Another Stash House Sting Criticized By The Court... But Lengthy Sentences Left Untouched

from the zero-positive-contribution-to-society dept

Thu, Nov 2nd 2017 4:07pm — Tim Cushing

The Sixth Circuit Court of Appeals has let some more stash house sting convictions stand. But not without considerable discussion of the government's tactics. And not without one judge appending a long rebuke to her reluctant concurrence.

Once again, the ATF has managed to secure multiple convictions predicated on nonexistent evidence. The sting, helmed by veteran ATF agent Richard Zayas, involved a made-up drug stash house "containing" at least enough drugs to trigger 10-year mandatory minimum sentences for the defendants. Zayas' sting operations always include fictitious armed stash house guards, otherwise the ATF's involvement would be unnecessary.

The end result is multiple convictions. But other than a few seized weapons, nothing contributing to public safety was achieved. No actual drug dealer was targeted, nor was the sting linked with any larger ATF/DEA/FBI operation aimed at curbing inner city drug trade.

Nonetheless, the Sixth Circuit Appeals Court upholds everything, rejecting multiple due process challenges from the defendants. The entire opinion [PDF] should be read just to understand the nearly-insurmountable barriers defendants face when challenging questionable government behavior -- both during the sting and during the trial.

Judge Jane Stranch's concurrence clearly communicates her displeasure with ATF sting operations in general, even if it's tempered by her inability to move the dial in the appellants' favor.

Because these stings are wholly inventions of law enforcement agents, they can and do include powerful inducements to participate in one big “hit,” a hit that is conveniently large enough to qualify for mandatory minimum sentences. Obtaining the outsized reward is also made to look easy—the agent is a disgruntled insider who knows when and how to stage these “rip-and-runs” and offers to provide all needed assistance, from manpower to transportation. The unseemly nature of the Government’s activity is emphasized by its failure to achieve its declared goals of jailing dangerous criminals and making our streets safer. Evidence showing that these hurry-up set-ups achieve the stated goals was not proffered and the facts here demonstrate why: no known dangerous individuals or criminal enterprises were researched or targeted and no pre-existing drug rings or conspiracies were broken up. In fact, this sting trapped Flowers, a gainfully employed young man with no criminal record.

This sting was like others helmed by Agent Zaya: it targeted impoverished inner city minorities. As the judge notes, the fact that ATF stings are disproportionately resulting in the jailing of minorities has not gone unnoticed. It's not just dissertations or investigations by journalists exposing this fact. The ATF is currently facing a lawsuit in Illinois over the selective targeting shown in sting operations.

Stranch goes on to note multiple courts have found the ATF's actions troubling. But, so far, they've been unable to do much to stem the flow of stash house sting cases into the nation's courts. They've also been unable -- with rare, rare exceptions -- to provide any sort of relief for defendants caught up in the government's fictitious drug robbery plans.

Despite increasing awareness of the problems and inequities inherent in fictitious stash house stings, at issue here is whether an appropriate legal path exists for a defendant to successfully challenge the stings. A majority of circuits have recognized the outrageous government defense, but impose such a high burden on defendants that the defense rarely results in dismissal of charges.

[...]

[I]t 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.

The ATF continues to spend considerable amounts of money doing little to stop the flow of contraband. It would rather chalk up easy arrests and convictions while doing almost nothing to contribute to public safety. Taxpayers are already paying the ATF to engage in literal charades. They're also on the hook for hundreds of thousands of dollars in incarceration costs per sting victim thanks to the ATF's insistence on pretending there's mandatory minimum-triggering amounts of nonexistent drugs in every fake stash house it convinces someone to rob.

This is nasty, brutish work by the government. But it works too well to expect the ATF to voluntarily end this program. It produces too many convictions to be considered a waste of time by the ATF, even as its does nothing at all to stop the trafficking of drugs and guns.

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Filed Under: 6th circuit, atf, own plots, richard zayas, stash house, sting

35 Comments

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Anonymous Coward, 2 Nov 2017 @ 4:25pm

They don't care how much chastising they get from judges or anyone else. A win is a win no matter how they get it. The ends always seem to justify the means.
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discordian_eris (profile), 2 Nov 2017 @ 4:54pm

It's simple. Their political masters (on both sides) have taught them that appearance matters more than substance.
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Anonymous Coward, 2 Nov 2017 @ 4:58pm

Should be read?

