Federal prosecutors have withdrawn charges against two men accused of conspiring to distribute nearly 700 pounds of cocaine in 1988, because key witnesses are Los Angeles County sheriff's deputies now under investigation for allegedly misappropriating drug money seized as evidence.
In withdrawing 15 drug counts Tuesday, Assistant U.S. Atty. Steven G. Madison explained in court that the testimony of three deputies--who are part of a sheriff's narcotics team suspended last week--was essential to his case.
Madison would not elaborate Wednesday except to say of the drug seizure at a Pomona warehouse last November:
"This was a very significant seizure of cocaine. It is very large. So obviously we're going to be re-evaluating the evidence and will determine at a later time whether we will be able to go forward."
U.S. District Judge William Rea dismissed without prejudice eight drug counts against Benjamin Gutierrez and seven against Rigoberto Ajera Rodriguez. The charges may be refiled any time until 1994.
Rodriguez was tried Wednesday on a single felony drug distribution count, based on evidence gathered by state agents, not sheriff's deputies.
'Lack of Credibility'
Defense lawyer Michael T. Kenney said charges against Gutierrez, who leased the warehouse where the cocaine was found, were dropped because they were based on observations by deputies James R. Bauder, Eufrasio G. Cortez and Terrell H. Amers and on evidence seized by them. The officers also were key witnesses to the seven charges against Rodriguez that were dismissed.
"I believe the prosecutor's position was that to convict my clients these officers would have to have total credibility," Kenney said. "Based on the allegations against them, there may be a lack of credibility."
The charges against Gutierrez and Rodriguez are the first to be dismissed since Sheriff Sherman Block announced Friday the suspension of nine deputies--an entire narcotics investigative team--pending the conclusion of county and federal probes. The team was one of four that handled major drug cases for the department.
Eight deputies and a sergeant, all with the department at least nine years, were relieved of duty amid allegations that they may have stolen tens of thousands of dollars in the last year. A federal law enforcement source said the amount could exceed $200,000. There was no indication that narcotics had been stolen.
After the suspensions were handed down, county and federal prosecutors immediately began reviewing their files to see how the suspensions might affect their cases.
Los Angeles County's top drug prosecutor had said Tuesday that there was no indication that the scandal, which Block said might be the worst of his seven-year tenure, would jeopardize any cases.
Federal prosecutor Madison apparently concluded, however, that his case would not stand without strong testimony by the deputies. The prosecutor notified Kenney Friday that the charges against Gutierrez and all but one against Rodriguez would be dropped this week, Kenney said.
A dozen defense attorneys contacted by The Times have said that--if allegations against the deputies are proven--some cases could be undermined. But if a case is based more on physical evidence than on the statements of the deputies, it might not be threatened, they said.
The Sheriff's Department often conducts major drug raids along with other law enforcement agencies, and officers from those agencies could testify instead of the deputies, the defense attorneys noted.
That was not true for the prosecution against Gutierrez and Rodriguez. Kenney said that only the Brea police were along as backup on the Pomona raid. Key surveillance and the arrests were made by Cortez, Amers and Bauder, he said.
The deputies seized $135,000 from a pickup truck as it was leaving the warehouse where the cocaine was found stacked in a van, according to the federal affidavit.
Carlos Luis Soto, who was driving the pickup, pleaded guilty to narcotics trafficking earlier this year in a plea bargain for a sentence of seven years to life in prison. All the defendants originally faced maximum sentences of 20 years to life.
The sheriff's investigators were taken off the job last Friday as Block announced that all nine team members were suspected of stealing money seized in drug raids. The officers, part of the department's narcotics bureau in Whittier, were placed on administrative leave with pay.
Besides Bauder, Cortez and Amers, the officers include Sgt. Robert Sobel, Nancy A. Brown, Ronald E. Daub, John C. Dickenson, Daniel R. Garner and Michael J. Kaliterna. All were relieved of duty, but they will continue to be paid and will be allowed to carry a badge and gun.
Robert Schirn, head of the district attorney's major narcotics division, said he had reviewed 200 cases by Tuesday and the suspended deputies were included as possible witnesses in five.
He said the cases have not been jeopardized by the looming scandal and that officers from other agencies also participating in the drug raids could provide the needed evidence.
Schirn would not elaborate on the specifics of the cases he had singled out, but he said one involved the seizure of as much as 800 pounds of cocaine with a wholesale value of $8 million to $12 million.
Several other cases involved the confiscation of drugs in the 10-kilo range, he said. Schirn, however, declined to say whether those cases also involved drug money found at the scene.
In pursuing the case against the sheriff's deputies, Lawrence Lawler, FBI agent-in-charge of the Los Angeles office, said last week that investigators had found that some of the money seized in drug raids never made it to the evidence locker.