Mimesis Law
24 May 2019

Snitches Helping Themselves

August 4, 2016 (Fault Lines) — Judge Kopf recently wrote a post giving some pointers on representing snitches in the federal court system. In it, he expressed some pretty strong opinions on lawyers who won’t stoop to doing that kind of work:

Moreover, for many “snitches,” cooperation is the only salvation for them and their families. What the hell would you do if you were caught after being hooked into an enterprise so cruel and so violent that you had no choice but to participate?  The two most frightened “snitches” I have ever seen were two big-time mules for a Mexican cartel that picked up money and delivered drugs throughout the Midwest. Their deal with the government was to get their families out of Mexico. So, screw you if don’t represent snitches. Those poor bastards needed someone’s help, not to mention their wives and children.

The old saying is that “the gods help those who help themselves.” Some snitches take that to heart, only with the police, the prosecutor or the judge playing the role of deity. The Michigan Court of Appeals recently issued a decision overturning the conviction of a big time drug kingpin poor bastard who wasn’t hurting anyone. The case went like this:

This case began when the Mid-Michigan Area Group Narcotics Enforcement Team (MAGNET) began investigating Corey Telfor. Telfor was a medical-marijuana caregiver and patient, but MAGNET’s search of his home uncovered an impermissible amount of marijuana. Detective Eric Leonard offered Telfor an opportunity to mitigate the legal consequences against him by assisting with controlled drug buys on MAGNET’s behalf. Telfor agreed.

So, obviously, Telfor went to the bad part of town, hunted up the toughest and most dangerous smack and/or coke dealer he could find, and put his life in danger to expiate his guilt, right? Wrong:

At the preliminary examination, Telfor described that he suggested Johnson as a possible target. The two worked together at a manufacturing facility, but in different departments. Telfor knew that Johnson was a medical marijuana patient.

Johnson had been hired as a production line worker in February 2013. His $10.40 hourly wage made it difficult to support his family of four. Telfor was a supervisor in the welding department. An entry-level welder earns more than $4 an hour over a linesman’s wage, and there was room for advancement in the welding department. Telfor agreed to meet Johnson every day in the shop before work to teach him welding. Telfor told Johnson, “[I]f [you] take care of [me], [I will] take care of [you].” Johnson interpreted this to mean that Telfor’s assistance was conditioned on Johnson providing marijuana when requested.

Telfor arranged for Johnson’s transfer to the welding department, and in return Johnson sold him a small amount of marijuana three times. After the third sale, Johnson was arrested. The buys took place over a period of several months, and in the meantime Telfor made himself out to be a Johnson’s friend…reeling him in for the catch, as it were.

Well, so what? Selling marijuana is illegal, and God knows to what use Johnson, this dirty dealer of the devil’s weed, was putting his ill-gotten gains:

Johnson has a wife and two children to support, yet he was earning only $10.40 an hour on the production line. The additional $4.10 or $4.20 an hour as a welder was “a lot of stress relief” to Johnson’s family. Johnson was able to pay off expenses incurred for his father-in-law’s funeral and work toward buying a newer, safer vehicle for his wife. He secured contact lenses for one son and orthodontic treatment for the other. Johnson was able to purchase nicer clothing for his children so they would be “more presentable at school” and took the family camping. Johnson did not seek out advancement at work to live a lavish lifestyle. Johnson’s promotion essentially brought the family above the poverty line.

And Johnson felt obligated to continue to satisfy Telfor’s requests once Telfor became his supervisor in the welding department and held Johnson’s job security in his hands.

Funeral expenses, a better car (a late model Lamborghini, no doubt), the gift of sight for one kid and straightened teeth for another, along with some nicer clothes. And that wasn’t even from the marijuana sales, it was because the snitch bribed him with a better job.

What’s interesting about this case is that the Court of Appeals actually recognized economic pressure as a means of entrapment, and that for someone making $10.40 an hour with a wife and two kids, “bringing his family above the poverty line” provides one hell of a motivation to break the law. And even more than that, that they had enough empathy to rule in his favor.

As any lawyer who has seen his client led out of the courtroom in cuffs for not paying fines, fees, or restitution can tell you, this is pretty rare. Judges tend to be upper middle class, in income (always), outlook (usually), and origin (more often than not); and usually haven’t run into the situation of having to choose between the rent, the power bill and the court fees.

Their Honors had an excellent line as to what went on in this case:

 The result of MAGNET’s method was to use a minnow to spawn and capture an even smaller fish.

So, kudos to the Michigan Court of Appeals,[1] both for the analogy and the decision. To use less judicial language, way to call them on their bullshit.

[1] There’s something I don’t say every day.

