BISBEE - The attorney for a Douglas grandmother who was found guilty of running drugs wants a judge to overturn the conviction on the grounds that prosecutors discriminated against her for being a U.S. citizen and a resident of Cochise County.

Leticia Villareal Garcia was arrested in early 2005 after Arizona Department of Public Safety officers, acting on a tip from an informant, found 214 pounds of marijuana in a car she was driving to Tucson for a bingo outing. A Superior Court jury convicted the 61-year-old grandmother in November of transporting marijuana for sale, a Class 2 felony punishable by up to 12 1/2 years in prison.

But defense attorney Robert Zohlmann says that because the informant's tip came to DPS by way of U.S. Customs and Immigration, Garcia's conviction was a result of a federal referral. And he believes the county attorney's policy for prosecuting federal drug referrals is discriminatory.

In a motion filed Thursday in Superior Court, Zohlmann cited a Dec. 23 story in the Herald/Review suggesting that federal authorities decline to prosecute marijuana cases in which the amount of pot is under 500 pounds.

Deputy County Attorney David Pardee was quoted in the story as saying that federal authorities often refer under-500-pound cases to his office, and that they generally involve Mexican nationals or other non-locals ferrying drugs through the county to cities such as Tucson and Phoenix.

The county attorney declines these cases, Pardee said, unless they involve local police agencies or residents.

Zohlmann believes this practice constitutes selective prosecution and is therefore unconstitutional.

"Implicit in the news article is the conclusion that if Ms. Garcia had been a Mexican national or not a local resident, the Cochise County attorney's policy would have resulted in her not being prosecuted at all," Zohlmann wrote.

Deputy County Attorney Doyle Johnstun, the prosecutor in the case, received a copy Zohlmann's motion Thursday but had not fully read it or filed a response.

However, he suggested Zohlmann had incorrectly identified Garcia's case as a federal referral. The informant, he said, had been working for the DPS as well as for ICE.

In a Jan. 2 e-mail attached as an appendix to Zohlmann's motion, Johnstun told Zohlmann that his office has no written policy regarding federal drug referrals.

But he said factors such as a lack of resources and an inability to subpoena federal officers made the referrals difficult to take on.

Therefore, the county attorney limits its federal referral prosecutions to those cases that most affect Cochise County, Johnstun said.

Sentencing for Garcia's drug-running conviction was initially scheduled for Thursday but was continued until Jan. 26. Judge Wallace Hoggatt will hear oral argument on Zohlmann's motion at that time.

Hoggatt is currently considering another motion from Zohlmann that argues the trial jury wrongly convicted Garcia because Johnstun never proved she knowingly transported the marijuana.