Former Antioch Police Officer Devon Wenger is being prosecuted by the U.S. Attorney’s Office Northern District of California. Herald file photo

Alleges prosecutorial misconduct, claims retaliation; says evidence used was unlawfully obtained, information withheld from defense; separate matter from and not involved in racist text scandal

Devon Wenger, who was not terminated but resigned, faces charges of attempted civil rights violations, illegal use of force, conspiracy to distribute and possession with intent to distribute anabolic steroids

“There’s a lot there that is political.” – Attorney Nicole Castronovo

Oakland, CA – A former Antioch 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.

Former Officer Devon Christopher Wenger of the Antioch Police Department, who resigned from the force on June 5, 2023, and 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 Monday, Nov. 4, 2024, 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.”

Along with other Antioch officers, Wenger was arrested on Thursday, August 17, 2023, and prosecuted as a result of the investigations by the FBI and the Office of the Contra Costa County District Attorney. He was originally charged with 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(E)(i) Conspiracy to Distribute and Possess with Intent to Distribute Anabolic Steroids; 18 U.S.C. § 1519 Destruction, Alteration, and Falsification of Records in Federal Investigations and 18 U.S.C. §§ 241 Conspiracy Against Rights, 242 Deprivation of Rights Under Color of Law. (See related articles here, here and here)

However, Castronovo said Wenger is facing only three charges, “conspiracy to commit civil rights violations based solely on the text messages and with illegal use of force, for using what’s called a 40,” which is a non-lethal weapon. “He did so at the command of his sergeant, and it was within policy. So, they charged him for something found to be within policy,” she added. Wenger is also facing the steroid charges in a separate case in which he’s represented by a different attorney.

Regarding his claim of having whistleblower status Castronovo said, “He was a whistle blower on all kinds of things. His lieutenant had an affair with Wenger’s girlfriend. There’s a lot there that is political. He didn’t send any of the racist text messages. He also blew the whistle on a sexting scandal.”

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 DA’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, 2024, 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 (California Electronic Communications Privacy Act).

In addition, the Herald later broke the news on Aug. 17, 2023, that Wallace also failed to properly redact officers’ names, cell phone numbers and alleged crimes in a report released to the media. Exclusive: Contra Costa DA’s Office under fire for releasing report revealing phone numbers of Antioch cops in text scandal, names of Antioch, Pittsburg cops, alleged crimes in FBI investigation | Contra Costa Herald

Exclusive: Contra Costa DA’s Office under fire for releasing report revealing phone numbers of Antioch Police Officers in text scandal, names of Antioch, Pittsburg officers, alleged crimes in FBI investigation | Antioch Herald

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.”

APOA Attorney Submits Declaration About Wallace in Support of Wenger

Michael Rains, the attorney for the Antioch Police Officers Association, whose firm has been representing more than a dozen officers caught up in the investigations, submitted a Declaration in Support of Wenger’s Motion to Dismiss “based upon prosecutorial misconduct and ineffective assistance of counsel, in the alternative defendant requests a change of venue.” In his declaration, the APOA attorney wrote of his cross-examination of Wallace in another case in which Rains was defending an Antioch Police Officer. He wrote, “According to California Penal Code Section 1546.1, also known as CalECPA, it is a legal requirement to seal any information obtained through the execution of a search warrant that is unrelated to the objective of the warrant. Any such sealed information should not be subject to further review, use, or disclosure except pursuant to a court order or to comply with discovery as required by Sections 1054.1 of the Penal Code.

“When I questioned Wallace at arbitration as to whether he had complied with the requirements of CalECPA he admitted that (1) he neither sealed the information nor (2) did he seek any further order from the court to use the information for any other purpose. From my involvement in discipline cases involving several Antioch officers, I know the text messages relied upon by the City of Antioch to terminate officers, did not result from a Court Order authorizing such use,” the APOA attorney’s declaration further states.

Rains also wrote, “Wallace admitted in his testimony that he ha last received training on search warrants in 2004, and never received any training concerning CalECPA, which became law in 2021, as it pertains to writing search warrants.”

“Wallace testified that in November 2021, he received an anonymous postcard from the Pittsburg Police Department as well as information from the Federal Bureau of Investigation (FBI) regarding steroid use amongst Antioch Police Officers and Pittsburg police officers and a joint investigation was launched by the FBI and the Contra Costa County DA’s office,” the declaration states. “It was communicated to Wallace that the Chief of Pittsburg Police Department gave the post card to Chief of Inspectors Arnold Threets, who then assigned the investigation to Wallace. ‘Almost simultaneously’, upon receipt of the postcard Wallace was visited by FBI Agent Thuy Zobach regarding issues in the wiretap room concerning Officer Timothy Manly Williams of the Antioch Police Department. Notably the postcard never mentioned Devon Wenger…by name.”

Asked if one of the 8 cell phones seized by Wallace was Wenger’s personal cell. Castronovo said it was. According to Rains’ declaration, the phones were seized by Wallace in 2022, after he prepared the state warrant on March 22nd that year. Wallace turned it over to the FBI on March 28th. But I have a receipt for property on April 11, 2022, that includes Wenger’s phone, which is when they gave it back to Wallace,” Castronovo shared. “So, they probably dumped it during those two weeks. But the FBI didn’t issue a warrant for it until the following year.”

The judge in the hearing for Castronovo’s motion to suppress the evidence from the phone, “chose to listen to the FBI. He’s a former Assistant U.S. Attorney,” she explained. “The federal prosecutors just called it moot and said they wouldn’t use the evidence, which was really fishy, to me.”

“What’s interesting in their moving papers they said there were only three search warrants,” which would have only covered three phones, Castronovo shared. “But in the FBI’s search warrant it shows there were eight,” for the eight phones.

Rains Also Exploring Legal Options, Damages to Officers for Wallace’s Release of Information

As previously reported about the release of information by Wallace, Rains said, “I am exploring legal options including a possible lawsuit related to our grave concerns about the way in which this report was ordered released by the court to begin with, when I was supposed to be given the opportunity on behalf of the officers to seek a protective order.”

“Plus, the release by the DA’s Office when they told me, the judge told me to tell Chief Assistant DA Simon O’Connell to not release the report until I had the opportunity to be heard,” he continued. “We tried to set up dates with the defense attorneys on Monday, after the morning appearance I made. Then I received an email from O’Connell on Tuesday that the judge ordered the report released. I feel betrayed by both the judge and by the DA’s Office.”

“I’m exploring the damages done to the officers due to the actions by the DA’s Office,” Rains added.

DA’s Office Will Not Comment

Wallace and the Contra Costa DA’s Office were asked for comment regarding the claims about his testimony in Wenger’s case. The DA’s spokesman, Ted Asregadoo, responded, “We will not comment on an active federal prosecution in which the Contra Costa District Attorney’s Office was involved or address the inaccuracies in the press release you shared. However, we want to clarify that Larry Wallace, an employee of our office, acted in compliance with a court order to release information to defense attorneys in a March 2021 murder case in the City of Antioch.”

Wenger’s Next Hearing Possibly Dec. 10

The next hearing for Wenger 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.

Allen D. Payton contributed to this report.