstman by DEA agent Mark Nelson can't be found); and, most significant of all, the DEA and its two-man federal legal team didn't even try to defend the DEA's extra-legal behavior during the investigation which resulted in John Dalton's arrest and incarceration. Instead they relied on the completely irrelevant strategy of portraying Dalton as a monster whose alleged abuse drove his wife into the arms of the DEA. If the government is successful in convicting John Dalton at trial, scheduled to start August 16, he faces a 30-year-to-life sentence. Dalton is 44 years old. But there isn't a single piece of physical evidence linking him to marijuana cultivation. It's a conspiracy case. The evidence amassed by the DEA against Dalton consists of the dubious testimony of snitches, all of them either rewarded in cash for their input or promised reduced jail sentences for their testimony against the unassuming, long-time resident of Mendocino County. And there are tape recordings obtained via the former Mrs. Dalton in ways routine in police states but not in America. The official title of last week's hearing was "A Motion to Dismiss for Outrageous Government Conduct." * As reported last week, the federal prosecutors got off to a bad start when they were required to reveal that their primary witness and lead investigator in the case against John Dalton had committed perjury. DEA Special Agent Mark Nelson, in an effort to conceal the date on which he first slept with Dalton's wife, Victoria Horstman, falsified a fingerprint card of Horstman's. Later, during a DEA internal affairs investigation of Nelson and Horstman's affair, Nelson signed an affidavit under penalty of perjury swearing to the bogus date he'd placed on Horstman's print card. Agent Nelson was the first witness called by the defense when the hearing resumed Wednesday. He was accompanied to the witness stand by his non-government lawyer, George Niespolo. Mark Nelson is a tall, thin, balding 36-year-old guy whose appearance is completely at odds with his role in this case as the irresistible seducer of married women. He looks more like a shoe salesman than an elite drug warrior. He has an extremely high forehead that leaves little room for the rest of his nondescript features which occupy the bottom third of his head. While Nelson's appearance has nothing to do with the trial, most of the courtroom first thought lawyer Niespolo, a stout, ruggedly handsome man, was the drug cop and Nelson was the attorney. Nelson's agent-partner, Robert Price, who sat at the prosecution table throughout the hearing when he wasn't menacing witnesses out in the hall with a lot of ersatz tough guy eyeballing, looked every bit the drug warrior he is. Tall, angular and crewcut clean, Price was so stiff and straight his spine seems to have been surgically replaced with a broomstick. Defense attorney Tony Serra told the court that at the time in question in 1994 agent Nelson was 32 years old and had been with the DEA for nine years representing his entire law enforcement experience. Serra brought out that it was only the third or fourth time Nelson had supervised and been lead investigator on a case; that he was married with two children and at the time of meeting Mrs. Dalton (Victoria Horstman); and that his wife was pregnant with their third child at the time of his encounters with Mrs. Dalton. Nelson testified that he became involved with the John Dalton investigation in 1992, and that in February of 1994 he and another agent, believed to be Rob Price, rented a three-bedroom house in Redwood Valley on M Road from a Ukiah real estate broker. The rented premises were to be used as a "safe house" for DEA agents. INS agents also stayed at the safe house from time to time, according to Nelson. Agent Nelson said he only brought Horstman to the safe house, also known as the COMMET house, on one occasion in September of 1994. He admitted the visit of a civilian was "absolutely" against DEA rules, that he initiated the contact with Horstman and picked her up and brought her to the house when he knew no one else would be there, and that he did not include any of this information in his reports. "It was highly inappropriate for a DEA agent," was Nelson's contrite but incomplete account of Mrs. Dalton's and his first tryst in the tax-funded love nest. "How many times did you have personal contact with Victoria Horstman prior to September 13, 1994," demanded Serra, "when it was just the two of you alone?" Nelson: "I think four." Serra: "Did you advise your supervisor in advance that you planned a private meeting with an informant?' Nelson: "Probably not." Serra: "Aren't you required to seek approval in advance from your supervisors to meet privately with an informant?" Nelson: "Yes." Serra: "And these were not exigent circumstances? There was no