BEDROOM TAPES TOSSED IN DRUG CASE

Federal agents went too far in persuading the wife of a suspected marijuana
grower to install a tape recorder in their marriage bed to gather evidence
against him, a judge said in ruling that the government can't use the tapes
as evidence.

Nevertheless, U.S. District Judge Susan Illston found that the conduct of
the Drug Enforcement Administration wasn't outrageous enough to compel
dismissal of the charges against Mendocino County machinist John Dalton.

"Outrageous government conduct requires more than negligence or poor
judgment," Illston said.

Dalton, 44, was indicted in October 1996, on 12 felony counts involving a
conspiracy to manufacture and distribute marijuana for sale. He goes on
trial Aug. 16.

In seeking dismissal of the charges against Dalton, his attorney, J. Tony
Serra, argued DEA agent Mark Nelson, 37, is a perjurer who seduced Dalton's
then-wife Victoria Horstman, 40, and manipulated her to obtain evidence
against Dalton.

Nelson and the DEA went so far over the line that the entire case against
Dalton, who has no criminal record, is irreparably tainted, Serra argued.

Nelson admitted inappropriate behavior in violating his agency's
regulations by meeting with Horstman alone and falsifying documents
relating to that meeting at a DEA safe house, where he and Horstman drank
beer and kissed.

He also testified that the DEA paid her $4,800 in expenses when she moved
to Washington. But both he and Horstman denied a sexual relationship.

The judge rejected defense contentions that Horstman, an admitted
alcoholic, was coerced into cooperating with the DEA and that Nelson and
Horstman had a sexual relationship.

Providing Horstman with a tape recorder and persuading her to install it in
the bed she shared with Dalton was highly inappropriate conduct by the DEA
that goes beyond poor judgment, Illston said.

Consequently, she ruled that the "bedroom tape" cannot be used as evidence
at Dalton's trial.

Serra has made alleged outrageous conduct by the DEA and Nelson the
centerpiece of his defense of Dalton, and Illston erected a formidable
barrier to that defense in her ruling.

Unless Nelson and Horstman testify at Dalton's trial, she said, their
relationship and its effect on the investigation is irrelevant, and
evidence about it won't be admitted.