Judges question ATF stings that lure suspects into fictitious stickups
Over a late breakfast at a Denny’s by the freeway in Torrance, two gang members listened to an offer of a lifetime.
A drug courier invited them to rob a house stashed with pure cocaine worth at least six, if not seven figures. There would be a couple of armed guards, the man said, but with the right crew and weapons, they could be overpowered.
“It’s like if one opportunity comes up ... man, this is it,” he said.
The gang members were the latest to receive an offer that’s been made again and again across the country for more than a decade. In the Southland, at least 100 people have shown up for the job, equipped with guns, ski masks and zip ties.
When they did, they were swarmed by federal agents and discovered that the courier was an undercover agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives. The stash house, drugs and armed guards were part of a fictitious plot to nab potential robbery crews.
Federal law enforcement officials hail the “reverse stings” as a reliable tool to crack down on violent drug robberies they say are seldom reported and difficult to investigate.
But a growing number of judges across the country, including two in Los Angeles, have turned their attention from the hapless defendants to the ATF’s tactics. Some of these judges have criticized the agency for casting a net so wide that it is likely to ensnare the poor rather than target those suspected of committing similar robberies.
While some who take the bait are hardened criminals with robberies and other violent crimes on their rap sheets, others are petty thieves, vandals, or drunk drivers with tenuous gang affiliations.
U.S. District Court judges in Los Angeles recently dismissed charges from so-called “stash-house stings” against six men in two cases — even though five of the defendants had already pleaded guilty. In each case, a judge made the rare ruling that the government’s conduct was “outrageous.”
In the case that came out of the Torrance meeting, Judge Otis D. Wright II found that the agent “goaded” the defendants into acquiring weapons and became a partner rather than a passive observer in the crime.
“The government [is] hitting individuals ... where they are most vulnerable: their depressed economic circumstances,” Wright wrote in March, dismissing the case against one of three defendants. “But for the undercover agent’s imagination in this case there would be no crime.”
Prosecutors contended the agent’s conduct was “beyond reproach” given that the men were given multiple opportunities to withdraw from the scheme and that they boasted of their past involvement in robberies.
The two Los Angeles cases are headed to the 9th Circuit Court of Appeals, where one is scheduled for oral arguments Thursday. The 9th Circuit has previously upheld convictions in such cases, but three judges on the court have recently written or joined dissenting opinions that offered scathing rebukes of the government’s methods.
One appellate judge wrote that the government’s approach “verges too close to tyranny” and likened it to Philip K. Dick’s science fiction short story “The Minority Report,” in which citizens are locked away for “precrime” — crimes they have not yet committed.
How the 9th Circuit rules could help decide the long-term fate of the stings.
Last week, the 7th Circuit threw out the conviction of a Chicago-area man sentenced to nearly 27 years in prison, finding that he should have been allowed to argue entrapment at his jury trial because the ATF informant “targeted [him] at a moment of acute financial need.”
“There’s the sense that the tide may be shifting,” said Katharine Tinto, law professor at Cardozo School of Law in New York who has tracked stash-house robbery cases. “The fact that several judges feel like this tactic has risen to a level of violating someone’s due process is very significant.”
Tinto said the cases raise a question about whether the stings prevent drug-related robberies or create would-be robbers who never would have become involved in such a crime.
“The defendants make bad choices, there’s no doubt about it,” she said. “But the question is: Do we want law enforcement creating situations where people make poor decisions, where the choices would not have existed in real life?”
The stash-house robbery ruse originated in Miami in the 1990s, when the ATF and the Miami-Dade Police Department started using the stings to crack down on drug robberies. The tactic — the ATF prefers to call them “home invasion operations” — has since spread to different parts of the country, with agents traveling from state to state to teach others how to stage the stings. In Los Angeles, where the ATF conducts stings with the LAPD, stash-house cases date back at least to 2002 and have resulted in sentences of up to life in prison.
Carlos Canino, who heads the ATF’s field office in Los Angeles, said the stings were a valuable tool for the agency to tackle the heavy traffic of drugs flowing through Southern California and the crimes that go with it. Canino, who himself worked undercover on stash-house cases around the country and has served as an instructor, said the tactic was employed sparingly and judiciously.
“If we wanted to go out and cast a wide net, we could do one of these a week — that’s not what we want to do,” he said. “This technique is designed to take trigger-pullers off the streets.”
One of the concerns raised by judges is whether the agency’s methods in selecting targets amount to trolling in poor, minority neighborhoods for people who would be hard-pressed to turn down the opportunity for quick cash.
In one Los Angeles case, an informant found the ATF a target by asking around in the South L.A. motel where he was living. In a Phoenix case decided last year by a three-judge panel of the 9th Circuit, a paid informant testified that he went looking for potential robbery crews in “a bad part of town.”
In that case, two judges found some of the government’s tactics “troubling,” but decided that it was not enough to justify overturning the defendants’ convictions. The third judge dissented, blasting the approach of law enforcement.
“The United States has enormous resources that could be used to tempt and trap criminals,” Judge John T. Noonan Jr. wrote. “If these resources are deployed to fire the imaginations of dreamers of easy wealth and turn them to conspiring to commit a crime, our government has been the oppressor of its people.”
The huddle at the Torrance Denny’s took place after one of the men, Cedrick Hudson, asked an acquaintance if he knew of any “come-ups” — street slang for robberies. The acquaintance happened to be a paid informant, who put him in touch with the undercover ATF agent. Under the guise of a disgruntled drug courier unhappy about his meager pay, the agent laid out the scenario of robbing a cartel stash house and even asked the men if they could bring him a weapon.
Hudson brought along Joseph Whitfield, who prosecutors say was a fellow member of the Eight Trey Gangster Crips. A third man, Antuan Dunlap, joined less than a week before the robbery. Unbeknown to them, every word they exchanged with the drug courier was being recorded. They discussed how pure cocaine could be sold for as much as $50,000 a kilogram in places like Nevada or Mississippi.
“I’ll never be broke again,” Whitfield said. “My kid’s kid gonna be straight.”
“That’s my small business right there,” Hudson said.
The crew met up for the job at an ATF-provided safehouse in February 2013. The men brought a loaded 12-gauge shotgun, a .38-caliber revolver, more than 100 rounds of ammunition, ski masks, gloves, zip ties and fake police uniforms. They admired a van with tinted windows provided by the undercover agent.
After the men were arrested, federal authorities discovered Hudson had convictions on drug and weapons charges, Whitfield for an attempted rape and drug sales, and Dunlap for robbery.
“The conspiracy was real; the guns were real; the defendants’ intent to use them to violently rob a cocaine stash house was real; and the defendants’ criminal histories were real,” prosecutors wrote in an appellate brief after Wright dismissed the case against Dunlap and Whitfield. (Hudson had already been sentenced to 72 months.)
Wright, in his order, wrote that the sting had crossed the line from being a justifiable investigative tool to an easy means of securing convictions “designed to never fail.”
“Society does not win when the government stoops to the same level as the defendants it seeks to prosecute,” he wrote. “Especially when the government has acted solely to achieve a conviction for a made-up crime.”
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