BPD detective Diaz, portrayed in McFarland USA movie arrested on bribery, drug trafficking charges Damacio Diaz portrayed in McFarland USA movie

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Pressure Builds For Obama To Fire DEA Head Over Medical Marijuana Comments

barack obama marijuana

It didn’t take DEA head Chuck Rosenberg long to get himself in the hot seat. Chuck Rosenberg recently made comments that referred to medical marijuana as a ‘joke.’ Those comments resulted in Tom Angell and the Marijuana Majoritystarting a petition calling for the termination of Chuck Rosenberg. That petition currently has 95,912 signers as of this blog post. The petitions will be delivered to the DEA headquarters tomorrow by medical marijuana patients. It would be fantastic to see that petition top 100,000 before that time, so if you haven’t signed it yet, please do so, and tell everyone that you know to do the same. Below is a quote from Tom Angell about the growing pressure for Obama to fire Mr. Rosenberg:

“The call for change at DEA is picking up steam. Calling medical marijuana a ‘joke’ runs counter to science showing that cannabis has medical value, and it is out of step with the vast majority of Americans who polls show overwhelmingly support enacting laws to protect patients from arrest. Nearly 100,000 people have signed our petition saying that Rosenberg should lose his job. Now a bipartisan group of lawmakers has placed this controversy right on President Obama’s desk. If he doesn’t act to make a change soon, this is going to be a continuing political problem for his administration.”

In addition to the petitions being signed by citizens, members of Congress are also calling for Obama to terminate Chuck Rosenberg. Below is a press release that I received from Congressman Earl Blumenauer’s office:

Today, Representative Earl Blumenauer (D-OR), joined by Representatives Dana Rohrabacher (R-CA), Steve Cohen (D-TN), Sam Farr (D-CA), Barbara Lee (D-CA), Ted Lieu (D-CA), and Jim McDermott (D-WA), sent a letter to President Obama calling for new leadership at the Drug Enforcement Administration (DEA) following recent comments by the Acting Administrator, referring to the notion of smoking medical marijuana as ‘a joke.’

“Mr. Rosenberg’s comments are outrageous and misleading. The last 20 years has shown overwhelming testimonial evidence of the benefits of medical marijuana, leading 23 states, DC, and Guam to change their laws,” said Representative Blumenauer. “President Obama has taken action to respect state medical marijuana laws. Mr. Rosenberg is out of step with the Administration and out of touch. It’s time for new leadership.”

In the letter, the lawmakers also call out Rosenberg’s hypocrisy in statements he made highlighting a lack of information demonstrating the safety or effectiveness of marijuana as medicine. Current federal policies make it very difficult for doctors and scientists to conduct the medical research with marijuana necessary to obtain this information, and the DEA has been integral to limiting access to marijuana that can be legally used for research.

“The real joke is that the DEA has played a huge role in propping up federal policies that have systematically blocked research of marijuana’s medicinal value. If there are any questions about its safety or effectiveness, it’s because the federal government continues to stymie science,” said Representative Blumenauer.

Yesterday, November 18, Representative Blumenauer took to the floor of the House calling for a new DEA chief. Additionally, a petition organized by Marijuana Majority on Change.org demanding that Rosenberg be fired has garnered more than 90,000 signatures.


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Grand jury member convicted of leaking information in drug case

(Source: Montgomery County Detention Facility)

A Montgomery woman has pleaded guilty to revealing confidential information while she was serving on a grand jury in a major drug case, Attorney General Luther Strange announced.

Latoya Ware pleaded guilty in Montgomery County Circuit Court on Monday to an unclassified felony after attempting to reveal classified grand jury evidence.

Ware has since applied for a pretrial diversion program, which would allow her to enter into a suspension program and if completed would potentially bring no charges upon her or if charged the charges would be dismissed. However the state is opposing the pretrial diversion.

Ware faces a potential sentence of three years and a $3,000 fine.

“This conviction is important because it is vital that the integrity of the grand jury process be preserved,” Strange said. “These proceedings are preliminary to a prosecution, and are confidential by law for the protection of witnesses, law enforcement and even the suspects in a case. Abuse of the grand jury secrecy act must not be tolerated.”

In August, Ware sat as a grand jury member for a trial involving a drug bust that resulted in more than 20 arrests. During a break, she was observed and questioned by a fellow grand juror about taking photographs of the physical evidence presented to the grand jury.

Ware said she deleted the photos, however when questioned by the prosecutor and investigators of the Attorney General’s Office, she denied taking any photographs.

After a search of her phone, the photos were found in an internet cloud.


