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Can law enforcement use "fake" crimes to create criminals?

This story is the first in a two-part series published by The Crime Report. Part Twowas posted, Thursday, Nov. 19.

The drugs were not real. The sentence was.

Emanuel Gerardo Cota-Ruiz, a 36-year-old Mexican immigrant living in Arizona, was sentenced in 2013 to ten years in prison for conspiring to rob a cocaine stash house.

Cota-Ruiz had no previous criminal history. He installed drywall. But, as his lawyer explained in court, he was unemployed and desperately searching for money to buy food, clothes and school supplies for his children when he was introduced to someone who described himself as a disgruntled drug courier. The courier said he knew there were as many as 39 kilos of cocaine stored in a house.

The man who introduced Cota-Ruiz to the drug courier was a paid confidential informant of the Bureau of Alcohol, Tobacco and Firearms (ATF). The drug courier was an undercover ATF agent. And the cocaine didn't exist.

Cota-Ruiz had fallen victim to an ATF "sting" first developed by Florida agents in the 1990s. The agents invented a plot to "rob" a non-existent stash house--a scenario they believed would help them catch some of the most violent players in the drug trade: Those who prey on fellow drug dealers.

But Cota-Ruiz wasn't a drug dealer. Neither were the three friends he recruited for the scheme--though one of them did have a prior criminal record (for an attempted breaking and entering). The only participant in the scheme who actually had a connection with the drug business was the confidential informant who, as court evidence showed, was trying to avoid deportation following an earlier trafficking arrest.

No one could deny that a crime was being planned. The ATF presented video and audio recordings at trial documenting the plot. Cota-Ruiz and the other defendants accepted a deal: In return for pleading guilty, each was sentenced to a relatively lenient prison sentence of 10 to 12 years.

The case could have ended there--another of the hundreds of drug cases prosecuted in courtrooms every day across the U.S. However, one of the defendants decided to appeal. The Ninth Circuit Court of Appeals denied the appeal in May, on the grounds that he had already waived his right to appeal when taking the plea bargain.

Evening News Online, 08.30.11

But rather than write a simple denial, Ninth Circuit Senior Judge Edward Leavy devoted five pages to a condemnation of the sting tactic. He said the "manifest injustice" of the ATF's actions should have led to a dismissal of the case at the district court level due to "outrageous government conduct."

"The infliction of a 121-month prison sentence on a defendant who, if simply left alone by our government, would otherwise be free, is a manifest injustice," Leavy wrote.

His comments reveal the difficulty of defending individuals who claim that police or over-zealous prosecutors have over-reached or abused their lawful authority or charge that police have used questionable tactics--what some might consider "extreme" policing.

Defendants in such cases could claim entrapment, a defense which dates back to the Prohibition Era. Entrapment is a defense in which defendants claim they were induced or persuaded by police to committing a crime that they wouldn't have otherwise committed.

But it's up to a jury to decide whether the claim is legitimate, and it can be an uphill battle if a defendant has a record (which can indicate "predisposition" to criminal behavior), or if a judge rules simply that he or she was "ready and willing" to commit the crime, which usually undermines an entrapment defense.

But they also have another tool: they can file a motion to dismiss the case due to "outrageous government conduct."

The motion has been used in many cases over the past four decades. In fact, that's what Cota-Ruiz and his co-defendants filed. But it failed.

That wasn't unusual. A Crime Report investigation found 126 motions to dismiss a case on the grounds of "outrageous government conduct" filed during an 18-month period between 2014 and August 2015.

In those 126 cases, only seven were initially successful. Three of those were overturned on appeal, and an appeal on the fourth is still pending--though it is expected to be denied.

In the rare occurrences where a claim of "outrageous government conduct" is successful, something profound can shift: police behavior.

In one instance this year, the motion's success directly led to a law enforcement agency changing policy on undercover sting operations involving prostitution.

Nevertheless, the small number of such motions--and the failure of most of them to stick--raises troubling questions for the future of American law enforcement.

