DRUG CASE PLOT KEEPS THICKENING

TAMPA - An inmate accused of importing cocaine says federal prosecutors
broke a sacred rule: They failed to indict him.

The principle was spelled out in the U.S. Constitution long ago: No one
should stand trial on major federal From behind bars in Tampa, Willard
crimes without an indictment Santos argues that his drug by a grand jury
conviction is invalid because he was never indicted. Try telling that to
Willard ``Gabriel'' Santos. Santos, a 49-year-old salesman from New York,
is facing his second trial on charges that he imported cocaine. He has
spent the past 2 1/2 years behind bars. If he is convicted, he'll stay
there for the rest of his life.

Federal prosecutors say the inmate is a ruthless financier behind a
million-dollar cocaine conspiracy stretching from Colombia through Central
Florida to his home state. But Santos, who has a record of two drug
convictions, insists the government has the wrong man. Unlike many inmates
declaring their innocence at Morgan Street Jail, he says his case comes
with a twist: He was never indicted.

In a typical case, prosecutors present their proof to a grand jury, a panel
of ordinary citizens who determine whether there is sufficient evidence to
charge someone with a crime. An indictment, or charging document, requires
the approval of a majority of at least 16 grand jurors.

The process is designed to place a check on prosecutorial power, but Santos
says the system failed to protect him.

``Prosecutors are supposed to uphold the law, but they are no longer doing
that. Now they are the law,'' he said in a jailhouse interview last month.
``It's all about winning and losing.''

Santos' story started in February 1995, when a Drug Enforcement
Administration agent appeared before a federal grand jury. Agent Richard
Crawford testified that a confidential informant had traveled to Colombia
in October to arrange a shipment of 512 pounds of cocaine to the United
States. During the negotiations, the informant met with a man named Carlos
Montero, Crawford said.

The grand jury heard no additional evidence about Montero, but later handed
up an indictment charging him and 10 others in a cocaine conspiracy. The
indictment did not mention Santos.

Authorities began rounding up the defendants. Montero was not arrested;
neither was Santos. But others were - and they were prepared to deal.
Afraid of spending 30 years to life in prison, the defendants pleaded guilty.

One of them was Santos' friend Jorge Amariles. In December 1996, a federal
judge in Tampa sentenced Amariles to 17 years and four months in prison for
his role in the conspiracy. After his sentencing, Amariles told the DEA
that Montero was, in fact, his buddy Willard Santos, who lived in New
Rochelle, N.Y.

On Feb. 20, 1997, at about 6 a.m., agents burst into Santos' home and
rousted him from bed.

``They started throwing all sorts of names at me,'' Santos said. ``I knew
some of the people, but I didn't know what was going on. I kept saying,
`Yes, I know these people, but what do I have to do with this?' ''

Santos expected the case to be resolved quickly.

``I thought it would be over in New York,'' he said. ``Every time I went to
court, I thought they would figure out I wasn't Carlos Montero and I would
go home.''

Instead, he was transferred to Tampa, where he was booked into Morgan
Street Jail under the name Carlos Montero. In August, he stood trial in the
case of the United States of America vs. Carlos Montero. His lawyer was
court-appointed.

``I didn't care who my attorney was. All he had to do was tell the jury I'm
not Carlos Montero. How could I be guilty?

``I figured nobody could lose this case,'' he said, pausing as his voice
broke. ``I was wrong.''

Just before the trial, federal prosecutors plopped a pile of papers in
front of Santos' attorney. Among them was a report that Santos considered
his salvation.

The report, parts of which remain hidden behind thick, black ink, described
the Carlos Montero who met with the informant in South America. The
informant told the DEA the man was a dark-haired, 38-year-old Colombian who
had a home in Cartegena.

Santos, who was 47 at the time of his trial, had gray hair and was born in
Puerto Rico. Although his wife is Colombian, he says he hasn't been to
visit her homeland in seven years.

On the second day of the trial, while the jury was out of the courtroom,
Santos told U.S. District Judge Susan Bucklew about the difference in the
descriptions and argued he had not been indicted.

That's when Assistant U.S. Attorney Russell Stoddard acknowledged, for the
first time, that Santos was not the Carlos Montero who met with the
informant. Santos surfaced later as a participant in the conspiracy, he said.

``When the government admitted my client was not the Carlos Montero in the
indictment, it should have been an open and shut case,'' Santos' trial
attorney, Roy Foxall, said last week.

``The grand jury process is supposed to be an extra safeguard. ... This
indictment was issued for another person, not my client. That's completely
overriding a constitutional guarantee.''

