Pound Pup Legacy

Sunday, May 25, 2008
BY JOHN P. MARTIN AND JEFF WHELAN
Star-Ledger Staff

Phil Simone is a 51-year-old white man who works for Merrill Lynch in Jersey City and lives with his wife and children on Long Island.

Kevin Taylor is a 39-year-old black man who manages technology systems for insurer Marsh & McLennan in Hoboken and lives with his teen son in Newark.

The two men have never met, but forged an unlikely bond this month. In a span of four days, both endured harrowing ordeals because of mistakes by federal authorities.

On May 5, U.S. marshals arrested Simone at work and led him in handcuffs to a cell in Newark. They told him he had been charged with raping a boy in Guadalajara, Mexico, in 2002, and would be transported there to face trial.

Hours passed. Marshals fitted Simone with leg irons and brought him to a courtroom, where his wife sat with their children, sobbing. Simone also started to cry.

Simone shared the same name as the suspected molester but little else. He had a different birth date, no criminal history and had not been to Mexico in two decades.

Three days later, Taylor was sleeping in his second-floor bedroom at his Newark home when he was jolted awake at 6 a.m. Using a battering ram, a SWAT team of FBI agents crashed through his front door, ordered Taylor and his 16-year-old son to back down the stairs at gunpoint, then tied their hands with plastic restraints and separated and questioned them.

According to Taylor, the agents never produced a warrant -- not even a business card -- and ignored his pleas to explain why they were there. As they left, he said, one ripped a blank page from a notepad, scribbled an agent's name and number on it and told Taylor to call.

He did -- and got voicemail.

The agents had been dispatched to arrest Charles Muccigrosso, a reputed member of the Gambino crime family. But the 69-year-old known as "Buddy Musk" hadn't lived there since selling the house to Taylor in February, as public records or a routine surveillance might have disclosed.

Federal agents execute scores, if not hundreds, of arrest and search warrants throughout New Jersey each year. Most occur without a flaw, they say.

"Clearly, mistakes happen," said Special Agent Sean Quinn, a spokesman for Newark's FBI Division. He called the raid at Taylor's house "a mistake that was made in an earnest attempt to find the guy who lived in this house for years."

Meanwhile, officials are still trying to untangle how they arrested the wrong Simone. James Plousis, the U.S. marshal for New Jersey, said the error was rare but unacceptable.

"There is no question," he said. "It shouldn't have happened and I would apologize to the man."

SCOPE OF PROBLEM UNKNOWN

The Justice Department doesn't track how often such gaffes occur. Still, some seep into the spotlight.

Two years ago, the U.S. government agreed to pay $2 million to Oregon lawyer Brandon Mayfield, after detaining him for two weeks in connection with the Madrid terror bombings. The FBI blamed a faulty fingerprint analysis for the mistake; Mayfield claimed he was targeted because he is Muslim.

A year earlier, the government paid $100,000 to a California activist falsely accused of firebombing sport-utility vehicles at a dealership.

In 2003, a Maryland man collected a $1.3 million payout after an FBI agent mistook him for a bank robber and shot him in the face.

Measuring how often such mistakes happen is difficult because no one requires law enforcement agencies to catalogue them, according to Radley Balko.

In a 2006 study for the Cato Institute, a libertarian-leaning think tank, Balko estimated that at least 40 innocent people had died in bungled SWAT raids in the past 20 years, and countless more officers and suspects had been killed or injured. He said most mistakes involve local officers; he was surprised to hear about the misstep in Newark.

"It's rare to see that egregious of a mistake from the FBI," Balko said. "Checking the address and doing surveillance to make sure you have the right house is pretty standard."

Other critics say wrongful arrests occur just as regularly, at times to people whose only connection to a crime is their name.

"In these cases, the common name leads to someone," said Vanessa Potkin, an attorney for the Innocence Project, a New York-based legal clinic that has used DNA testing to free wrongfully convicted people. "And then tunnel vision causes police to continue to focus on the wrong person despite new facts."

The Rev. Jack Copas experienced that tunnel vision. His problem was not his name, but his face.

Copas, then the pastor of a Methodist church in Totowa, Passaic County, was helping a friend buy a car at a Paramus dealership in May 2001 when FBI agents surrounded him in the parking lot. An employee at the dealership had told police that Copas resembled an accused child pornographer profiled on the television show "America's Most Wanted."