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Can law enforcement use “fake” crimes to create criminals? part 1

Emanuel Gerardo Cota-Ruiz, a 36-year-old Mexican immigrant living in Arizona, was sentenced in 2013 to ten years in prison for conspiring to rob a cocaine stash house.

Cota-Ruiz had no previous criminal history. He installed drywall. But, as his lawyer explained in court, he was unemployed and desperately searching for money to buy food, clothes and school supplies for his children when he was introduced to someone who described himself as a disgruntled drug courier. The courier said he knew there were as many as 39 kilos of cocaine stored in a house.

The man who introduced Cota-Ruiz to the drug courier was a paid confidential informant of the Bureau of Alcohol, Tobacco and Firearms (ATF). The drug courier was an undercover ATF agent. And the cocaine didn’t exist.

Cota-Ruiz had fallen victim to an ATF “sting” first developed by Florida agents in the 1990s. The agents invented a plot to “rob” a non-existent stash house–a scenario they believed would help them catch some of the most violent players in the drug trade: Those who prey on fellow drug dealers.

But Cota-Ruiz wasn’t a drug dealer. Neither were the three friends he recruited for the scheme–though one of them did have a prior criminal record (for an attempted breaking and entering). The only participant in the scheme who actually had a connection with the drug business was the confidential informant who, as court evidence showed, was trying to avoid deportation following an earlier trafficking arrest.

No one could deny that a crime was being planned. The ATF presented video and audio recordings at trial documenting the plot. Cota-Ruiz and the other defendants accepted a deal: In return for pleading guilty, each was sentenced to a relatively lenient prison sentence of 10 to 12 years.

The case could have ended there–another of the hundreds of drug cases prosecuted in courtrooms every day across the U.S. However, one of the defendants decided to appeal. The Ninth Circuit Court of Appeals denied the appeal in May, on the grounds that he had already waived his right to appeal when taking the plea bargain.


Evening News Online, 08.30.11



But rather than write a simple denial, Ninth Circuit Senior Judge Edward Leavy devoted five pages to a condemnation of the sting tactic. He said the “manifest injustice” of the ATF’s actions should have led to a dismissal of the case at the district court level due to “outrageous government conduct.”

“The infliction of a 121-month prison sentence on a defendant who, if simply left alone by our government, would otherwise be free, is a manifest injustice,” Leavy wrote.

His comments reveal the difficulty of defending individuals who claim that police or over-zealous prosecutors have over-reached or abused their lawful authority or charge that police have used questionable tactics–what some might consider “extreme” policing.

Defendants in such cases could claim entrapment, a defense which dates back to the Prohibition Era. Entrapment is a defense in which defendants claim they were induced or persuaded by police to committing a crime that they wouldn’t have otherwise committed.

But it’s up to a jury to decide whether the claim is legitimate, and it can be an uphill battle if a defendant has a record (which can indicate “predisposition” to criminal behavior), or if a judge rules simply that he or she was “ready and willing” to commit the crime, which usually undermines an entrapment defense.

But they also have another tool: they can file a motion to dismiss the case due to “outrageous government conduct.”

The motion has been used in many cases over the past four decades. In fact, that’s what Cota-Ruiz and his co-defendants filed. But it failed.

That wasn’t unusual. A Crime Report investigation found 126 motions to dismiss a case on the grounds of “outrageous government conduct” filed during an 18-month period between 2014 and August 2015.

In those 126 cases, only seven were initially successful. Three of those were overturned on appeal, and an appeal on the fourth is still pending–though it is expected to be denied.

In the rare occurrences where a claim of “outrageous government conduct” is successful, something profound can shift: police behavior.

In one instance this year, the motion’s success directly led to a law enforcement agency changing policy on undercover sting operations involving prostitution.

Nevertheless, the small number of such motions–and the failure of most of them to stick–raises troubling questions for the future of American law enforcement.

Legal scholars interviewed by The Crime Report say the near-overwhelming failure of courts to rule aggressive police behavior is “not outrageous” when such motions arise has created a climate in which such behavior is likely to increase–while eroding the power of the judicial branch to check the government when it overreaches and, by implication, threatening Americans’ constitutionally enshrined right to due process.

A handful of judges across the country have raised similar concerns in rulings that have received little attention.

Why Not ‘Sentencing Entrapment’?

Defense lawyers do have another legal tool to curb the kind of overzealous law enforcement demonstrated by the “fake stash house robbery” sting.

They can claim, for instance, that a defendant has been the victim of sentencing “manipulation” or entrapment — in which law enforcement agents in effect determine what sentence a defendant will receive by manipulating the amount of fictional drugs in the sting.


prop. 8, gay marriage, California

Judge Stephen R. Reinhardt (center) criticized law enforcement’s use of “fake” crimes in a 2014 dissent


The harsh sentences Cota-Ruiz and his fellow conspirators were facing–and to which they pleaded guilty as part of a bargain to reduce them–were entirely related to the fact that the amount of fake cocaine they were told (by the government) was in the fake stash house amounted to more than five kilos, which carries a mandatory minimum sentence of 10 years in prison.

