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."