Legal scholars interviewed by The Crime Report say the near-overwhelming failure of courts to rule aggressive police behavior is "not outrageous" when such motions arise has created a climate in which such behavior is likely to increase--while eroding the power of the judicial branch to check the government when it overreaches and, by implication, threatening Americans' constitutionally enshrined right to due process.

A handful of judges across the country have raised similar concerns in rulings that have received little attention.

Why Not 'Sentencing Entrapment'?

Defense lawyers do have another legal tool to curb the kind of overzealous law enforcement demonstrated by the "fake stash house robbery" sting.

They can claim, for instance, that a defendant has been the victim of sentencing "manipulation" or entrapment -- in which law enforcement agents in effect determine what sentence a defendant will receive by manipulating the amount of fictional drugs in the sting.

prop. 8, gay marriage, California
Judge Stephen R. Reinhardt (center) criticized law enforcement's use of "fake" crimes in a 2014 dissent AP Photo/Eric Risberg

The harsh sentences Cota-Ruiz and his fellow conspirators were facing--and to which they pleaded guilty as part of a bargain to reduce them--were entirely related to the fact that the amount of fake cocaine they were told (by the government) was in the fake stash house amounted to more than five kilos, which carries a mandatory minimum sentence of 10 years in prison.

Such sentencing "'entrapment" claims have in fact found some success in courts--as we'll show in Part Two of this investigation.

They allow judges more leeway to determine the culpability of the defendant, rather than feel hamstrung by mandatory minimums triggered by fake weapons or a specified fictional amount of drugs.

But at a time when the nation is debating whether and how to set limits on the conduct of law enforcement, the denial of "outrageous government conduct" claims may have effectively set the bar higher for questionable police tactics.

Leavy was not the only judge who has expressed frustration over his inability to check authorities' use of made-up information to ensnare targets of government investigation.

In 2010, Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals wrote:

In this era of mass incarceration, in which we already lock up more of our population than any other nation on Earth, it is especially curious that the government feels compelled to invent fake crimes and imprison people for long periods of time for agreeing to participate in them--people who, but for the government's scheme, might not have ever entered the world of major felonies.

Reinhardt's comments came in a dissent from a 2010 ruling that denied an appeal on the grounds of outrageous government conduct by Cordae Black and three other California defendants to dismiss a drug conviction obtained as part of another fake stash house robbery concocted by the ATF.

In the many cases where the motion fails, judges lament that they are bound by precedent--usually citing the ruling in US vs. Cordae Black.

Which is ironic, since the "outrageous government conduct" claim itself evolved from an almost casual comment by a future Supreme Court Chief Justice--a comment that was itself precedent-setting.

Tangled History

In 1973, then-Associate Justice of the Supreme Court William Rehnquist wrote in a majority ruling in US vs. Russell:

..We may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.

In the Russell case, a government agent supplied defendants with a key ingredient for making meth, without which they wouldn't have been able to manufacture the drug. Even though the defendants' guilty verdict was upheld, the concept outlined by Justice Rehnquist entered the legal canon.

A landmark 1952 Supreme Court decision was a harbinger of the outlined by Justice Rehnquist two decades later. In Rochin vs. California, the Court ruled that forcefully pumping morphine from a defendant's stomach to gain a conviction on drug possession had violated his due process rights -- and "shocked the conscience."

But there are few legal definitions to help decide what "shock" means, much less define whose "conscience" is being shocked. In theory, "outrageous government conduct" provides a clearer, more evidence-based guideline than a "shocked conscience."

But overwhelmingly, judges have still felt uncomfortable using it.

"Defendants who think that the government went 'too far' may make an entrapment defense or say that they lack the means required of the offense," wrote Judge Frank Easterbrook in concurring with a Seventh Circuit Ruling in the 1989 case of US vs. Miller.

"...If the investigators were too creative or squandered their limited resources, this is a political problem. Congress can hold oversight hearings or pass a law..."

