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From: Mark A. Smith [mailto:[EMAIL PROTECTED]]
Sent: Wednesday, May 26, 1999 5:30 AM
To: Mark
Subject: ATF investigative techniques called unfair
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ATF investigative techniques called unfair
Some lawyers challenge parolee projectJune 29, 1998
BY TIM
DORAN
Some criminal defense lawyers say a federal sting operation that solicits ex-convicts for drugs and guns is aimed only at black parolees.
Federal officials deny the accusation, and provide statistics.
The lawyers say that the ex-convicts are offered rides, money, trips, jobs and drinks by an agent for the Bureau of Alcohol, Tobacco and Firearms, and this means the agent initiates a crime.
"For the federal government to be using taxpayer money to actively encourage parolees to return to crime rather than to train or educate these individuals is shocking," wrote Jonathan Epstein of the Federal Defender's Office in Detroit.
The ATF and U.S. Attorney Saul Green strongly disagree, citing statistics and judicial rulings on the issue.
The bureau does not target blacks or any other groups, said Philip Horbert, assistant special agent in charge of the ATF in Detroit. Agents pursue parolees based on tips they have about them, Horbert said. Agents may offer a fee to the parolee who gets drugs or guns from a dealer, he said.
The lawyers making the accusations "have cast a cloud over the agent as well as the agency by making these allegations," Horbert said. "We follow the law here."
The sting operation is known as the parolee project. It was slightly modified several years ago to avoid any appearance of a problem. The U.S. attorney says he required all cases to be funneled to one prosecutor to ensure consistent prosecution.
The program has taken dangerous criminals off the streets, and the courts have upheld the undercover investigative techniques, said Green and the ATF.
Courts have upheld the undercover investigations, but some judges raised concerns. And a recent federal appeals court decision -- believed to be the first of its kind in the nation -- could mean less prison time for anyone who is convicted of selling crack cocaine and who has evidence of improper government conduct.
In March, a three-judge panel of the U.S. 6th Circuit Court of Appeals in Cincinnati said U.S. District Judge Nancy Edmunds in Detroit could consider the government's investigative techniques and the sentencing disparity between crack and powder cocaine at sentencing.
Some federal lawmakers have unsuccessfully argued that the disparity between sentences for crack and powder is unfair and racist. Someone charged with selling five grams of crack faces a mandatory minimum federal sentence of five years. Five hundred grams of powder cocaine warrant the same sentence.
Lawyers have asked judges to give less than the mandatory sentence, and the 6th Circuit decision appears to be the first to allow a departure if it is coupled with another reason, said Peter Henning, Wayne State University law professor.
"They are struggling for some way to say the crack guidelines are unfair," Henning said. "They're looking for some way to get around the crack-powder distinction."
The appeals court did not decide the merits of Reginald Coleman's claim that he was unfairly singled out. And, in a dissenting opinion, one of the justices said the ruling would open a Pandora's box as others raise issues to get less prison time. The U.S. Attorney's Office in Detroit has asked the full appeals court to reconsider the case.
Coleman of Detroit was charged with selling crack to the agent five times between December 1994 and August 1995.
Defense lawyers began challenging the undercover techniques about two years ago. They say all 13 parolees enlisted by one white agent were black.
In some cases, the agent introduced himself as a businessman, they said. One defendant said he thought he might get some work from the agent. Another said an informant working with the agent offered him a ride home and bought him a drink at a bar. He said he was offered $100 for each gun he could get.
Some defendants, according to the defendants and some of the lawyers, said the agent called several times about deals, and a few acted as middlemen, getting the crack cocaine or guns from someone else and selling it to the agent. He sometimes paid them $50.
"You're really straddling the line of proper law enforcement when you're trying to trick people into committing crimes," said Epstein, Coleman's lawyer.
In a brief on Coleman's case, filed in U.S. District Court in support of a lesser sentence, Epstein said: "The ATF is preying on people who are generally unemployed, unemployable, uneducated, indigent and vulnerable to involvement in criminality."
Bloomfield Hills lawyer Thomas Wilhelm, who also represented one of the defendants, said the practice undermines the criminal justice system in the eyes of the community.
"He's not going out and investigating crimes that have occurred," Wilhelm said. "He's going out and getting susceptible people to commit crimes for him."
Wilhelm and another lawyer, in two cases in 1995, unsuccessfully argued that the parolee cases were selective prosecutions, while Epstein has told judges his clients deserve less prison time because of the agent's conduct.
U.S. District Judge Avern Cohn did not accept Epstein's argument when he sentenced one of his clients in March 1996. But the judge said the case was not one of "law enforcement's finer hours," singling out the ATF and the U.S. Attorney's Office.
The complaining lawyers have not usually argued that their clients were entrapped. Under federal law, courts look at the state of mind of the defendant to determine entrapment. If the accused was predisposed to commit the crime, it is not entrapment.
State law looks at the conduct of the law officer and the defendant's predisposition. The Michigan Court of Appeals overturned a conviction stemming from an investigation by the same ATF agent working the parolee cases.
In that 1990 case, the agent acted as a dealer and set up a phony cocaine sale with three men. The appeals court said the reverse sting was entrapment and called the agent's methods a fishing expedition. The court threw out the convictions. The Michigan Supreme Court later overturned the ruling, reinstating the convictions. One justice dissented, citing the agent's conduct.
The ATF says the complaining defense lawyers raised entrapment and selective-prosecution defenses and argued for less prison time because they have no other defense. The agent generally buys drugs or guns from defendants several times before charges are brought, and all the deals are recorded on tape.
None of the tapes has shown the agent offering drinks, large amounts of money, or jobs to the parolees, Horbert said, and the agent is only acting on tips about possible criminal activity, not standing out in front of the parole office soliciting any ex-con. Many of those under investigation refuse the offer and walk away, Horbert said.
Out of about 100 cases charged, Horbert said, more than 90 pleaded guilty and juries convicted all who went to trial.
"If this allegation had any substance to it, why have so many cases pleaded out?" Horbert said.
Most of the parolees the agent investigates are in Wayne County because the ATF has a joint operation with the Detroit and Highland Park police departments, he said, but the bureau has also investigated parolees in Macomb and Oakland counties.
About 66 percent of those arrested were black, Horbert said. Ten percent were Hispanic, and 20 percent were white. Past convictions include carrying concealed weapons, armed robbery, burglary, drug possession, voluntary manslaughter, sexual assault and car theft. One parolee had seven prior convictions, court records show.
"All they had to do was just say no," said the agent, referring to those caught in the investigation. "But none of them did."
And one judge agreed.
"Nobody certainly twisted your arm and forced you to get into this situation," U.S. District Judge Paul Gadola told one defendant at sentencing. "You can't blame that on the federal agent. And I think the sooner you adapt that viewpoint the better off you're going to be."
Tim Doran can be reached at 1-313-223-4543 or by E-mail at [EMAIL PROTECTED].
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