Pubdate: Thu, 23 Sept 1999 Source: Recorder, The (CA) Copyright: 1999 NLP IP Company Contact: http://www.callaw.com/ Author: Paul Elias, The Recorder/Cal Law CONVICTION FOR POT GROWING SPOUSE OF KISSING INFORMANT A jury Tuesday convicted a Mendocino County man of being a major marijuana grower and carrying on a continuing criminal enterprise, a heavy-duty charge that will require a judge to sentence John Dalton to at least 20 years in prison. The conviction came after a three-week trial and despite the fact a Drug Enforcement Administration agent on the case kissed Dalton's wife during the investigation. The conviction was also won with the help of the wife, Victoria Horstman. Horstman, on behalf of the government, secretly tape-recorded bedroom conversations she had with Dalton about his pot farm. The DEA paid her $4,800 for snitching on her husband. The DEA suspended agent Mark Nelson without pay for a month in 1997 after he confessed to the kiss during an internal investigation prompted by complaints made by Horstman. Dalton's attorney, J. Tony Serra, tried to get U.S. District Court Judge Susan Illston to toss the case based on Nelson's inappropriate conduct while interrogating Horstman at a government "safehouse." Serra also complained that Horstman's surreptitious bedroom recordings also constituted outrageous government conduct. "The court finds the incident at the house between agent Nelson and defendant's wife, as well as the DEA-sanctioned tape-recording of marital communications in the defendant's bedroom, very disturbing," Illston wrote in a June 29 order. "A government agent encouraging the wife of an individual under investigation to place a recording device behind the headboard of their bed, shortly after an admittedly inappropriate encounter between the agent and the wife, goes beyond poor judgment or merely using a close family member as an informant. Using the wife of a defendant as an informant is one thing, tape-recording the activities in their marital bed is quite another." Still, Illston said Nelson's conduct and the rotten tape-recording weren't enough to warrant dismissal of U.S. v. Dalton, 96-276. She also said Dalton waived any marital privilege because, while representing himself, Dalton submitted transcripts of the recordings in a self-written and unsuccessful motion to dismiss. However, prosecutors did not introduce the tapes at trial. Dalton was indicted and arrested in 1996 and charged with operating a giant pot farm during the early 1990s. After three days of deliberation, a jury on Tuesday convicted him of cultivating 6,000 plants worth about $2 million between 1991 and 1994. The jury acquitted him of witness tampering and a 1993 charge for cultivating pot. Dalton faces a maximum penalty of life in prison and a $4 million fine when Illston sentences him on Dec. 10. - --- MAP posted-by: Derek Rea