8 Comments on this post.

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  • Richard G. Kopf
    4 August 2016 at 12:35 pm - Reply

    Noel,

    It is true that “snitches” are often bad dudes and your reference to the Michigan Court of Appeals opinion is a nice illustration of why that is so. But on a broader point, I have a question. Would you represent a “snitch” in federal court?

    All the best.

    Rich Kopf

    • shg
      4 August 2016 at 12:49 pm - Reply

      Turnabout being fair play and all, why do judges consider testifying bad dudes incredible when they’re seated at the defense table but paragons of truthfulness when called by the government? Asking for a friend.

      • Richard G. Kopf
        4 August 2016 at 2:17 pm - Reply

        SHG, this is for your friend,

        I don’t consider testifying bad dudes incredible when they are seated at the defense table but paragons of truthfulness when called by the government to testify. That’s why I give this instruction to the jury when snitches testify:

        You have heard evidence that certain witnesses have not been prosecuted or hope to receive a reduced sentence on criminal charges pending against them in return for their cooperation with the government in this case.
        You have also heard that certain witnesses are subject to a mandatory minimum sentence, that is, a sentence that the law provides must be of a certain minimum length. If the prosecutor handling this witness’s case believes he provided substantial assistance, that prosecutor can file in the court in which the charges are pending against this witness a motion to reduce his sentence below the statutory minimum. The judge has no power to reduce a sentence for substantial assistance unless the government, acting through the United States Attorney, files such a motion. If such a motion for reduction of sentence for substantial assistance is filed by the government, then it is up to the judge to decide whether to reduce the sentence at all and if so, how much to reduce it.
        You may give the testimony of such a witness such weight as you think it deserves. Whether or not the testimony of a witness may have been influenced by his agreement with the government is for you to decide. YOU SHOULD, HOWEVER, CONSIDER THE TESTIMONY OF SUCH A WITNESS WITH GREATER CAUTION AND CARE THAN THAT OF AN ORDINARY WITNESS.

        (Emphasis added in caps ’cause the comment platform will not allow underlining and such).

        I follow the tenor of this instruction when I, alone, here snitches testify such as at a sentencing hearing.

        Whether before a jury or a judge a problem, of course, arises for the defense when 9 snitches describe similar events, and at least some of them don’t know the others.

        All the best.

        RGK

    • Noel Erinjeri
      4 August 2016 at 2:10 pm - Reply

      Yes, though to date I’ve only done so in state court. In my view, it’s (potentially, at least) part of getting the best outcome for the client; and that requires not taking any option off the table.

      • Richard G. Kopf
        4 August 2016 at 2:18 pm - Reply

        Noel,

        Good for you! All the best.

        Rich Kopf

        • Noel Erinjeri
          4 August 2016 at 2:28 pm - Reply

          That deserves neither praise nor scorn. I was a public defender, and I didn’t have the option of refusing to represent snitches even if I had been so inclined. (I’m not, but private attorneys have more leeway when it comes to what kind of cases and clients they take on.)

    • dm
      4 August 2016 at 5:53 pm - Reply

      I think my college thesis might have been shorter than that jury instruction 😉
      Do you think the majority of jurors actually understand the whole instruction when presented in the context of all the other instructions that are also given to them?

      • Richard Kopf
        5 August 2016 at 9:33 am - Reply

        dm,

        In answer to your question, “Yes.”

        If you have ever watched (or tried) a federal jury trial in a drug case (particularly “dry” conspiracies), where the government presents a boatload of snitches and the government’s plea agreements with cooperation provisions are presented to the jury followed with evidence that the snitches where all housed in the same facility where they exchanged copies of discovery and road to the courthouse in the same van, jurors understand full well the instruction. Defense counsel will then hammer home, using this instruction as the foundation, the assertion that the snitches have gotten together and fabricated large portions of their testimony because of the huge sentencing breaks that a snitch may receive.

        The middle paragraph of the instruction deals with snitches facing mandatory minimums under federal law and the legal process of downward departures or a Rule 35b motions. If the defense does not want that portion or no snitch faces a mandatory minimum, I happily omit the paragraph for the same reason your college thesis was brief. The shortened instruction then reads this way:

        You have heard evidence that certain witnesses have not been prosecuted or hope to receive a reduced sentence on criminal charges pending against them in return for their cooperation with the government in this case.

        You may give the testimony of such a witness such weight as you think it deserves. Whether or not the testimony of a witness may have been influenced by his agreement with the government is for you to decide. YOU SHOULD, HOWEVER, CONSIDER THE TESTIMONY OF SUCH A WITNESS WITH GREATER CAUTION AND CARE THAN THAT OF AN ORDINARY WITNESS.

        By the way, in the vast majority of cases jurors are not morons.

        All the best.

        RGK