Easterbrook continued:

"'Outrageousness' as a defense does more than stretch the bounds of due process. It also creates serious problems of consistency. The circuits that recognize a 'due process defense' can't agree on what it means. How much is 'too much'? Any line we draw would be unprincipled and therefore not judicial in nature. More likely there would be no line; judges would vote their lower intestines. Such a meandering, personal approach is the antithesis of justice under law, and we ought not indulge it.

Such queasy responses on the part of the judiciary help explain why the government almost always emerges victorious when an "outrageous conduct" motion is filed.

No claim of outrageous government conduct has ever reached the Supreme Court.

One comment by a judge in a 1993 Massachusetts case has often been quoted in negative rulings on the motion: "The banner of outrageous misconduct is often raised, but seldom saluted."

Former Chief Justice William Rehnquist AP (file)
A Dossier of Outrageousness

One law scholar in 1994 suggested that, considering the record of failure, in effect the defense was dead. But if it is, the news clearly hasn't reached defense attorneys or civil liberties advocates.

Motions on outrageous government conduct continue to be brought up in dozens of criminal cases in state and federal courts every year.

Are these the legal equivalent of spitting in the wind? Or does it reflect frustration with the growing impunity of authorities who feel they have been given a blank check by the courts to battle crime by any means they consider necessary in the public interest?

Of the 126 claims of outrageous government conduct filed in state and federal courts between 2014 and August 2015 (including new motions and upheld motions), identified and reviewed by The Crime Report, 105 were federal and 21 were from state courts.

(It's not a comprehensive list. There are undoubtedly more claims brought up during this time period, but state court records are not as easy to search. )

What's notable about the recent cases is the expanding envelope for questionable actions that law enforcement and prosecutors have achieved as a consequence of the denials of such motions, with the tacit support of judges.

The Crime Report's investigation found motions to dismiss for outrageous government conduct in cases involving drugs, guns, terrorism, child pornography, prostitution, contraband cigarettes, money laundering and more.

The three cases which made it through the legal wringer were:

  • A California case dismissed after a prosecutor inserted a false confession into a transcript of defendant's police interrogation;
  • Two prostitution cases in Minnesota dismissed after evidence showed officers had sexual contact with defendants (more details below).

Some judges themselves have publicly worried that as courts shoot down motions of "outrageous government conduct, " those rulings in turn will move the line of what courts consider acceptable law enforcement behavior in the future.

For example, Judge Reinhardt wrote that because the court determined the police conduct during a fake stash house sting in US vs. Black was not outrageous, it "sends a dangerous signal that courts will uphold law enforcement tactics even though their threat to values of equality, fairness, and liberty is unmistakable."

US vs. Cordae Black

US vs. Black has frequently been cited as a precedent for denying the claim of outrageous government conduct. But it may also have opened the door to even more aggressive police behavior.

In 2010, a California jury found Cordae Black, Angel Mahon, Kemford Alexander, and Terrance Timmons guilty of conspiracy to distribute cocaine and use of a firearm to traffic drugs, as part of a fake stash-house robbery operation conducted by the ATF. Each was sentenced to between 15 and 16-and-a-half years in prison.

During the trial, the district court judge denied the defendants' motion to dismiss the case due to outrageous government conduct.

Like other fake stash-house stings, a confidential informant was hired by the ATF to find targets who would be willing to commit a crime. In this case, the informant admitted in testimony that he trolled through "a bad part of town, a bad bar, you know . . . bars where you've got . . . a lot of criminal activity" to find people interested in the scheme.

A three-judge panel of the Court of Appeals for the Ninth Circuit denied Black's appeal, with one judge, John T. Noonan, dissenting. Noonan, appointed to the Ninth Circuit by Ronald Reagan in 1985, wrote a blistering dissent, saying that the ATF's actions "constitute conduct disgraceful to the federal government."

In effect, the appellate court decision provided tacit approval of the government to randomly dragnet low-income communities to find people willing to rob a stash house.