Such sentencing “‘entrapment” claims have in fact found some success in courts–as we’ll show in Part Two of this investigation.

They allow judges more leeway to determine the culpability of the defendant, rather than feel hamstrung by mandatory minimums triggered by fake weapons or a specified fictional amount of drugs.

But at a time when the nation is debating whether and how to set limits on the conduct of law enforcement, the denial of “outrageous government conduct” claims may have effectively set the bar higher for questionable police tactics.

Leavy was not the only judge who has expressed frustration over his inability to check authorities’ use of made-up information to ensnare targets of government investigation.

In 2010, Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals wrote:

In this era of mass incarceration, in which we already lock up more of our population than any other nation on Earth, it is especially curious that the government feels compelled to invent fake crimes and imprison people for long periods of time for agreeing to participate in them–people who, but for the government’s scheme, might not have ever entered the world of major felonies.

Reinhardt’s comments came in a dissent from a 2010 ruling that denied an appeal on the grounds of outrageous government conduct by Cordae Black and three other California defendants to dismiss a drug conviction obtained as part of another fake stash house robbery concocted by the ATF.

In the many cases where the motion fails, judges lament that they are bound by precedent–usually citing the ruling in US vs. Cordae Black.

Which is ironic, since the “outrageous government conduct” claim itself evolved from an almost casual comment by a future Supreme Court Chief Justice–a comment that was itself precedent-setting.

Tangled History

In 1973, then-Associate Justice of the Supreme Court William Rehnquist wrote in a majority ruling in US vs. Russell:

..We may 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.

In the Russell case, a government agent supplied defendants with a key ingredient for making meth, without which they wouldn’t have been able to manufacture the drug. Even though the defendants’ guilty verdict was upheld, the concept outlined by Justice Rehnquist entered the legal canon.

A landmark 1952 Supreme Court decision was a harbinger of the outlined by Justice Rehnquist two decades later. In Rochin vs. California, the Court ruled that forcefully pumping morphine from a defendant’s stomach to gain a conviction on drug possession had violated his due process rights — and “shocked the conscience.”

But there are few legal definitions to help decide what “shock” means, much less define whose “conscience” is being shocked. In theory, “outrageous government conduct” provides a clearer, more evidence-based guideline than a “shocked conscience.”

But overwhelmingly, judges have still felt uncomfortable using it.

“Defendants who think that the government went ‘too far’ may make an entrapment defense or say that they lack the means required of the offense,” wrote Judge Frank Easterbrook in concurring with a Seventh Circuit Ruling in the 1989 case of US vs. Miller.

“…If the investigators were too creative or squandered their limited resources, this is a political problem. Congress can hold oversight hearings or pass a law…”

Easterbrook continued:

“‘Outrageousness’ as a defense does more than stretch the bounds of due process. It also creates serious problems of consistency. The circuits that recognize a ‘due process defense’ can’t agree on what it means. How much is ‘too much’? Any line we draw would be unprincipled and therefore not judicial in nature. More likely there would be no line; judges would vote their lower intestines. Such a meandering, personal approach is the antithesis of justice under law, and we ought not indulge it.

Such queasy responses on the part of the judiciary help explain why the government almost always emerges victorious when an “outrageous conduct” motion is filed.

No claim of outrageous government conduct has ever reached the Supreme Court.

One comment by a judge in a 1993 Massachusetts case has often been quoted in negative rulings on the motion: “The banner of outrageous misconduct is often raised, but seldom saluted.”


Former Chief Justice William Rehnquist


A Dossier of Outrageousness

One law scholar in 1994 suggested that, considering the record of failure, in effect the defense was dead. But if it is, the news clearly hasn’t reached defense attorneys or civil liberties advocates.

Motions on outrageous government conduct continue to be brought up in dozens of criminal cases in state and federal courts every year.

Are these the legal equivalent of spitting in the wind? Or does it reflect frustration with the growing impunity of authorities who feel they have been given a blank check by the courts to battle crime by any means they consider necessary in the public interest?

Of the 126 claims of outrageous government conduct filed in state and federal courts between 2014 and August 2015 (including new motions and upheld motions), identified and reviewed by The Crime Report, 105 were federal and 21 were from state courts.

(It’s not a comprehensive list. There are undoubtedly more claims brought up during this time period, but state court records are not as easy to search. )

What’s notable about the recent cases is the expanding envelope for questionable actions that law enforcement and prosecutors have achieved as a consequence of the denials of such motions, with the tacit support of judges.

