Tag Archives: stash house

Reeling in Some ‘Desperate Targets’ – Update for November 20, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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7TH CIRCUIT UPHOLDS ANOTHER STASH HOUSE STING, BUT WITH SCATHING CONDEMNATION OF GOVERNMENT

You know the story by now. After prison, Tracy Conley was getting his life together. He had a job, a car, and a girlfriend. He was regaining his footing one step at a time.

stash171120At least he was, until a series of unfortunate events. Tracy got to work one day to find the machine he operated was down. His employer sent him home. He started to drive back to his girlfriend’s house, but in a second stroke of bad luck, was running out of gas. He stopped at a gas station, and saw two friends, from whom he tried to borrow a few bucks for some fuel.

The friends convinced him to come to a meeting instead, where a guy named Myreon pitched them all on robbing a drug stash house stuffed with cocaine. Of course, there was no stash house and no 50 kilos of powder. Instead, the whole scheme was orchestrated by the ATF.

Tracy and the others were thus ensnared in what the 7th Circuit called “a now familiar government set up in which a government actor, pretending to be a criminal, presents the defendant with an opportunity to be part of a robbery of an illegal drug stash house. The stash house is fictional, of course, and so the government decides which and what quantity of drugs it will have (in this case, fifty kilograms of cocaine) and how high or low the barriers to the crime will be (in this case it was allegedly protected only by two armed and one unarmed guards). Tracy took the bait and ended up with a sentence of 180 months’ imprisonment on drug distribution and weapons charges.”

The Circuit upheld Tracy’s conviction and sentence (which was way below his Guidelines range), but had to pinch its collective nose shut to do so. Reviewing the district court’s unhappiness with the case and widespread judicial criticism of stash house “stings,” the 7th said:

The district court’s discomfort with this case echoes a substantial body of criticism of similar stash house cases both from this circuit and others. Beginning many years ago, we criticized these cases as “tawdry,” noting in particular how these operations are “directed at unsophisticated, and perhaps desperate defendants” like Tracy who easily take the all-too-tempting bait put out for them by the government.

stash171031In this case, Tracy may have been starting down a straighter path, after a life filled with many poor choices. He was gainfully employed, had obtained his GED, enrolled in some college courses, and had skills in electronics and marketing. But he was also an ‘unsophisticated and desperate’ target, so down on his luck that he did not have even enough money to get home from work on the day he was approached by his co-conspirators… Like the district court, we ‘question the wisdom and purpose of expending the level of law enforcement resources and judicial time and effort in this prosecution’. But the resources have been expended and the district court conducted an exceptionally thorough post-trial review and ‘after much consideration, time, reflection and review of the parties’ arguments and the trial record’ properly denied the motion for acquittal or new trial on all charges.

United States v. Conley, Case No.15-3442 (7th Cir. 2017)

– Thomas L. Root

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Trick-or-Treat… It’s the ATF – Update for October 31, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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ANOTHER MONTH, ANOTHER STASH HOUSE “STING”

ATF-o-lantern171031Richard Zayas, ATF agent and professional “stash house sting” promoter (with more than 100 to his credit) took his show on the road to Cleveland, where he was again successful in finding young, poor black defendants to recruit into his fictitious robbery ring.

The “recruits,” including one poor kid with no prior criminal record, showed up at “work call,” guns in hand, ready to pull off the nonexistent job. The ATF cuffed them all and hauled them away. They were, of course, convicted in due course.

On appeal, the defendant argued that the indictment should have been dismissed based on outrageous government conduct. They argued that the Government’s conduct “created and encouraged the defendants’ commission of the offense by luring the impoverished… defendants with the promise of a large payoff, making repeated requests for meetings over a short period of time, making repeated demands for their commitment to the conspiracy, suggesting and enabling their possession of firearms, by providing transportation via the confidential informant to a pre-robbery meeting, and by providing them with a car to use for purposes of the robbery.”

stash171031Last week, the 6th Circuit upheld the convictions. The Court noted that while some circuits said that under the outrageous government conduct defense, government involvement in a crime may be “so excessive that it violates due process and requires the dismissal of charges against a defendant even if the defendant was not entrapped,” the 6th Circuit had not previously held that the government could be so outrageous as to bar prosecution, and it was not going to do so here.

