PROSECUTORS DEFEND ACTS IN POT CASE

Calling assertions of improper government conduct "ludicrous," the U.S.
attorney's office has fired back at defense lawyers who say federal
prosecutors lied and misled judges while pursuing marijuana and firearms
charges against a former Rio Linda couple. In a strongly worded response to
a May 30 dismissal motion, prosecutors say they did nothing improper and,
even if the defense's unsubstantiated allegations are true, jettisoning the
case would not be justified.

"In sum, while the defendants have concocted a scenario that apparently
shocks their subjective sense of justice, (it) falls well short of the type
of governmental activity which would warrant dismissal of the charges,"
Assistant U.S. Attorney Kenneth Melikian wrote in his 40-page memorandum.
Robert c, a 42-year-old medical marijuana advocate, and his wife, Shawna
Whiteaker, 41, were arrested in 1999. He had a valid doctor's
recommendation for medicinal pot in compliance with California law. Her
recommendation had expired.

Both say they grew marijuana only for their own use, but the government
insists that the number of plants belies that.

Placer County Sheriff's Deputy Tracy Grant first took the case to the U.S.
attorney's office, which declined prosecution. The deputy -- whose task
force had followed a lead to the Whiteaker home outside his own county --
then went to the Sacramento County District Attorney's Office, which filed
charges against the couple.

After the Whiteakers fought those charges for 2 1/2 years in state court,
where they attempted to suppress evidence and discredit Grant, they
rejected a plea deal in November 2001. A week later they were charged in
federal court, where conviction carries much stiffer penalties and medical
necessity is not a defense.

The couple are accused in a federal grand jury indictment of conspiracy,
manufacturing marijuana, possession of a firearm in connection with drug
trafficking and possession of an illegal shotgun.

In his reply memorandum, Melikian disputes the claim by defense lawyers
that the indictment is punishment for the nearly successful suppression
motion and attack on Grant in state court.

"Nothing could be farther from the truth," he wrote.

The accusation that he and two colleagues engineered an impasse in a state
court prosecution of the Whiteakers to get the case into federal court "on
its face is inherently incredible," Melikian wrote. "The United States
could have indicted this case anytime that it wanted to indict it. The
United States didn't need any excuse or pretext to indict this case."

He said the case belonged in federal court after defense lawyers tried to
pierce the veil of secrecy shrouding federal grand jury proceedings.
Specifically, the lawyers wanted to find out how grand jury subpoenas are
issued. That is a matter that only a federal court can deal with, Melikian
insisted.

As for the prosecutors not revealing U.S. Department of Justice approval
paving the way for disclosure of certain grand jury information, it would
have been a pointless exercise because the approved disclosure was so
limited that the information would not have satisfied the defense lawyers,
Melikian said.

"The government was willing to allow limited inquiry into the grand jury
investigation, but not the wholesale fishing expedition desired by the
defendants," he said.

Defense lawyers Jan David Karowsky and William Panzer agreed during state
court hearings that the scope of disclosure being sought by local federal
prosecutors would not permit all the questions the defense lawyers wanted
to ask government investigators, Melikian added.

Later in federal court, U.S. District Judge William B. Shubb denied a
defense request for information regarding the procedures for issuing grand
jury subpoenas.

It "might be nice for you to know as to whether ... the United States
attorney wasn't running his operation appropriately, but it doesn't affect
you in this case," Shubb told Panzer.

Karowsky and Panzer allege that Deputy Grant, who spearheaded the Whiteaker
investigation, obtained blank federal grand jury subpoenas signed by an
assistant U.S. attorney and then filled them in as he used them.

"Well, that would be a problem ... but it's not your problem," Shubb
informed Panzer. "You're not the attorney general. So, it's not your
business to investigate and prosecute crime."

Melikian also described as flawed the defense contention that the
Whiteakers' 242 pot plants did not meet the 500-plant criteria for
cultivation prosecution set out in U.S. attorney's office guidelines.

"This is a firearms case," the prosecutor declared. The Whiteakers
"possessed an illegal sawed-off shotgun" that they kept under the mattress
on their bed. "There is no legitimate reason for anyone, anytime to possess
a sawed-off shotgun. The only reason ... is solely and exclusively for
killing or maiming other human beings."

In addition, he said, prosecution guidelines "are not cast in concrete.
They do not enjoy the status of a statute or regulation. Any case which
falls below the appropriate guideline standard can be indicted in federal
court in the exercise of prosecutorial discretion."

Melikian accused Panzer of violating a court order when he failed to file
the motion to dismiss under seal.

The prosecutor noted that, at a hearing on March 18, U.S. Magistrate Judge
Dale A. Drozd granted the government's request for a protective order
covering documents Drozd had ordered turned over to the defense by the U.S.
attorney's office. In a verbal exchange at the hearing, Drozd made it clear
to Panzer that any motions based on the documents should be filed under seal.