Source: The National Law Journal
Pubdate: Mon, 12 Apr 1999
Contact:  http://www.nlj.com/
Author: Harvey Berkman 
Page: A1

THAILAND POT CASE HAS FEDS' FACES RED

Stalls After Stormy Extradition In 1996.

The United States has long pressured countries such as Mexico and
Thailand to extradite alleged drug kingpins for trial here.

Mexico relented at the end of March, just as the deadline was
approaching for Congress to reverse President Clinton's decision to
recertify Mexico's efforts in the war on drugs.

Thailand succumbed in 1996, sending to the United States no less than
a former member of the Thai parliament and a multimillionaire owner of
resorts and hotels accused of smuggling 50 tons of marijuana into America.

However, because of prosecutorial misconduct--both admitted and
alleged--the case of Thanong Siriprechapong, also supposedly known as
Thai Tony, has gone nowhere but awry.

For three years now, Mr. Siriprechapong, 48, has been in a federal
prison in San Francisco awaiting trial. And his guilt or innocence has
been among the least-discussed subjects in court proceedings.

Instead, skirmishes before U.S. District Judge Vaughn R. Walker have
focused on admitted and alleged wrongdoing by Asst. U.S. Attorney John
Lyons and former U.S. Customs Agent Mike Gervacio.

Mr. Gervacio was the sole witness to testify before the grand jury
that indicted Mr. Siriprechapong; Mr. Lyons handled the
questioning.

Mr. Siriprechapong faces life in prison for allegedly helping to
smuggle marijuana from Thailand to America between 1973 and 1987.

His extradition came under a treaty the U.S. government persuaded
Thailand to sign in 1991. Thailand did so after a wrenching national
debate that ended with a vote by the government's 83 appellate judges.
The tally is unknown, but a simple majority ruled, and Mr.
Siriprechapong lost.

Motion to dismiss

In the United States, he pleaded not guilty. He now also has a motion
to dismiss his indictment on grounds of prosecutorial misconduct. Such
motions rarely succeed. Judges are usually persuaded that any
improprieties that infect an indictment need not affect the actual
trial. But Mr. Siriprechapong's motion is much more than
perfunctory.

Writes his attorney, name partner Karen L. Snell, of San Francisco's
Clarence & Snell, "The courts have not hesitated to dismiss
indictments for perjury by government agents before the grand jury;
for failure by the government to disclose such false statements to the
court [and] opposing parties...for misleading conduct...that
prejudices a defendant's right to indictment by an unbiased and
informed grand jury...and for reliance... on the testimony of agents
whom it later charges with serious criminal offenses.

"We can say with assurance, however, that until now," asserts Ms.
Snell, "no case has combined all of these elements."

The government argues that the incorrect information the grand jury
received was unintentional and immaterial, and that it pales beside
the untainted testimony and evidence.

Judge Walker seems disinclined to dismiss; he has requested briefs on
whether government misconduct that is insufficient for dismissal can
justify a reduction in a convicted defendant's sentence. Those briefs
were due on March 26.

If the case proceeds, the wealthy Mr. Siriprechapong is
prepared.

Ready to assist Ms. Snell and her two co-counsel is a fourth lawyer,
the ninth the defendant has hired: San Francisco criminal defense
attorney J. Tony Serra, who inspired the movie "True Believer," in
which James Woods played a ponytailed, impassioned defender of
unpopular causes.

Says Mr. Serra, "We will have a double-barreled attack: anti-snitch
and anti-law enforcement.

"It will be," he promises, "a spectacular trial."

A beautiful friendship

The first information Mr. Gervacio got about Thanong Siriprechapong
came via drug dealer Michael Woods, who decided in April 1987 to
become a government informant. In return for feeding information on
his compatriots to Mr. Gervacio and other agents, they procured
government payments for him. The arrangement ultimately earned Mr.
Woods a total of $270,000.

For Mr. Gervacio, the deal produced numerous drug indictments--and
helped end his career.

One of Mr. Woods' first tips involved James H. Ells, said to be part
of a Thai-based marijuana-smuggling ring. Based on documents
confiscated from Mr. Ells, customs agents examined a 40-foot container
shipped to Washington state from Thailand and found nearly nine tons
of marijuana. In April 1989 Mr. Ells was indicted.

As the investigation of the Ells smuggling ring expanded, Mr.
Siriprechapong's name occasionally popped up--as it did in other
agents' investigations of other drug dealers.

Before the grand jury, Mr. Gervacio testified that the government had
evidence that Mr. Siriprechapong was involved in smuggling from 1973
through 1987. This allegation was the basis of the count alleging a
continuing criminal enterprise, which carries a sentence of life in
prison.

But government documents the defense later obtained show that there
was little evidence of his involvement before 1979. Ms. Snell has
uncovered what she claims are other discrepancies between the
government's allegations and its evidence.