The entire opinion [PDF] should be read …

NOT RECOMMENDED FOR PUBLICATION

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Anonymous Coward, 2 Nov 2017 @ 5:40pm

Drugs are not the enemy, addiction is.
Drugs are not the enemy, addiction is.

The war on drugs has:

1. Filled prisons with inmates, gotta make a profit on all those concrete walls somehow!
2. Made it extremly difficult to get prescription opiates forcing addicts to instead buy the may or may not kill you black market heroin. This way we can put drug dealers in prison for life after convicting them of murder, more prison profit!
3. Increased spending on law enforcement. Cool weapons and awesome pensions cost money!
4. Drive up costs of some prescriptions because of their classifications. Big pharma, profit yum yum want more!
5. Money stolen, err seized, from law abiding individuals for having the audacity to drive on the same roads of drug runners. Pensions, guns and armored vehicles, oh my! Oh and fuck those poor people, they were just gonna buy drugs with that money so we did them a favor by taking it!
6. An increase in drug use. Rinse and repeat for additional profit year after year!

If the goal was to funnel money to big pharma, for profit prisons, law enforcement and lawyers its a whopping succes! But its a total failure at reducing addiction.

Imagine the impact we could have if we stopped the war on drugs and instead funded the war on addiction.
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Anonymous Coward, 2 Nov 2017 @ 5:46pm

Re: Should be read?
Wow, the vey first text says it all.

No big deal, the sheeple are too busy watching cat videos on Facebook to bother rioting over this injustice anyway.
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Anonymous Coward, 2 Nov 2017 @ 6:11pm

Re: Drugs are not the enemy, addiction is.
Or the war on mental illness and disease. Both could easily have been funded multiple times over for what we have spent on the disproportionately minority pows that have fallen victim to the war on drugs.
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stderric (profile), 2 Nov 2017 @ 6:12pm

thanks to the ATF's insistence on pretending there's mandatory minimum-triggering amounts of nonexistent drugs in every fake stash house

Maybe the courts could just pretend they convict and sentence the people the ATF arrests. Unfortunately, they probably wouldn't be fooled by fake paychecks...
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That One Guy (profile), 2 Nov 2017 @ 6:30pm

Re:
Or base the sentencing on how much actual contraband there was in the building.

'The defendant is hereby found guilty of attempting to steal zero grams of cocaine, along with one count of trespassing. As such a modest fine and/or community service will be required for the latter charge. Court dismissed.'
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Bergman (profile), 2 Nov 2017 @ 6:50pm

Re:
Given that attitude, everyone from Hollywood producers to authors of novels to video game studios to people who referee roleplaying games ought to be terrified.

If simply imagining a robbery that won't ever actually happen, of a stash of contraband that does not exist, using weapons you don't have, committed against a victim who does not exist either is enough for a conviction, then I foresee a really sharp drop in the quality of action adventure novels, movies and games.
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That One Guy (profile), 2 Nov 2017 @ 7:10pm

What's good for the prosecution is good for the defense
If you can base a case on imaginary goods, then the defense should be allowed to introduce their own imaginary evidence.

Sure they 'thought' they were stealing a certain amount of drugs, but what's that compared to the cure for cancer and a formula for ending world hunger that was also located in the house? Seems to me those two would more than balance out, such that if anything they defendant should be praised rather than prosecuted for their selfless efforts that just so happened to include a minor personal gain angle.
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Stephen T. Stone (profile), 2 Nov 2017 @ 9:51pm

Re: Drugs are not the enemy, addiction is.
If we stopped referring to drug addiction in terms of war and instead referred framed the issue as one of public health, maybe we could do more to combat addiction. I mean, it ain’t like “the war on drugs” can be won by force—the past thirty years or so have proven as much.

Then again, by framing drug addition as a public health crisis instead of a conceptual war, we would have to reckon with what causes addiction. That would lead us to talking about poverty, systemic discrimination against people of color, and other “uncomfortable” subjects that would inevitably come back to politicians, their rich handlers, and the policies that help them keep their wealth and power at the expense of the lower classes. That group of people will never allow such a thing to happen.
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mhajicek (profile), 2 Nov 2017 @ 10:12pm

Re: Re: Drugs are not the enemy, addiction is.
How about a war on political corruption?
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discordian_eris (profile), 2 Nov 2017 @ 10:30pm

Re: Re:
"If simply imagining a robbery that won't ever actually happen, of a stash of contraband that does not exist, using weapons you don't have, committed against a victim who does not exist either is enough for a conviction, then I foresee a really sharp drop in the quality of action adventure novels, movies and games."