Like the suspect, Copas had traveled extensively in Thailand. He went there for his ministry.

As employees and passers-by watched, agents rifled through Copas' car, ran checks on his credit cards and grilled him about photos of his children in his wallet, Copas recalled in a recent interview. "This FBI agent was desperate for me to be the guy," he said.

After two hours, Copas said, agents agreed to take him to a local police station, where a routine fingerprint exam proved he was not their fugitive.

Copas said the agents never apologized, but that one told him they were only trying to protect children. He said he told the agent: "You could have easily followed me, but instead you chose to humiliate me."

An FBI spokeswoman at the time noted that Copas and the suspect shared similarities, and that agents did not detain him longer than necessary.

Still, Copas' case drew widespread media coverage, and the dealership later gave him a free sport-utility vehicle. He said his status as a minister gave him credibility and visibility that many people in similar circumstances lack.

"What I fear the most is that people who are victims of this misidentification are powerless. They are absolutely powerless," he said. "It changes your life. You're never, ever the same again."

BLAMING MEXICO

The seeds of Simone's arrest were planted at least a year ago. 

In May 2007, court records show, Mexican officials asked the U.S. Justice Department to arrest two Americans, Thomas Grisard and Philip Anthony Simone. According to a complaint, the men had been in Guadalajara in 2002 when they allegedly lured homeless boys to an apartment and coerced or paid them for sex.

Officials determined Grisard, now 49, lived in Spring Lake. On March 12, a U.S. magistrate judge signed a warrant for his arrest. Deputy marshals picked him up that night at a gym in the Shore town.

Finding Simone was trickier.

According to court records and news clippings, a former East Hanover school guidance counselor, Philip Anthony Simone, had pleaded guilty in New Jersey to sexually assaulting children in 1998. That Simone served three years in prison, including a stretch at an Avenel treatment facility for sex offenders -- at the same time Grisard was there.

But Marshals didn't try to find that Phil Simone. Instead, they homed in on a man by the same name who lived with his family on Long Island. The arrest warrant, signed by a judge and prosecutor in Brooklyn, said the target lived in New Hyde Park.

Officials from different agencies struggled last week to explain why they arrested the wrong man. Plousis, the marshal, said Mexican officials gave his deputies the location of the target and a valid driver's license photo that matched the Long Island man.

He said he did not know where or how Mexican officers got the photo.

Robert Nardoza, a spokesman for the U.S. Attorney's Office in Brooklyn, also blamed the mistake on Mexico authorities, saying they gave the U.S. the Long Island address as the target. He said the Justice Department's International Affairs office was "working to try to get an explanation from the Mexican government."

A Justice Department spokesman referred questions back to the prosecutors in Brooklyn. Ricardo Alday, a spokesman for the Mexican Embassy in Washington D.C., declined to comment.

Deputy marshals first tried to arrest Simone at his home, but discovered he had left for work at Merrill Lynch's skyscraper on the Jersey City waterfront. There, they asked a security guard to call Simone to the lobby. Then they told Simone about the charges, handcuffed him and led him to Newark.

While Simone waited for a bail hearing, his family scrambled to enlist one of New Jersey's prominent defense firms, Chatham-based Arseneault, Whipple, Farmer, Fassett & Azzarello. Two attorneys began scouring records that would prove Simone wasn't in Mexico in 2002. In fact, he had been at work the day of the alleged assault.

"Phil has not been to Mexico in over 20 years," said Kelly Daniels, one of his attorneys.

The hearing was supposed to be a routine proceeding. Prosecutors planned to ask U.S. Magistrate Judge Michael Shipp to keep Simone behind bars until extradition.

Daniels pleaded with Assistant U.S. Attorney Robert Kirsch to look harder at the case.

A veteran prosecutor, Kirsch had handled Grisard's bail hearing two months earlier. The man marshals picked up in Jersey City appeared to be an odd match. Grisard was an ex-con who lived with his mother and worked part time at a motel; the Simone in cuffs and shackles had 27 years with the same employer and a stable family life.

Plus, his birth date was different from one listed on the arrest warrant.

After digging on his own and consulting with his bosses, Kirsch returned to court. He took the unusual step of asking the judge to free Simone on bail until officials could confirm they had the right man. Shipp agreed.

