Attorney Alleges Prosecutorial Misconduct in Take Down of Antioch Police Officer

Attorney for  Antioch Police Officer Devon Wenger Files Motion to Dismiss, Alleging Prosecutorial Misconduct and Retaliation for Protected Whistle Blower Activities in Sexting Scandal.

Oakland, CA – A police officer who spoke out against sexually explicit group texts among department members is fighting back against a malicious prosecution which has made him the scandal’s scapegoat as punishment for blowing the whistle.

Officer Devon Christopher Wenger of the Antioch Police Department, who is embroiled in a high-profile case stemming from the department’s texting scandal, filed a motion to dismiss the charges against him which have been grossly exaggerated as retribution.

The motion to dismiss was filed last Monday by Wenger’s attorney, Nicole Castronovo, and argues evidence used against Wenger was unlawfully obtained, undermining his right to a fair trial. Castronovo further alleges prosecutors improperly withheld key exculpatory information from the defense.

“The manner in which this investigation was conducted shows a blatant disregard for Wenger’s constitutional rights,” Castronovo said. “We have uncovered that evidence has been manipulated, critical facts have been omitted, and exculpatory material has been ignored. This entire case is being levied against my client as a vicious act of retribution and is a gross misuse of the criminal justice system.”

Recently filed court documents uncovered a prior FBI investigation into the Antioch Police Department during which evidence was mishandled and not appropriately sealed. That evidence, in an unrelated, State-level case, is now potentially being used by federal prosecutors against Wenger.

Key to Wenger’s claims of misconduct include a declaration highlighting the testimony of Larry Wallace, who served as a high-ranking law enforcement advisor under Vice President Kamala Harris during her tenure as California Attorney General. Wallace resigned after being sued for sexual harassment and now works as an investigator in the Contra Costa County District Attorney’s Office.

Federal prosecutors failed to mention Wallace was part of a joint operation with the FBI starting in November 2021. The government also did not disclose the FBI’s simultaneous seizure of Wenger’s phone in the unrelated state-level investigation.

In a testimony given on October 25 Wallace admitted he illegally mishandled sensitive data and failed to seal private information during his involvement in the FBI investigation of the Antioch Police Department in 2021. The mishandling of that evidence resulted in the unauthorized use of Wenger’s personal communications and violated his legal right to privacy. It also violated the stringent rules of CalECPA.

The chain of evidence log demonstrates that the FBI seized Wenger’s phone on March 28, 2022, well before federal warrants were signed authorizing the seizure of evidence in this current case and raise significant questions about the legality of the evidence and the government’s representations to the Court.

Federal prosecutors also misrepresented to the Court the number of search warrants in existence, referring to only two warrants in their moving papers (dated May and July of 2023), which postdate Wallace’s defective state warrants in the earlier FBI investigation.

These misrepresentations are critical, as the defense contends that the Independent Source Doctrine, invoked by the government to justify the evidence, cannot apply under such circumstances, where an investigation since its inception has been a joint task force between state and local agencies

Castronovo also questions the independence of the investigation, arguing that federal prosecutors heavily relied on data from state-level investigations, which violated the Independent Source Doctrine.

“We are determined to see that justice prevails,” Castronovo emphasized. “Officer Wenger is entitled to a fair trial, free from unlawful manipulation and misconduct by those in power.”

The next hearing is tentatively scheduled for December 10, 2024, at the United States District Court for the Northern District of California, where these and other issues raised by the defense’s motion to dismiss will be addressed.

Documents:

• Doc 187 DFT Wenger’s Motion to Dismiss Based on Prosecutorial Misconduct
• Doc 187-1 DFT Wenger’s Motion to Dismiss Based on Prosecutorial Misconduct
• Doc 187-2 DFT Wenger’s Motion to Dismiss Based on Prosecutorial Misconduct
• Wegner; 2024-11-04; (FILED) DFT Wenger’s Motion to Reconsider
• Wenger; 2024-11-04; (FILED) Motion to Dismiss Conspiracy Charge
• Larry Wallace Lawsuit

Previous Stories:

• Aug 18, 2023 – DA Charges Antioch and Pittsburg Police Officers with Obstruction of Justice and Bribery
• Aug 17, 2023 – Antioch and Pittsburg Police Officers Charged With Various Crimes
• May 22, 2023 – Antioch POA Attorney Calls Out Mayor and Vice Mayor for Inciting “Mob Justice” — Editors Note – the Contra Costa County District Attorney’s Office declined this publications public records request for all text messages, not the prepared and edited release by Inspect Larry Wallace—estimated at 200+ pages of documents, not the edited and prepackaged 35 pages already released of Antioch Police Officers. They also denied the release of text messages they have from 2021 regarding Antioch Mayor Lamar Thorpe and City Clerk Ellie Householder.
• April 21, 2023  – Federal Lawsuit Filed Against Antioch Police After Racist Texts and Targeting
• April  17, 2023 – Updated: Second DA Report Leaked Includes Antioch Police Text Messages
• April 13, 2023 – Contra Costa DA Releases Antioch Police Text Messages