Appeals court says government conduct doesn't warrant lesser sentence in pot case

SAN FRANCISCO - A federal appeals court voted 2-1 to overturn six-year prison terms against two marijuana growers Friday, saying the trial judge was wrong to shorten their sentences because of government misdeeds.

Gregory Haynes and James Denton, who pleaded guilty in April 1998 to conspiracy to grow marijuana in two Washington state communities, Stanwood and Warden, now face at least 10 years in prison instead of six.

The men admitted growing 1,000 to 4,000 plants from 1994 to 1997, although their plea allowed the court to make its own decision about how many plants to include as it calculated their prison terms.

The case was corrupted because an investigator on the defense team informed on the growers. That was ruled a violation of the men's right to keep communication with their lawyer secret, and certain pieces of evidence were ruled inadmissible.

To counter the government's improper conduct, the lower court judge, Presiding District Judge Thomas S. Zilly, decided not to include the plants seized in Stanwood as it calculated the sentences using a standard formula.

The decision not to include those plants meant that, rather than a 10-year minimum sentence, each man got just six years in prison.

Zilly decided to exclude the Stanwood plants because it was during the government's investigation of that crime that Dale Fairbanks, the investigator, was both working for the defense and acting as an informant.

''The information provided to the government, in my opinion, relating to the Stanwood grow was severely tainted by the violation of the defendant's attorney-client privilege, which is a very important and sacred relationship in our legal system,'' said Zilly.

Without that misconduct, Zilly decided, it was unlikely the government would have been able to prove that Haynes and Denton conspired to grow marijuana at Stanwood.

But a panel of the 9th U.S. Circuit Court of Appeals decided that Zilly abused his discretion during the sentencing part of the trial and ordered him to reconsider.

In the majority opinion, Judge M. Margaret McKeown said that she was ''sympathetic'' to what Zilly was trying to do and said the ''government's conduct (was) hardly beyond reproach.''

Nevertheless, she wrote as Zilly handed down his sentence, he could not ignore the plants grown at Stanwood, for several reasons.

- The men admitted in their plea not just the quantity of the plants but also where they were grown.

- The men never challenged the number of plants they grew in Stanwood.

- Case law allows exclusion of evidence only when it deters government misconduct. In this case, the Stanwood plants were legally seized before Fairbanks started helping the government, so there is no valid reason to deter seizures of that type.

McKeown was joined in her opinion by Judge Thomas M. Reavley, a visiting judge.

In a vehement dissent, Judge Stephen Reinhardt argued that, although the men pleaded guilty, that decision was motivated primarily by the overwhelming evidence they grew marijuana in Warden.

They would have been guilty of their crimes whether or not they were accused of the cultivation in Stanwood, Reinhardt said. So suppression of the Stanwood evidence would not have affected whether the men were convicted or not, he argued.

But excluding that evidence from the sentencing decision did provide the defendants some relief from the government's misconduct, without which it would have been difficult to prove their guilt in growing marijuana at Stanwood.

''For some reason that escapes me, the majority stresses repeatedly that the Stanwood plants were legally seized. While this is true, it is entirely beside the point,'' Reinhardt wrote. ''It was the link between the marijuana and the defendants that the court concluded would likely never have been made without the government misconduct.''

The cases are U.S.A. v. Gregory Haynes (98-30221 and 98-30240) and U.S.A. v. James Denton (98-30232 and 98-30240).

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On the Net: The opinion can be read at http://www.ce9.uscourts.gov/