Third Circuit: Sick Mamas & Stacked Millions Sufficient to Charge Entrapment
July 8, 2016 (Fault Lines) — It used to be that police officers waited for people to commit crimes before arresting them. Sometimes, they’d even try to talk people out of doing bad things, in the hopes that the potential criminals might become productive members of society. But as this Third Circuit reversal shows, those days are long behind us.
Ralph Dennis was a small-time drug dealer with no violent criminal history. He came to the attention of the feds when an old associate of his, Kevin Burk, mentioned him as having once talked about conducting home invasions and robbery. For a guy like Burk, facing federal forgery charges, unverifiable claims of criminal activity were a gold mine.
So, at the feds urging, Burk kept encouraging Dennis to help him commit some robberies. But Dennis, unfortunately, kept saying no. That is, until Burk said that he desperately needed the money because his mother had cancer. And a raid of the stash house would produce a lot of money if, as reported, it contained 30-40 kilograms of cocaine, worth two million bucks. Enough to keep a hundred fictional ailing mothers on life support for years at a time.
So Dennis went along with it. He was told to meet up with a disgruntled Mexican cartel member named “Rock.” (Actually a federal agent). Why was Rock disgruntled with his cartel?
Rock explained that he was seeking revenge because the cartel refused to loan him money to help his ailing mother.
The mothers of confidential informants seem to be uniquely prone to sudden expensive medical tragedies. They suffer the same fate as so many grandmothers, great aunts, and distant cousins right when term papers are due. But hell, if the trick works, why change it?
So Dennis went ahead and agreed to help “Rock” rob the cartel, going so far as to try to protect Rock from retribution by making sure no suspicion would fall on him. Not that Dennis’s case is entirely sympathetic; he did mention putting a gun into a guards mouth before he settled on a plan involving stun guns, rope, and… him staying quietly on the car on his cell phone while the others did the dirty work. Also, and this is probably his worst fact, Dennis decided to keep going with the conspiracy even when Rock explicitly offered him a chance to “back out.”
As the group met at a warehouse to rehearse their daring plan, ATF agents rushed in and prevented this fictional conspiracy, aimed at a fictional stash house, containing fictional drugs, for which Dennis received a real conviction.
So Dennis decided he’s going to go to trial to avoid what looks like a pretty rough sentence (180 months after trial, the statutory minimum). Except, arguing actual innocence isn’t going to take him very far, especially under the extremely lax federal conspiracy standard. So his lawyer had to go to a pretty unlikely well and argue two things:
- Dennis was not the sort of person who would naturally rob a stash house and he only did it because the government tricked him into it.
- Tricking people into committing crimes is so “outrageous” that the whole case should just be dismissed because the government basically created an entirely fictitious crime.
But the judge wasn’t biting. Despite the fact that Dennis had an IQ of 74 and was being offered hundreds of thousands of dollars and the chance to help not one but two sick mothers, the judge figured that Dennis being a long-time drug user and seller made him a natural at robbing people. Plus, he seemed eager and excited to be part of such a daring heist—hardly the reluctant neophyte that entrapment laws were meant to protect.
Fortunately for Dennis, the Third Circuit disagreed. Taking someone with no convictions for robbery and offering him millions of dollars to participate in a robbery is inducement. They didn’t bite on outrageous prosecution, which would be tantamount to an acquittal, but they agreed to kick his conspiracy charges down for a new trial (though his drug convictions would remain intact, since he was clearly predisposed to possess drugs).
In a dissent from the grant of the new trial, Judge Ambrose manages to eloquently point out the problems with seeking out poor and mentally ill or disabled people for the sake of getting them to commit crimes:
The Government wields tremendous power in investigating crimes. Here it exercised that authority to create from whole cloth a fictitious crime and to prosecute someone for a robbery that could not have been committed… The Constitution affords great deference to the Government’s investigative choices, but it does draw a line: indictments based on outrageous conduct cannot stand. No court of appeals has found that the Government has crossed that line in setting up a stash house reverse sting. But it appears that the Government has been tiptoeing near the line.
There is still plenty of crime in this country. The problem is, it’s not always easy to find the people who committed it. Murders, while reducing in frequency, are increasingly going unsolved as police decide to focus on easier to prove and more lucrative crimes like drug possession and prostitution. And the easiest crimes of all? Those orchestrated entirely by government agents, with only one poor patsy to take the fall at the end.
Until we start prioritizing the goals of law enforcement (making people safer, increasing public trust) over the goals of law enforcement officials (getting in the newspaper, getting promotions), we will continue to see an emphasis on the appearance of justice over its reality. We aren’t just tiptoing on that line. We’re a mile past it.