A second appeal by Black to request the entire Ninth Circuit to reconsider the case also failed. But again there were strong dissenting votes from two of the circuit court judges: Judge Stephen Reinhardt (quoted above) and Chief Judge Alex Kozinski.

According to Reinhardt, the majority rulings sent a message to other courts that law enforcement can violate constitutional rights without fear of being held accountable.

"Ultimately, the most dangerous aspect of the majority opinion is that it virtually eliminates constitutional limits on outrageous government conduct," he wrote.

The Black decision set an additional precedent that concerned civil liberties advocates by ruling it was permissible to consider criminal histories as one of six factors when determining if government conduct was justified.

Another factor which the Ninth Circuit said was determinative in the government's defense was the general difficulty in developing investigations in drug cases, which made such sting operations necessary.

As Reinhardt and others pointed out, such a consideration could be used to justify any kind of aggressive police conduct, even against those who have committed no crime but are considered likely to conduct one--a concept that later critics would label as "profiling."

He was right.

In The Crime Report's review of cases from the last two years, US vs. Black was cited repeatedly in courts nationwide as the new gold standard for defining outrageous government conduct. In the first case we mentioned, US vs. Cota-Ruiz, where three of the four defendants had zero criminal history, Judge Leavy concluded that if not for US vs. Black the case should have been dismissed outright.

In March 2014, California Central District Court Judge Otis Wright granted an order to dismiss indictments against two men arrested as part of a fake-stash house robbery. His motion to dismiss was later overturned because of US vs. Black.

During an oral argument of that appeal in late 2014, Ninth Circuit Judge William Fletcher slammed the Assistant U.S. Attorney and the ATF's tactic, but nevertheless said he was bound by court precedent in Black.

"You guys are dragging half a million dollars through a poor neighborhood ... I think it's a totally misguided policy," Fletcher said. But he quickly added, "Now the law's the law and I'm going to follow it, but I think you guys are making a mistake."

In May 2014, U.S. District Judge Manuel Real tossed indictments in a stash-house case due to outrageous government conduct, US vs. Flores, after he asked the government to provide evidence that the defendants were involved in previous drug robberies.

The government did not provide any evidence, arguing instead that the defendants' history of drug possession proved predisposition.

"If we were to accept the government's absurd proposition that prior drug possession was proof of a propensity for drug trafficking, then the current President of the United States, at least one former President, and at least one judge being considered for appointment to the Supreme Court of the United States would ostensibly, according to the government's theory, be just the types with the propensity to be narcotraffickers," wrote Real.

Citing US vs. Black extensively, the U.S. Attorney's Office appealed Real's decision. The case is now before the Ninth Circuit Court of Appeals and if other cases are an indication of its fate, his decision will be overturned as well.

The logo of the Vagos Motorcycle Club CBS

The Vagos Motorcycle Club

In another active case, US vs. Halgat, the ATF infiltrated a West Coast motorcycle club, Vagos, to determine if it was a criminal enterprise.

With help from an informant, pretty soon the ATF had one of its own undercover officers initiated as a "fully-patched" Vagos "brother." That agent became friends with Jeremy Halgat, who was targeted after he bragged about past criminal exploits, including allegedly beating up a Hell's Angel member and trafficking marijuana and grenades across the Mexican border.

But Halgat gave up trafficking drugs, he said, and in two years of undercover work, the only crime the ATF witnessed him doing was using cocaine.

"[Undercover ATF agent Agostino Brancato] applied pressure, supplied money, designed the plan, initiated four transactions, and falsified a report regarding one of the transactions. After five weeks of refusal, Halgat capitulated and agreed to participate at a minimal level," Magistrate Judge Cam Ferenbach wrote.

That "minimal level" was introducing Brancato to a man that Halgat knew to be a cocaine dealer and arranged the drug deals. Subsequently, Brancato -- who pretended to be a courier for a Mexican drug cartel -- asked Halgat to "watch his back" during a big drug deal.

