U.S. JUDGE QUESTIONS MARIJUANA INDICTMENT

He Rules Charges Against A Couple May Be Due To Vindictiveness.

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."