One of the defendants, who was recruited by an informant acting on Agent Zayas’ direction, claimed “indirect entrapment.” Entrapment is normally carried out by law enforcement; indirect entrapment occurs when “a person is brought into a criminal scheme after being informed indirectly of conduct or statements by a government agent which could amount to inducement.”

Maybe people are indirectly entrapped somewhere else, the 6th Circuit said, but it has “explicitly chosen not to adopt the doctrine of indirect entrapment.” The defendants were out of luck.

Like other “stash house stings” across the country, this opinion drew a sharp concurring opinion. While upholding the conviction, Judge Stranch complained that the stings preyed overwhelmingly on minorities in impoverished neighborhoods. She wrote,

it seems we remain without an established vehicle in the law to define a dividing line between law enforcement practices that are honorable and those that are not. In the interim, these questionable schemes continue to use significant government resources and to adversely impact the poor, minorities, and those attempting to re-integrate into society. And they apparently do so with no increase in public safety and no deterrence of or adverse effect on real stash houses. These costly and concerning sting operations do not accord with the principles of our criminal justice system and I hope they will be discontinued.

United States v. Flowers, Case No. 15-3988 (6th Cir., Oct. 24, 2017)

– Thomas L. Root

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3rd Circuit Losing Patience with “Stash House” Reverse Stings, Approves Easier Standard for Defense Discovery – Update for Friday, September 1, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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LET’S GO ROUND US UP SOME POOR BLACK DEFENDANTS…”

We recall a counter-culture cartoon from the early 1970s criticizing big business getting into the environmental business: one fat cat telling another, “We get paid to make the mess. We get paid to clean it up. Business couldn’t be better.”

mess170901The old punch line comes to mind every time we read another “stash house” reverse-sting case. The story line is well known to everyone except, it would seem, the black guys in the poor part of town. An ATF undercover officer convinces some poor sap to rob a fantasy drug “stash house” that invariably is alleged to contain 10 kilos of drug or more. The unemployed “mark,” who has a felony record that makes getting a job problematic, doesn’t have two nickels to rub together. But he can perform simple math, and the math is 10 kilos of coke at $40,000 a key divided five ways equals a bigger pile of money than he’s ever seen before. So he recruits some other guys as desperate as he is, and they all gather with whatever guns they can find, in order to set off with the undercover guy to the target stash house.

There is no stash house, but there is a SWAT team ready to take them down.

The ATF manufactures the crime. The ATF performs the bust. Business couldn’t be better.

Notice we said “poor black guy.” That’s not a stereotype, but rather an acknowledgement of fact. cover ATF agent, who had developed the scenario from the ground up. The cocaine did not exist. The entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Askia, contributing to a total sentence of 264 months in prison — far more than even the statistics show that the defendants trapped in the reverse sting net are overwhelmingly black, so much so that some serious charges of discrimination have been raised against the practice.

From a defense perspective, it’s very hard to make a case for selective prosecution. The prevailing standard pretty much requires that you have the smoking gun in your hand in order to even win the right to engage in discovery to try to find the smoking gun. Exacerbating the problem is the obvious: you’re not arguing your client did not do what the indictment said he did, but rather arguing that how the government ensnared him is so contrary to fairness as to violate his right to due process of law.

