Can law enforcement use "fairy tales" to step up sentences?

The second in a two-part investigation, originallypublished by The Crime Report. Part One was posted Wednesday, Nov. 18.

The arrest and conviction of Dennis Hardee, of Philadelphia, was nothing unusual in the annals of America's Drug War.

In 2013, he was convicted of taking part in a conspiracy to rob a cocaine stash house and then sell the proceeds. As it happened, there was also nothing unusual in the fact that both the stash house and the drugs were invented by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)--a common tactic aimed at going after violent predators in the drug trade.

What was unusual, however, was the sentence handed down in January 2015. Although Hardee could have received 30 years to life--or at the least the 10-year mandatory minimum established for convictions involving a large amount of narcotics--he actually received seven years and eight months.

The reason for the lower sentence?

Hardee's lawyers had filed a motion attesting that their client was a victim of "sentencing entrapment"--that is, the government had manipulated the amount of fictional drugs in the conspiracy in order to win the maximum sentence.

Judge Joseph Irenas, a senior U.S. judge for the district of New Jersey, agreed with them.

"...You want to throw (Hardee) in jail for life for a crime that was never going to happen, and that was a fairy tale?" he asked.

Judge Irenas is one of the latest to join the growing chorus of judges who are calling out such "fairy tales" in court, though they are still a minority. Most U.S. Attorneys have been able to convince judges and juries that their use is critically important for protecting the public and reducing the scourge of drugs.

Lack of Legal Weapons

Defendants have had relatively few weapons at their disposal to assert their constitutional rights to due process--rights that were arguably violated by the government's overzealous use of strategies like "fake stash-house stings."

One such weapon--a motion to dismiss the case on the grounds of "outrageous government conduct"--has been deployed since the early 1970s, as a result of an almost offhand comment by then-Associate Justice William Rehnquist.

In a 1973 ruling, Justice Rehnquist raised the prospect that judges would "some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction."

But the "outrageous" argument has had little success.

The Crime Report reviewed some 126 cases in 2014 and 2015 in which a motion to dismiss on the grounds of "outrageous government conduct" was filed. Most of the motions did not succeed, and the handful of decisions in which judges did agree to toss indictments were for the most part reversed by higher courts.

That has frustrated civil liberties advocates, defense lawyers and critical judges, who warn that as courts deny outrageous conduct claims in cases of increasingly aggressive behavior, the claim has lost its power and at the same time expanded the permissible boundary for questionable law enforcement behavior.

For many law scholars -- and judges like Judge Irenas -- the claim of "sentencing manipulation" has become a useful alternative.

It allows judges to determine the culpability of the defendant, rather than be hamstrung by mandatory minimums triggered by pre-set conditions in sentencing guidelines, such as certain quantities of drugs or certain types of weapons. The mandatory minimums do not make any allowance for the fact that those quantities were -- like the drugs themselves -- a pure invention, aimed at putting away for more than a decade individuals who the government claims are threats to society.

Civil liberties advocates and legal scholars argue that the "sentencing manipulation" motion adds needed balance and fairness to the system, by addressing tactics that can even entrap individuals with no prior criminal record.

Directly due to the lack of success of the "outrageous government conduct" defense in curbing what critics believe to be egregious examples of undercover policing that arguably violate constitutional protections, public defenders across the country are aggressively searching for new tools.

Another legal motion using a "selective enforcement" or "selective prosecution" argument has had some success.

A Question of Fairness

Defense attorneys and sympathetic judges call it a question of fairness.

When defendants are caught in these highly controlled stings, there's an obvious question about whether a crime invented and orchestrated by law enforcement would have ever occurred if not for the government's intervention. Some defendants might be able to use a traditional defense of entrapment--but Dennis Hardee could not.

Prosecutors could show that he had a predisposition to commit the crime and was "ready and willing" to participate, so the idea that he was induced to commit a crime he would otherwise not commit would be difficult to maintain.

"I think there was sentencing entrapment," the judge explained, noting that although the defendant had a "bad history," his record indicated that he had never dealt with such high quantities of narcotics.

In order to sentence Hardee below the mandatory minimum for distribution of more than five kilos of cocaine, Judge Irenas decided to change the amount of fake drugs Hardee was responsible for. He said due to "sentencing entrapment," he would only find Hardee responsible for attempting to rob 500 grams of fake cocaine.

Appeals of Irenas' decision are now underway. The U.S. Attorney's Office says it will accept nothing less than 10 years. That's just two years and four months more than Hardee was sentenced. Why go through a lengthy appeals process for a difference of two years and four months?

The likely reason: It would set a precedent.

Law scholars and defense attorneys, with a handful of prominent judges joining in during the past few years, have long criticized the fake stash-house tactic. Fake stash-house operations are "so aggressive and costly that some prosecutors have refused to allow them," Brad Heath of USA Today reported in 2013.