People are convicted just like this every day in America. And where I live, in Texas, always remember that our Court of Criminal Appeals (highest criminal court in TX) has stated emphatically that "actual innocence is no bar to execution".
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freedomfan (profile), 2 Nov 2017 @ 11:40pm

How far will they go with these fantasy crime convictions?
These convictions based on the idea that there was no actual crime, but the defendant thought that there was are almost too surreal. I wonder how the courts would rule if the feds stole (forfeited) someone's car, had it repainted, and then convinced the owner that the car is someone else's, but that he should steal it because his was stolen and this one is the same model. Would it be ok to convict that person of grand theft auto for stealing his own car? Would the AFT (gasoline is combustible, so I'm sure they consider this part of their bailiwick) be on board with the scam? No? What if the target were tricked into bringing a gun along (provided by the feds, of course) to the "robbery"? What if the target were told there was $1,000,000 of cocaine in the trunk? And kiddie porn?
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That One Guy (profile), 2 Nov 2017 @ 11:44pm

Re: Re: Re:
And where I live, in Texas, always remember that our Court of Criminal Appeals (highest criminal court in TX) has stated emphatically that "actual innocence is no bar to execution".

So whether someone is guilty of not doesn't matter, if the system decide you deserve to die then you will be executed, I'm guessing because they consider the image of the courts as 'ALWAYS RIGHT' of higher importance than the lives of those it judges.

Delightful.

Wonder if anyone in history has anything to say about that mindset...

'It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, whether I do good or whether I do evil is immaterial, for innocence itself is no protection, and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.'

― John Adams
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MyNameHere (profile), 3 Nov 2017 @ 1:36am

Re: How far will they go with these fantasy crime convictions?
"These convictions based on the idea that there was no actual crime, but the defendant thought that there was are almost too surreal."

There still is a crime. They are still intending to rip off a stash house, they still go through the process, and they effectively commit the crime.

There is still criminal activity.

Honestly, I don't have a lot of sympathy for those arrested. That the FBI got them in a sting rather than their next bar buddy who gets them to do a home invasion in a rich part of town is probably a good thing. These people who commit the crime - and they did - so getting them off the streets isn't a bad thing.
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Anonymous Coward, 3 Nov 2017 @ 2:43am

Re: Drugs are not the enemy, addiction is.
Looks to me more like the ATF is the enemy.
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Daydream, 3 Nov 2017 @ 3:38am

Re: Re: Re: Re:
Just to remind everyone, John Adams said that quote when defending a group of British soldiers against charges of murder when some (not all of them) discharged their weapons into a hostile crowd. He got all of them exonerated except for the ones who fired directly into the crowd (who were found guilty of manslaughter).

So I guess in that context, it's a warning against blaming all members of a group of people for the actions of a minority. Like persecuting Muslims because of a handful of terrorists, or forfeiting a family's car/house because one of their kids trafficked some drugs, or just using somebody as a scapegoat.
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Anonymous Coward, 3 Nov 2017 @ 4:08am

Re: What's good for the prosecution is good for the defense
Your honor, this has gone on for too long, that jail cell is uncomfortable. I don't think I want to continue until my acting contact is completed. This is sure to be a hit show, and I deserve to be compensated, I got bills to pay!

With all the hidden cameras and microphones you must have gotten plenty of great footage! When does the first episode air? Will this be on TruTV? I wanted to tell my father what network to watch, he's just as excited to see my performance as I am.

Whoever does the makeup on this production is great. When officer Bumblefuck stepped on the rake and gave himself a black eye, man that shit looked real! And using real police radios in the patrol cars, capturing real police chatter will make this show seem more real!

Can I get a smoothie? That nasty prison food makes for some good reality TV but damn only so much of that a man can take!

Well sorry for the interruption, you can just erase this footage and we can start over and reshoot this scene now.
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Anonymous Coward, 3 Nov 2017 @ 4:27am

Re: Re: How far will they go with these fantasy crime convictions?
So it's perfectly fine to pressure people into doing things they normally would not do?

Hope you feel the same when a group of popular boys pressure your not so popular daughter into doing something she normally would not do.

