Pubdate: Thu, 16 Jul 2009
Source: Vancouver Sun (CN BC)
Copyright: 2009 The Vancouver Sun
Contact: http://www.canada.com/vancouversun/letters.html
Website: http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Neal Hall, Staff Writer

MEMBERS OF ALLEGED DRUG-TRAFFICKING RING ACQUITTED

Judge Finds Police Officers Lied In Court And Violated Constitutional
Rights Of Four Men Arrested After Long Investigation

A former boxer accused of heading an international drug trafficking
ring has been acquitted of all charges after a judge found two senior
RCMP officers lied to the court.

The lies occurred when Cpl. Martin Stoner and Staff-Sgt. Peter Lea
appeared in court to explain errors, false statements and omissions in
affidavits used to get authorization from another judge for wiretaps
against the accused.

As a result, B.C. Supreme Court Justice Peter Leask excluded the
wiretap evidence, prompting the Crown to say it had no further
evidence to call.

Leask then acquitted former boxer Robert Della Penna, 39, and three
co-accused, Casey David Wells, Robert Muoio and James Mickelwright.

"I acknowledge the charges are serious ones and the allegations
against Della Penna are very serious," the judge said, pointing out
that Della Penna was accused of heading an international drug
trafficking ring that exported B.C. marijuana and ecstasy to the U.S.
and imported shipments of cocaine.

The judge said Wells was accused of managing sophisticated
marijuana-growing operations for Della Penna, Muoio was Della Penna's
assistant and Mickelwright was the intended recipient of shipments of
eight, 10 and 20 kilograms of cocaine that were intercepted by police.
The cocaine was allegedly to be distributed in Ontario.

Della Penna, 39, was charged after he was arrested in 2004 during a
reverse-sting operation in Richmond with an undercover officer posing
as a Colombia cocaine dealer.

Della Penna had delivered $575,920 Cdn cash to buy 25 kilograms of
cocaine, with the second 25-kg. shipment to be delivered within 24
hours.

Police had also secretly watched the stocky Della Penna and Wells
deliver buckets of Kentucky Fried Chicken and Safeway deli platters to
a home in Mission, where 49 hungry people were harvesting marijuana.

The harvesters were found in the home during a police bust, which
resulted in the seizure of 1,448 live plants and another 1,427 dried
plants.

In an oral ruling this week to exclude the wiretap evidence, Leask
found Stoner violated Della Penna's constitutional rights by
misleading the judge who originally authorized police to wiretap phone
calls.

And both officers committed serious misconduct by lying in court
during their testimony as they tried to explain what the judge called
false statements in the wiretap affidavits.

"I have found a series of serious breaches of the Charter involved in
the unconstitutional interception of communications in this case,"
Leask said.

The judge said police cannot take shortcuts and violate a person's
Charter rights during an investigation.

"In my view, permitting police to ignore the requirements for full,
frank and fair disclosure, and allowing the unconstitutionally seized
evidence to be introduced in court....would strike at the heart of our
system of judicial supervision of the state's intrusion into the lives
of its citizens," the judge said.

RCMP media relations Sgt. Rob Vermeulen said Wednesday that Mounties
are concerned about the judge's findings about the officers lying in
court.

"Any time you hear something like that, it's obviously concerning.

"We're working closely with Crown and reviewing the decision in its
entirety," Vermeulen said. "We're looking to appeal."

But defence lawyer Neil Cobb, who represented Della Penna at trial
with co-counsel Elizabeth Lewis, said: "In light of the trenchant
findings of the judge, it's going to be a very difficult to appeal
this decision."

Della Penna testified at the 2003 trial of two Hells Angels that he
had been a drug trafficker since 1995.

He was brought to the attention of Canadian police by the U.S. Drug
Enforcement Administration (DEA), which alleged Della Penna was part
of an organization involved in cross-border smuggling of B.C.
marijuana and ecstasy in exchange for cocaine, which was smuggled into
Canada.

In his ruling, Leask found that Stoner failed to disclose all material
facts -- specifically that police had informants in Montana and
Calgary -- to the judge who initially authorized a wiretap operation
against Della Penna, allowing police to secretly listen to phone calls.

The judge said Stoner stated in two affidavits that "there are no
informants" and then in another affidavit said an Alberta informant
was providing information about Della Penna's drug trafficking
activities with a Calgary man.

The judge said police surveillance observed Della Penna flying to
Calgary on Dec. 9, 2003, where four kilograms of cocaine were seized.

The judge said police also met with U.S. customs officers and Drug
Enforcement Administration agents in Montana in 2003, where
authorities disclosed they had received information from informants in
Montana.

In his court testimony, Stoner said he forgot about the Montana
informants so didn't mention it in his affidavits. "I did not believe
Cpl. Stoner's evidence on this subject," the judge said. "I find as a
fact that he was lying to this court."

The judge, detailing the history of the police handling of the Alberta
informant, said Stoner must have known about the Alberta informant by
the fall of 2003 but swore two false affidavits failing to disclose
the material fact.

Lea testified that he first met with U.S. authorities in October 2003
and discussed the Montana informants, who said Della Penna was
transporting cocaine through Montana.

Lea assigned Stoner on Oct. 31, 2003 to liaise with U.S. agents about
their "intel" on Della Penna. Lea testified he had a conversation with
an Alberta officer about the Alberta informant, but admitted he had no
notes of the conversation. "I do not believe Staff-Sgt. Lea on this
point and I find as a fact that he was lying to the court," Leask said.

"A frustrating aspect of this informant evidence is that neither
Staff-Sgt. Lea or Cpl. Stoner seem to grasp the true significance of
the issue. Full, frank and fair disclosure means all the material
facts must be disclosed to the authorizing judge," the judge said.

"It's not for the investigators to pick and choose among the relevant
facts and tell the authorizing judge only about the best investigative
strategy." 
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MAP posted-by: Richard R Smith Jr