SENTENCINGS CAP MEDICAL POT SAGA

A couple's 5 1/2-year battle in state and federal courts included questions
over search warrants. By Denny Walsh -- Bee Staff Writer Published 2:15 am
PST Wednesday, November 3, 2004 Get weekday updates of Sacramento Bee
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For more than five years, they were on the front lines of California's war
with the federal government over medical marijuana. But the battle came to
an end Tuesday for Robert and Shawna Whiteaker with their sentencing in
Sacramento federal court. The couple reluctantly pleaded guilty in May, he
to growing marijuana at their former Rio Linda home and possessing an
unregistered short-barreled shotgun, and she to knowing about it and not
turning him in.

Robert Whiteaker, a 43-year-old electrical contractor, was sentenced
Tuesday in Sacramento federal court to 18 months in prison; Shawna
Whiteaker, 42, to three years of probation, including six months of home
confinement.

The 5 1/2-year legal battle wound its way through state and federal courts,
with one judge saying the prosecution emits an odor of vindictiveness and
another judge grudgingly acknowledging that a Placer County deputy
sheriff's actions were "at best, questionable."

The latter reference was, among other things, to now-discredited
information that Deputy Tracy Grant supplied in Superior Court to secure
search warrants in pot investigations.

Before the Whiteakers threw in the towel, the deputy admitted he was
walking around with blank federal grand jury subpoenas pre-signed by
Assistant U.S. Attorney Samuel Wong, which Grant used in non-federal
marijuana investigations to obtain comparable power usage records.

The practice was uncomfortably close to what U.S. District Judge William B.
Shubb earlier said would be unlawful.

That, in turn, led to a tense courtroom face-off, in which defense attorney
Jan David Karowsky drew the ire of U.S. District Judge Morrison C. England
Jr. with a scathing denunciation of the prosecutors.

In a written statement, the U.S. attorney's office said, "This office and
the (deputy) acted properly, ethically and legally in prosecuting this case."

In the end, England found no merit to a years-long attack on the
government's behavior by defense attorneys Karowsky and William Panzer.

Believing they were out of viable options in England's court, Panzer and
Karowsky advised the Whiteakers to plead guilty.

"Does society need protection from me?" Robert Whiteaker asked in an
exchange of e-mails with a reporter. "Who will be hurt if I stay free? When
will we reclaim the power that we have lost to the federal system? When
will people realize what is at stake here?"

Panzer and Karowsky cut a deal that includes the lenient term for Robert
Whiteaker and probation for Shawna Whiteaker. And they preserved the right
to appeal.

On Tuesday, England refused a request to briefly release Whiteaker, who was
in custody after testing positive for marijuana last month, to allow him to
get his affairs in order before surrendering.

"You've made bad decisions, and I'm going to hold you responsible," the
judge told Whiteaker, now divorced and living in San Francisco.

England granted a stay of Shawna Whiteaker's home confinement pending her
appeal. She now lives in Pacifica.

The Whiteakers were arrested in 1999. He had a doctor's recommendation for
medicinal marijuana in compliance with California law. Hers had expired.

Both insist the marijuana was only for their personal use, but the
government argues that 242 plants belie that contention. It is the essence
of the friction created by California's compassionate-use allowance and the
federal policy of zero tolerance.

Robert Whiteaker refers to the prosecution as a "terrorist action against
my family and life."

Panzer and Karowsky contended that three assistant U.S. attorneys - Wong,
Kenneth Melikian and Yoshinori Himel - lied to a Sacramento Superior Court
judge, saying federal grand jury rules did not allow Grant to answer
questions about how he acquired Sacramento Municipal Utility District power
usage records for the Whiteakers and others.

Judge Gail D. Ohanesian threatened to dismiss the charges if Grant refused
to answer. So the District Attorney's Office gave the Whiteakers an
ultimatum: Plead guilty or face much stiffer penalties in federal court,
where medical necessity is not a defense.

"The (federal) punishments are so out of sync with local rules and extreme
in their nature that they have you afraid to use your rights to protect
yourself before you even walk into the building," Whiteaker said in an e-mail.

But the Whiteakers refused to plead guilty in November 2001 and were
indicted by a federal grand jury a week later.

The assistant U.S. attorneys later acknowledged to two federal judges that
the rule they cited to Ohanesian does not apply to questions Grant was asked.

In addition, the defense lawyers note, the prosecutors withheld from state
and federal judges the fact that, even before the Whiteakers were forced to
choose between a plea and federal prosecution, the U.S. Justice Department
informed Wong that it was willing to divulge information they sought from
Grant.

Grant was later forced to testify before England that, when he saw fit and
with Wong's approval, he filled out and served blank, pre-signed federal
grand jury subpoenas.

"They (the assistant U.S. attorneys) were trying to cover up the fact that
there wasn't a federal grand jury investigation," Panzer told England at a
March 9 hearing. "Their efforts stink of that. This case smells."

Panzer and Karowsky reminded England of a June 2002 hearing before Shubb,
where the defense lawyers were arguing for disclosure of grand jury
information.

"It's one thing if the United States attorney, working with the grand jury,
at the grand jury's request, issued subpoenas," Panzer told Shubb. "It's
quite another thing if (Grant) has a stack of blank subpoenas and, just
whenever he wants, fills out a federal subpoena and sends it to SMUD."

Shubb replied, "If that happened, there would be feathers flying all over
the place. Mr. Melikian, did that happen?"

"No," the prosecutor said.

"Your honor, that's precisely what we think happened," Panzer persisted.

"That would be a crime," Shubb said.

But the judge wound up telling Panzer, "You're not the attorney general.
So, it's not your business to investigate and prosecute crime."

Shubb transferred the Whit-eaker case to England in August 2002. Within two
months, U.S. Magistrate Judge Dale A. Drozd found evidence of
vindictiveness on the part of the U.S. attorney's office.

"Throughout this case, it is clear to the court that Detective Grant's
techniques for handling cases of this type have been, at best,
questionable," England wrote in a footnote in a Jan. 26 order denying a
defense motion to throw out evidence gained from the search of the
Whiteaker home. "That being said, the totality of the evidence presented
does not lead this court to conclude that Detective Grant has violated any
federal statute."

At the March 9 hearing on a motion to dismiss, after it became clear that
England was poised to again rule in favor of the government, Karowsky
launched a verbal barrage.

"Candidly, I'm ill at ease as an officer of the court with the way this
record stands," he told Eng-land. "The prosecutors represent me as a United
States citizen and, more to the point, as an attorney sworn to uphold the
truth and present nothing but the truth to the court. That's not the state
of the evidence here."

England responded, "Mr. Karowsky, just so I make sure I'm clear, are you
making that accusation to Mr. Melikian and the United States attorney's
office, that there has been improper conduct to that level that you would
make these statements as a citizen of the United States and as an officer
of the court?"

Karowsky replied, "Yes, I'm disturbed. I don't know what was going on in
(the prosecutors') minds. I know the appearance is not clean.

"And, I think it's disingenuous for a United States attorney ... to say
we're in the business of truth-seeking and then to allow this conduct to
take place."

At that point, England cut Karowsky off, saying he wanted to hear from
Melikian.

"Your honor, I'm sick and tired of this," an angry Melikian burst out,
accusing the defense lawyers of "play(ing) fast and loose with the facts."

He said Karowsky and Panzer acknowledged in state court that they intended
to press Grant for grand jury information covered by federal secrecy rules
cited to Ohanesian.

When Panzer reminded England of Drozd's finding "that there is the
appearance of vindictive prosecution here," England brushed it aside,
saying he had the benefit of information developed after the magistrate's
ruling.