emergency that you had to meet privately with Horstman?" (Nelson doesn't answer.) Serra: "You concede you broke the rules?" Nelson: "Yes." Serra: "Why one-on-one meetings?" Nelson: "I don't know how to answer." "Why?" demanded Serra, which brought an objection from the prosecutors. The answer to that question came the next day near the end of the hearing when Dalton's prosecutors attempted to introduce a page from the DEA's manual. The single page from the DEA's top secret sleuth manual the prosecution wished to put in evidence concerned a number of rules about agents meeting with informants but the entire page had been blacked out except for one line, which suggested agents "whenever practical" were not to meet alone with informants. Tony Serra argued strenuously against allowing the censored document' s admission as evidence, arguing that he believed the "redacted" (lawyer talk for omitted or blacked out) portions of the document contained the relevant rules that agents were to never meet alone with an informant without first getting permission from their supervisors, and even then one-on-one meetings could only take place under emergency circumstances. The government argued the DEA's rules were secret, and if they were produced in open court, the public, and presumably the "bad guys," would gain an advantage over the drug warriors. Judge Illston quickly concluded that allowing only one line of an entire page of regulations into evidence was "self serving," and ordered the government to produce the entire chapter on agent/informant interactions. Agent Price relayed through the US Attorney that permission would have to be granted at the highest levels of the DEA in Washington De, and that the judge could not expect an answer for five to seven days. Judge Illston was steadfast, and ordered the DEA to produce the documents. But by the close of the hearing, Tony Serra had secured the entire DEA manual through his own sources, and his characterization that the DEA's own rules state no agent is to meet privately with an informant without prior approval means what it says. Only in a dire emergency, as when an informant's life is in danger, does the agency permit a one-on-one meeting with an informant and even then the agent is required to ask permission. Serra found 15 times where Nelson had documented private meetings with Horstman, none of them under "exigent" circumstances. Agent Nelson denied a sexual relationship with Horstman as his reason for breaking the DEA's rules and bringing the comely housewife to the so-called safe house. Tony Serra, a master of cross examination, fired questions at the outgunned adulterer with his trademark machine-gun speed and intensity. There were four main areas Serra covered, three of which -- the events at the "safe house" with John Dalton's wife, the bugging of Dalton and Horstman's bedroom, and Nelson's involvement in Dalton and Horstman's subsequent divorce represented the basics of the government's undeniably outrageous conduct in the pursuit of Dalton. Serra got Nelson to admit to the incriminating facts of his lust-driven behavior while he was supposed to be on the job. Nelson and the DEA went to great lengths to hide the fact that Victoria Horstman was cooperating with them against her husband. In internal DEA reports, Horstman is referred to as an SOI (source of information), or by the special agent number assigned to her, SR 0054. But by the time Nelson got a search and seizure warrant for Dalton, Horstman was balking at further cooperation and wanted to reconcile with her husband. In the search warrant, a public document once it is served, agent Nelson refers to Horstman by name, exposing her to potential retribution. In tens of thousands of court cases, the feds have fought tooth and nail against giving up their informants' identities, and the courts have just as often said they didn't have to name names. This court-sanctioned secrecy has often resulted in convictions where the defendant was unable to confront his accuser. A Marshal commented that he was "disgusted and shocked" by agent Nelson's testimony that the DEA, apparently having concluded that the unhinged Horstman was more trouble than she was worth to them as they chased her husband, blithely revealed her identity. Asked if he gave up Horstman's identity so he could better control her, Nelson said "no." He said his "boss, the Assistant US Attorney" told him to do it, but after some meaningful stares from the prosecution table that it was unwise of him to blame it on the government lawyer, Nelson backed off and took responsibility for naming Horstman. (It was at this point I noticed that Nelson no longer wears a wedding ting, a ring Horstman made much of in her statements to investigators. It is also when I became aware of DEA agent Rob Price's repeated trips