THE ARREST OF RODNEY SIMMS

Defense: Fed Drug Case Was Tainted

Prosecutors say drug convict's claims about everything from judge's
conduct to legality of tracking device are unfounded

Federal agents and prosecutors carelessly, if not deliberately,
withheld evidence in a cocaine case against a Florida man, lawyers
with the federal defender's office in Mobile have asserted in seeking
a new trial.

Defense filings in U.S. District Court in Mobile claim that federal
agents illegally used information from a tracking device to catch
Rodney Simms, and that the law officer who said Simms confessed might
have made up his story. Simms' defense also has suggested that a judge
acted inappropriately when she met with prosecutors while Simms'
lawyers weren't present.

"The rulings of the trial court, the actions of the government and
the subterfuge of the officers involved denied Simms a fair trial,"
his lawyers wrote in an 87-page filing submitted last month to the
11th U.S. Circuit Court of Appeals in Atlanta.

Government officials have acknowledged that some circumstances of the
case are unusual. The voluminous documentation in the case,
particularly transcripts, seem to support that assessment.

But prosecutors, investigators and the judge strongly deny intentional
wrongdoing.

"I think it's a solid case. ... He's a significant violator. I think
it was an example of very good police work," Sam Houston, resident
agent in charge of the Drug Enforcement Administration's office in
Mobile, said about Simms' arrest and prosecution.

Said U.S. Attorney David York: "It seems to be an all-too-common practice in
this day and age for certain lawyers to allege misconduct." He declined to
expand on that comment.

The case has grown more contentious in the past six months, as Simms'
lawyers have made increasingly severe accusations about how he came to
be incarcerated.

At the close of a three-day trial in February, federal jurors in
Mobile found Simms, who is in his late 40s, guilty of possessing more
than 5 kilograms of powder cocaine with the intent to distribute it.
Chief U.S. District Judge Ginny Granade sentenced him to serve nearly
22 years in prison.

In Simms' Atlanta appeal, his defense laid out a number of serious
allegations:

A DEA task force agent encouraged subordinates not to volunteer
information about the tracking device that investigators used to
monitor Simms' car from the time he left Houston until he was pulled
over in Baldwin County, the defense says. The device was installed
under a warrant that allowed its use only within Texas.

The appeal accuses the agent of lying under oath about the
circumstances of the traffic stop, and accuses two Alabama state
troopers of withholding key information.

Granade has repeatedly found no fault with the troopers or the
agent.

At least one prosecutor in the U.S. attorney's office knew about the
tracking device right after the arrest but failed to pass it on to
either the defense team or E.T. Rolison, the prosecutor later assigned
to the case, according to the defense.

Rolison apparently didn't know about the tracking device until the eve
of the trial, whereupon he told Simms' lawyers and Granade about it.
The judge postponed the trial but absolved the prosecutors.
"Admittedly, the late disclosure of the tracking device was an unusual
development," but all in all it was harmless, Granade wrote in March.

A Florida sheriff's deputy belatedly came forward to say Simms called
him from the Baldwin County Corrections Center and confessed within
days of his arrest. But the defense states that another officer in the
same Florida agency told Simms' lawyers -- after jurors had begun
deliberations -- that the deputy said that Simms hadn't told him
anything of importance during the call.

Granade and prosecutors discussed defense strategies in her chambers
during the trial, in front of a court reporter but without defense
lawyers present, the appeal says. In their appellate document, Simms'
lawyers cited court opinions that concluded such conversations raise
questions about a judge's impartiality.

In an order issued last week, Granade declined to take herself off of
the case, writing that the defense theories amounted to a "cloak and
dagger scenario." She also sealed portions of the transcript of her
conversation with prosecutors.

Prosecutors said in a motion that the sealings were necessary to
protect a related investigation and the identity of a confidential
informant.

The cocaine and the car:

In mid-September 2002, Simms walked into a south Florida car
dealership with $8,000 cash as a down payment on a new Mercury Sable,
according to a copy of the bill of sale contained in the court record.
Within three days, he was driving the silver sedan to Houston, where
he needed to visit a Department of Veterans Affairs hospital for
specialized treatment, he later claimed.

David Fagan, the DEA task force agent in Mobile, would later tell a
grand jury that Simms had no appointment at the hospital, and was
treated briefly and released, according to a transcript of Fagan's
testimony.

Prosecutors told jurors during Simms' trial that Simms knew he was on
a drug mission from the outset. Simms has denied it.

