STATE TO PRESS DRUG CASE FEDERAL COURT QUASHED EVIDENCE

A native of Colombia is scheduled to stand trial in Henrico County
next month on charges that he smuggled 2 kilograms of heroin on a
Miami-to-New York Amtrak train.

But the man's lawyers say a federal judge in Richmond should stop the
prosecution because it is based on evidence that was already thrown
out of federal court.

U.S. District Judge Robert E. Payne will hear arguments June 1 from
lawyers with the Virginia attorney general's office and lawyers for
defendant John Londono, who is also known as John Jairo Londono Rivera.

Through his lawyers, David L. Carlson and Stephen R. Cutright, Londono
is asking Payne to bar the use of the disputed evidence or order the
state prosecution stopped outright.

"The federal court, at least in our interpretation of it, in
extraordinary circumstances where federally protected rights are at
stake, is empowered to do so," Carlson said.

Either action by Payne would be extremely unusual, Londono's lawyers
acknowledged, but they point out that so is prosecuting a defendant in
state court based on evidence a federal judge rejected on
constitutional grounds.

Payne's decision whether to intervene apparently must come soon after
the June 1 hearing. Londono is scheduled for trial June 5 before Judge
George F. Tidey on charges that he transported heroin into Virginia in
October on the Amtrak train.

Londono was arrested Oct. 7 by officers of the Richmond Metro
Interdiction Unit, a multijurisdictional police task force that
concentrates on stopping drug shipments into and through the
metropolitan area.

The officers searched Londono's sleeping-car compartment - after
asking his permission - when the train stopped at the Amtrak station
in Henrico County. They found 2 kilograms of heroin in Londono's luggage.

In federal court, Londono was charged with conspiracy and possession
of heroin with the intent to distribute it.

Carlson and Cutright argued in January to Judge Payne that the
officers had not obtained valid permission to search and asked that
the evidence be suppressed.

They presented testimony that Londono, a native of Colombia, does not
speak fluent English and might not have understood what he was giving
permission for the officers to do. They argued that he was intimidated
by the circumstances - the two officers standing in the narrow doorway
that was the only exit from the cramped compartment. They suggested
also that the officers were in a hurry to conduct the search and get
off the car before the train moved on.

The officers testified that Londono spoke good English before and
after the arrest and gave no indication he did not understand.
Londono's girlfriend and his supervisor at his job in New Jersey
testified that he knows some English words but is not fluent.

Payne granted the motion to suppress the evidence from the search. Not
long after that, Assistant U.S. Attorney George Metcalfe, moved to
dismiss the federal charges.

Payne dismissed the federal charges against Londono on Jan. 19. But
three days earlier, interdiction unit officers had obtained a state
warrant charging him with transporting heroin into Virginia.

In Henrico Circuit Court, Carlson and Cutright asserted that Londono
was being subjected to double jeopardy. The court rejected that
argument, ruling that the state charge is for a different act from
those involved in the federal indictment.

And this month, Tidey - after hearing essentially the same evidence
that Payne did in January - ruled that the search was proper and
scheduled the June 5 trial date.

In a hearing Thursday, Payne listened to evidence about how the state
prosecution of Londono was initiated even before the federal case was
dismissed.

Interdiction unit coordinator Robert C. Carullo, a Chesterfield County
narcotics detective, testified that, soon after Payne suppressed the
Londono evidence, he and another officer were talking about it in the
interdiction unit's main office. The unit shares office space with
Russell Stone, special counsel to the multijurisdictional grand jury,
and Stone joined the conversation.

Stone testified Thursday that he got interested in the case "primarily
because of the weight of the substance involved." Two kilograms of
heroin is a large shipment for this region and, Stone said, more than
in any case he has tried.

Stone said he concluded that prosecuting Londono in state court for
transporting heroin is not precluded by Virginia law, double-jeopardy
considerations or other legal principles.

Metcalfe, the federal prosecutor, testified that he heard, soon after
Payne suppressed the search evidence, from a Drug Enforcement
Administration agent assigned to the interdiction unit that Henrico
County prosecutors were considering taking over the case.

He said he called the county commonwealth's attorney's office and
talked to one or more prosecutors there about his concerns, which
included the double jeopardy issue. He said he did not ask Henrico
prosecutors to take the case.

In a previous hearing in the case, Metcalfe said, "I got the
impression from Judge Payne . . . that he thought we did an end run on
him. We did not."