JUDGE OVERRULES POT JURY

In an unprecedented action that stunned attorneys on both sides, a
Sacramento federal judge tossed out a jury's guilty verdict in a
marijuana-growing case and ordered a new trial.

Despite the verdict and the government's evidence, "a serious miscarriage
of justice may have occurred," U.S. District Judge Frank C. Damrell Jr.
found Wednesday in a 21-page order.

It is a ruling that has far broader implications than the fate of the two
defendants. The judge's findings go to the heart of a practice by U.S.
Forest Service investigators and federal prosecutors that targets marginal
players in the marijuana trade, defense attorneys said. That practice has
been the subject of criticism by the region's defense lawyers for at least
two years.

Undocumented immigrants Miguel Navarro Viayra, 25, and Manuel Alvarez
Guerra, 22, were arrested almost two years ago at a camp in the Mendocino
National Forest and charged with conspiracy, manufacturing more than 1,000
marijuana plants, and possession of firearms to facilitate drug trafficking.

Prosecutors portrayed them as opportunists who jumped at the chance to make
a substantial amount of money growing pot.

They insist they were lured to the camp under false pretenses, had no
access to weapons, and were guarded day and night by armed men who
threatened to kill them if they tried to escape.

The jury found them guilty of conspiracy and manufacturing but deadlocked
on the gun charges. They faced a minimum of 10 years in prison.

It is an all-too-familiar scenario, said Quin Denvir, the Sacramento
federal public defender. Young Mexican nationals eager for a living wage
are duped into believing they will be doing honest work, only to find
themselves hostage laborers for major marijuana growers in remote Northern
California locations, he said.

"Too many of these guys who don't know each other are telling the same
story," agreed Caro Marks, the assistant federal defender who represents
Viayra.

The government has several options in these situations, Denvir said. The
immigrants can be deported, prosecuted for being in the country illegally,
or prosecuted in state court as low-level offenders.

But in the Sacramento-based Eastern District of California, the U.S.
attorney's office treats them as big-time traffickers and subjects them to
draconian penalties that Congress meant for kingpins, according to Denvir.
Rarely do they go to trial, he said, because a guilty plea garners them
less time behind bars.

Denvir said federal prosecutors in Sacramento tout the harsh treatment as a
deterrent. "There is no deterrent," he said. "Farm workers in this country
and people in Mexico will never hear about these cases."

U.S. Attorney John Vincent was on vacation and not available for comment.
Executive Assistant U.S. Attorney Carolyn Delaney said the office would
have no comment, either on its policies or Damrell's ruling.

However, other sources said the reactions in the office range from
astonishment to dismay.

On the other hand, one legal expert is dismayed over the policy. "There
needs to be more direction on this kind of thing from the top levels of the
Justice Department," said Professor Gerald Uelman of the Santa Clara
University School of Law. "Prosecutors shouldn't measure their
effectiveness by the length of sentences."

Damrell acted after noting "the lack of direct evidence connecting these
defendants to the weapons and ammunition (found at the site), and (the)
circumstances of these two young, virtually penniless, likely illiterate,
and illegal (immigrants) who were found abandoned in a remote camp in the
wilderness with apparently no idea where they were."

Viayra testified he was approached in Fresno and offered a construction job
in Sacramento; in Mexico, Guerra was offered a job cutting wood in
California. They were paired stripping marijuana leaves the day before
their arrests.

The five-acre site found by Forest Service agents and Tehama County
sheriff's deputies had 2,000 plants that could have been processed into
about 500 to 600 pounds of marijuana, worth about $1.5 million on the
wholesale market.

The officers were seen by growers before they arrived at the camp. Of 20 or
so people in the camp, only the defendants and a man guarding them were
there when 10 law -enforcement officers arrived. Viayra and Guerra were
asleep. The guard fled.

"They never seem to be able to catch the ones who profit so handsomely from
these operations," said Denvir, whose office handles these cases. "It's
always the lowest of the low, because they're totally expendable."

Even if they fled the camp, Damrell asked, "where could they have gone? Is
it reasonable to have expected that (they) could leave the camp -- where
they had food, sleeping bags, and a degree of protection -- and venture
into the wilderness? Surely a reasonable opportunity to escape cannot mean
that (they) are required to flee into the ... dangers of a vast forest in a
foreign land."

It is almost unheard of for a judge to act without a party's motion before
him, yet Damrell converted defense motions for acquittal to motions for a
new trial.

He noted an acquittal motion requires the court to weigh evidence in the
government's favor, so he would have to live with the verdict. However, he
said, on a motion for a new trial he may independently evaluate the
evidence and the credibility of the witnesses.

Court rules do not address whether a court can convert a motion, and there
is no federal appellate authority on the subject in the Western states.

Again, Damrell did what trial court judges are often reluctant to do; he
went outside his own federal circuit for authority and found a 1999
decision by a Cincinnati-based court of appeals. Once he had his own
new-trial motion before him, he granted it, citing as authority a 1992
opinion of the 9th U.S. Circuit Court of Appeals, which has jurisdiction
over California and eight other states.

When she learned of the ruling, "I couldn't believe it," defense lawyer
Marks said. "It is a remarkable opinion."

The ball is now in the government's court. Its options are to appeal
Damrell's order, retry the case, or move to dismiss it.