While Simms was in Houston, his new car became involved in a
mysterious changing of hands, according to records that provide scant
elaboration.

In brief: Another man got possession of the car from Simms, then gave
it to a third man, not knowing he was a DEA informant, according to
the testimony of a DEA agent in Texas. The informant, in turn, took
the Sable to his DEA handlers. With a warrant from a judge in Houston
- -- a warrant good only as far as the Texas line -- investigators
installed a transmitter.

The informant gave the car back to the man who had gotten it from
Simms. That man returned the car to Simms, who set out along
Interstate 10 to return to south Florida.

By then, the car not only had a transmitter, but carried about 17.2
kilograms of cocaine, worth $400,000, carried in a new secret
compartment that had been built in the trunk behind the rear seats,
court documents state.

Caught in Baldwin County:

On the afternoon of Sept. 27, 2002, troopers Charles Anderson and
Terry Munn were patrolling I-10 in Baldwin County in separate
cruisers. Fagan was in his car nearby. Agent Houston, the DEA
supervisor, was elsewhere in Mobile, getting reports on Simms'
whereabouts from agents in Texas.

That's about all that everyone involved can agree upon.

Munn testified later that he spotted Simms following another car too
closely near the Loxley exit and decided to pull him over.
Coincidentally, Anderson radioed him a bulletin for a car matching the
one he was pulling over, Munn said.

Houston was passing on information on Simms' location directly to
Fagan, Houston testified during the trial. Fagan, in turn, testified
that he relayed the information to Anderson, the other trooper, who
passed it to Munn.

But in an apparent contradiction, Fagan told grand jurors that he
learned about Simms from trooper Anderson, who called to say that
troopers had stopped a man they suspected of carrying cocaine,
according to a transcript of Fagan's grand jury testimony.

The discrepancy is crucial, Simms' lawyers argue, because if
investigators were relying on the transmitter to catch Simms --
information they shouldn't have had, according to the warrant that
allowed it to be installed -- then their search of the car was
unconstitutional.

Granade, however, has repeatedly reached a conclusion supported by
prosecutors: That the drugs were discovered during a routine traffic
stop, and therefore the search was legitimate.

At a December hearing, Munn -- under questioning from both sides --
said the only reason he had for stopping Simms was the traffic
violation. Both troopers testified that Simms appeared nervous during
the stop and search, which lasted about 45 minutes and involved a
drug-sniffing dog.

Rolison, the prosecutor on the case, learned of the tracking device
the day before the trial was set to start in January, according to
transcripts. Granade promptly called the lawyers into her chambers to
get an explanation. Transcripts show that Assistant U.S. Attorney Gina
Vann, who heads that office's criminal division, told the judge that
the original prosecutor, Assistant U.S. Attorney Greg Bordenkircher,
knew about the device before the case was reassigned to Rolison. Court
records do not explain how or why Rolison would have become aware of
the device at such a late point.

Granade postponed the trial for a month and twice ordered prosecutors
to produce every thing they knew about the transmitter. York's
response revealed, among other things, that in a courthouse hallway
just before the December hearing, Fagan took the troopers aside and
told them that they "did not need to volunteer any information about
the tracking device," even to Rolison, according to affidavits the
troopers signed. Munn added in his statement that he "was
uncomfortable with this situation because the prosecutor did not know
all the facts surrounding the information we received about the
tracking device."

Both troopers said in the affidavits that Fagan told them to testify
truthfully, and that they were not asked any questions during the
hearing they felt would have required them to disclose the
transmitter.

"The court is not convinced that the testimony of Agent Fagan in any
way casts doubt on the testimony of either of the troopers," Granade
told lawyers in a conference in her chambers at the start of the last
day of the trial.

In the same conversation, Granade again ruled that whether the DEA
went beyond the scope of the warrant for the transmitter had no
bearing on whether the traffic stop was clean, and that the drugs
would be admitted as evidence.

"There is still no reason to suppress even if the car was being
monitored in violation of a Texas state order," she said. "That does
not, the court finds, affect the validity of this stop. The troopers
. didn't know the legalities or the illegalities of it." She found
that the troopers were "acting in good faith."

A questionable confession:

During the trial, Palm Beach County, Fla., Sheriff's Deputy Rick
McAfee testified that Simms called from jail in Bay Minette to confess
to him four days after the arrest. Simms had worked as an informant
for that agency and sought to cooperate in exchange for leniency,
McAfee said.

