U.S. judge questions marijuana indictment

January 23, 2003

Denny Walsh -- Bee Staff Writer,

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.' About the Writer
The Bee's Denny Walsh can be reached at (916) 321-1189 or dwalsh@sacbee.com.

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