In about 2001, Martin Davies—a former Utah radio personality who was once named Best Talk Radio Host by City Weekly readers—found that his pension, unemployment insurance and other safety nets had evaporated in a company bankruptcy, reducing the 61-year-old’s income to just a $432 monthly Social Security check. Unemployed and uncertain of his future, Davies went hiking near Ogden, where he made a surprising discovery that would open an entirely new career path for him. He stumbled into a garden of marijuana.

The English-born Davies then saw an elderly gentleman appear from the woods.

“You’re not going to hurt my plants, are you?” the mysterious man said.

The old man explained he was sick and grew the plants for his own medicinal use. Davies has arthritis in his hip, which he soon learned was greatly alleviated by the use of marijuana.

Shortly thereafter, Davies grew a small amount of marijuana for his personal use, but his small operation didn’t stay that way. “A brother-in-law happened on to [Davies’ marijuana] and indicated that he would like to buy it. [Davies] let him do that, and that began the trip that got us here,” said defense attorney Bernie Allen during a speech in court that was also the source for the old-man-in-the-woods story above.

“Here” was the U.S. District Court in Salt Lake City in 2008, where Davies was facing 10 years to life in prison after police discovered three houses and a storage unit stuffed with hydroponic marijuana growing operations. More than 1,000 plants were found in various stages of development at the four locations. According to warrants, “The Martin David Davies Marijuana Trafficking Organization” had been pegged by the Drug Enforcement Administration as a multi-state marijuana source.

A lot had happened since Davies met the old man. Davies had disappeared from public life before expanding his operations throughout the Ogden area. Rumors of his death were even reported, and debunked, in a 2003 Deseret News article. Years passed before he was arrested, booked, jailed, bailed out, released, indicted and defended.

Now it was time to face U.S. District Judge Dee Benson, where Davies pleaded guilty to conspiracy to manufacture marijuana.

“Was it pretty good marijuana?” Benson asked Davies after he entered the guilty plea.

“It was extremely high-quality, I am told,” Davies replied.

“Well, they say since we started growing it in the states, it is a lot better quality than the stuff that [defense attorney John Caine’s] friends used to smoke in high school,” Benson said.

A record 44 percent of Americans now support legalizing marijuana, according to an October 2009 Gallup poll, so perhaps a little friendly pot-talk between judge and defendant shouldn’t be surprising. It’s not like the judge was chit-chatting about “pretty good” heroin.

But everything else about Davies’ case surprises Weldon Angelos, a 29-year-old father of three, who lived in Salt Lake City before the same U.S. Attorneys who would eventually prosecute Davies came after him. Charged in 2002 with marijuana and firearms possesion, Angelos is currently serving a 55-year prison sentence. His judge, U.S. District Court Judge Paul Cassell, now a University of Utah law professor, called the sentence “unjust, cruel and irrational” during the sentencing hearing.

Angelos received a stiffer punishment than most convicts of child rape or second-degree murder, yet the judge was powerless to reduce the sentence any less than 55 years. He wrote in the sentencing report that “the system has malfunctioned” and Angelos’ sentence was “demeaning to victims of actual criminal violence.” Angelos will not have his first opportunity for release until 2052, even with good behavior.

Davies, on the other hand, was sentenced to three months in prison and three months’ house arrest for operating three houses and having a storage unit full of weed. His sentences have already been completed.

How did their cases diverge so drastically? Both were treated as first-time offenders, though Angelos had juvenile convictions and Davies had a British conviction from the 1970s. Both were accused by prosecutors of being big-time marijuana dealers, though prosecutors seized a lot more marijuana from Davies. Neither Davies nor Angelos, whose family is Greek, belong to a racial class that is disproportionately prosecuted or incarcerated. Both were subject to mandatory-minimum sentences. Both had guns seized in addition to marijuana.

