DEFENDANTS - LIES INVALIDATE DRUG CASE

TAMPA - Three men charged in a federal cocaine case say a judge should
dismiss their indictment because Florida Highway Patrol troopers lied.

It was a drug bust that went bust in state court. Now, continuing
allegations of law enforcement dishonesty threaten to scuttle a
federal prosecution as well.

Three men accused in a cocaine case are asking a judge to throw out
their indictment because Florida Highway Patrol officers didn't tell
the truth about why they searched one of the suspect's vehicles. In a
motion filed in Tampa's U.S. District Court earlier this month,
defense attorneys accused federal prosecutors of crossing
constitutional boundaries.

``There is no greater threat to our civil liberties than that posed by
a government willing to suborn perjury in order to achieve its ends,''
lawyers Frank Rubino and Jon May said. ``To allow this prosecution to
continue in federal court after being dismissed in state court ...
would be to give this court's stamp of approval on the government's
misconduct.''

The controversy stems from a May 19, 1998, vehicle search. State
troopers Doug Strickland and Bruce Hutheson told a Polk County judge
they became suspicious after pulling alongside a disabled Lincoln Town
Car on Interstate 4. After talking with the driver, Michael Flynn, the
officers guessed that the fuel shut-off switch had malfunctioned. They
told Flynn they might be able to fix the problem if they could access
a restart button in the trunk.

But the Orlando man refused their help. He grew antsy, the troopers
said, so they called in a police dog. The pooch, Reno, honed in on the
back of the car within minutes. Inside, the troopers found two
cardboard boxes filled with 220 pounds of cocaine.

Strickland and Hutheson arrested Flynn, then 39. His bail was set at
$1 million.

As state prosecutors prepared for trial, however, they discovered the
troopers knew the vehicle contained drugs. The car, which was being
monitored as part of a reverse sting operation, stalled because FBI
agents cut off the engine with a remote control.

The troopers purposely withheld those details from their arrest
report, Assistant State Attorney Bradford Copley found, because the
FBI did not want to jeopardize its ongoing probe.

Copley declined to prosecute.

``We rely on law enforcement officers to be truthful and accountable
as they carry out their tasks,'' he said in a notice filed in May
1998. ``This false affidavit caused two judges to be misled as to the
real facts of the case.''

Copley blamed the false affidavit on the federal agents, saying it was
filed at ``the express direction'' of the FBI.

The FBI immediately denied any wrongdoing, and a week later, state
prosecutors backtracked . Russell Knowles, executive director of the
Polk County State Attorney's Office, said the office determined the
problems stemmed from miscommunication between the agencies rather
thanl an attempt to deceive the court.

Because the charges had been dropped, the state's hands remained tied.
But that didn't stop federal prosecutors. In April, nearly a year
after Flynn was released from jail, FBI Special Agent Jesus Pagan
filed a new federal affidavit.

The affidavit accuses Flynn and two other men, Norman Dupont and Dewey
Davis, of meeting with a government informant on May 2, 1998, to
arrange a cocaine transaction. Dupont agreed to buy 220 pounds of
cocaine for about $200,000, the agent said.

The conspirators met again on May 19, 1998, at a Tampa hotel,
according to the affidavit. After a black bag of money was exchanged,
undercover agents loaded the drugs into the Lincoln Town Car. Agents
watched as Flynn drove off in the vehicle. He stopped at a rest area,
looked inside the trunk and made a phone call, the affidavit states.

The vehicle search occurred after Flynn resumed driving on I-4, but
the federal affidavit makes no mention of it. The sworn report simply
statesd that Flynn was arrested by the highway patrol and that the
drugs were seized.

A week after the new affidavit was filed, a federal grand jury
indicted Flynn, Dupont and Davis. The trio weres charged with
conspiracy and possession with intent to distribute cocaine. If
convicted, they face a minimum mandatory prison term of 10 years and a
maximum of life.

It is fairly unusual for a federal judge to throw out an indictment,
but Rubino, who is representing Davis, says the case warrants the
court's scrutiny.

``It is also fairly unusual for police officers to lie under oath,''
he said.

Rubino scoffed at the explanation that the false affidavit stemmed
from simple miscommunication. ``Let them tell it to a judge,'' he said.

Lawyers for Flynn and Dupont have joined the motion.

But federal prosecutors are fighting back. In a response filed last
week, Assistant U.S. Attorney Jim Preston said, ``There is absolutely
no evidence'' to support the allegation that the FBI agents instructed
the troopers to lie.

``The activities of the Florida Highway Patrol, while arguably
inappropriate, did not remove probable cause'' for the seizure of the
cocaine, Preston argued. The government had plenty of other evidence,
he said, including surveillancere preceding the search.

``Even if the defendants can prove the police committed perjury, that
is not grounds for dismissing the case,'' said Christopher Slobogin, a
University of Florida professor of criminal law. ``It may be grounds
for charging the officers with perjury, but that's something
different.''

Slobogin did say, however, that the defense might be able to challenge
the appropriateness of the FBI rigging Flynn's vehicle to break down.

``Since there is no clear law on this, it would be up to the judge to
determine,'' he said. ``The court could find the police actions are so
egregious that they shock the conscience, and the prosecution should
be barred.''

Neither the highway patrol nor the FBI has sanctioned the troopers or
agents involved in the case. FBI spokesman Brian Kensel, who declined
to discuss details of the case, said his agency remains committed to
the prosecution.