The deal was bogus.

The ATF took ten kilograms of cocaine from its own supply of contraband, rented an airplane, and flew it to Searchlight, Nevada--where one ATF agent handed 10 kilograms of cocaine to another (Brancato).

Halgat never touched the drugs. He stood watch down a nearby roadway. For this, Brancato paid Halgat $1,000.

Halgat was charged with four counts of distribution of cocaine, one count of conspiracy to distribute 10 kilograms of cocaine and one count of using and carrying a firearm. He pleaded not guilty.

Judge Ferenbach recommended that the case be tossed due to "outrageous government conduct," but a higher court, citing US vs Black, overruled him. That case goes to trial next year.

What Happened to Due Process?

Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law who has written extensively on fake stash-house stings, believes the accumulating case law used to defeat outrageous conduct motions threatens the due process protections guaranteed under the Constitution.

"(It's) a real problem if you have judges thinking that this tactic (fake stings) really offends our basic constitutional values (but) they can't really do anything about it," Tinto said in an interview.

Eugene Marquez, who represented Cordae Black, described the tactic as the culmination of years of aggressive policing in poor neighborhoods.

"For decades we were sanctioning and allowing law enforcement to target poor people, target the weaker," he told The Crime Report. "They were constitutionally allowed to misinform people who were having contact with law enforcement. They could lie to them legally.

"This is all of that on steroids. (It's) the extreme culmination of those decades of attitudes, allowing law enforcement to behave with impunity out there in public."

Cordae Black and his co-defendants are some of the more than 1,000 people the ATF has locked up using this "fake stash-house" tactic, according to reports by USA Today.

As far as the government is concerned, "reverse stings" like the fake stash-house are crucial tools for law enforcement. The ATF conducted 24 of these operations in fiscal year 2014, and nine in fiscal year 2015 through September 16, according to ATF spokesman, Special Agent Brian Garner.

Insisting that those numbers make up an "incredibly small proportion of the ATF's annual arrests," he nevertheless added in an email to The Crime Report that the tactic "continues to be a very effective investigative tool in combating violent crime."

The Drug Enforcement Administration, as well as local law enforcement, have conducted similar operations.

Police lead one of the "Newburgh Four" suspects after his 2010 arrest for plotting to bomb two New York synagogues. CBS New York

Terrorism, Too

A landmark, controversial terrorism case, US vs. Cromitie, also moved the needle of what courts now consider to be acceptable police behavior.

In our review, we found that Cromitie, a case that has received a fair share of attention in the media and was the focus of an HBO documentary, was cited in numerous rejections of claims of outrageous government conduct.

In 2009, four poor African-American men from Newburgh, N.Y. were convicted of plotting to bomb two synagogues in the Bronx and shoot Stinger missiles at an aircraft base in upstate New York.

Lead defendant James Cromitie was recruited into the scheme by paid FBI informant Shahed Hussain, who had been working with the FBI since 2002 as part of a deal to avoid being charged for accepting cash to help drivers cheat on tests while he worked at the New York State Department of Motor Vehicles.

Cromitie, in turn, recruited three others.

To complete the "mission," Hussain offered Cromitie $250,000, a barber shop, a vacation, and a BMW, as well as thousands of dollars to the other defendants.

At one point, Cromitie cut off contact with Hussain, telling him he left town when he was really still in Newburgh.

Six weeks later, when Cromitie needed money, he called the informant.

"I have to try to make some money, brother," Cromitie said.

"I told you. I can make you $250,000, but you don't want it, brother. What can I tell you," Hussain said.

So Cromitie agreed to participate. The FBI informant drove the men, none of whom owned a car or had a driver's license, across state lines to Connecticut (so the case could be prosecuted in a federal court) to check out inert Stinger missiles. Later, the FBI informant drove the men to the Bronx with fake bombs.