Angelos believes he was unfairly targeted by prosecutors. “My case goes to show you how much discretion the prosecutors have. I felt my prosecutor [Robert Lund] was out to get me.” While they phrase it differently, several legal scholars agree and say Angelos’, who has become a poster boy for groups like Families Against Mandatory Minimums, isn’t the only case of injustice.

UP IN SMOKE: ANGELOS
Still in his early 20s, Angelos’ music career was budding. He owned his own record label, Salt Lake City-based Extravagant Records, and released several albums, one of which contained a track by legendary rapper and marijuana enthusiast Snoop Dogg. Angelos hung-out with gang members, and pictures shown at his trial show him flashing the gang sign of Varrio Loco Town, a local gang the Salt Lake County Sheriff’s Office says is unaligned with any larger gangs. Angelos maintains he wasn’t in a gang, but the community he lived in was steeped in gang culture.

His sister, Lisa Angelos, agrees. “In the apartment we grew up in [in Midvale], there were gangs and wannabe gang members. That’s pretty much the people we knew. You can either shun them and get beat up every day, or just be friends with them.”

Angelos was also a gun fanatic, a trait he inherited from his father. “They put into evidence that even at 15 I had guns,” Angelos said from within the Davis County Jail, where he’s been held for much of 2009 while his appeal is heard at the federal court in Salt Lake City. His “home” prison is in Lompoc, Calif., where he will return if this—perhaps his last— appeal fails.

He is the father of two boys and a girl. Angelos agrees that there is “undisputed proof that I was involved with marijuana.” He’s never denied that, perhaps, in part, because it was guns, not pot, that allowed for his harsh sentence. By 2002, he says, his rap career was flourishing and he was phasing marijuana sales out of his life.

Then, “good friend” and VLT gang member Ronnie Lazalde enters the story. According to court testimony, Lazalde asked Angelos for a drug hook-up, and Angelos obliged. On three occasions between May 21 and June 18, 2002, Angelos sold Lazalde 8 ounces of marijuana for $350. He refused to sell to Lazalde a fourth time, but it was too late. Lazalde, allegedly facing his own weapons and drugs charges, was cooperating with federal investigators.

Investigators searched Angelos’ home and found three pounds of marijuana, $20,000 cash and three firearms. They found another pound of marijuana and a revolver in the trunk of his car. They found more marijuana and more guns at an apartment he rented on Fort Union Boulevard. But despite all that evidence, Angelos’ major crime was the sale of small amounts of marijuana to Lazalde while carrying a gun.

UP IN SMOKE: DAVIES
The undoing of Martin Davies’ marijuana conspiracy began in 2002, according to the search warrant in his case, when a man who would later claim to have worked with Davies was arrested for distributing ecstasy in the Ogden area. That man jumped bail but was arrested again in March 2006 for suspicion of growing 545 marijuana plants in the Las Vegas area. That’s when he told investigators about Davies. Another man who claimed to have worked for Davies was arrested in Nevada around the same time for manufacturing a controlled substance.

By March 2006, both men had cooperated with prosecutors and corroborated each other’s claims that Davies was the bigger fish. One claimed to have personal knowledge of a drug deal in which Davies, co-defendant Russell Wagher, and a third man sold at least 5 pounds of marijuana, at $3,000 per pound, to a man who shipped the marijuana to New Orleans inside computer towers.

At this point in early 2006, investigators had informants who claimed that Davies was the ringleader of a multi-state drug trafficking organization based in Ogden. On March 14, 2006, Drug Enforcement Administration investigator Matt Fairbanks and Weber-Morgan Narcotics Strike Force Agent Juston Dickson met with the man alleged to have been involved in the New Orleans marijuana deal. It’s not noted in the warrant whether the informant was threatened with arrest to induce his cooperation.

This confidential informant knew where Davies’ and Wagher’s growing operations were located and had access to Davies’ brother-in-law’s house, which was next door to one of the grow houses. The houses were located in Ogden at 1040 12th St. and 1883 20th St., and in Eden at 4054 E. 4325 North, according to the warrant.

