U.S. v. Simms

• Decision Date: 27 September 2004
• Docket Number: No. 03-13233.,03-13233.
• Citation: 385 F.3d 1347
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney L. SIMMS, a.k.a. Dina Falcone, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1347

385 F.3d 1347

UNITED STATES of America, Plaintiff-Appellee, v. Rodney L. SIMMS, a.k.a. Dina Falcone, etc., Defendant-Appellant.

No. 03-13233.

United States Court of Appeals, Eleventh Circuit.

September 27, 2004.

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Appeal from the United States District Court for the Southern District of Alabama.

K. Lyn Hillman, Carlos Alfredo Williams and Frederick W. Tiemann (Fed. Pub. Defenders), Fed. Def. Org., Mobile, AL, for Defendant-Appellant.

John A. Drennan, Dept. of Justice, Washington, DC, Charles A. Kandt, Richard H. Loftin, Mobile, AL, for Plaintiff-Appellee.

Before DUBINA, CARNES and CUDAHY^*, Circuit Judges.

CUDAHY, Circuit Judge:

I.

On September 2, 2002, Officer Terry L. Munn of the Alabama Department of Public Safety observed a silver late-model sedan tailgating a white Jeep. He initiated pursuit, and while following the vehicle, was radioed by Alabama State Trooper Charles Anderson, who told Munn to "be on the lookout" (BOLO) for a silver Mercury Sable with a Florida tag, gave Munn the full tag number and told him that the car was possibly transporting narcotics. (R. 5 at 212.) The description of the car in the BOLO matched the description of the car Munn was following. Munn pulled the car over, and it was being driven by the defendant, Rodney Simms.¹ Anderson soon arrived on the scene to assist Munn. During the traffic stop, Munn noticed that Simms appeared extremely nervous, with hands shaking. Simms also had a large cut on the side of his neck that had been stapled or stitched together. Munn advised Simms that he would be issued a traffic warning and asked him to accompany Munn back to his patrol car.

At the patrol car, while they waited for the results of checks on Simms' license, registration and outstanding arrest warrants, Munn, Anderson and Simms engaged in conversation about Simms' injury. Simms explained he was headed back to West Palm Beach, Florida after receiving medical treatment at a Veteran's Administration (VA) hospital in Houston. Both officers thought that this sounded a bit fishy. And Simms continued to appear very nervous even after being told that he was only getting a warning citation, which both officers thought was unusual in their experience. Immediately after receiving the results of the checks on Simms' records, but before returning Simms' documents to him, Munn asked Simms if he was transporting contraband and then obtained first oral, then written consent to search the vehicle. After written consent was obtained, the officers returned Simms' documents.

Anderson conducted the search. In the trunk, he found a steel wall that had been covered with carpeting, which extended across the back of the trunk, creating a secret compartment between the rear seat of the passenger compartment and the faux back of the trunk. Simms, when asked, denied any knowledge of work done to his car, which he had purchased only recently. A drug-sniffing dog alerted when it reached the steel wall in the trunk, and Anderson drilled through the wall. The drill bit came out covered with a white substance that field tested positive for cocaine, and Simms was arrested.

The BOLO, as it turns out, had been provided to Anderson by an agent of the Alabama Bureau of Investigation, David Fagan. The BOLO originated from officials in Houston, Texas, who had obtained a state court order allowing a tracking device to be installed on Simms' car. The court order provided that the tracking device could be used legally only within Texas, but it was apparently used to track the vehicle into Alabama, and the BOLO was based partly on information obtained from the tracking device after the vehicle was no longer in Texas. Specifically, a Houston police officer, Genni Ruzzi, who was also on a Drug Enforcement Administration (DEA) task force, had obtained the court order for the tracking device, had tracked Simms' car to Alabama and had then telephoned Sam Houston of the DEA. Houston contacted Fagan and provided him with the vehicle's location and description, which was then passed along to Anderson and subsequently to Munn in the form of the BOLO.² After Simms was arrested, Fagan arrived on the scene and spent several minutes rummaging around the vehicle, during which time he apparently removed the tracking device.

