7th Circuit, Drugs, Richard Posner, White-Collar Crime

Judge Posner and Fake Stash House Robbery Cases; Why Prosecuting Fake Crime Is Bad Policy

Another way the "War on Drugs" makes drug dealers more powerful.

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Fake stash house robbery cases are a shameful example of the worst of federal law enforcement.

Here’s how they work. An undercover — generally with the ATF — meets someone who has a criminal record (that part becomes important later). The ATF agent tells the person that there’s a stash house out there, and that it has a whole bunch of drugs in it. Also money. It doesn’t really matter how much — the agent can make up virtually any number he wants. Maybe there are 150 kilos of cocaine in there. Maybe a million. It’s whatever the agent thinks he can dream up and sell.

The agent sells the person on the idea that there’s a vulnerability in the stash house and it can be easily robbed. The agent gives the person a car, or guns, or whatever the guy isn’t able to get on his own. He encourages the guy to recruit more people. You need a lot of bodies to rob stash houses that don’t exist.

They plan the robbery. The agent tape records them planning the robbery. Then they strap up to go rob the stash house that the agent made up.

Surprise! The agent arrests the guy and his friends. And it gets worse…

Then they’re all charged with conspiracy to possess drugs with an intent to distribute them. What quantity of drugs? Whatever quantity the agent made up! And, since the drug quantity drives the sentence, that means that the agent gets to make up basically any sentence he wants.

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These are shameful cases for the government to develop and prosecute, because they are manufacturing crimes that don’t exist. People often complain about the government only going for low hanging fruit. In these cases, the ATF is making wax fruit and attaching it to the trees so they can pluck it more easily.

A lot of defense attorneys — including the folks at the Federal Criminal Clinic at Chicago — are coming up with very creative ways to attack these.

But, regardless, they’re bad policy. Happily, Judge Posner has written for us two reasons why. Sadly, he wrote how these are an insane use of government resources in a dissent.

First, they punish people who shouldn’t be punished. The government, when it brings these cases or similar fake terrorism cases, chooses its mark well. They realize that the big issue in an entrapment defense is the person’s predisposition to commit the crime. So, they make sure to choose someone who has a prior criminal history. For terrorism cases, they make sure to choose someone who has said stuff about how they don’t like American foreign policy and they’re sympathetic to terrorists. (there’s a whole handbook for FBI agents on how to make up crimes to get people who are sympathetic to terrorists to commit; it’s fascinating).

But, as Posner notes, the ATF isn’t very interested in how the people they target are doing now — whether they’re likely to reoffend or, instead, are moving on with their life when the lure of very very easy money from the ATF presents itself (Posner is here writing about a guy caught up in one of these named Mayfield):

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I want to say something about the sentence and about the criticized practice of fictitious stash house stings; these are related. I cannot imagine the sense of imprisoning Mayfield for 27 years (minus modest good-time credit if he behaves himself). I should think a sentence of 5 years more than adequate. Can there be any serious concern that upon emerging he would embark on a career of robbing stash houses? That if approached by anyone inviting him to launch such a career he would listen to the person? Is there anything in the record to make such a possibility real? Before succumbing to the blandishments of the informant, Mayfield was working at an honest job. He was supporting himself. He was not a public charge. Now, as a result of the sting, we the taxpayers will be supporting him at considerable expense for the next quarter century. Does that make any sense?

United States v. Kindle, 698 F.3d 401, 416 (2012).

The same point was made by a federal judge in Los Angeles earlier this year, describing these cases as the government “ensnaring chronically unemployed individuals from poverty-ridden areas.”

Sure, if you had a guy running around robbing stuff, and the only way the feds could get him would be to stage another robbery (which would happen in what world?) I could see this being a defensible policy. But, as Posner points out, the ATF doesn’t care. They want a notch in their belt, not to do good work.

In Kindle, Posner, ever the law and econ guy that we love, goes on to explain how fake stash house robberies make it safer for drug dealers to run stash houses:

[C]onsider the role of such stings in the “war on drugs.” Are they likely to reduce the sale and use of illegal drugs? No; they are likely to have the opposite effect. Stash house robbers do not increase the amount of drugs in circulation, since they steal their drugs instead of making or importing them. The effect of a fictitious stash house sting, when the person stung is, unlike Mayfield, a real stash house robber, is therefore to make stash houses more secure by reducing the likelihood of their being robbed. A sting both eliminates one potential stash house robber (unless the defendant was entrapped) and deters other criminals from joining stash house robberies, since they may turn out to be stings. The greater security that fictitious stash house stings confer on real stash houses — security obtained at no cost to the operators of stash houses — reduces their cost of self-protection, which is a principal cost of the illegal-drug business. The lower a business’s costs, the lower the prices charged consumers, and so the greater the demand for illegal drugs and the more sales and consumption of them. The operators of stash houses would pay law enforcement to sting potential stash house robbers.

Of course, if the war on drugs is ever won, lots of folks at the ATF and DEA would be out of work. Perhaps they recognize this and are bringing these cases to shore up their job security?

Because otherwise these cases make no sense.

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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