If the government's appeal is ultimately denied, it would strengthen the "sentencing manipulation" doctrine, and signal to judges that their "downward departures" (sentencing below guidelines) can hold up on appeal.

Scholars now believe "sentencing manipulation" claims can succeed in cases of aggressive policing where "outrageous government conduct" has no chance.

"Outrageous government conduct is a high standard, and it should be a high standard because you are requiring dismissal of the claim," Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law, said in an interview.

"But a sentencing (manipulation) claim shouldn't be as a high of a standard because you are not asking for the whole claim to be dismissed, just to be sentenced less; you are saying, my culpability is affected by the conduct of the officer."

The Hardee case is not the only one where "sentencing manipulation" or "sentencing entrapment" has had some success. In a 2013 case, US vs. Cortes, the Ninth Circuit Court of Appeals ruled that "sentencing entrapment" can be presented to the jury through jury instructions, and even presented a model jury instruction for sentencing entrapment in stash house cases.

Still, the doctrine suffers from confusion. Its definition varies court to court. Some courts call it "sentencing entrapment," while others call it "sentencing manipulation." Other courts have distinct definitions for each doctrine.

The way to fix the confusion, say scholars, is to bring more cases.

Tinto has attempted to bring some clarity to the messy definition in journal articles and memos. She argues that if defendants had access to a more legitimate "sentencing manipulation" claim, it would mean sentencing in cases where convictions were based on overly aggressive law enforcement behavior would better assess a defendant's blameworthiness.

"Sentencing is about gray," she says. "Sentencing is where you are supposed to evaluate the culpability of the person. Legal guilt is black and white, but sentencing is where you are supposed to be able to say, 'Really how do we want to treat this person?'"

Just as the ATF determines how many kilos of fake drugs are in the fake stash-house, there are countless terrorism cases where government agents inserted certain types of weapons into their stings with sentencing in mind. In one well-known decision, a judge expressed frustration that a more legitimate "sentencing manipulation" doctrine did not exist.

In US vs. Cromitie, the much-debated and discussed "Newburgh Four" case covered in Part 1, the defendants were charged with conspiracy to use stinger missiles, a weapon inserted into the case by the FBI which carried a 25-year minimum. The federal conspiracy charge also required the defendants to travel across state lines; so the FBI's paid informant drove them from New York to a storage facility chosen by the FBI in Connecticut.

The judge in Cromitie, U.S. District Judge Colleen McMahon, said due to case law, she was powerless to sentence the defendants to lower than 25 years because of the missiles. In a profile in The Federal Lawyer, Judge McMahon said, "even though I think it highly likely that the only reason the Government introduced the missile element into this case was to prohibit me from sentencing the defendants to less time than that."

She concludes: "The doctrine of sentencing manipulation (if it exists at all) is effectively a dead letter in cases where there are statutory mandatory minimum."

McMahon sentenced all four men to 25 years in prison.

Francesca Laguardia, a professor of Justice Studies at Montclair State University and former research director for the NYU School of Law's Center on Law and Security, argues that if a judge were allowed to consider these factors in sentencing, justice would be better served.

Laguardia also believes that as we get further from 9/11, courts are not going to continue giving the government the leeway it requests to gain convictions. She hopes that, as in the drug cases, judges will decide to depart from the sentencing guidelines.

"Throughout the country we are realizing just how much harm we've done with mass incarceration," she said. "Judges begin to feel ... that they don't necessarily want to follow along ... when law enforcement agents say, 'No you have to believe us, really, this guy was dangerous, trust us on this one in spite of everything we did.'

"I think there is getting to be a bit more backlash in that area because there is so much more information about how far over the line all of this has gone."

Brad Hall, administrator of the Michigan Appellate Assigned Counsel System, agrees.

"Some judges now ... I think are more attuned and sympathetic to sentencing issues," says Hall, who has represented defendants after sting operations.

Selective Prosecution

One of the principle obstacles to the outrageous conduct defense is that circuits across the U.S. take widely different approaches.

In Illinois or Wisconsin, for example, if you are arrested as part of a fake stash-house sting, the motion is simply not recognized, according to a Seventh Circuit judge, writing this year.

But sometimes even a straight entrapment defense is not allowed by the court.

That was the case for Leslie Mayfield, who was denied at trial from using an entrapment defense in a fake stash-house robbery case. (The decision was later overturned in the Seventh Circuit in late 2014, and a new trial is underway.)

In many cases, defendants have begun to file discovery motions to try to get the ATF, the Drug Enforcement Administration (DEA) or the Department of Justice to release targeting criteria in an attempt to show that the defendants were discriminated against because the government chose to prosecute them and not others.

The new defense strategy for these types of cases, called "selective prosecution," was spearheaded by the University of Chicago Law School's Federal Criminal Justice Clinic, run by Alison Siegler. In the past two years, defendants in Connecticut, New York, Pennsylvania and New Jersey have filed similar motions.