There, Cromitie did not even know how to prepare the (fake) bomb, causing a judge on appeal later to refer to him as "comically incompetent." All four men were arrested with conspiracy to detonate weapons of mass destruction. Each is serving 25 years in prison.

During trial, the motion to dismiss for outrageous government conduct was denied.

"For a strong outrageous government conduct defense to exist it would have to include cases like the Cromitie case, where you've got a bunch of guys that can barely feed themselves and they tried to get away from this informant," said Francesca Laguardia, a professor of Justice Studies at Montclair State University and former research director for the NYU School of Law's Center on Law and Security.

Sting operations in the Second Circuit have used this case as a barometer for determining outrageous conduct.

Using Cromitie as a guide, courts have ruled that creating the opportunity to commit a crime to the point of "supplying defendants with materials essential to commit crimes," as well as "feigned friendship, cash inducement and coaching in how to commit the crime," does not warrant dismissal based on outrageous government conduct.

In a ruling on a sting case earlier this year, Connecticut District Court Judge Jeffrey Meyer expressed clear hesitation about the case, even quoting harsh criticism of similar stings in his order.

Nevertheless, after referencing the Cromitie case, he wrote, "... I am bound to follow the law of the Second Circuit. Unless the Second Circuit is prepared to reconsider or modify its precedent in this field, the facts of this case fall well short of establishing an indictment that is the product of outrageous government conduct."

Sam Braverman, a New York defense attorney who represented one of the defendants in US vs. Cromitie, appealed to the Supreme Court, which declined to hear the case. He said if the Supreme Court were to take up a case involving claims of "outrageous government conduct" -- or if Congress took some initiative -- what type of conduct is allowed and not allowed would become clearer.

"We're stuck in a position where we can't get judges to change the law and we can't get Congress to change the law," said Braverman in an interview with The Crime Report.

Minnesota Stings

During The Crime Report's investigation, we came across one example where a claim of outrageous government conduct impacted law enforcement behavior in the opposite way--setting clear limits on law enforcement behavior by changing police policy.

In a campaign to close massage parlors suspected of being fronts for prostitution in Minneapolis, an undercover police officer arrested a woman after paying her to rub her bare breasts on his chest and stomach, and to touch his genitals. A court ruled that was an example of outrageous government conduct.

In most prostitution cases, a sexual act is not necessary to charge the crime, just the agreement. But the officer in this case went far beyond that. The entire interaction was recorded, including all of the moaning by the officer, and so the Hennepin County Public Defender's Office filed a motion to dismiss.

A judge agreed and in August, the case was tossed, along with a second similar case. (Minnesota vs. Jackson and Minnesota vs. Brady)

Mary Moriarty of the Hennepin County Public Defenders Office said the outrageous conduct in this case was obvious.

"I tend to think that there is a little more awareness and more of a sense that this is just too far," she told The Crime Report.

In an unusual move, the government did not appeal the two cases that were tossed in August. Instead, the Minneapolis Police Department issued a statement saying it would no longer conduct such prostitution stings.

Totalitarian Future?

While the outrageous government conduct defense is still massively unsuccessful, those Minnesota cases show that it is an important safeguard against the threats outlined by Justice Rehnquist over 40 years ago.

Evidently, many judges still agree with him.

In 2013, Tenth Circuit Appellate Court Judge Neil Gorusch provided a powerful endorsement when he approvingly quoted commentators who suggest that it protects Americans against the "the day when our government finds itself at liberty to enlist everyone to spy on everyone else, a sort of hedge against a bleak totalitarian future."

Some critics might argue that the actions of some of our overzealous law enforcement agents have brought such a future closer.

That may be hype. But as the outrageous conduct defense continues to lose viability, the limits on what courts consider acceptable law enforcement behavior have expanded.

In Part Two, we'll look at how public defenders fighting these types of sting cases are developing new defense techniques in response to the persistent failure of outrageous government conduct motions.

The story was made possible through the generous support of the Fund for Investigative Journalism and readers who contributed through an IndieGoGo campaign.

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