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Sting or Entrapment?

Posted by Russell D. Hunt | Sep 10, 2010 | 0 Comments

Here's a new ploy from law enforcement–do you  think this passes the smell test?

  • Use confidential informants to "recruit" prospective robbers of drug dealers
  • This keeps the undercover informants' handlers hands clean
  • Once "recruited" by the CI, the undercover agent spins a yarn about being a disgruntled employee of the drug cartels
  • Yarn: I know a dope dealer we can rob, he's got kilos and kilos of cocaine–all we have to do is take it.
  • Agent's proposal:  I give you the lead, you bring the manpower and the hardware, and we will split the proceeds
  • Recruitee shows up  with some personnel to "rob" the "dope dealer"
  • Gotcha!  Police have busted a bunch of "robbers" who can now be charged with conspiring to possess kilos and kilos of cocaine.
  • Here's the catch–there was no cocaine, no dope dealer, no nothing.  Only a plan to do something impossible to someone nonexistent in order to possess something unpossessable.

In a recent story in the Austin American Statesman , local reporter Steven Kreytak spoke to several attorneys and the prosecutor of two separate but similar federal "stings" of this type in Austin which resulted in the arrest and indictment of at least 13 individuals in August.  From Steven's story:

"It just smells funny," said defense lawyer Russ Hunt Jr., who is representing [a defendant] charged in the more recent case. "There is no dope dealer. There is no dope.

"It seems kind of unfair, but the fact is that everybody showed up to do some kind of crime," Hunt said.

Prosecutor Mark Lane declined to comment, and Michael Reyes, resident agent in charge of the Austin ATF field office, would only say, "In general terms, we are always looking for ways to approach gun-related crime."

Defense lawyer Stephen Toland , who is representing [a second defendant] said Jaimes thought he would be repossessing cars for a used-car lot.

Toland said [his client] was recruited by a confidential informant who was not mentioned in the affidavit. Toland said the informant was intricately involved in setting up the case and at one point gave [his client] and the others ID cards that showed they were his employees.

Toland also said Facebook updates posted by the informant, whom he did not identify, appear to show that he profited from his cooperation. One update near the time of the arrests said, "Crime is up. Crime pays," Toland said.

Assistant Federal Public Defender Jose Gonzalez-Falla, who is representing defendants in both cases, . . .  said that the work of the informant will be scrutinized to determine whether he committed entrapment.

"If we can show that the confidential informant entrapped my client," Gonzalez-Falla said, "that's as good as if the government agent did it."

Here's the real difficulty for the defense attorneys trying to argue entrapment: entrapment requires government inducement on the one hand, and a lack of predisposition to commit the offense but for the inducement on the other.  This means that a person with some history of drug possession or robbery will have a much harder time arguing that the government overreached than someone with no criminal history.

Look for more commentary as the case develops.  In the meantime let me know what you think.

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