Law enforcement entrapment getting a closer look

The FBI does it like clockwork to make sure everyone knows the FBI hunts terrorists, whether they are real or not. Now the BATF gets slapped down for trying the same thing. Go after actual criminals, don't try to make new ones. [Link]

For years now, we've been writing about the FBI's now popular practice of devising its own totally bogus "terrorist plots" and then convincing some hapless individual to join the "plot" only to later arrest them to great fanfare, despite the fact that everyone (other than the arrested person) involved was actually an FBI agent, and there was no actual danger or real plot (or real terrorists) involved. In fact, we just had yet another such story. We've written about similar occurancesover and over and over and over and over and over and over and over and over and over andover again -- and, depressingly, it seems that courts repeatedly uphold this practice as not being entrapment. Many have been questioning why the FBI is spending so much time and money creating fake terrorist plots that don't seem to protect anyone (but do give the FBI/DOJ lots of big headlines about "stopping terrorism!"), but the courts have basically let it go. 

However, it finally appears that one judge thinks these kinds of things go too far -- and it happens to be Judge Otis Wright, whose name you may recall from being the first judge to reallyslap down Prenda law for its obnoxious copyright trolling practices. Reader Frankz alerts us to the news Wright has dismissed a case involving the Bureau of Alcohol Tobacco and Firearms (ATF) for a similar "made up crime" and completely trashed the government for doing these kinds of things. As with his order in the Prenda case, I urge you to read his full dismissal which is granted for "outrageous government conduct." Judge Wright, it appears, is not one to hide his opinions about those who abuse the legal system. The ruling kicks off with a hint of where this is heading:

“‘Lead us not into temptation,’” Judge Noonan warned. United States v. Black, 733 F.3d 294, 313 (Noonan, J., dissenting). But into temptation the Government has gone, ensnaring chronically unemployed individuals from poverty-ridden areas in its fake drug stash-house robberies. While undoubtedly a valid law-enforcement tool when employed to target or prevent demonstrated criminal enterprises, reverse stings offend the United States Constitution when used solely to obtain convictions.

This case didn't involve "terrorism" like the FBI cases, but rather a similar "reverse sting" in which an ATF agent pretends to be a cocaine courier, tells some dupes about a "stash house" he knows about and then pushes them to rob the house. The ATF agent convinced a couple of guys, Cedrick Hudson and Joseph Whitfield, to take part, and they eventually brought along a third guy, Antuan Dunlap, after the ATF guy kept asking them to bring along associates. The group, lead by the ATF agent's detailed plan, agreed to rob this house and then were all arrested. It's the third guy, Dunlap, who argued that the government was engaged in outrageous conduct. The government claims that Dunlap bragging about being involved in past robberies means that it was perfectly reasonable to arrest him here, but Wright isn't having it:

the Court finds that the Government’s extensive involvement in dreaming up this fanciful scheme—including the arbitrary amount of drugs and illusory need for weapons and extra associates—transcends the bounds of due process and renders the Government’s actions outrageous.

Wright is not persuaded by the fact that Dunlap apparently bragged about his criminal past to the ATF agent, noting the reality of the situation:

It makes little sense to justify the Government’s capricious, stash-house scheme at its inception by what Thompson later learned about Dunlap. In a situation where an apparently experienced cocaine courier is boasting to some small-time crooks about the chance to hit the mother lode, it is only human nature that the individual is going to try to impress the courier with wild tales of past criminal conduct. In this case, there is no evidence that Dunlap actually robbed a Western Union or Nix. But even if he did, Thompson did not learn about Dunlap’s alleged past crimes until after Dunlap joined the doomed-to-fail crew. The Government cannot bootstrap this post hoc knowledge to justify the scheme from the beginning.

Those commercial robberies also bear little upon the fictitious stash-house scheme or the home invasions the ATF sought to eliminate. In fact, when Dunlap was bragging about this past exploits, he disavowed any connection to drugs:

[Dunlap]: Keep my ass clean. I never touch dope. I’m just saying though.

[Whitfield]: He’s a jack boy, he don’t know nothing about no drugs.

So contrary to the Government’s contention, Dunlap’s “admissions” only served to demonstrate that he had no propensity to commit drug crimes—the entire subject of the reverse sting.

Judge Wright clearly sees how allowing this kind of activity is going to lead to serious problems, especially as law enforcement can prey on desperate individuals, coax them into various plots, and then arrest them:

Allowing after-the-fact knowledge to mitigate the Court’s concerns in a situation like this also creates a perverse incentive for the Government. It encourages the Government to cast a wide net, trawling for crooks in seedy, poverty-ridden areas—all without an iota of suspicion that any particular person has committed similar conduct in the past. And if the Government happens to get it right and catch someone who previously engaged in crime, the courts will place their imprimatur on the whole fishing expedition.

The Court declines the invitation to endorse this nab-first-ask-questions-later approach. While this situation is a win-win for the Government, it is really only lose-lose for the unwitting individuals unlucky enough to fall into the Government's net. If they have never committed criminal activity in the past but agree to participate in the fake robbery, they go to prison—unless they can surmount the Everest-like hurdle to establish an entrapment defense.

This is important, because many people try to fight back against these kinds of cases with claims of entrapment, but Judge Wright correctly notes that (unfortunately) the bar to meeting an entrapment claim is ridiculously high. However, it's pretty obvious that there is no crime hereabsent the government's own intervention:

But for the undercover agent’s imagination in this case there would be no crime. The undercover agent invented his drug-courier persona, the stash house, the 20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals supposedly guarding the stash, the need to use weapons, and the idea of robbing the stash house. He even provided the putative safe house and getaway van. Dunlap brought little to the table besides his sheer presence and perhaps the hope of being able to obtain some quick cash.

.... Despite the Supreme Court’s admonition, the ATF manufactured this entire crime. It did not infiltrate an ongoing criminal enterprise, as there is no indication that Hudson, Whitfield, and Dunlap had any previous criminal affiliation between them.

Furthermore, Judge Wright notes that the government encouraged the activity, even if it wasn't to the level of entrapment, it was still quite clearly the key driver of the entire "crime" and that's what makes it "outrageous."