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Win at all costs
Written by Bill Moushey Part 2 of 10

A sting gone awry (cont.)

Ignoring the safeguards

Congress authorized government sting operations in 1974.

The law allows federal agents to set up an illegal enterprise with the goal of luring criminals and then arresting them. Federal agents promised it would be a powerful tool.

But wary drug smugglers and other criminals are pretty good at spotting a government sting. That might explain why sting targets so often end up being people who haven’t previously been involved with crime.

  deloream.jpg (18488 bytes)
  A jury determined automaker John DeLorean wouldn’t have committed a crime had he not been enticed by federal agents — a violation of the guidelines set down for federal stings. (Associated Press)

In 1986, industrialist John DeLorean was tried on charges of cocaine trafficking after his arrest in a government sting. In a videotape shown at his trial, DeLorean said a suitcase full of cocaine that an undercover officer brought was "better than gold," but a jury determined that the government, not DeLorean, had crossed the line. DeLorean’s company was on the brink of financial collapse, and undercover federal agents proposed a drug deal to him that would bring in millions to save his business.

Federal agents didn’t go after a criminal, the jury decided. They persuaded a desperate man to commit an act he would not otherwise have considered.

The DeLorean verdict reaffirmed safeguards that supposedly were already part of the 1974 law:

bullet1.gif (71 bytes)Sting targets must be predisposed toward committing a crime. Usually this means they already have done something criminal and the government wants to catch them doing it again.

bullet1.gif (71 bytes)Sting targets must be willing to commit a crime. Talking innocent people into doing something wrong through bribes or other means is not supposed to be tolerated.

bullet1.gif (71 bytes)Not only must the targets of a sting want to commit the crime, they must have the ability to do so. This might mean having the money or the connections to pull it off.

The Post-Gazette’s investigation found these safeguards frequently are ignored, especially when a sting fails to nail its original target.

No guarantees

Many judges are willing to chastise government agents and prosecutors for overstepping their authority in running a government sting, but there’s no constitutional guarantee that an injustice will be discovered or, if it is, that it will be corrected quickly.

Several South Carolina legislators can vouch for that. In 1990, federal agents announced their open-and-shut case: They would indict 28 legislators, lobbyists and other officials caught red-handed swapping votes for money in a sting operation called Operation Lost Trust. But as often happens in sting operations, the key government witness, Ron Cobb, was a criminal and drug addict.

Agents had arrested this former state legislator on drug charges in 1989, while he was working as a lobbyist, then promised him money and immunity if he’d become the key figure in their sting operation. Federal agents paid him as much as $4,000 a month to operate a phony lobbying firm and promised him a $150,000 bonus if he helped win convictions against legislators.

Over the next few years, legislators and lobbyists pleaded guilty and went to trial, with Cobb serving as the key witness against them.

cobbm.jpg (16696 bytes)  
Former lobbyist Ron Cobb was the government’s star witness in a bribery sting that led to the arrest of five South Carolina legislators. Cobb later admitted he lied about the crimes, something a judge said prosecutors knew before the cases came to trial. (Lou Krasky/Associated Press)

Then, the truth came out. Cobb had lied to a grand jury about the activities of the people he had nailed. Prosecutors knew of the lies yet withheld the information from defense attorneys, a violation of the law. Cobb’s actions made it impossible to determine whether individuals snared in the sting had really committed crimes. In addition, prosecutors withheld hundreds of other pieces of evidence that would have allowed the defendants to craft their defenses.

Last year, an outraged U.S. District Court Judge Falcon Hawkins dismissed every outstanding charge involving the sting. Some defendants who pleaded guilty or were found guilty before the case unraveled have started the process of seeking to withdraw their pleas or have their convictions reversed.

"The breadth and scope of the government’s misconduct . . . [and] the involvement of the FBI during this entire incident was and is shocking to this court," Hawkins said. He said FBI agents hid information about Cobb’s past, including his drug arrest.