She has affidavits from two convicted drug dealers who, Mr. Gervacio
had claimed, implicated Mr. Siriprechapong: One says he never told
the agent that Mr. Siriprechapong was his supplier, and another
denies knowing anything about "Thai Tony's" method of smuggling.

Worse yet, Mr. Gervacio testified that information on Mr.
Siriprechapong from two other drug dealers was obtained independently,
that one man was jailed in Oregon, while the other was "going to enter
prison in California."

A grand juror explicitly asked, "In other words, they didn't have an
opportunity--is this true, Agent Gervacio--to talk to each other and
to make up a story together?"

Mr. Gervacio affirmed that the two would not have been able to
collaborate.

But Ms. Snell notes that the two men had been in the same cell in
Washington for a couple of weeks--a fact, she claims, that Mr.
Geravacio knew.

Mr. Gervacio's most serious problems, however, date to August 1992,
shortly after Mr. Woods received a $110,875 payment from Customs--at
Mr. Gervacio's recommendation--for his aid in another case.

The agent was in financial straits. He earned $85,000 a year but,
according to the government, his personal life was "in shambles." He
asked Mr. Woods for $4,000, which he later found in an envelope in his
car.

Four years later, in September 1996, with the Siriprechapong case
apparently headed for trial, Mr. Gervacio informed the U.S. attorney's
office in San Francisco of the gift, fearing that its discovery by the
defense would jeopardize the case.

Prosecutors kept mum

Mr. Lyons and his fellow prosecutors ensured that the kickback would
not jeopardize the case by not informing anyone of the payment for
nine months.

They said nothing in November 1996, when the agent's credibility was
an issue before Judge Walker in a hearing concerning allegedly
"material misrepresentations" in his extradition affidavit. And they
kept mum in spring 1997, when Mr. Siriprechapong was negotiating a
plea deal.

It wasn't until June 1997, when the case seemed definitely headed for
trial, that Mr. Lyons and his fellow prosecutors revealed the Gervacio
matter to Judge Walker.

They asked Judge Walker to keep the wrongdoing secret. Instead, he
informed the defense and scored prosecutors for not having revealed it
immediately.

The government argues that disclosure was not required under the
Supreme Court's Brady rule, which requires prosecutors to give
defendants exculpatory evidence and information regarding the
credibility of witnesses, be-cause Mr. Gervacio was not going to testify.

Ms. Snell notes that his name appeared on a pretrial witness
list.

The government says it was an overly inclusive list that would have
shrunk significantly before trial.

But evidence suggests that the failure to inform the defense of Mr.
Gervacio's kickback was not exactly passive.

Mr. Lyons made numerous telephone calls to Steven Anthony, the
attorney examining the Gervacio matter for Justice Department's Public
Integrity Section, which investigates and prosecutes allegations of
public corruption.

According to Mr. Anthony, Mr. Lyons requested that Mr. Gervacio's
punishment be lenient and that his indictment be delayed until after
Mr. Siriprechapong pleaded guilty.

Mr. Lyons denies seeking such a delay. "Although I have searched my
memory many times, I cannot recall making this request," he said in a
filing with the court.

Thinking "long and hard about what I may have been thinking if I did"
make the request, he wrote in an office memo later given to the
defense, "[m]y guess is that the request, if made, was the consequence
of my view that Gervacio's plight was not relevant to the plea
negotiations....I may have been thinking that it would be preferable
to have the charges filed after Thanong was psychologically committed
by signing the plea agreement and entering his plea."

The U.S. attorney's office filed papers with Judge Walker in November,
acknowledging "credible allegations of errors in prosecutorial
judgment and possible post-indictment misconduct." But the office
argued that none of the misjudgments or misconduct warrants dismissing
the indictment.

In November, U.S. Attorney Robert Mueller III placed Mr. Lyons on 30
days' paid leave while the Public Integrity Section investigated. Mr.
Mueller asked the section to expedite its review, but it has not yet
issued a report. Mr. Lyons is back on the job, but he is off the
Siriprechapong case.

On March 3, Mr. Gervacio pleaded guilty to a misdemeanor for illegally
augmenting his income and received probation. His career as a Customs
agent is over.

In their motion to dismiss, Mr. Siriprechapong's lawyers argue that
Thailand would not have extradited him if it had known everything that
the defense has since learned about the investigation and the
investigators.

Judge Walker has said that the defense motion would benefit from some
evidence to that effect.

Ms. Snell and her co-counsel have asked Thai officials whether they
would have refused the extradition, but the minister of foreign
affairs was noncommittal.

"[Whether] a false statement made by the U.S. Government could have
any bearing on an extradition request," he said, "depends on
the...nature of such false statement and the intention of the U.S.
Government."

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