The courts do not much like “stash house” cases, but they continue to hold their noses and uphold convictions. That happened earlier this week in Philadelphia, but the 86-page decision lightens the load for defendants attacking the “stash house” scheme and implies that the courts’ patience may be nearing an end.

stash170901The story is quotidian: Acting on what appeared to be insider information from a drug courier, Askia Washington and his three co-conspirators planned to rob a Philadelphia “stash house” where they thought 10 kilos of cocaine were being stored for distribution. They discovered on the day of the robbery that the “stash house” was a trap set by law enforcement. Their “courier” was an under ringleader of the conspiracy received.

His co-conspirators took pleas (getting sentences from 27 months to 180 months). Askia went to trial, beating an 18 USC 924(c) count but losing on the drug conspiracy and Hobbs Act counts. The jury found that the conspiracy involved at least 5 kilograms, and a very old drug possession conviction Askia had was used to increase the mandatory minimum sentence to 240 months.

Before trial, Askia tried to get government records to support his claim that Philadelphia-area “stash house” sting targets were selected by race, but the district court denied him on the ground that he could not show evidence of discriminatory effect and discriminatory intent, that is, evidence that similarly situated individuals of a difference race or classification were not prosecuted, arrested, or otherwise investigated.

dog170901This of course has the flavor of a dog chasing its tail. You need the evidence you’re trying to obtain in order to get permission to obtain it. But that has heretofore been the standard for getting the right to pursue a selective prosecution claim.

With considerable reluctance, the 3rd Circuit upheld Askia’s conviction and sentence, but not without a lot of misgiving:

In sum, we conclude that the 5 kilograms of cocaine charged in the indictment and found by the jury did not amount to an impermissible manipulation of sentencing factors by the government. To the extent that the fictitious 10 kilogram quantity is relevant, we find too that Washington has shown neither improper manipulation nor prejudice. Nevertheless, we remind the government that we have expressed misgivings in the past about the wisdom and viability of reverse stash house stings. That this case fell on the safe side of the due process divide should not be taken to indicate that all such prosecutions will share the same fate. As one of our colleagues said in a prior case, “I do not find it impossible for the Government to exercise its discretion rationally to set up stash house reverse stings. But I share the concern that this practice, if not properly checked, eventually will find itself on the wrong side of the line.

The Circuit differentiated between “selective prosecution” claims and “selective enforcement” claims. “‘Prosecution’,” the 3rd said, “refers to the actions of prosecutors (in their capacity as prosecutors) and ‘enforcement’ to the actions of law enforcement and those affiliated with law-enforcement personnel.” The key distinction between prosecutors and law enforcement is that prosecutors are “protected by a powerful privilege or covered by a presumption of constitutional behavior”… while FBI and ATF agents “regularly testify in criminal cases” and have their credibility “relentlessly attacked by defense counsel.”

boot170111The Circuit held that in “stash house” cases, a district court may conduct a limited pretrial inquiry into the challenged law-enforcement practice on a proffer that shows some evidence of discriminatory effect, saying that “the proffer must contain reliable statistical evidence, or its equivalent, and may be based in part on patterns of prosecutorial decisions… even if the underlying challenge is to law enforcement decisions.”

Although Askia’s conviction remains in place, the Circuit remanded the case for the district court to permit the limited discovery. If evidence of selective enforcement was developed, the district court is free to dismiss the indictment.

The lone dissenting judge blasted Askia’s 265-month sentence:

Surely, sentences should bear some rational relationship to culpability. Otherwise, the entire enterprise of criminal sanctions is reduced to little more than an abstract matrix of numbers and grids. Yet, on this record, there is absolutely nothing to suggest that Washington would not have conspired to rob a stash house containing, for example, a kilogram less than the 5-kilogram mandatory trigger. No mandatory minimum would have “applied” had this trap been baited with the illusion of a stash house containing four kilograms (translating roughly to upwards of $160,000 in value based on the trial testimony)—thereby placing him beyond the reach of the perceived need to impose a 20-year statutory mandatory minimum sentence.

United States v. Washington, Case No. 16-2795 (3rd Cir., August 28, 2017)

– Thomas L. Root

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