Pubdate: Mon, 18 Feb 2002
Source: Chicago Tribune (IL)
Copyright: 2002 Chicago Tribune Company
Contact:  http://www.chicagotribune.com/
Details: http://www.mapinc.org/media/82
Author: Todd Lighty

MISTAKES COST U.S. ECSTASY DRUG CASE

Charges Dropped Over Tape Mix-Up

Federal prosecutors have dropped drug charges against two suburban men 
after authorities blundered and failed to turn over all the evidence in the 
case involving 7,000 tablets of the club drug Ecstasy.

The missing evidence--a secretly recorded telephone conversation between an 
informant for the Drug Enforcement Administration and one of the 
defendants--was discovered three days before the start of the Feb. 4 trial 
when one of the defense lawyers insisted on listening to the original 
recording.

Defense lawyers admit the taped conversation did not help their case, but 
the error prompted U.S. Atty. Patrick Fitzgerald to approve dropping the 
felony drug and conspiracy charges. Local prosecutors plan to review the 
case to determine if they can bring state charges.

The failure to hand over the evidence to defense lawyers was the latest in 
a series of prosecutorial missteps in the case that had concerned U.S. 
District Judge James Holderman. He earlier ruled that the government was 
acting in bad faith when the lead prosecutor twice missed deadlines to 
submit documents needed for the trial.

Federal authorities told defense lawyers that agents had attempted to 
record three conversations between the informant and one of the defendants, 
but the third conversation was lost because of an equipment malfunction.

When defense lawyers Jack Friedlander and Nishay Sanan listened to the 
entire tape with prosecutors, they discovered the third conversation had 
been recorded. What had confused prosecutors and DEA agents, Fitzgerald 
said, were 2 1/2 minutes of silence between the second and third conversations.

Fitzgerald said the office's 110 criminal prosecutors have since been 
reminded to listen to tape recordings from start to finish.

"They should check the originals of the tapes and make sure that if there's 
a belief that a conversation was not recorded, to double check that to make 
sure that we don't have an occurrence of the same problem," Fitzgerald said.

Fitzgerald defended the lead prosecutor, Abra Siegel, describing her as a 
hardworking attorney who made an honest mistake.

"She conducted herself in an entirely ethical manner in this case," he 
said. "Were mistakes made? Yes. None compromised her integrity."

In dropping the charges, Fitzgerald said he also considered that a key 
government witness would not testify because of a serious car crash and a 
ruling by Holderman that prosecutors would have an uphill battle proving 
the conspiracy charge.

Co-defendants Jamal "Gooch" Alsguson and Aaron Verthein were arrested in 
July 2000 in a DEA sting in Orland Park.

Authorities said the DEA used an informant, who had been arrested earlier 
and decided to cooperate with authorities, to place three telephone calls 
to Alsguson to arrange a deal for Ecstasy tablets. Verthein allegedly 
brought $58,000 to the meeting.

Both Alsguson, 24, of New Lenox, and Verthein, 20, of Park Forest, have 
maintained their innocence. After the charges were dismissed, Holderman 
told the men they caught a rare break, according to the court transcript.

"I really think you ought to take it as a blessing ... and decide that this 
is the last time you're going to walk through any courtroom door as a 
criminal defendant," Holderman said. "It doesn't happen this way all the 
time ... This is your one time."

Siegel and DEA officials declined to discuss the case.

Ecstasy, also known by its chemical initials of MDMA, is a synthetic 
stimulant that has hallucinogenic properties. The drug, according to the 
DEA, also is known as the "hug drug" or "feel good" drug because it lowers 
inhibitions, reduces anxiety and produces a feeling of empathy. It also can 
cause seizures from heat stroke or heart failure, brain damage and death.

Police seizures of Ecstasy tablets, which sell on the street for anywhere 
from $20 to $40 each, increased from more than 1 million tablets in 1999 to 
more than 3 million in 2000.

As the case was heading to trial, Friedlander asked to hear the original 
DEA tape.

On Feb. 1, Sergio Acosta, a veteran prosecutor brought into the case late 
to help with the trial, met with Sanan and Friedlander to review the 
government's evidence. The DEA brought the original microcassette tape to 
the U.S. attorney's office, where it was played.

On the day the trial was to start, Acosta told Holderman what had happened.

"We listened to the tape," Acosta said. "After the second conversation, 
Judge, there goes--there is a period of time of silence for about 30 
seconds, then there is a click as if someone is trying to turn on the 
recorder and then it shuts off without any further sound. It goes on then 
in silence for about 2 more minutes.

"At that point, Judge, it comes on, there is a third conversation recorded 
... I think defense counsel will agree that we were all surprised when we 
learned of this and obviously that created a significant issue."

Neither defense lawyer believed the government intentionally withheld the 
missing conversation.

"What Siegel should have done was sat down with the DEA agents and listened 
to the original tape," Sanan said. "Still, we were confidant we were going 
to win at trial."

"This was just sloppy work," Friedlander said. "Forgetting what the tape 
did or did not say, we were entitled to hear it. But this tape sat on a 
shelf for two years as two DEA agents and their snitch testified at various 
proceedings that the tape did not exist."
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