Pubdate: Thu 07/08 1999 Source: Tampa Tribune (FL) Copyright: 1999, The Tribune Co. Contact: http://www.tampatrib.com/ Forum: http://tampabayonline.net/interact/welcome.htm Author: Sarah Huntley DRUG CASE PLOT KEEPS THICKENING TAMPA - An inmate accused of importing cocaine says federal prosecutors broke a sacred rule: They failed to indict him. The principle was spelled out in the U.S. Constitution long ago: No one should stand trial on major federal From behind bars in Tampa, Willard crimes without an indictment Santos argues that his drug by a grand jury conviction is invalid because he was never indicted. Try telling that to Willard ``Gabriel'' Santos. Santos, a 49-year-old salesman from New York, is facing his second trial on charges that he imported cocaine. He has spent the past 2 1/2 years behind bars. If he is convicted, he'll stay there for the rest of his life. Federal prosecutors say the inmate is a ruthless financier behind a million-dollar cocaine conspiracy stretching from Colombia through Central Florida to his home state. But Santos, who has a record of two drug convictions, insists the government has the wrong man. Unlike many inmates declaring their innocence at Morgan Street Jail, he says his case comes with a twist: He was never indicted. In a typical case, prosecutors present their proof to a grand jury, a panel of ordinary citizens who determine whether there is sufficient evidence to charge someone with a crime. An indictment, or charging document, requires the approval of a majority of at least 16 grand jurors. The process is designed to place a check on prosecutorial power, but Santos says the system failed to protect him. ``Prosecutors are supposed to uphold the law, but they are no longer doing that. Now they are the law,'' he said in a jailhouse interview last month. ``It's all about winning and losing.'' Santos' story started in February 1995, when a Drug Enforcement Administration agent appeared before a federal grand jury. Agent Richard Crawford testified that a confidential informant had traveled to Colombia in October to arrange a shipment of 512 pounds of cocaine to the United States. During the negotiations, the informant met with a man named Carlos Montero, Crawford said. The grand jury heard no additional evidence about Montero, but later handed up an indictment charging him and 10 others in a cocaine conspiracy. The indictment did not mention Santos. Authorities began rounding up the defendants. Montero was not arrested; neither was Santos. But others were - and they were prepared to deal. Afraid of spending 30 years to life in prison, the defendants pleaded guilty. One of them was Santos' friend Jorge Amariles. In December 1996, a federal judge in Tampa sentenced Amariles to 17 years and four months in prison for his role in the conspiracy. After his sentencing, Amariles told the DEA that Montero was, in fact, his buddy Willard Santos, who lived in New Rochelle, N.Y. On Feb. 20, 1997, at about 6 a.m., agents burst into Santos' home and rousted him from bed. ``They started throwing all sorts of names at me,'' Santos said. ``I knew some of the people, but I didn't know what was going on. I kept saying, `Yes, I know these people, but what do I have to do with this?' '' Santos expected the case to be resolved quickly. ``I thought it would be over in New York,'' he said. ``Every time I went to court, I thought they would figure out I wasn't Carlos Montero and I would go home.'' Instead, he was transferred to Tampa, where he was booked into Morgan Street Jail under the name Carlos Montero. In August, he stood trial in the case of the United States of America vs. Carlos Montero. His lawyer was court-appointed. ``I didn't care who my attorney was. All he had to do was tell the jury I'm not Carlos Montero. How could I be guilty? ``I figured nobody could lose this case,'' he said, pausing as his voice broke. ``I was wrong.'' Just before the trial, federal prosecutors plopped a pile of papers in front of Santos' attorney. Among them was a report that Santos considered his salvation. The report, parts of which remain hidden behind thick, black ink, described the Carlos Montero who met with the informant in South America. The informant told the DEA the man was a dark-haired, 38-year-old Colombian who had a home in Cartegena. Santos, who was 47 at the time of his trial, had gray hair and was born in Puerto Rico. Although his wife is Colombian, he says he hasn't been to visit her homeland in seven years. On the second day of the trial, while the jury was out of the courtroom, Santos told U.S. District Judge Susan Bucklew about the difference in the descriptions and argued he had not been indicted. That's when Assistant U.S. Attorney Russell Stoddard acknowledged, for the first time, that Santos was not the Carlos Montero who met with the informant. Santos surfaced later as a participant in the conspiracy, he said. ``When the government admitted my client was not the Carlos Montero in the indictment, it should have been an open and shut case,'' Santos' trial attorney, Roy Foxall, said last week. ``The grand jury process is supposed to be an extra safeguard. ... This indictment was issued for another person, not my