Judge acquits 3 in drug case tied to Shore; Prosecution failed to prove defendants conspired, Motz says; U.S. attorney disappointed; Concern expressed over increasing use of conspiracy statutes


Saying he was "absolutely tortured" by the case, a federal judge has acquitted three men accused of being Eastern Shore drug dealers, ruling the government did not prove that they were involved in the conspiracy with which they were charged.

Although U.S. District Chief Judge J. Frederick Motz said he was not "suggesting prosecutorial abuse," he expressed concern about the government's growing use of conspiracy statutes, which allow evidence that would not be allowed in other criminal cases.

In a ruling last week described by prosecutors and defense lawyers as unusual but not unprecedented, Motz acknowledged that the government had presented evidence of drug dealing and possibly two separate conspiracies.

But the government did not prove its allegation of a single conspiracy, the judge said.

The difference between what the government proved and what it charged made the prosecution of the case inherently unfair to the defendants, he suggested.

"It is far more important that the rule of law be upheld even if the price of that is that three people engaged in dealing drugs go free," Motz said in a transcript of the proceedings.

Motz's ruling came in response to a defense motion, before the two-week trial went to the jury.

It dismayed the U.S. Attorney's office, which had won a seemingly steady stream of major convictions involving drug conspiracies, including one this week of members of an East Baltimore drug gang known as The Nickel Boys and one this year of a jailhouse drug ring run by former drug lord John Edward "Liddie" Jones.

"Are we disappointed?" said First Assistant U.S. Attorney Stephen M. Schenning. "Absolutely. We viewed this as a significant case.

"When we prepare these kinds of cases, these kinds of issues are foremost in the prosecutors' minds," Schenning added. "We were confident it was a single conspiracy. Motz didn't accept that."

Defense attorneys applauded the decision.

Howard Margulies, attorney for defendant Dehaven Jon Irby, said his client broke down in tears when Motz announced his decision. Irby had two previous drug felony convictions and faced a lengthy prison term if he had been convicted of the conspiracy charge, Margulies said.

But Margulies said Irby, 30, had not been involved in drug dealing for five years and had moved to North Carolina, where he worked for a hospital. "He had taken a turn for the better in his life," Margulies said.

It is unclear what, if any, effect Motz's ruling might have on plea agreements reached with prosecutors before trial of three others in the alleged conspiracy: two on drug counts and one for felony possession of a firearm.

Arcangelo Tuminelli, attorney for Clevon Tyrone Johnson, one of the three, said he has begun "preliminary research" into the possible implications of the decision.

But Tuminelli said that because Johnson, 26, had admitted in his plea agreement to dealing with two groups, "there may be no basis for him to make claims" to negate his plea.

The case stemmed from what government prosecutors described in court papers as a "concerted undertaking" to develop and maintain "a massive consumer market" for crack on the Eastern Shore, primarily Cambridge, between 1989 and last year.

In September 1997, Irby, Johnson and Emory Clash Jones, 27, were indicted for drug distribution charges, according to court records.

The indictment was sealed pending further investigation, which concluded in March of last year.

Two months later, Irby was arrested by federal drug agents at the Wake County, N.C., courthouse, where he had gone for a speeding ticket, according to a report by a Drug Enforcement Administration agent included in the court file.

When told he had been charged with drug conspiracy, Irby replied, "Conspiracy? I quit doing that stuff a long time ago, it's been four or five years ago. I am too old for that stuff."

In August last year, the government's indictment added three others: Aaron Hayman, 33, and Ramon Hobbs, 22, who were acquitted by Motz along with Irby; and Ricky Lee Austin, 40, who pleaded guilty to the gun charge.

"The defendants in this case were indicted together because they worked together and were involved with one another in their illicit drug trafficking enterprise," prosecutors said in court papers.

About a dozen cooperating witnesses, who bought or sold crack from the defendants, testified for the government.

But defense lawyers argued that there were two separate drug rings with some people in common, including Johnson: one involving Irby that ended in the mid-1990s, and a second involving Hayman, Hobbs and Austin that began in 1996.

The problem is that since the case was tried as a single conspiracy, jurors heard testimony and evidence involving one group that had nothing to do with the other, the lawyers said.

"There has to be some meaningful connection between the people involved," said Harvey Greenberg, who represented Hobbs.

Motz agreed. Although his office said he does not discuss cases in which he is involved, the transcript of the trial's final day demonstrates the degree of his concern.

"I don't see any center whatsoever in this case," he said. "There has to be some kind of coherence or there is absolutely no limit on conspiracy law."

Motz said he understood why the government takes a "expansive view" of conspiracy law, saying it was a "powerful tool" that gave prosecutors great leverage in plea bargains and allowed introduction at trial of co-conspirator statements and corroborating evidence.

"There comes a point where I have a job to do, and I have done it," Motz said, after granting the defense motion for acquittal. "The case is over."

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