In the phone conversation, Simms told McAfee that cocaine dealers in
south Florida paid him to buy the car and drive it to Houston, then
turn it over to another man for a few days before driving it back, the
deputy stated. Simms understood the contact in Texas would build the
secret compartment and place the drugs inside.

The defense has protested that it had no knowledge about McAfee or his
story until the trial was less than three weeks away. Prosecutors said
that McAfee surfaced late in their preparations, and that they also
hadn't been aware of a confession.

But that wasn't the only point that Simms' lawyers raised about
McAfee.

During closing arguments in the trial, Kim Martin, another deputy in
McAfee's office, was present as prosecutors recapped McAfee's
testimony. Afterward, according to several defense motions, Martin
approached Simms' lawyers to explain that he thought McAfee had lied.

Martin said he recalled McAfee getting off the phone with Simms and
saying that he didn't plan to follow up on the conversation because
Simms hadn't said anything of value, one of the motions states.

"Although I was aware that Simms was a person of interest in an
unsolved double homicide in Palm Beach County, Fla., and that Simms
had given me information about other active narcotics investigations,
I did not believe Martin needed to know this information," McAfee
later stated in an affidavit. "Martin was not involved in any of the
investigations relating to Simms nor was the information pertinent to
Martin's responsibilities as a patrol officer."

A computer system at the Baldwin jail records telephone calls from
each cell block to people other than inmates' lawyers, but the system
automatically deletes recordings after 90 days, a jail supervisor
said. By the time of the trial, the recording of the call that McAfee
described had been erased.

After defense lawyers spoke with Martin, they immediately went to the
judge. Granade decided McAfee's explanation was sufficient and found
no inconsistencies in his testimony, calling allegations that he had
lied "baseless," according to a later ruling. She told Simms' lawyers
they could bring up the matter on appeal.

"This appears to be another of the defense counsel's gratuitous
accusations of criminal activity by the police in this case,"
Assistant U.S. Attorney Gloria Bedwell wrote in a motion weeks later.

Jurors deadlocked initially on the evidence against Simms, prompting
Granade to instruct them to consider each other's opinions and keep
deliberating. Two hours later, they returned a guilty verdict.

Impartiality at issue:

Nearly two months passed before a trial transcript was filed and
Simms' lawyers learned about the discussion Granade had with York and
three assistant prosecutors in her chambers at the start of the trial.
Prosecutors and the judge conferred about "defensive theory, potential
objections to testimony and the consequences of those objections,"
according to Simms' appeal.

Simms' lawyers cited a 1984 opinion from the 8th U.S. Circuit Court of
Appeals that concluded conversations like the one in Simms' case can
"involve a breach of legal and judicial ethics. Regardless of the
propriety of the court's motives in such a case ... the practice
should be discouraged since it undermines confidence in the
impartiality of the court."

Citing concerns about ongoing investigations, prosecutors earlier this
month asked Granade to seal portions of the transcript of their
conversation with her, prompting objections from Simms' lawyers.

"The defendant respectfully suggests to the court that it cannot rule
upon the issue of sealing its own words without subjecting itself to
the appearance of partiality," Simms' lawyers wrote in asking Granade
to recuse herself and leave the transcripts open. "The government's
request to seal the conversation between itself and this court is
merely an effort to prohibit the defendant from bringing the conduct
before the appellate court for review."

Granade disagreed, saying the integrity of related investigations and
the identity of informants were reason enough to seal parts of the
transcript, and noting that the appeals court would have access to the
unsealed versions anyway.

Prosecutors have yet to file a written response to Simms' lengthy
appellate document, and it could be months before a three-judge panel
of the 11th Circuit decides whether to hear oral arguments. They have,
however, asked the court in Atlanta to seal proceedings there, and the
defense has not objected.

Simms remains in a federal prison north of Orlando. His lawyers want
the higher court to grant him a new trial, before a different judge,
and order a hearing about their allegations of misconduct.

"These facts, taken together, merit an explanation from the
government," Simms' lawyers wrote, "... and an assessment of whether
its actions were merely negligent or whether its actions were a
cover-up, warranting the ultimate sanction: dismissal" of the case.

York said his office has not been found guilty of misconduct during
his tenure, and he expected the Simms case would prove no different.

"There were certain allegations made by the public defender's office
during the course of the trial that the court ruled on" in the
government's favor, the U.S. attorney said. "So in my opinion, our
office has nothing to be concerned about. We're confident the
conviction will stand. If it doesn't, we'll retry it."