The attorney for retired Stanislaus County sheriff's Capt. Raul DeLeon wants the federal charges against his client dismissed because of "outrageous" government conduct that "violated a universal sense of justice," according to court documents filed Tuesday.
Defense attorney Paul Q. Goyette of Sacramento said federal investigators created a "fake subpoena and non-existent grand jury ... in the hopes of forcing DeLeon to 'leak' confidential information to (Robert) Holloway."
Legal experts say the bar is high for such an argument to succeed but, with his motion, Goyette has introduced the idea that investigators entrapped DeLeon.
DeLeon, 51, of Modesto was arrested in July on charges of making false statements to investigators about Robert C. Holloway III.
Prosecutors say Holloway, a retired sheriff's deputy, and his son, Brent F. Holloway, 35, of Modesto, ran a racketeering enterprise at Road Dog Cycle in Denair. Prosecutors say Robert Holloway encouraged threats and violence against customers who didn't pay bills, operated a chop shop and extended credit to customers illegally.
A grand jury indicted the Holloways and 11 others, including DeLeon, in mid-July on charges relating to suspected illegal operations at the shop going back to 1997. Holloway, 61, of Turlock remains in custody; his son was released on bond in August. The business has been closed since their arrest.
According to the indictment against DeLeon, prosecutors argue he made three false statements. In November 2007, prosecutors say, DeLeon denied to investigators that he told Holloway about a grand jury subpoena related to Holloway's wife, who was DeLeon's secretary. Prosecutors say a taped phone call with Holloway from Oct. 16, 2007, indicates otherwise.
In the same call, prosecutors say, Holloway told De- Leon that a buddy was trying to hide illegal motorcycle club gear from officers. Prosecutors say DeLeon denied to investigators that Holloway had told him this.
Finally, prosectors say, DeLeon denied he was close friends with Holloway, though the men vacationed in Mexico together in 2005.
DeLeon was released from federal custody on his own recognizance in July. His trial is scheduled for Feb. 3 in federal court in Fresno. Goyette is slated to argue the motion to dismiss charges Jan. 12.
According to the motion, Undersheriff Bill Heyne e-mailed DeLeon in October 2007 saying there was a subpoena for DeLeon in Heyne's office.
DeLeon, according to Goyette, "found the subpoena buried underneath magazines" on Heyne's desk. The subpoena instructed him to prepare work records for Kathy Holloway, Robert Holloway's wife, for a grand jury investigation. Kathy Holloway was DeLeon's secretary for three years.
DeLeon asked the sheriff, undersheriff and others, including Robert Holloway, about the investigation. No one seemed to know about it.
Sheriff Adam Christianson and Heyne declined to comment.
No grand jury, no crime
Prosecutors have argued that DeLeon broke the law by discussing the subpoena, but Goyette said his client did not know grand jury subpoenas are confidential; the subpoena was not marked as such, Goyette said.
According to Goyette, "no grand jury investigation even existed."
"The entire purpose ... of this subpoena was to determine the extent of DeLeon's relationship with Robert Holloway," he wrote.
Creating a fake subpoena and grand jury, he argues, is an abuse of the grand jury process. This abuse, he argued, constitutes outrageous conduct and is grounds for dismissal.
Further, he said, investigators set up DeLeon to leak information to Holloway by making him believe there was an investigation. This, Goyette said, is entrapment.
Federal prosecutors declined to comment.
Legal experts say winning a dismissal based on the government's conduct isn't easy. The government must engage in extremely seedy dealings for cases to be thrown out in this context. And the defendant's predisposition to breaking the law plays a role in the judge's decision.
"There is a high bar," said Evan Lee, law professor and associate dean for research at the University of California Hastings College of the Law.
Though the case may not be dismissed, DeLeon could benefit from an entrapment defense during trial. For this defense to work, Lee said, the court looks at whether the government suckered someone with no interest in wrongdoing into bad behavior or whether investigators just opened the door for someone looking to break the law.
Goyette argues DeLeon had no predisposition to lawlessness. He had a distinguished career with the Sheriff's Department; he retired in August. He was one of three captains beneath Heyne, who reports to the sheriff. As a captain, he ran the Operations Division, overseeing the Special Weapons and Tactics team, and the patrol and investigations units. And De- Leon received many awards and special assignments with the SWAT, hostage negotiation and underwater recovery teams, and the Stanislaus Drug Enforcement Agency, which he headed.
The success or failure of the entrapment defense, Lee said, will hinge on what prosecutors can prove Holloway did and what DeLeon's involvement with him was.
"If the government is never able or willing to come forward with what Holloway did, then I think the captain's got a decent shot at winning on entrapment," Lee said.
But the most important question to ask, said Franklin E. Zimring, a professor at the Boalt Hall School of Law at the University of California at Berkeley, is why De- Leon was indicted. The federal system grants U.S. attorneys enormous leeway on which false statement cases to prosecute.
"For every 100 false statements made to federal law enforcement officials, I would be surprised if there are two indictments," Zimring said. "So there's an enormous amount of discretion. ... The question to ask is, what's so special about this one?"
Bee staff writer Emilie Raguso can be reached at email@example.com or 578-2235.