Appellate judges question ATF's use of 'reverse stings' at hearing

Judges criticize ATF's luring of robbery suspects with fictitious capers targeting made-up stash houses

Judges on a federal appellate court panel Thursday questioned the law enforcement practice of using "reverse stings" to entice would-be robbers to raid a fictitious cocaine stash house, with one judge calling the tactic "totally misguided."

The remark came during oral arguments before the 9th Circuit Court of Appeals in Pasadena in the case of two L.A. men who were charged with robbery and drug conspiracy after they showed up armed with guns and ammunition for the non-existent job.

The case, one of hundreds resulting from a long-standing ruse used by the Bureau of Alcohol, Tobacco, Firearms and Explosives, was thrown out earlier this year when District Judge Otis D. Wright made the rare finding of "outrageous government misconduct."

In grilling the assistant U.S. attorney who argued that the case should be reinstated, two of the three judges on Thursday's panel echoed concerns expressed by Wright and judges elsewhere in the country that the stings tempt the poor with the promise of a life-changing payday.

"I think the government is wasting resources, I think it is encouraging people to commit crimes they otherwise would not commit," Judge William A. Fletcher said, adding that the government's actions amounted to "dragging half a million dollars through a poor neighborhood."

"It's a totally misguided policy," he said.

A second judge, A. Wallace Tashima, challenged the prosecution's argument that the stings were protecting residential neighborhoods in which stash houses would typically be located by taking preexisting robbery crews off the streets.

"How can you say they're trying to protect neighborhoods where stash houses are hidden when all they're after is imaginary stash houses? That would be an imaginary neighborhood, right?" he said.

The judges nevertheless said they were bound by previous 9th Circuit decisions upholding similar cases.

The stings often start with an informant tipping off law enforcement about someone who might be interested in carrying out a robbery. An undercover federal agent then poses as a disgruntled drug courier who tells the targets about a house where a large amount of pure cocaine is stashed, guarded by an armed guard or two.

When the targets show up for the job with weapons, they are arrested and charged with armed robbery and conspiracy to distribute the non-existent drugs. The fictional quantity of cocaine triggers lengthy mandatory minimum sentences in most cases. In L.A., such charges have yielded prison terms of up to life in prison.

Whether Thursday's appellate panel reinstates the charges against the two men, Antuan Dunlap and Joseph Whitfield, is being closely watched by prosecutors, defense attorneys, academics and defendants with similar cases throughout the country.

Assistant U.S. Atty. Mark Yohalem defended the government's approach, noting that a third defendant, Cedrick Hudson, initiated the contact with a government informant by asking if he knew of any "come-ups," or robbery opportunities.

"This is not an instance where the government ran a net through a poor neighborhood, pulled up three people who had no idea what they're doing, shoved guns in their hands, and arrested them," he told the appellate panel. "It's exactly the opposite."

Fletcher questioned whether "come-ups" meant Hudson was looking to commit a violent robbery of the scale proposed by the government.

"It could mean any robbery opportunity, which might mean, you know, a lightly protected 7-Eleven," he said.

Dunlap's attorney, Lawrence Jay Litman, said his client was homeless and had been living out of his car when he was invited at the last minute to join the robbery crew. ATF agents, he argued, aren't targeting people already in a criminal enterprise to commit similar robberies, but impoverished people most likely to take the bait.

Attorney Sonia Chahin, representing Whitfield, said the government was creating foolproof scenarios to win convictions.

"These are ... often very unsophisticated individuals who are being offered an opportunity they may never see again," she said.

Twitter: @vicjkim

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