On March 28, 2006, the informant told investigators that Wagher had learned about one of the Nevada arrests and was considering severing ties with Davies. But Davies was not “nervous and was going to continue to grow his marijuana because that is all he has now since he had retired approximately nine years ago,” the warrant states.

Police raided the houses that day and arrested Davies and Wagher. It was a major bust for the investigators. The DEA and the Weber-Morgan Narcotics Strike Force bragged to the local newspaper about finding 763 growing plants as well as 321 harvested plants and root systems. The multi-home growing operation in which the homes did not even have residents was something of a novelty for the agents.

“I’ve never seen houses just for that,” Dickson told the Standard-Examiner days after the search warrant was executed. “It’s a pretty big deal. It’s one of the biggest ones we’ve had in years around here.”

Investigators later found a storage unit near Lake Powell owned by Wagher—he owned the whole storage facility—that also contained nearly 90 marijuana plants.

They also searched Davies and Wagher’s personal homes. They found a loaded shotgun in Davies’ home but no marijuana in that house.

Both Davies and Wagher were charged with conspiracy to manufacture marijuana and faced 10-year minimum mandatory prison sentences. All three grow houses— two in Davies’ name, one in Wagher’s—were to be seized, as was the storage-facility business. Each had investments in a company named Landlord Business Solutions LLC, operated by the same brother-in-law of Davies’ who lived next door to one of the grow houses, that were also seized.

COOPERATION NATION: ANGELOS
It was not until Oct. 30, 2002, four months after Ronnie Lazalde allegedly bought marijuana from Weldon Angelos, that police made a record of Lazalde seeing Angelos with a firearm during two of the buys. Prosecutors claim Lazalde told police right away about the gun, but the investigators’ two initial reports—written in July and earlier in October—didn’t mention it.

Why it took so many months for the investigators to note the very evidence that was most crucial to the case is at the root of Angelos’ appeal. Angelos has more than a theory of what happened—he’s got new evidence. Using Utah’s Government Records Access and Management Act (GRAMA) in July 2008, Angelos got a copy of a letter sent to Lazalde after the last time he bought marijuana from Angelos, showing that his cover had been blown and that his gang buddies knew it. He has also obtained a video of Lazalde recorded prior to Oct. 30, 2002, giving a witness statement in which, Angelos says, investigators say they’ll forsake Lazalde unless he can bring them evidence of a major crime.

While prosecutors wouldn’t discuss the case with City Weekly, lead prosecutor Robert Lund defended the 55-year sentence to The Progressive magazine in 2006: “Weldon Angelos was a member of a really violent street gang, Varrio Loco Town, notorious for violent crimes, shootings, murder, serious assault, and drug distribution,” Lund told the magazine. The Supreme Court, Lund continued, “has said armed crime is one of the biggest problems facing our country, and drug distribution is a huge problem. Epidemic. So Congress has chosen to impose huge penalties to try to deter this form of conduct. ... My obligation is to accept that when someone commits the crimes, to prosecute him and then let the courts impose the penalty that’s required by law.”

While Lund argues, as prosecutors often do, that their decision-making process is almost automated and determined by the laws Congress passes, Davies’ case reveals how they have tools to reduce penalties—even mandatory minimum sentences—when their judgment tells them it’s appropriate.

COOPERATION NATION: DAVIES
Shortly after being arrested and his marijuana network dismantled by police, Martin Davies turned on his partner, Russell Wagher. Prosecutors credit Davies’ cooperation with convincing Wagher to plead guilty. Davies also penned a 20-page document under the pseudonym “Grandpa Grow” named “Cops and Pot: What every cop should know about pot growers and growing pot,” a so-called “safety valve” contribution where he taught police how to better detect grow houses (read “Cops and Pot” here). He also admitted responsibility for growing marijuana. For each of these cooperations, Davies received formal reductions in his sentence.

