Pubdate: Fri, 04 Jul 2003 Source: Sacramento Bee (CA) Copyright: 2003 The Sacramento Bee Contact: http://www.sacbee.com/ Details: http://www.mapinc.org/media/376 Author: Denny Walsh, Bee Staff Writer Bookmark: http://www.mapinc.org/drugnews/people/Robert+Whiteaker (Robert Whiteaker) 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. - --- MAP posted-by: Jay Bergstrom