Pubdate: Sun, 23 Oct 2005 Source: Courier-Journal, The (KY) 510230446 Copyright: 2005 The Courier-Journal Contact: http://www.courier-journal.com/ Details: http://www.mapinc.org/media/97 Note: Only publishes local LTEs Author: Kay Stewart WIRETAP RULING COULD FREE 12 DRUG SUSPECTS After wiretapping two of his cell phones and recording thousands of conversations, federal authorities charged Reggie Rice with heading a major drug-conspiracy operation in Louisville. The seized evidence was startling -- nearly 50 pounds of cocaine with a street value of more than $2 million, expensive gold and diamond jewelry, $250,000 and loaded assault weapons. But Rice, 32, and his 11 co-defendants -- who all face charges that carry possible life sentences -- might soon go free because a judge has ruled that the wiretaps weren't justified and can't be used in court. U.S. District Judge Thomas Russell's ruling this month is believed to be the first time a federal judge in Kentucky has suppressed evidence gained from wiretaps, one of law enforcement's most intrusive and regulated investigative techniques. Although the case is significant and the government's motives understandable, Russell wrote, "despite the consequences, the court must apply the law as written, in good faith and in its intended manner." Russell said that agents with a U.S. Drug Enforcement Administration drug task force failed to seriously consider or attempt less intrusive investigative methods before they tapped Rice's phones, in violation of federal law. Assistant U.S. Attorney Philip Chance wouldn't comment on Russell's ruling, which came in response to a defense motion. But Chance argued during a prior hearing that the wiretap was appropriate and necessary. Chance said a decision will be made whether to appeal Russell's ruling. He acknowledged the case is "heavily reliant" on wiretap evidence but said prosecutors are considering what charges would be possible without it. A Significant Case The ruling comes in a case that is significant because of the large amount of cocaine involved, plus the fact that several defendants, including Rice, have long arrest records and previous drug convictions, Chance said. All 12 defendants are charged with conspiracy to traffic in 15 to 50 kilograms -- 33 to 110 pounds -- of cocaine from June to August 2004 in a federal indictment that says Rice organized and led the enterprise. Rice and three of the other defendants also face additional charges related to drug activities. The drug-conspiracy charge against all the defendants carries a maximum penalty of life in prison. They have all pleaded not guilty to the charges. A Known Drug Dealer Rice, whose phones were tapped from June 23 to Aug. 7 of last year, was a known drug dealer, based on comments from defense lawyers, Russell said in his ruling suppressing the evidence. But the judge said the wiretap was illegal because it was the first step law-enforcement officers took in their investigation into his alleged drug dealing. Before resorting to wiretaps, the law says other investigative methods -- such as physical surveillance, confidential informants, search warrants, grand jury testimony and searching suspects' trash - -- should be attempted or rejected as ineffective or too dangerous, the ruling said. "Other than some uncorroborated thoughts and opinions, there is no evidence that any other investigative technique was ever used or even seriously considered," Russell wrote. The judge said in his 27-page opinion that the 40-page affidavit submitted by an FBI agent and approved by Chief U.S. District Judge John Heyburn II authorizing the wiretap was misleading and lacked specifics relating to the Rice inquiry. Russell said the affidavit included six pages under the heading "Alternative Investigative Procedures." It said surveillance had been conducted with minimal results that identified locations and vehicles they used. The affidavit also said surveillance posed an unreasonable danger for law enforcement because members of the drug organization have violent histories and "routinely carry firearms and wear bullet-resistant vests." Russell said those statements would prompt a reasonable judge to conclude that Rice had been under physical surveillance. But testimony at a hearing in the case revealed that was not the case, he said. "Assertions made in the affidavit about physical surveillance," the judge wrote, "are simply put, misleading." Statements about the dangers of the surveillance "are equally unavailing," the ruling said. The affidavit also said efforts to use a confidential informant were not successful, the judge noted, but there was no effort to cultivate a source relating to Rice. Another Drug Case The surveillance cited in the affidavit actually was used in an investigation of another suspected drug dealer, Shawn Bullitt, 25, whose cell phone had been tapped a month before officers got permission to record conversations on Rice's phone, the judge's ruling said. Bullitt was indicted separately, pleaded guilty to conspiracy to distribute crack cocaine and possession of cocaine, and was sentenced last month to eight years and two months in prison, according to court records. Investigators sought a wiretap on Rice's phone after Rice called Bullitt's tapped phone on June 13, 2004, and was overheard expressing an interest in a cocaine shipment that Bullitt said was too much for him to handle, according to the judge's ruling. In a brief he filed with the court, Chance said 4,280 conversations were intercepted on one of Rice's phones from June 23 to Aug. 7. A second cell phone under a wiretap from July 21 to Aug. 7 generated 38 calls. Rice and seven other defendants have been in jail pending the outcome of the case. Judge Russell has scheduled a telephone status conference Nov. 30. Crucial Evidence Defense attorney Keith Kamenish, a former assistant Jefferson commonwealth's attorney, said that without the wiretap evidence, he believes the charges will be dismissed and the defendants released. "I think they wouldn't have evidence that is not related to the wiretap," he said. Frank Mascagni, another defense lawyer in the case and a former assistant commonwealth's attorney, said he was unaware of any evidence not based on wiretaps. "I don't think it's a home run automatically, but my sense of it is it's damn close." Rice's lawyer, former federal prosecutor Scott Cox, wouldn't comment on the ruling. Rice has a long arrest record, including a murder charge in 1997 in a drive-by shooting and three drug-trafficking charges in state court. But he has only one felony conviction -- a 1996 charge for cocaine possession resulting in a one-year prison sentence, records show. In addition to the drug-conspiracy charge, Rice and two other defendants -- brothers Jose Alfredo Jimenez-Huerta and German Jose Jimenez-Huerta of Ohio, who are in the country illegally from Mexico - -- are charged with one count of possessing 48 pounds of cocaine, according to court records. Rice also is charged, along with defendant Terrell Gray, with firearms violations. The Arrests Law enforcement officers arrested Rice and the Jimenez-Huerta brothers on Aug. 7, 2004, after obtaining information that Rice planned to buy cocaine from the two at a McDonald's restaurant near Preston Highway, according to testimony at Rice's detention hearing after their arrests. Using drug dogs, law enforcement officers found 44 pounds of cocaine in the door panels of a Honda occupied by the brothers near the site, according to testimony. In carrying out search warrants, police also found another 41/2 pounds of cocaine in Rice's basement living quarters at his mother's home on Unseld Boulevard in Newburg, according to the testimony. The cocaine, weapons, ammunition, and more than $230,000 were found behind a false wall in a hidden compartment, according to testimony. Police also seized $3,000 from Rice's girlfriend's home, according to testimony. - --- MAP posted-by: Beth