Days later, prosecutors dropped the charges entirely.

"This office recognized a problem concerning the identity of the accused and we acted accordingly," Kirsch said last week. He would not elaborate.

Through his attorneys, Simone declined to comment on the ordeal.

"It was very emotional for him and his whole family," Daniels said. "They are looking forward now to just clearing his name."

The other Simone remains at large.

Potkin, from the Innocence Project, said the Long Island man enjoyed an advantage that many other victims of misidentification don't: money for lawyers.

"Access to high-powered defense can be the difference between clearing it up in a few weeks," she said, "versus a few decades."

A FATEFUL DISCOVERY

Taylor discovered the house on Ridge Street over the winter, thanks to a real estate agent. After spending the past decade in New York, he found the neighborhood, a few blocks from Newark's Branch Brook Park, to be a cozy, middle-class enclave.

The agent introduced Taylor to the sellers. After a quarter-century in the house, the Muccigrossos were trading down for something smaller, he was told. He wondered if the couple, both pushing 70, might have had trouble navigating the staircase.

Charles Muccigrosso liked to paint, Taylor learned, and his work adorned the walls, as did photos of his children and grandchildren. They seemed likable enough. Taylor even attended a going-away party that neighbors threw for the couple.

He didn't know Muccigrosso had a criminal record that spanned decades.

A year ago, state and local police had arrested Buddy Musk at the same house on racketeering charges. Muccigrosso made bail. He knew that federal prosecutors were preparing similar charges and that another arrest was looming, according to his attorney, Vincent Scoca.

"He had no intention of going anywhere," Scoca said. "He's got no history of evading the police or evading arrest."

Quinn, the FBI spokesman, said agents had no reason to believe Muccigrosso had moved. He cited Motor Vehicle Commission records, which Quinn said suggested the reputed mobster had not changed his address. (Property records, meanwhile, showed that Taylor bought the house from Muccigrosso's wife on Feb. 28.) But Quinn declined to say what, if any, other steps agents took to verify Muccigrosso was at the house before raiding it.

Ten weeks after Taylor and his son, Zachary, arrived, the walls were still bare. The living room consisted of a few scattered moving boxes and two pieces of furniture: a futon-style sofa and a tall wardrobe closet. A flat-screen television sat on the hardwood floor, and Taylor's Nissan Altima, with New York plates, was in the driveway nearly every night, he said.

John Gnagey, the executive director of the Pennsylvania-based National Tactical Officers Association, said his group trains officers to learn targets and neighborhoods before executing warrants. That means checking records, surveilling the blocks, enlisting local police, sometimes even rummaging through the target's garbage.

"One of the things you do check -- and if you don't, shame on you -- is you make sure that the person that you're looking for actually lives there," said Gnagey, a former SWAT officer in Illinois.

Taylor said the raid lasted about 30 tense minutes. He said he was wary of antagonizing the agents, but frustrated about the lack of information. He said they told him they couldn't say who they were looking for, only that "the guy was really violent."

Later that morning, agents stormed into Muccigrosso's home in Toms River and arrested him there.

Two weeks after the raid, Taylor's front door was still dented and splintered, his porch frame cracked. Shattered glass from the inner door window sat in a pile on the living room floor. Taylor said he was less bothered by the damage than by agents' apparent lack of preparation.

He said he initially thought he and his son were the victims of a home invasion by a gang and wondered what would have happened if he had a gun. Or if his son had wandered downstairs in the minutes before agents burst in.

"Normally, when you have a case like that there's a picture of the guy you're supposed to pick up," he said. "At what point did they realize that two African-American males were not part of the Gambino crime family?"

Taylor waited about six hours before an agent returned his call, he said. That night, two agents came by the house to apologize, he said. They said the bureau would reimburse him for the repairs, but couldn't say when.

"We're dealing with it fairly and squarely and replacing the door," said Quinn, the FBI spokesman. "Nobody's leaving him high and dry."

John P. Martin may be reached at (609) 989-0379 or jmartin@starledger.com. Jeff Whelan may be reached at (973) 622-3405 or at jwhelan@starledger.com.

 Video of the story:  http://videos.nj.com/star-ledger/2008/05/innocent_and_detained.html