client. That's completely overriding a constitutional guarantee.'' But Foxall made no motion to dismiss the indictment. Saying that it was up to the jury to decide Santos' guilt or innocence, Bucklew allowed the government to continue. She told Santos he was free to testify on his own behalf, but he did not take the stand. During the trial, jurors learned that Santos had run-ins with the law before his 1997 arrest. In 1987, he was ordered to serve five years of probation for distributing a gram of cocaine. Six years later, he was accused of possessing a little more than 6 pounds of cocaine and 750 grams of crack. He was sentenced to five years in prison, but Santos said that was reduced to seven months. Santos argues his past shouldn't matter. ``What I was or what I was not should have been irrelevant,'' he said. Nonetheless, the jury convicted him of all charges: one count of importing cocaine, two counts of possession with intent to deliver cocaine and two counts of conspiracy. Three of the charges carry mandatory life sentences. After the verdict, Santos' new attorney sought to have the case thrown out. In her legal brief, Sharon Samek quoted a 1985 court decision reasserting the value of the grand jury process. The court ruled in that case that prosecutors cannot assume that grand jurors would have indicted someone if they had been given additional information. If prosecutors were given that leeway, the court warned, ``The great importance which the common law attaches to an indictment by a grand jury ... may be frittered away.'' But Stoddard argued the convictions should stand. Despite the indictment problem, he argued there was sufficient evidence to convict Santos. The government's case included testimony from Amariles, who said Santos gave him $140,000 to purchase some of the cocaine. When authorities arrested Amariles and seized the money, Amariles said, Santos threatened to kill his mother. A second witness, Ivan Grisales, who is serving time in an unrelated cocaine and heroin case, also implicated Santos. Grisales told jurors that Santos used the alias ``Carlos'' in past drug transactions and talked with him about kidnapping Amariles' mother. ``There was no variance between the indictment and the evidence,'' Stoddard said. ``Indeed, the evidence proved beyond a reasonable doubt that the defendant was involved in a conspiracy. ``It is clear that a grand jury would rationally have found probable cause'' to indict Santos, Stoddard said. Bucklew sided with the government. In May 1998, the judge agreed that ``the evidence submitted to the grand jury was insufficient to indict'' Santos, but she upheld the verdict. Bucklew based her ruling, in part, on a 1993 decision by the 4th U.S. Circuit Court of Appeals. The court in that case addressed the conviction of a man who had been indicted as a result of grand jury testimony that actually concerned another defendant. In the absence of prosecutorial misconduct, the court said, the verdict should stand. Santos braced himself for sentencing. But last month, the case took another turn: Bucklew granted him a new trial. The judge issued the ruling after discovering that Santos' attorney might not have been given evidence that cast doubt on the credibility of the government's witnesses. The judge's concerns centered on statements that Amariles made immediately after his arrest. Not only did Amariles not mention Santos' name to the DEA, he named another man as the supplier of the $140,000. ``A jury confronted with these discrepancies might reasonably conclude that Amariles concocted Santos' involvement while incarcerated, perhaps to avenge some other grievance, or perhaps out of real fear of Santos associated with another sour deal,'' Bucklew wrote. ``The jury might further conclude that, to make his story more attractive (if suspiciously serendipitous), Amariles gave Santos an alias matching the indicted fugitive supplier from Colombia.'' Amariles was the only witness who directly linked Santos to the alleged conspiracy, the judge said. ``With Amariles' credibility thus undermined,'' Bucklew said, ``there is a reasonable probability that the jury would have acquitted the defendant.'' The new trial is set for August. U.S. Attorney Charles Wilson said his office is still reviewing the Santos case, which he called ``a very unusual situation.'' Prosecutors have several options, including indicting Santos based on the evidence at trial. ``We're in the process of evaluating that issue right now,'' Wilson said. That could throw more thorny legal issues into what Bucklew has already called a ``convoluted'' case, but legal scholars say the court would likely uphold a new indictment. ``It certainly poses a dilemma from the prosecutor's standpoint, but I think it is curable,'' said Bobby Flowers, a former federal prosecutor and associate professor at Stetson University College of Law. For defense attorneys familiar with the federal system, the Santos case illustrates a point they know all too well: prosecutors have the upper hand. ``It may stink and it may smell, but my answer to you would be `Welcome to the federal criminal justice system,' '' attorney Daniel Castillo said. - --- MAP posted-by: Keith Brilhart