"Most offensive to this court, however, is that the government sat silent when it knew that its silence would not only fail the efforts of the defendants to fully develop defenses to which they were entitled but would misrepresent facts to both the grand jury and the trial jury and mislead . . . the court to such an extent as to affect its rulings. . . . As reluctant as this court is to call it such . . . this silence in several instances was subornation of perjury."

A citizen who suborned perjury might face criminal charges, such as those included in the articles of impeachment being considered against President Clinton over his conversations with Monica Lewinsky prior to her appearance before a federal grand jury. But the Post-Gazette found no evidence that any federal agents or prosecutors in Operation Lost Trust were disciplined for their conduct. Nor was Cobb charged with perjury, despite his repeated lies.

The judge made clear prosecutors failed in their most important role: to make sure defendants receive a fair trial. "While lawyers representing private parties may — indeed, must — do everything ethically permissible to advance their clients’ interests, lawyers representing the government in criminal cases serve truth and justice first," Hawkins wrote. "The prosecutor’s job isn’t just to win but to win fairly, staying well within the rules."

The Justice Department has appealed the judge’s dismissals in Operation Lost Trust.

Sting operations and other new crime-fighting tools that Congress authorized come with few protections against overzealous federal agents and prosecutors, said Bennet L. Gershman, a former New York state prosecutor and a law professor at Pace University of New York. "There’s really no significant restraint on federal law enforcement power," said Gershman, whose 1997 law book "Prosecutorial Misconduct" is in its second printing. "It’s a green light to federal officials to do virtually anything they want to do."

‘Lightning’ strikes

Dale Brown learned he was a target of Operation Lightning Strike on a sweltering summer’s day — Aug. 4, 1993 — at a Houston warehouse, about a year after he met John Clifford.

A videotape showing him talking to an undercover agent was playing on a videocassette recorder. Audio tapes with his name on them were stacked on the floor. Photographs of Brown, surreptitiously shot, were enlarged and tacked to the walls.

He’d come to the warehouse to meet Clifford, the man with the invention that Brown was trying to peddle to NASA. Brown hadn’t seen his so-called partner for months and Clifford owed him $30,000, a sum Brown was eager to collect.

Clifford was there but he identified himself as FBI Agent Hal Francis. Several other FBI agents were with him. Francis told Brown the felony counts he faced might mean 30 years in prison and more than $1 million in fines.

For four hours, agents questioned Brown. He repeatedly asked if he was under arrest and was told he was not. He asked to leave. Twice, agents physically restrained him, he said. He asked for a lawyer. They refused his request.

Federal law says that once a suspect requests a lawyer, all questioning must stop until he gets one. In Operation Lightning Strike, agents simply ignored the law, said Brown and other suspects who were taken to the warehouse.

Other Operation Lightning Strike suspects independently described their warehouse experience as almost identical to Brown’s, yet the government has denied in court that it took anyone there. "They did the same thing to everyone that went [to the warehouse]," said Charlie Portz, a Houston lawyer who would eventually represent other targets of the sting. "Every story was identical."

Brown said the government has thousands of documents describing various aspects of the sting but not one interview log for the day Brown spent in the warehouse or for the warehouse visits of any other person charged in the operation.

At the warehouse, Brown said, the agents told him he could help himself by helping them. The officers took him to a 10th-floor suite at Houston’s Astrodome Hilton Ho-tel. Behind the mirrored walls, more agents sat with recording equipment and cameras.

Gone were Francis and the heavy-handed threats. Now, agents told Brown that Francis had made a lot of mistakes and that they knew Brown was a good guy. If Brown would testify against others who were targets in the sting, including a businessman named Scott Sadaway and an astronaut Brown knew named David Wolf, they promised leniency.

Brown balked at the offer. "I told them Sadaway was one of the nicest businessmen I’d ever met, and for them to want me to help them go after David Wolf, I decided right on the spot that I was going to fight these people as hard as I could," Brown said.

But Brown hedged his bets. He provided the agents information about a former business partner whom Brown said once claimed to be involved in contract corruption, but no charges were ever filed against the man.

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