Arrest in Drug Case Perplexes Fired UPS Worker, Spurs Suits

A hot August night two years ago will live in Michael Kelley’s memory for the rest of his life. As he tells it, he took pity on a fellow Vietnam veteran and gave him some marijuana to help him live with his pain. As police tell it, he committed a felony by selling drugs to an informant.

Kelley, who served three tours in the Gulf of Tonkin during the Vietnam War, was working for United Parcel Service when he was arrested by the Narcotics Task Force, a group of federal, state and local drug enforcement agents.

Now Kelley is suing UPS, charging that the company acted improperly by hiring a known drug informant to get the goods on workers so that company security officials would have some leverage to gain information about two thefts from UPS. He also has filed a $1-million claim against the federal Drug Enforcement Administration for its alleged participation in the operation.

Kelley had worked for UPS for four years and was a package sorter at its plant in San Marcos. As he arrived for work on the night of Aug. 23, 1983, Kelley gave in to the new employee whom, he said, had “badgered, begged and pleaded, and intimidated me.” He handed Dan Whetstone two marijuana cigarettes.

“I felt sorry for him,” Kelley said, referring to Whetstone. He said the man had scars all over his chest and down one arm. Kelley also said Whetstone claimed that he was in constant pain, had lost a lung when he was shot in Vietnam and that he had been doused with Agent Orange, causing Veterans Administration doctors to predict that he wouldn’t live past age 50.

Whetstone, who had worked at the San Marcos plant only about 10 days, continually pressed Kelley and other UPS employees to get him marijuana, said Kelley.

Whetstone also dropped hints about his mob connections. He told Kelley he had a guaranteed job in Las Vegas, that retired Mafia leader Joseph Bonanno Sr. was his uncle, and that he was related to a Teamsters Union official.

Things happened fast after Kelley handed Whetstone the two joints in the UPS parking lot. Whetstone called to a buddy, asking for money or for change for a $10 bill, and then the two men were surrounded by Narcotics Task Force (NTF) agents, some with guns drawn. They handcuffed Kelley and took him to the County Jail in Vista.

Kelley claims that the drug agent who questioned him offered to go easy on him if he cooperated with UPS in its theft investigation. If Kelley did not prove cooperative, the agent warned, he could face a felony count carrying a four- to five-year sentence, Kelley said.

After NTF agents finished questioning Kelley about where he got the marijuana cigarettes, UPS security officers took over. Larry White, a UPS loss prevention supervisor, “offered to let me walk right outta there” if Kelley would confess to or implicate other UPS employees in two thefts at the firm--one involving $17,000 in electric guitars, one involving about $5,000 in gold jewelry. Neither of the shipments has been recovered, company officials said.

Kelley’s attorney called what happened to his client “entrapment and extortion.” Attorney Michael Lennie contends that UPS knowingly hired Whetstone, a drug informant who had been earning his living by fingering drug users and drug pushers, to attempt to compromise UPS employees so that they could be forced to implicate others in the shipment thefts. The lawyer said he will seek “a seven-figure sum” in punitive damages for his client.

“This was an illegal inducement of Kelley to commit a crime, through badgery, coercion and plays on his sympathy,” Lennie contended. “Then they used the crime they coerced him into committing as reason for his dismissal.”

Extortion is the threat of criminal prosecution if the victim does not part with some kind of property, Lennie said. In Kelley’s case, he was threatened with a prison term of three, four or five years if he did not surrender UPS property--the missing shipment of guitars.

Kelley denies that he knows anything about the thefts.

UPS attorney William Claster admits that UPS fired Kelley a few days after the drug bust but denies that Kelley has anyone to blame but himself.

“Kelley was terminated because he was in possession of pot on UPS property,” Claster said. “Possession of drugs on company property is grounds for immediate dismissal. His termination was solely the result of possessing marijuana.”

UPS officials declined comment on the hiring of Whetstone, who also is charged in Kelley’s suit against UPS, but the company’s loss prevention policies include instructions on recruitment of informants from among UPS workers and of paid, outside “contract” agents to keep an eye out for illegal acts.

When Kelley went to court over the drug bust, he pleaded not guilty to a felony charge of selling, supplying or transporting marijuana. His past record--a 1972 misdemeanor charge of possession of a small quantity of marijuana--had been expunged from his record and was not counted against him.

After a preliminary hearing, the county district attorney’s office reduced the charges against Kelley to a misdemeanor offense of transporting or giving a small quantity of marijuana to Whetstone.

Kelley pleaded guilty to the lesser charge. He was given a three-year probation and was ordered to pay the NTF agents $236 for their expenses in the drug bust.

Testimony given at Kelley’s preliminary hearing showed that Whetstone, the man he had befriended, was not who he said he was. Whetstone admitted he had been a paid informant for narcotics details throughout the state. He had made his living informing on others for several years, NTF agents testified.

And why was Whetstone given a job at UPS? NTF agents testified that they had obtained Whetstone a position with UPS to tide the informer over “between jobs” for the drug enforcement agencies.

Agent Barry Sweeney, in a deposition, said Whetstone was placed in the UPS job because “it was time for him to start supplementing his own income.”

Whetstone could not be reached by The Times for comment and efforts by Kelley’s lawyer to find him have been fruitless.

Sweeney said that a secondary reason for Whetstone’s hiring was to “assist security forces for UPS, that they would have a person inside that could basically be their eyes and ears” for discovering “anything that could possibly be illegal.”

Attorney Lennie, during months of legal maneuvering, discovery and deposition-taking, has learned much about the UPS methods of recruiting “spies” within the company and from outside. He labels Whetstone a “contract agent,” a paid professional informant planted to learn what he could about the parcel company’s thefts and to compromise other employees so that they would be willing to inform on their peers in order to stay out of jail.

Lennie argues that “if it is against the law to supply drugs, then it is against the law to aid, abet and induce someone to commit that crime.” That, he said, is what UPS officials did to Kelley.

“I was pretty naive. I’m 40, old enough to know better,” Kelley said. “It was entrapment. Like John DeLorean. You wonder who you can trust.”

Lennie is convinced that, in seeking to solve the thefts, the company broke one or more state laws. He is planning to argue that Kelley’s firing was “wrongful discharge” because his client was enticed by the company into committing the crime for which he was fired.

Lennie has taken the Escondido man’s case on a contingency basis, agreeing to accept a portion of any settlement from UPS as his fee.

To Lennie, it is more than just the 36 weeks that Kelley was jobless after being fired by UPS. He summed it up in Kelley’s claim against the DEA: “1. Lost wages and earnings.

“2. Emotional distress causing loss of sleep, fear, humiliation and loss of self-esteem.”

“Possession of less than an ounce of marijuana is a citable offense which brings a fine of $100 at most,” Lennie said. “That’s what Michael Kelley would have gotten if he hadn’t decided to help out a fellow Vietnam vet.”