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Assistant U.S. attorneys normally do the questioning in court, but this week current and former prosecutors will take the stand in an unusual hearing over whether to dismiss an 8-year-old case of alleged gun smuggling. The star of the show will be former assistant William Schaefer, who left the office in 2002 in the midst of an ethical investigation, according to a source with knowledge of the investigation who asked to remain anonymous. Schaefer no longer works as a prosecutor. But in 1997 he was on the organized crime strike force and worked on U.S. v. Debord, 97-239. An indictment accused two men, Peter Tran and Curtis Lynn Debord, of smuggling weapons from Vietnam into the United States. The evidence included two shipping containers full of gun parts seized by authorities in San Diego. But two years into the case, the evidence inside the shipping containers was destroyed. Defense attorneys didn’t learn about it for months and have since filed a motion alleging outrageous government conduct. They believe Schaefer is responsible and want Senior U.S. District Judge Fern Smith to dismiss the case. Testimony began Monday and continues today, when Schaefer is expected to take the stand. His former supervisors, Elizabeth Lee and Theresa Canepa, are also scheduled to testify. Lee is still in the Northern District U.S. attorney’s office. Canepa is now a Contra Costa County Superior Court judge. During the cross-examination of a U.S. Customs agent Monday, defense attorney David Dratman indicated that some of the destroyed evidence was exculpatory. Dratman, a Sacramento lawyer who represents Debord, told Smith that besides the shipping container evidence, other materials removed during the search of a storage unit also were destroyed, indicating a “pattern and practice” of circumventing normal discovery procedures. “Everyone else got written notification of the destruction of evidence, except the two targets [of the investigation],” Dratman said. Problems with the case are not new. The government dropped several counts in 2001, and the entire Northern District prosecutor’s office was recused in February 2002. Joseph Nesbitt, from the Department of Justice in Washington, D.C., is now handling it. Luke Macaulay, a spokesman for the Northern District U.S. attorney’s office, declined to say why the office had recused itself. Evidence such as drugs and guns are often destroyed before a case is resolved. But in this case, defense attorneys believe the contents of the shipping containers could have helped their clients, and they’ve implied that Schaefer knew that, yet still allowed the contents to be destroyed. The DOJ’s Office of Professional Responsibility, which handles ethical complaints, investigated Schaefer in connection with the case. Schaefer’s attorney, John Jordan, declined to comment on the circumstances of Schaefer’s departure. Jordan also worked as a federal prosecutor. Schaefer now lives on Long Island and lectures at Hofstra University in New York. It’s unclear if he still practices law. Lee’s testimony could put her in an awkward position, according to comments made in court by her attorney, former Assistant U.S. Attorney Steven Gruel. Regulations allow the DOJ to limit the testimony of prosecutors. In this instance, the office will allow Lee to testify only about Schaefer’s credibility and the destruction of evidence. But defense attorneys might ask questions beyond that, forcing Lee onto a “tightrope without a net,” Gruel told Judge Smith, because she could then face employment sanctions. Assistant U.S. Attorney Sara Winslow told Smith the office could expand its permission if questioning of Lee gets into other areas.

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