"In fake stash house robbery cases, the ATF creates a crime and then chooses people to commit it. In Chicago, over 91 percent of the people they choose to commit this crime are people of color," Siegler said during an oral argument in June.

That percentage is, oddly enough, the same found in an investigation into fake stash-house cases by USA Today in 2014.

"At least 91 percent of the people agents have locked up using those stings were racial or ethnic minorities," Brad Heath reported in USA Today.

In response to questions about stash house cases, ATF spokesman Special Agent Brian Garner said, "[the investigations] are structured and have specific benchmarks which must be met to ensure they are being conducted within policy and that the elements of crime are met for a successful prosecution."

The Crime Report asked for a list of those benchmarks and we were directed to the Executive Office for United States Attorneys, which has not responded to multiple requests for the information.

Proving selective prosecution in court is difficult.

Siegler represents one of seven men arrested in 2013 in a fake stash-house sting. Before trial, the defendants filed a broad discovery order that would require the ATF and the U.S. Attorney's Office to disclose documents on how individuals are targeted, and who has been arrested in these stings.

U.S. District Judge John Darrah of the Northern District of Illinois, ordered the government to provide those documents, saying, "The prosecution in this district has brought at least 20 purported phony stash house cases, with the overwhelming majority of the defendants named being individuals of color."

Because the government could not appeal the discovery motion, it moved to have the case dismissed. This allowed it to appeal the dismissal and contest the discovery motion in the appellate court. The Seventh Circuit, however, did not side entirely with the government and ruled that a narrower order would be more appropriate.

This case, which has returned to the district court, is one to watch: It could have widespread implications for fake stash-house cases and the "selective enforcement" strategy.

In New York, public defenders haven't had as much success. Jonathan Marvinny of the Federal Defenders of New York, a non-profit organization that defends poor people charged with federal crimes, filed a discovery motion to get the DEA and U.S. Attorney's Office to fork over documents on who has been arrested in reverse sting cases, and to explain how the targets were chosen.

To support his discovery claim, Marvinny argued there were white people in New York "prepared to commit these crimes who have violent felonies on their record," and who, if approached by the DEA, would agree to rob a drug stash-house.

The judge did not agree, ruling that providing data on white felons is not enough to show selective prosecution, and that proof was required to show that an informant or undercover agent heard about a white person who would be willing to rob a stash house and decided not to target him or her in a sting.

"That's really impossible for the defendants to argue," Marvinny said in an interview with The Crime Report.

It's a bit of a Catch-22. To get the government to hand over documents on who has been arrested in the stings and why they were chosen, you need data--not to mention the fact that there is not very much data available on stash house robberies to begin with. Dealers don't usually report to police when they are robbed.

As fans of "The Wire" might understand, Avon Barksdale was not going to complain to the cops after Omar robbed one of his stash houses.

Yet even as the ATF and DEA continue to conduct fake-stash house stings, there are signs that this aggressive litigation is forcing the government to change its approach in how they are prosecuted.

For example, in Illinois, where the Assistant U.S. Attorney's Office in January dropped charges against 27 defendants arrested in Chicago fake stash-house cases conducted by the ATF.

Critics say this may have been a way for the U.S. Attorney's Office to make the controversial cases more palatable for the judges, because the drug charges remove the mandatory minimums, thus giving the judges more power in sentencing by only considering the gun and robbery charges.

"...and hopefully you won't hate this sting as much," Tinto said.

'Good Law'

Currently, the U.S. is immersed in a heated debate on police-community relations and corrections reform. Re-thinking sentencing guidelines, such as mandatory minimums, as a way of reducing long-term prison populations has been at the center of the debate.

What seems to get much less attention are the legal protections of defendants before a case even comes to trial.

Courts are struggling with how to handle "extreme policing," and their decisions are having a profound impact on what type of law enforcement tactics will hold up in court. Whether it's aggressive litigation, or judges going out on a limb knowing they may be overruled by a higher court, extreme policing seems to be slowly becoming part of the police-community relations debate. And a handful of important cases in the pipeline now means the conversation will continue.

The cards are still stacked against the poorest and least powerful Americans, but that challenge has pushed some to fight harder.

Asked why defendants continue to argue "outrageous government conduct," as well as "sentencing manipulation," in courts that have a history of discounting those claims, Brad Hall, administrator of the Michigan Appellate Assigned Counsel System and longtime public defender, said simply: "That's how good law is made."

"If you believe in something and think there is merit to it, courts can't ignore it. When you look back at landmark procedure cases, they often look the same way in the years preceding them," he said. "I'm hopeful."

This project was made possible through the generous support of the Fund for Investigative Journalism, and through readers' contributions through an IndieGoGo campaign.