The court order authorizing the tracking device was obtained pursuant to an investigation of a suspected cocaine distributor, Oscar "Last Name Unknown" (LNU), who was later determined to be Oscar Martinez. A confidential informant (CI) had provided the police with information linking Martinez and Simms. During Simms' stay in the Houston VA hospital, his car was at various times in the hands of Martinez, the CI (who installed the secret compartment) and the DEA (which installed the tracking device).

Simms was indicted by a grand jury and charged with one count of possession with intent to distribute approximately 17 kilos of cocaine in violation of 21 U.S.C. § 841(a)(1). Simms filed a motion to suppress the cocaine, which was denied. However, Fagan later admitted to having instructed Munn and Anderson prior to the suppression hearing not to reveal the BOLO or tracking device unless directly questioned.³ As it turned out, individuals involved with the case in the U.S. Attorney's office who were aware of the tracking device had not informed U.S. Attorney E.T. Rolinson, who was in charge of prosecuting Simms' case at that time, of the existence of the tracking device or of the BOLO. When Rolinson learned of the tracking device subsequent to the suppression hearing, he disclosed it to the court and the defense, and a continuance of several weeks was granted to allow discovery and briefing of the issue. The government apologized to the court for its mishandling of the situation. Simms subsequently filed a motion to reconsider the denial of his motion to suppress and a motion to reopen the suppression hearing, both of which were denied. At trial, a jury found Simms guilty of possession with intent to distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). The court sentenced Simms to 262 months in prison.⁴

II.

As an appeal of a final judgment of the district court in a criminal case, we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

III.

Simms raises several issues on appeal.

A. Did the district court err in conducting an ex parte hearing with the government during trial?

B. Did the district court err in denying the appellant's motion to suppress drug evidence discovered in a hidden compartment in his vehicle, and/or did it abuse its discretion by denying the appellant's motion to reopen the suppression hearing in order to allow cross-examination and confrontation of witnesses in light of the newly disclosed existence of the tracking device?

C. Did the district court err in violation of local court rules in refusing to require pretrial disclosure of alleged Brady material and in erroneously refusing to grant a continuance when alleged Brady material was disclosed during trial?

D. Did the district court abuse its discretion by refusing to hold an evidentiary hearing concerning the appellant's claims of government wrongdoing?

E. Did the district court plainly err under Fed.R.Evid. 106 when it denied the appellant's motion to play a portion of a videotape?

F. Did the district court err under Fed.R.Crim.P. 16 or local rule 16.13 when it refused to compel the government to disclose the actual tracking device and to furnish information as to its use?

A.

Simms characterizes the ex parte discussions that took place between the government and the district judge on the first day of trial as improperly including "defensive theory, potential objections to testimony and the consequences of those objections." (Appellant's Br. at 41.) Being unaware that the ex parte discussion would encompass those topics, he argues that he had no opportunity to object to that aspect of the discussion until he learned of it in a subsequent review of the transcript.

The government bears the burden of showing that the defendant was not prejudiced by an ex parte communication, and the burden is "a heavy one." United States v. Minsky, 963 F.2d 870, 874 (6th Cir.1992) (citations omitted). Ex parte communications are, however, justified in order to protect a continuing criminal investigation and the safety of persons placed at risk by those investigations. See United States v. Nava-Salazar, 30 F.3d 788, 801 (7th Cir.1994). Here, the ostensible purpose of the ex parte discussion was to determine whether certain evidence related to the CI and to a continuing criminal investigation of Oscar Martinez was Brady material, which the defendant would be entitled to be made aware of. Simms does not object to that aspect of the ex parte hearing. Rather, he argues that the impropriety of the ex parte hearing was its alleged deviation from discussing the disclosure of sensitive Brady material to improper topics such as advice from the judge to the government as to when and how to object to testimony and a general discussion with the government of Simms' theory of defense. Our review of the transcript from the ex parte hearing, however, reveals no discussion which could have prejudiced the defendant. 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 — after all, the government does not need advice from the court on making objections. At oral argument, the only other prejudice Simms could point to was a purported lack of opportunity to develop a full record and lack of a fair tribunal. But Simms has shown us no evidence that the tribunal, ex parte discussions notwithstanding, was anything other than "full and fair."⁵ Because Simms did not suffer any prejudice from the purportedly off-topic discussions, we find that there was no error.

B.

Simms argues that the...