For reasons unclear, Wagher didn’t cooperate with prosecutors but pleaded guilty to a reduced charge and was sentenced to two years in prison. He lost his grow house, his storage business and the investment he had in Davies’ brother-in-law’s business.

At Davies’ sentencing hearing, Assistant U.S. Attorney Richard Daynes told Judge Benson that Davies was facing a 10-year-minimum mandatory sentence. Because of his cooperation with prosecutors, however, Davies was allowed to sink below the “mandatory” minimum. Daynes told the judge that Davies should serve 14 months in prison.

Benson, questioning why the paperwork related to Davies’ cooperation wasn’t done, kept the pot jokes coming. “Why wasn’t this—poor choice of words—hashed out before?” Benson asked. Eventually, though, after hearing the old-man-inthe-woods story, Benson reduced Davies’ sentence even more than prosecutors had requested. He said Davies’ lack of criminal history and his cooperation had inspired him to sentence Davies to just three months in prison and three months of home confinement.

But Davies did have a previous criminal history that was unknown to the judge, and, presumably, to prosecutors. Davies was fined 40,000 pounds for his role in a 1970s South African gold-smuggling scandal. Davies even appeared on the BBC show Panorama in 1976 to talk about the case.

Along the way, Davies was also allowed to keep the 12th Street grow house, which he transferred to a company named 12th Street LLC for an unknown sum before he was even convicted, and later was allowed to keep another property that he had purchased in 2005. Prosecutors originally sought seizure of both, before filing new motions to dismiss them.

Refusing to discuss the Davies properties in particular, U.S. Attorneys Offices Spokeswoman Melodie Rydalch said seizures may be dismissed because of “the valuation of the property, insufficient value in relation to liens, costs of sale, [or] title being held by third parties.” She added, “It is also not uncommon to negotiate forfeiture issues as a part of a plea agreement.”

HOODWINKED
Prosecutors are not the only ones who didn’t want to talk about how Davies went from being a “big deal” to a guy who spent only three months in prison and got to keep one of his grow houses, while Angelos became a “violent street gang” member who needed to be put away for life. Davies was contacted multiple times for this story, but never consented to an interview. He had two defense attorneys: John Caine, who died before the case was over, and Bernie Allen, who did not return multiple phone calls seeking a comment.

 

Part of the problems in Davies’ case may have been evidence. Daynes said during Davies’ sentencing hearing that “one of our warrants” concerned them and prompted the plea deal to Davies and Wagher.

But even Stephen McCaughey, the attorney who tried to suppress evidence on Wagher’s behalf, thinks the searches were legal. His best guess at what prosecutors worried about was the way in which the informant was granted anonymity.

More important than concerns about the warrant, McCaughey believes, was that prosecutors were disappointed with Davies’ and Wagher’s finances.

“I think [investigators] thought these guys were pretty good size, but when they executed the warrant, and sorted things out, Davies didn’t have a dime. Wagher had some property, but that’s not a bank account with hundreds of thousands of dollars in it,” McCaughey said.

Attorney Danny Quintana, who represented Wagher with an appeal that was eventually withdrawn, had a different view. Davies told the judge, for example, that the marijuana operation brought in only $1,000 per week, and neither the judge nor prosecutor challenged him on that claim— even though the police’s own estimates of Davies’ marijuana said one pound could garner $3,000. Quintana believes Davies fooled everyone. “He hustled the U.S. Attorneys, he hustled his probation officer, and he hustled the court. … Davies hoodwinked [Daynes]. He conned the system.”

Angelos feels Lazalde also fooled the system. Lazalde and Davies are now free men who cooperated, while Angelos and Wagher continue to serve their sentences.

