Pubdate: Sat, 02 Oct 2004
Source: Mobile Register (AL)
0.x ml
Copyright: 2004 Mobile Register
Contact:  http://www.al.com/mobileregister/
Details: http://www.mapinc.org/media/269
Author: Joe Danborn, Staff Reporter
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)

TESTY COCAINE CONVICTION UPHELD

U.S. ATTORNEY SAYS, 'WE'RE PLEASED WITH THE OUTCOME'

Federal agents and Alabama state troopers acted within bounds when they 
withheld information about a secret transmitter that helped them send a 
Florida man to prison for running cocaine, a federal appeals court has ruled.

The three-judge panel of the 11th U.S. Circuit Court of Appeals also found 
that Chief U.S. District Judge Ginny Granade of Mobile did not have 
inappropriate conversations with prosecutors about possible defense strategies.

Granade and prosecutors have acknowledged certain irregularities in the 
charges against Rodney Simms, 51, who is two years into a 21-year sentence 
at a federal prison north of Orlando. They insist, though, that nothing in 
their handling of the matter adds up to anything but a fair trial for 
Simms, who was caught carrying 17 kilograms of powder cocaine.

"We're pleased with the outcome and felt that we proceeded in an honest and 
forthright manner from the outset of the case," U.S. Attorney David York said.

As details of the Simms investigation emerged, however, his lawyers at the 
federal defender's office leveled allegations of police and prosecutorial 
misconduct.

York responded by implying that Simms' lawyers routinely make such charges. 
The episode has created unusually crisp tension between the two offices 
that oppose one another daily.

Simms' lawyers said they would ask either the full 11th Circuit or the U.S. 
Supreme Court to take another look at the case.

"We're definitely not done," Assistant Federal Defender Lyn Hillman said. 
"This is the type of case that you really have to take all the way."

Drug Enforcement Administration agents in Texas placed a tracking device on 
Simms' car around Sept. 1, 2002, court records show. The state search 
warrant they had obtained allowed the use of the transmitter only within Texas.

Nevertheless, as Simms drove back toward Florida, the agents called their 
counterparts in Mobile to give his location, according to court filings. 
The DEA agents here relayed that information to Alabama State Trooper 
Charles Anderson, who passed it on to Trooper Terry Munn, who was 
monitoring traffic on Interstate 10 near Loxley.

Munn testified that before he heard the "be on the lookout" message, or 
BOLO, he spotted Simms following another car too closely and started to 
pull him over. At a hearing some months later, Munn testified that the 
traffic violation was the only reason he had for making the stop.

"It appeared that Munn's testimony at the suppression hearing was due to a 
misinterpretation of the question," Judge Richard Cudahy wrote on behalf of 
fellow U.S. Circuit Judges Ed Carnes and Joel Dubina.

A transcript of the hearing shows that Munn was asked at least twice 
whether Simms' traffic violation was the only reason he was pulled over. 
The trooper said yes both times.

Nevertheless, "No questions were asked that would have required the 
officers to reveal the existence of the BOLO or the tracking device," 
Cudahy concluded, echoing Granade's earlier ruling.

Later, Munn and Anderson admitted that David Fagan, a DEA task force agent 
in Mobile, had instructed them not to mention the transmitter unless they 
were directly asked about it, an order that Munn said made him "uncomfortable."

Granade, the defense team and even the prosecutor assigned to the case 
didn't learn about the device until the eve of Simms' trial.

Cudahy wrote that Granade "found, correctly, that the BOLO played no role 
in Munn's decision to initiate the traffic stop. In other words, Munn 
pulled Simms over for tailgating, not because Munn had received a BOLO for 
a car that matched the description of the one Simms was driving."

The appellate ruling went on: "But since the BOLO contributed to Munn's 
decision to prolong the traffic stop and ask for consent to search, and 
since it stemmed from use of the tracking device outside of the 
geographical and/or jurisdictional limits set forth in the warrant 
authorizing it, it may be necessary to determine whether the search became 
tainted by wrongful use of the tracking device."

The judges looked at it, then backed up Granade's finding that the search 
was legitimate. The agents had simply wanted to protect an informant in 
Texas, the panel found.

"The effort of the government not to reveal the existence of the tracking 
device," Cudahy wrote, "appears not to spring from the mistaken belief that 
there was something unconstitutional about its use outside the geographical 
boundaries of the court order but from a desire not to disclose the 
circumstances of its attachment."

About two months after a jury convicted Simms of possessing cocaine with 
the intent to distribute it, his lawyers learned of a conversation between 
Granade and prosecutors in her chambers. A transcript of the conversation 
shows York and his assistants discussed "defensive theory, potential 
objections to testimony and the consequences of those objections" with the 
judge, according to the 87-page appeal Simms' lawyers filed a year ago. 
Hillman said she consulted with a lawyer at the Alabama State Bar before 
filing the appeal. He said her oath as an attorney required that she report 
the closed-door conversation to the 11th Circuit or file an ethics 
complaint. In the appeal, Hillman argued that other courts have deemed such 
conversations improper because they create the appearance of bias. The 11th 
Circuit panel disagreed.

"We simply do not see how either the course or the results of the trial 
would have differed if the disputed portion of the discussion had not taken 
place," Cudahy wrote. "After all, the government does not need advice from 
the court on making objections."

Hillman said portions of the appellate ruling are inconsistent, and others 
simply didn't make sense.

"I think at the end of the day, the court looked at this case and said, 
'Rodney Simms had 17 kilos of cocaine. We really don't care'" about the 
details of his capture, she said.

"To the extent there was any government misconduct, it was rectified well 
before trial," Cudahy wrote, noting that Granade postponed the trial for a 
month and ordered prosecutors to turn over information about the 
transmitter. "The district court did not abuse its discretion in denying 
Simms the chance to divert the course of the trial away from his own 
misconduct."
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