Bias Charged in Prosecution of Strict Drug Law : Courts: The Los Angeles U.S. attorney’s office is accused of discriminating against blacks and Latinos in cases involving drug sales near schools and playgrounds.

A Los Angeles federal judge will consider allegations today that the U.S. attorney’s office ran a “patently discriminatory enforcement program” against blacks and Latinos while implementing a law that requires extra-stiff prison terms for dealing drugs near schoolyards, playgrounds and video arcades.

A North Hollywood criminal defense lawyer charged in papers filed last week that the Los Angeles U.S. attorney’s office, responsible for federal prosecutions in seven Southern California counties, ran a “separate and unequal” prosecutorial operation under the 1986 Schoolyard Law.

The law mandates enhanced sentences for people who sell drugs within 1,000 feet of a schoolyard or 100 feet of a playground or video arcade.

In some instances, a defendant could get a 20-year sentence in federal court for an offense that would bring only a six-month term in state court.

Attorney Mary F. Gibbons has asked U.S. District Judge Mariana R. Pfaelzer to dismiss drug-dealing charges against her client Jose Bellido, 34, on the grounds that he was illegally and selectively prosecuted. Bellido was arrested in June, 1989, in MacArthur Park after he allegedly sold 4.7 grams of crack cocaine to an undercover police officer within 100 feet of a playground.

Bellido, who also was accused of possessing another 0.2 grams of crack when arrested, was one of 177 people taken into custody in a three-day police sweep of drug “hot spots” near schools and parks. He has been held without bail since then at Metropolitan Detention Center in downtown Los Angeles.

“The sweeps program in which Mr. Bellido . . . a poor Hispanic living in a poor Hispanic neighborhood” was arrested was “a ‘separate and unequal’ prosecutorial operation--waiving guidelines, targeting neighborhoods, penalizing minorities--which violated the most fundamental tenets of constitutional law,” Gibbons said in her motion.

Special Assistant U.S. Atty. Alan Dahle, who is prosecuting Bellido, said the U.S. attorney’s office did nothing illegal or discriminatory. “I don’t think there is any merit to this motion,” Dahle said, adding that he would refute Gibbons’ claims in court.

Gibbons asserted that:

* The overwhelming number of individuals--89 of 93--prosecuted in Los Angeles under the law in 1988 and 1989 were black and Latino.

* The U.S. attorney’s office spurned the opportunity to prosecute whites accused of similar crimes, instead referring those cases to state courts where penalties were dramatically less severe. Seven individuals were cited in the June, 1989, sweep as being rejected for federal prosecution and referred instead for state prosecution.

* The U.S. attorney’s office played a key role in planning where drug sweeps would occur, thereby affecting the racial makeup of defendants who would be arrested.

* The assistant U.S. attorney in charge of the schoolyard program, Susan Bryant-Deason, “in making notes of referrals from law enforcement agencies, made specific references to racial characteristics of potential defendants,” such as “Mex,” “Jamaicans,” “Black man,” and “cau,” short for Caucasian. “If the program were truly racially neutral, Bryant-Deason would not have noted this factor,” Gibbons’ motion states. Bryant-Deason was not available for comment.

* Former U.S. Atty. Robert C. Bonner Jr., now the head of the U.S. Drug Enforcement Administration, had improper, secret contacts with a federal magistrate about his plans for the schoolyard program, aimed at assuring that more defendants would be held without bail pending trial.

On Jan. 29, 1988, shortly after the schoolyard program was launched in Los Angeles, Bonner sent a letter to Ralph J. Geffen, chief U.S. magistrate, saying: “An important ingredient in the success of this initiative will be the availability of pretrial detention in appropriate cases. One of the most infuriating and frustrating aspects of the state system for dealing with the problem of state narcotics dealers is the ready availability of bail for dealers who are arrested for trafficking in small quantities of drugs.”

On March 9, 1988, Geffen responded, telling Bonner that the federal magistrates would be “delighted” to meet with him about the new narcotics enforcement program. The discovery files do not reflect whether the meeting was held or what its outcome was. However, Gibbons’ brief states that a number of defendants arrested under the schoolyard program, including Bellido, were held without bail pending trial.

Today’s hearing is the latest chapter in a legal battle that began in the summer of 1989, when Gibbons and a federal public defender first raised the selective prosecution issue in separate cases.

Proving selective prosecution is very difficult. Courts have required a defendant to establish two things: The defendant must prove that other people in similar circumstances have not been prosecuted for the same conduct and that the government’s selection of a defendant was based on impermissible grounds such as race or religion.

Nonetheless, in November, 1989, four federal judges, who were presiding over “schoolyard” cases, held an unusual joint hearing on the issue.

Defense lawyers demonstrated that 89 of the 93 people prosecuted by the U.S. attorney under the schoolyard law in the central district of California were black or Latino. The central district includes Los Angeles, Orange, Riverside, Santa Barbara, San Bernardino, San Luis Obispo and Ventura counties.

Moreover, the defense lawyers showed that the vast majority of schoolyard cases filed by the U.S. attorney here were derived from arrests made in predominantly minority neighborhoods in Los Angeles County.

At that hearing and since then, the U.S. attorney’s office has consistently taken the position that race was not a factor in the office’s decisions on whom to prosecute. Assistant U.S. Atty. Steven G. Madison said the decisions were based on criteria set out by Bonner--primarily the quantity of drugs sold and whether the person had previous convictions. Those who did not meet the criteria were referred to the district attorney’s office for prosecution in state court.

But the judges indicated that they were puzzled that there were virtually no cases involving white defendants, since it was common knowledge that there was considerable drug dealing in some white neighborhoods and in some schools with predominantly white student bodies.

In an attempt to resolve the controversy, U.S. District Judge Terry J. Hatter granted a defense request for broad discovery so that further information could be elicited on how prosecutorial decisions were made. In mid-March, Hatter ruled that four defendants had made a prima facie showing of discrimination which entitled them to a full hearing with witnesses, in June.

Since the original 1989 hearing, one of the four judges rejected a selective prosecution claim in one case. And numerous defendants have pleaded guilty to lesser charges, according to several attorneys.

But several cases, including Bellido’s, are still pending, and information obtained under Hatter’s discovery order is a critical element in Gibbons’ motion.

The discovery included reports about the arrest of seven whites made as a part of the same three-day, June, 1989, sweep in which Bellido was arrested. None of these individuals was referred for federal prosecution, according to court documents.

One of the seven was arrested in his home half a block from an elementary school in San Pedro, in possession of narcotics, two scales, packaging materials, drug ledgers and currency. Among the others are individuals arrested in Hollywood and Canoga Park with previous drug records. There is a notation in the files indicating that the San Pedro man initially was targeted for federal prosecution, but prosecutors changed their minds. There is no indication as to why.

Gibbons asserted that “these white individuals are the quintessential example of the ‘similarly situated’ ” defendants who were not subjected to the same treatment as minority defendants such as Bellido.

Asked for an explanation, federal prosecutor Dahle said he did not want to litigate the case in the press. He said he would explain in court the reasons why these cases were not chosen for federal prosecution, indicating that there were questions about the validity of the search in one instance, the amount of drugs in another and sufficiency of evidence in yet another.

All the actions described in Gibbons’ motion took place before the current U.S. Atty. Lourdes Baird took office.