Letter For DEA Agent Could Corroborate Defense Case

INFORMANT TO GET NEW DRUG TRIAL

Michael E. Fulcher says his prison drug-dealing was part of an undercover
investigation targeting corrupt guards at Bland Correctional Center.

Federal prosecutors will pursue a new trial for one of Southwest Virginia's
most successful informants, U.S. Attorney Ruth Plagenhoef said Friday.

From behind bars, Michael E. Fulcher has claimed his prison drug-dealing
was part of an undercover investigation targeting corrupt guards at Bland
Correctional Center. On Thursday, a three-judge panel of the 4th U.S.
Circuit Court of Appeals gave him a second chance to prove it. The panel
upheld a decision by U.S. District Judge Jackson Kiser granting a new trial
to Fulcher, 41, as well as Fulcher's wife, Rosanna, and his mother, Ethel.

The decision Thursday rejects the government's effort to block a new trial
for the three. On Friday, prosecutors decided to abandon further appeals.
Plagenhoef said her office will be in a "good position" for success in a
second trial.

In the 1980s, Fulcher figured in many high-profile drug investigations,
working with U.S. Drug Enforcement Administration agent Don Lincoln, then
head of the DEA office in Roanoke.

In 1990, though, Fulcher was blackballed for leaking information and two
years later was sentenced to 48 years in prison for various Bedford County
thefts.

But as Kiser noted in his ruling last year, "Even prison did not stifle
Michael's penchant

for sniffing out criminal activities."

Imprisoned at Bland Correctional Center, Fulcher tipped off Lincoln about
an inmate tax fraud scheme that the Internal Revenue Service later
prosecuted. Fulcher's informing also helped Roanoke authorities gain
convictions in the 1998 Church Avenue boarding house fire that killed six
people and in a murder-for-hire case in Botetourt County.

Then in January 1999, Fulcher was charged with 21 others - guards, inmates
and their mothers, wives and girlfriends. Federal authorities said they
sold marijuana in prison and laundered drug money from 1995 to 1997.

Fulcher, his mother Ethel V. Fulcher, and wife Rosanna Sue Nichols asked
Kiser to let them put on evidence at their August 1999 trial that they were
working for the DEA in an effort to get Fulcher an early release.

Kiser refused, based on Lincoln's pretrial testimony that he had made it
"crystal clear" to Fulcher during many phone calls that the agency did not
authorize his undercover scheme. The DEA wouldn't be able to safeguard
either Fulcher or his information, Lincoln had explained.

The Fulchers were eventually convicted.

But in November 1999, as the Fulchers awaited sentencing, Lincoln switched
his story in a six-page letter to the judge.

Lincoln was distracted by "an international money laundering case" during
1996 when Fulcher told him of his hoped-for investigation, the agent wrote,
and he could have given Fulcher the impression the DEA approved the operation.

"There is the very real possibility that Mr. Fulcher did feel that what he
was doing at the time was indeed under the auspices of the Government,"
Lincoln wrote.

In February 2000, Kiser ordered a new trial, issuing a strongly worded
opinion that rebuked prosecutors. They appealed, but on Thursday the
appeals court upheld Kiser's ruling that Lincoln's letter changed things
enough to warrant a new trial.

"It is undisputed that this new testimony was not within the defendant's
possession prior to or during trial," Judge Michael Luttig wrote in the
panel's opinion. "It only came to light when Lincoln himself - of his own
accord - decided to write an ex parte letter to the district court on the
eve of sentencing."

"We obviously are pleased that the court has affirmed the district court's
decision for a new trial," said Gerald Zerkin, a Richmond attorney who
represented the Fulchers. However, Zerkin said he was disappointed the
appeals panel did not address claims by Fulcher's wife, Rosanna, that there
was insufficient evidence to support her conviction for money laundering.

Plagenhoef, the federal prosecutor, said her office decided Friday to once
again go to trial.

"We had to take a close look at the opinion and make sure the court was
giving us close enough instructions so we can apply the law the court has
explained here next time around," Plagenhoef said, "and not run into any
trouble."