from the prosecution table to the hallway where defense witnesses were waiting to testify. Later these witnesses would tell me that Price would come out to demand they stop talking or to stop pacing the hall. Price would tell them they were disturbing the judge. But Judge Illston never once commented on any distraction, or even so much as cast a frowning glance at the courtroom doors, and I never heard any noise from outside the courtroom. Neither did the US Marshals who serve as the judge's bailiffs show any concern. The DEA's Price kept up his petty (and failed) attempts to intimidate witnesses testifying against the DEA throughout the two-day hearing.) [sidebar] A Summary Of Nelson's Testimony He had never taken Horstman up in a helicopter, and that to his knowledge neither had anyone else. He paid Horstman a total of $4,800 for her cooperation, plus "tickets and things." He denied threatening Horstman with the loss of her children if she didn't inform on her husband. He both admitted and denied threatening her with prosecution for money laundering if she didn't become a snitch. He admitted talking to Horstman about a reward payment for her continuing cooperation, but denied the amount discussed was 10% of assets seized from Dalton. (The DEA seized just under $1 million of Dalton's accumulated property. Dalton is a skilled mechanic whose services are much in demand.) He admitted agreeing to talk to the US Attorney about getting a Mustang car seized from Dalton for Horstman. He denied he's in a position to recommend any reward payment. (In a written report, Nelson recommends a "substantial reward payment" to Horstman.) He admits kissing Horstman at the "safe house" in September of 1994, but won't admit that it was on September 14th 1994 he first stepped over the line with Mrs. Dalton and the date he subsequently falsified in his report. He says he kissed her first, then modifies that to say the kiss was "mutual." Asked why he kissed her, Nelson replied, "I felt some attachment. I felt sorry for her and I'd grown to like her. There was an emotional attachment, and I was curious." Tony Serra shot back, "Curious to know what it felt like to kiss another man's wife?" -- objection sustained. He admitted he hadn't had sex in three months because of his wife's pregnancy. "You were horny?" Serra bluntly inquired to an immediate sustained objection from the feds. Asked if the emotional attachment was sexual, Nelson replied, "A little bit of that." He said he and Horstman each had one beer, but that she only drank a little bit of hers, "maybe a quarter," and that he finished off "the other 3/4 of her beer" as well as his. He said he was somewhat under the influence of alcohol because he hadn't slept or eaten in the past 36 hours. He denied knowing Horstman was an alcoholic. He denied fondling Horstman or touching her in any inappropriate way. He denied ever kissing Horstman on any other occasion, "Except maybe just a peck, you know, just to say thanks". He admits flying Horstman from Washington State to San Francisco, then driving her from there to Santa Rosa to see a divorce lawyer. He denies coercing Horstman to divorce Dalton. But when Serra's questions turned to fingerprinting Horstman, nominally Nelson's reason for bringing her alone to the "safe house" that star-crossed night of September 14, 1994, Nelson took the 5th. Nelson proceeded to invoke his right against self-incrimination a total of five times, and implied it another when he simply refused to answer Serra's question. ~~~ The prosecution consisted of two Assistant US Attorneys, Lewis Davis, who seemed like he might be a human being stuck with a nasty job, and Christine Massullo, a person who obviously enjoys her work Ms. Massullo is smart, quick-witted, and if she has any scruples against going for the kill, they weren't on display. When it came time for the fed's lawyers to get tough, it was Massullo all the way. At times, especially during the breaks, Davis tried to distance himself from his fierce colleague. He'd joke with the defense team while Massullo huddled with Robo Rob Price plotting the next dirty trick. On cross examination, the feds elicited the fact that former Mendocino Sheriff Sgt. Ron Caudillo introduced the DEA's stumbling agent Nelson to Mrs. Dalton nee Horstman, and that Horstman told Nelson she had been physically abused by John Dalton. The prosecution also managed to posit Ms. Horstman as an innocent girl gone awry because of Dalton's beastly treatment of her. Tony Serra instantly dismantled the government's presentation of Ms. Horstman as a chaste and loyal suburban housewife by reading the transcript of a brief but explicit phone message left by Horstman at the COMMET headquarters in Ukiah: "This is Victoria Horstman and Mark Nelson can go free. And Rob Clark (believed to be Rob