Or is it only ok to pressure people into doing things if it results in the pressured person committing a crime and going to jail?
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discordian_eris (profile), 3 Nov 2017 @ 5:43am

Re: Re: Re: Re:
In the case I quoted from, a man was convicted of murder. Years later it was learned that the cops and prosecution withheld exculpatory evidence. In addition the real murderer confessed and was tied by forensic evidence to the crime. DNA, fingerprints and whatnot all matched this man. Unfortunately for the judicially murdered man, he had exhausted all of his appeals under state law. That's when the CCA issued it's infamous decision. They KNEW he was innocent, but almost all of the court was made up of far right wing jackasses. Here's a quote that bears on this from Scalia's dissent on a case that reached the US Supreme Court.

"This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent," Scalia wrote in a 2009 dissent.

To say that 'justice' in America is FUBAR would qualify as an understatement of Olympic caliber.
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Anonymous Coward, 3 Nov 2017 @ 6:21am

So, what were they convicted of and what law if any did they actually violate?

Interesting that those with a few bucks and notoriety are given a pass ... Winning!!!
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Anonymous Coward, 3 Nov 2017 @ 6:22am

Re: Re: Drugs are not the enemy, addiction is.
If there were a war on mental illness, there would be a lot of open seats in government.
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Anonymous Coward, 3 Nov 2017 @ 7:29am

Re: Re: Should be read?
Hmmm - cost / benefit analysis == stay home on this one

Why do you encourage rioting - must be one of those russky bots.
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Anonymous Coward, 3 Nov 2017 @ 7:32am

Re: Re: Drugs are not the enemy, addiction is.
"If we stopped referring to drug addiction in terms of war and instead referred framed the issue as one of public health"

Farm animals get better health care than the average us citizen.
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Anonymous Coward, 3 Nov 2017 @ 7:41am

Re: What's good for the prosecution is good for the defense
Yeah - fake court !

Hahahahaha, I see a new show debuting soon - sorta like office space but in a court room

PC LOAD LETTER ?????
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Anonymous Coward, 3 Nov 2017 @ 7:42am

Re: Re: Re: How far will they go with these fantasy crime convictions?
No, it is only proper to con people into committing crimes if they are of the "not desirable" kind. Isn't this obvious by now?
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Tin-Foil-Hat, 3 Nov 2017 @ 7:49am

The Government is the Enemy
They so gleefully seek to punish us. Everything they do benefits themselves.Stop plea bargaining and the court's time would have to be prioritized.Technically they could still prosecute manufactured crime but at the expense of prosecuting real crime.
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Anonymous Coward, 3 Nov 2017 @ 8:23am

Re: The Government is the Enemy
I'm pretty sure that's what this article is all about. It's too hard to catch actual criminals with actual drugs. Catching imaginary criminals with imaginary drugs that they can set up for a sting is so much easier.
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OldMugwump (profile), 3 Nov 2017 @ 9:19am

Re: judicially murdered man
That's the kind of case the executive pardon was meant to address.

The appropriate thing would have been for the judge to personally ask the Governor to pardon the innocent man.

If he didn't (and you imply so), he failed in his moral duty.
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OldMugwump (profile), 3 Nov 2017 @ 9:23am

Re: The Government is the Enemy
"Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men."

Acton
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That One Guy (profile), 3 Nov 2017 @ 8:48pm

Re: Re: Re: Re: Re:
Damn, if anything that is far worse than I originally thought. They not only knowingly executed an innocent person they knowingly let a murderer walk, simply because they couldn't admit that the system screwed an innocent man and was wrong.
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Groaker (profile), 4 Nov 2017 @ 11:15am

Too many cops
Proof that there are too many LEOs. When they have to invent crimes to create busy work for the existing cadre of law enforcement, then there are simply too many police. Remove half of them, and see if they still have time to create such excuses for their existence.
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Anonymous Coward, 4 Nov 2017 @ 11:25pm

Re: Drugs are not the enemy, addiction is.
Our biggest addiction is war!

To get rid of this addiction we have to decouple war from increasing our economy, creating jobs, increasing 'security', ...

Drugs and drug addiction are one of the responses to this war, to cope with our helplessness with it.
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Anonymous Coward, 5 Nov 2017 @ 3:12am

Re: Too many cops
Its more likely that promotion relies on the number of convictions obtained. Real police work is hard, while entrapment requires little effort, and a well practiced approach.
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