But Foxall made no motion to dismiss the indictment. Saying that it was up
to the jury to decide Santos' guilt or innocence, Bucklew allowed the
government to continue. She told Santos he was free to testify on his own
behalf, but he did not take the stand.

During the trial, jurors learned that Santos had run-ins with the law
before his 1997 arrest. In 1987, he was ordered to serve five years of
probation for distributing a gram of cocaine. Six years later, he was
accused of possessing a little more than 6 pounds of cocaine and 750 grams
of crack. He was sentenced to five years in prison, but Santos said that
was reduced to seven months.

Santos argues his past shouldn't matter.

``What I was or what I was not should have been irrelevant,'' he said.

Nonetheless, the jury convicted him of all charges: one count of importing
cocaine, two counts of possession with intent to deliver cocaine and two
counts of conspiracy. Three of the charges carry mandatory life sentences.

After the verdict, Santos' new attorney sought to have the case thrown out.

In her legal brief, Sharon Samek quoted a 1985 court decision reasserting
the value of the grand jury process. The court ruled in that case that
prosecutors cannot assume that grand jurors would have indicted someone if
they had been given additional information. If prosecutors were given that
leeway, the court warned, ``The great importance which the common law
attaches to an indictment by a grand jury ... may be frittered away.''

But Stoddard argued the convictions should stand. Despite the indictment
problem, he argued there was sufficient evidence to convict Santos.

The government's case included testimony from Amariles, who said Santos
gave him $140,000 to purchase some of the cocaine. When authorities
arrested Amariles and seized the money, Amariles said, Santos threatened to
kill his mother.

A second witness, Ivan Grisales, who is serving time in an unrelated
cocaine and heroin case, also implicated Santos. Grisales told jurors that
Santos used the alias ``Carlos'' in past drug transactions and talked with
him about kidnapping Amariles' mother.

``There was no variance between the indictment and the evidence,'' Stoddard
said. ``Indeed, the evidence proved beyond a reasonable doubt that the
defendant was involved in a conspiracy.

``It is clear that a grand jury would rationally have found probable
cause'' to indict Santos, Stoddard said.

Bucklew sided with the government. In May 1998, the judge agreed that ``the
evidence submitted to the grand jury was insufficient to indict'' Santos,
but she upheld the verdict.

Bucklew based her ruling, in part, on a 1993 decision by the 4th U.S.
Circuit Court of Appeals. The court in that case addressed the conviction
of a man who had been indicted as a result of grand jury testimony that
actually concerned another defendant. In the absence of prosecutorial
misconduct, the court said, the verdict should stand.

Santos braced himself for sentencing. But last month, the case took another
turn: Bucklew granted him a new trial.

The judge issued the ruling after discovering that Santos' attorney might
not have been given evidence that cast doubt on the credibility of the
government's witnesses.

The judge's concerns centered on statements that Amariles made immediately
after his arrest. Not only did Amariles not mention Santos' name to the
DEA, he named another man as the supplier of the $140,000.

``A jury confronted with these discrepancies might reasonably conclude that
Amariles concocted Santos' involvement while incarcerated, perhaps to
avenge some other grievance, or perhaps out of real fear of Santos
associated with another sour deal,'' Bucklew wrote. ``The jury might
further conclude that, to make his story more attractive (if suspiciously
serendipitous), Amariles gave Santos an alias matching the indicted
fugitive supplier from Colombia.''

Amariles was the only witness who directly linked Santos to the alleged
conspiracy, the judge said.

``With Amariles' credibility thus undermined,'' Bucklew said, ``there is a
reasonable probability that the jury would have acquitted the defendant.''

The new trial is set for August.

U.S. Attorney Charles Wilson said his office is still reviewing the Santos
case, which he called ``a very unusual situation.'' Prosecutors have
several options, including indicting Santos based on the evidence at trial.

``We're in the process of evaluating that issue right now,'' Wilson said.

That could throw more thorny legal issues into what Bucklew has already
called a ``convoluted'' case, but legal scholars say the court would likely
uphold a new indictment.

``It certainly poses a dilemma from the prosecutor's standpoint, but I
think it is curable,'' said Bobby Flowers, a former federal prosecutor and
associate professor at Stetson University College of Law.

For defense attorneys familiar with the federal system, the Santos case
illustrates a point they know all too well: prosecutors have the upper
hand. ``It may stink and it may smell, but my answer to you would be
`Welcome to the federal criminal justice system,' '' attorney Daniel
Castillo said.