Judge may toss verdict in threats
Feds allegedly acted improperly in Facebook case
A judge is considering a defense bid to dismiss a jury verdict in the case of a Grand Junction man accused of threatening local police officers via Facebook, amid allegations of misconduct against federal agents in the case.
Kenneth Wheeler, 32, was found guilty on two counts of sending interstate threatening communications after a four-day trial last month before U.S. District Judge William Martinez. Wheeler is in federal custody and is scheduled for sentencing on Jan. 15.
While taking the jury’s verdict on Sept. 26, Martinez told lawyers he’d consider post-trial arguments for dismissal because of an alleged discovery violation: a previously unheard recording of Wheeler’s interrogation by FBI agent John Piatanesi and Homeland Security agent Gerald Kavanagh.
“None of this came to light until close of a jury trial, a year and a half after Mr. Wheeler’s arrest and detention without bond, and after numerous pretrial motions, including a motion to suppress statements had been litigated,” Abraham Hutt, Wheeler’s attorney, said in a filing.
On the recording, the agents are heard “tag-teaming” Wheeler with questions after he’d asked for a lawyer — a “clear” violation of the Miranda case that calls for interrogation to end when someone has asked for an attorney, Hutt’s motion argues.
“The very first words on the hidden recording is one of the agents telling Mr. Wheeler that there is a federal case against him and then encouraging him to retract his request for a lawyer,” Hutt said.
In response, federal prosecutors said Friday that Wheeler is heard on the 9-minute recording engaging the agents after he made initial, vague statements about needing a lawyer. He makes a clear declaration indicating he’s willing to talk, they argue.
“It is well established that police may interview a defendant who initiates further communication with them when subsequent events indicate that the defendant waived the right to counsel,” prosecutors said.
It’s unclear when Martinez will rule on the motion to dismiss.
Wheeler was indicted by a federal grand jury in March 2012 after a tipster reported a series of posts on Facebook, which threatened three Grand Junction police officers. There were also threats to their children.