Price's alias)- I want to suck his dick." Serra followed his literary introduction of the former Mrs. Dalton by calling her to the stand. Horstman's testimony was rambling and confused, and obviously contrived and obstructionist when it wasn't rambling and confused. She couldn't recall when she married Dalton or when she divorced him, other than it was "sometime in the '90s." She said she's had a lot of different therapists, but she couldn't recall a single name. She doesn't remember when she first met Nelson, when she started informing on her husband, what drugs she had taken that mourning (Traxene and Zoloft). But, she remembers exactly why her memory is so bad, and never missed an opportunity to expound on it, even when it had nothing to do with the question asked. According to Horstman, she can't recall the 90s because "they were the Dalton years." "It was because I was tortured at that time," Horstman testified, suggesting the trauma of her marriage had resulted in the memory loss of most of the decade. Asked anything connected with her life with John Dalton-or not- and Horstman would sob that she couldn't remember. "It's the trauma." But when she was asked about agent Nelson's avuncular kiss at the "safe house," Horstman's recollection was vivid and detailed. (Before court got started that day, prosecution attorney Lewis Davis assessed his own witness, Ms. Horstman, for the Judge. "Victoria Horstman is a liar." Which leaves the prosecution with two liars as their primary witnesses, DEA Special Agent Mark Nelson and the woman he took to the Redwood Valley safe house for an on-the-job boff on the pretext she was an informant.) Horstman said it was she who initiated the visit to the "safe house"; she who initiated the kiss; she who initiated an ensuing tongue-lunge; and that she put Nelson's leg ("It was a pressure point") between hers on her crotch. "I initiated that," Horstman said of the footsies. "We were partially lying side by side on the couch." Horstman used the word "initiated" so often in regards to her tryst with Nelson it left the distinct impression she was either well-coached or Nelson was so overcome by the encounter he'd been immobilized. All the sexual prelims, other than the conceded kiss, contradicts Nelson's testimony. At one point, not in response to a question but apparently to explain the remarkable detail of her memory of the "kiss," Horstman blurted out, "I'm very observant." "I needed to be near Mark because he was my security," explained Horstman. (In a January interview she said she was still in love with Nelson.) But to the DEA internal affairs investigators, Horstman denied ever kissing Nelson until Nelson himself admitted the kiss. Asked to explain her contradictory versions of events, Horstman said, "They (internal affairs) forgot to put it in their laptop." Asked if she drank all of the beer Nelson gave her at the "safe house," Horstman replied, "Yes. That's what alcoholics do," again contradicting Nelson's testimony that his love interest has left the beer after a lady-like sip. Horstman had written two letters to the DEA that prompted the internal affairs investigation. In her communiquE9s, Horstman says Mark Nelson grabbed her, pulled her down on the couch and kissed her, forcing his leg into her crotch, and that Nelson had told her, "Don't say anything; it's our tittle secret." Horstman says she doesn't remember writing that, then explained it was John Dalton who forced her to write the letter and she'd composed it "so he wouldn't beat me." She says Dalton stood over her at their home computer and dictated the letters to the DEA, "They're Dalton's words, not mine," his former wife told the court. But when Serra presented her with her declaration, written by his investigator, H. B. O'Keady, and signed by Horstman, which relates eventually the same information as her letters to the DEA, Horstman stated, "I didn't read it. I just assumed he wrote it the way I said it. I thought he taped it," she said of O'Keady's affidavit she'd affixed her signature to. Horstman admitted it was her signature, but insisted she never read it before signing. "It's all one sided," she added irrelevantly. Throughout her time on the stand, when confronted with words she had written or declarations she'd signed, Horstman insisted either her husband had forced her to write them, or that the investigators had deliberately misconstrued what she had said or that she did not read her statements before signing. Horstman also claimed when she was cross examined by Serra, that three masked gunmen, one whose voice she recognized as that of her husband, had broken into her bedroom and threatened to dismember her and her family. Horstman broke down at that point, sobbing uncontrollably, and forced a recess. [continued in part 2] - --- MAP posted-by: Richard Lake