MOTION ALLEGES LYING BY FEDS

Lawyer For Couple Accused Of Growing Marijuana Wants Case Dismissed.

Sacramento federal prosecutors lied and misled three judges to conceal
dealings between the U.S. attorney's office and a Placer County narcotics
detective, a defense attorney alleges in a sealed court document.

The charge arises in a marijuana case against a former Rio Linda couple and
grew out of attorney William Panzer's four-year quest for information about
a federal grand jury subpoena.

In a motion to dismiss the case, Panzer claims three federal prosecutors --
Samuel Wong, Kenneth Melikian and Yoshinori Himel -- told a state judge in
Sacramento that disclosing the information was against federal rules, then
acknowledged to two federal judges that that was not so..

"At absolute best, the prosecutors ... misled the state court; at worst
they lied for ulterior motives. In either case, they did not tell the
truth," the motion says.

The motion also says the prosecutors later withheld from state and federal
judges the fact that the U.S. Justice Department agreed to divulge the
information.

"This is a case in which the prosecutors themselves, as law enforcement
officers, have engaged in conduct which should shock any court in the
land," Panzer wrote in the 23-page motion that claims his client's right to
due process was violated.

Filed last week by Panzer and co-counsel Jan David Karowsky, the motion
asks U.S. District Judge Morrison C. England Jr. to throw out a marijuana
and weapon indictment against Robert Whiteaker, 42, a medical marijuana
advocate, and his wife, Shawna Whiteaker, 41.

The U.S. attorney's office immediately moved to seal the motion and all
supporting papers. U.S. Magistrate Judge Gregory G. Hollows, who is not
assigned to the case, signed an order sealing the motion.

The order, filed Monday, says "good cause" was shown to seal the motion,
but shed no light on that cause, and the request itself also is under seal.

The Bee acquired a copy of the motion before it was sealed.

A spokeswoman for the U.S. attorney's office said the office will have no
comment.

When they were arrested in 1999, the Whiteakers were growing 242 pot plants
at their house and both had a doctor's recommendation for medicinal
marijuana, in compliance with California's Compassionate Use Act.

After they fought the charges for 2 1/2 years in state court, where they
attempted to suppress evidence and discredit the Placer County sheriff's
deputy who is the prosecution's key witness, the couple rejected a plea
deal in November 2001. A week later they were charged in federal court,
where medical necessity is not a defense.

The Whiteakers are accused in a federal grand jury indictment of
conspiracy, manufacturing marijuana, possession of a firearm in connection
with drug trafficking and possession of a short-barreled shotgun.

It appears, the motion to dismiss says, that the Whiteakers are being
punished "for daring to assert their rights by bringing a suppression
motion and filing a civil suit" against the Placer County Sheriff's Department.

Panzer has sought to learn how and why Placer County Sheriff's Deputy Tracy
Grant, who was part of a narcotics task force, was able to call upon the
federal grand jury to obtain records from the Sacramento Municipal Utility
District in connection with a state investigation.

At a state court hearing, federal prosecutors forbade Grant to even
identify the subpoena, or answer questions as to how he acquired it and
whether it had actually been issued by a grand jury.

On Nov. 1, 2001, Sacramento Superior Court Judge Gail Ohanesian said that
if Grant would not answer the questions, the case would likely be
dismissed. The hearing was continued so federal prosecutors could obtain
permission to disclose the information.

Thirteen days later, Wong was given the green light by a deputy assistant
attorney general to disclose the information, according to a government
document that was turned over to Panzer.

However, Ohanesian was never informed of that decision, according to
Panzer's motion.

Instead, the Whiteakers were given an ultimatum five days later: Take the
plea deal offered by Deputy District Attorney Joy Smiley or face federal
charges that could carry a minimum 15 years in prison and maximum of life
without parole. She gave them 48 hours to decide.

The U.S. attorney's office appears to have "intentionally created a
situation which would most likely result in a plea in state court or allow
. these charges in federal court contrary to (the office's) guidelines,"
the motion to dismiss says.

Those guidelines specify that, on private land, there should be 500 plants
before a federal prosecution is initiated, the motion says. There are four
exceptions, but none of those is present in the Whiteaker case.

At a hearing a year ago, Melikian explained to U.S. District Judge William
B. Shubb why the case is in federal court. He said Smiley had two choices:
Ignore Melikian and his colleagues and tell Grant to answer the questions
and risk violating federal law, or let Grant refuse to answer and have
Ohanesian toss the case.

Shubb refused to order disclosure of the information.

Melikian "failed to mention to Judge Shubb that the state court had
continued the matter to allow time for the government to get permission to
allow Grant to answer the questions and that the permission from the
Department of Justice had been granted," the motion says.

Panzer next moved to force disclosure of internal government records
relating to the decision by the U.S. attorney's office to pursue the
Whiteakers. Melikian contended that an "impasse" had been reached in state
court so that "prosecutors were left with little option but to litigate the
defendants' case in federal court."

In the motion to dismiss, Panzer noted: "Again, no mention is made of the
government's request to the Department of Justice to disclose the ..
material, nor of the subsequent approval." The federal prosecutors
manufactured the impasse "to set up the eventual ultimatum by the state
prosecutor."

At a hearing before U.S. Magistrate Judge Dale A. Drozd on the defense
effort to get at the government's decision-making process, the prosecutors
"again claimed that the only choices were to either have the state court
case dismissed or remove it to federal court," Panzer recalled in the
dismissal motion.

But Drozd found evidence of vindictiveness on the part of the U.S.
attorney's office and ordered it to turn over to Panzer the records on
which he is now basing the motion to dismiss.

Oral arguments on the motion are scheduled for July 22.