TUNNEL VISION
Ohio State University law profesor Douglas Berman wrote a book and maintains a blog, both named Sentencing Law and Policy. While he believes police and prosecutors “generally have the right instincts” about which criminals are the worst offenders, occasionally big fish turn out to be minnows. But because they’ve already invested their limited resources, or because of their subconscious biases about race, class or age, investigators can develop a “tunnel vision” in which they scramble to find any facts to prove the original big-fish hypothesis.

“That’s the key idea: Once prosecutors commit themselves to a vision of a case and a defendant, it’s dangerously easy to push that vision forward, creating the kind of injustice we see in Weldon’s case,” says Berman, who is representing Angelos in his appeal.

University of Utah law professor Daniel Medwed agrees. A prosecutor “becomes more invested in the case. You spend time, prepare charges, prepare evidence ... so you’re beginning to develop a vested interest in the outcome.”

Rydalch says they do not discuss the screening process publicly. She also says it’s “wrong,” “frustrating” and “impossible” to compare the Davies and Angelos cases. First, the jury convicted Angelos of using a gun, which allowed prosecutors to seek mandatory consecutive 25-year sentences for those acts. Additionally, prosecutors believe Angelos was a violent gang member, though it should be noted that he was not charged with nor has he ever been convicted of any violent crimes. Third, Davies did, but Angelos did not, cooperate.

According to prosecutors’ brief to the 10th Circuit Court of Appeals, however, Angelos tried to cooperate with prosecutors but “the agents believed that Angelos had been untruthful regarding the source of his [marijuana] supply.” Was it that he was untruthful, as prosecutors believe? Or was he really just a little fish, as Angelos maintains?

On top of that, Berman thinks highstakes cooperation deals can be undermined by the worst criminals of all.

“The more sophisticated defendants know the guiltier they are, the more necessary it is to run to prosecutors to cooperate,” Berman says.

Angelos was offered a 16-year prison term in a plea bargain prior to trial, but when he turned it down, prosecutors filed a new indictment with more charges. This is a typical for federal prosecutors, Berman says. “I won’t discount the need and virtue of prosecutors to have these harsh terms to induce cooperation, but I will suggest the benefits of that in some cases, are radically outweighed by instances of rough justice [in other cases], where a person like Weldon is subject to a life sentence.”

Mandatory minimum sentences, which both Davies and Angelos faced, are only mandatory if prosecutors want them to be, says Cassell. The mandate is initiated by prosecutors and forces judges to do things they may not want to do.

“Mandatory minimums are a massive transfer of power away from the judicial branch to prosecutors in the administrative branch,” Cassell says. “They can decide to file these enhanced charges and drive the sentence by that. A prosecutor’s job is to apprehend and put away bad guys. Part of the reason for having a judge impose the sentence is we need checks and balances because prosecutors are trained to see the worst in people and argue that a long prison sentence is needed.”

Berman, Medwed and Cassell all support ending mandatory minimum sentences.

Medwed suggests the U.S. Attorneys Office “institutionalize” a formal review process whereby prosecutors would need to pitch their case to a panel of experts and gain their support before moving forward. Berman thinks judges should be involved when prosecutors want to reduce a defendant’s sentence for cooperation. Cassell advocates for a reinvigoration of the sentencing-guideline system that was created in 1975 to ensure similar criminals receive similar sentences. That system was declared unconstitutional by the U.S. Supreme Court in 2005.

The U.S. Supreme Court has not, however, found that the 171 federal laws that carry a mandatory minimum sentence are unconstitutional.

Angelos may seem like the biggest loser in this case, but his sister names at least three others hurt by the lengthy sentence.

“He has two boys and a daughter. He’s never really met his daughter, other than when she was a baby. He’s had interaction with her during [prison] visits. Other than that, he’s never really known her. She was 6 months old, or something like that, when he went to jail,” Lisa Angelos says of her brother. “The boys were old enough to remember [their father]. They were severely impacted. … He was the sole provider for the family. My husband and I play the role of Weldon at Christmas, but there’s nothing that can replace him in their lives.”