The Crime Report’s investigation found motions to dismiss for outrageous government conduct in cases involving drugs, guns, terrorism, child pornography, prostitution, contraband cigarettes, money laundering and more.

The three cases which made it through the legal wringer were:

  • A California case dismissed after a prosecutor inserted a false confession into a transcript of defendant’s police interrogation;
  • Two prostitution cases in Minnesota dismissed after evidence showed officers had sexual contact with defendants (more details below).

Some judges themselves have publicly worried that as courts shoot down motions of “outrageous government conduct, ” those rulings in turn will move the line of what courts consider acceptable law enforcement behavior in the future.

For example, Judge Reinhardt wrote that because the court determined the police conduct during a fake stash house sting in US vs. Black was not outrageous, it “sends a dangerous signal that courts will uphold law enforcement tactics even though their threat to values of equality, fairness, and liberty is unmistakable.”

US vs. Cordae Black

US vs. Black has frequently been cited as a precedent for denying the claim of outrageous government conduct. But it may also have opened the door to even more aggressive police behavior.

In 2010, a California jury found Cordae Black, Angel Mahon, Kemford Alexander, and Terrance Timmons guilty of conspiracy to distribute cocaine and use of a firearm to traffic drugs, as part of a fake stash-house robbery operation conducted by the ATF. Each was sentenced to between 15 and 16-and-a-half years in prison.

During the trial, the district court judge denied the defendants’ motion to dismiss the case due to outrageous government conduct.

Like other fake stash-house stings, a confidential informant was hired by the ATF to find targets who would be willing to commit a crime. In this case, the informant admitted in testimony that he trolled through “a bad part of town, a bad bar, you know . . . bars where you’ve got . . . a lot of criminal activity” to find people interested in the scheme.

A three-judge panel of the Court of Appeals for the Ninth Circuit denied Black’s appeal, with one judge, John T. Noonan, dissenting. Noonan, appointed to the Ninth Circuit by Ronald Reagan in 1985, wrote a blistering dissent, saying that the ATF’s actions “constitute conduct disgraceful to the federal government.”

In effect, the appellate court decision provided tacit approval of the government to randomly dragnet low-income communities to find people willing to rob a stash house.

A second appeal by Black to request the entire Ninth Circuit to reconsider the case also failed. But again there were strong dissenting votes from two of the circuit court judges: Judge Stephen Reinhardt (quoted above) and Chief Judge Alex Kozinski.

According to Reinhardt, the majority rulings sent a message to other courts that law enforcement can violate constitutional rights without fear of being held accountable.

“Ultimately, the most dangerous aspect of the majority opinion is that it virtually eliminates constitutional limits on outrageous government conduct,” he wrote.

The Black decision set an additional precedent that concerned civil liberties advocates by ruling it was permissible to consider criminal histories as one of six factors when determining if government conduct was justified.

Another factor which the Ninth Circuit said was determinative in the government’s defense was the general difficulty in developing investigations in drug cases, which made such sting operations necessary.

As Reinhardt and others pointed out, such a consideration could be used to justify any kind of aggressive police conduct, even against those who have committed no crime but are considered likely to conduct one–a concept that later critics would label as “profiling.”

He was right.

In The Crime Report’s review of cases from the last two years, US vs. Black was cited repeatedly in courts nationwide as the new gold standard for defining outrageous government conduct. In the first case we mentioned, US vs. Cota-Ruiz, where three of the four defendants had zero criminal history, Judge Leavy concluded that if not for US vs. Black the case should have been dismissed outright.

In March 2014, California Central District Court Judge Otis Wright granted an order to dismiss indictments against two men arrested as part of a fake-stash house robbery. His motion to dismiss was later overturned because of US vs. Black.

During an oral argument of that appeal in late 2014, Ninth Circuit Judge William Fletcher slammed the Assistant U.S. Attorney and the ATF’s tactic, but nevertheless said he was bound by court precedent in Black.

“You guys are dragging half a million dollars through a poor neighborhood … I think it’s a totally misguided policy,” Fletcher said. But he quickly added, “Now the law’s the law and I’m going to follow it, but I think you guys are making a mistake.”

In May 2014, U.S. District Judge Manuel Real tossed indictments in a stash-house case due to outrageous government conduct, US vs. Flores, after he asked the government to provide evidence that the defendants were involved in previous drug robberies.

The government did not provide any evidence, arguing instead that the defendants’ history of drug possession proved predisposition.

“If we were to accept the government’s absurd proposition that prior drug possession was proof of a propensity for drug trafficking, then the current President of the United States, at least one former President, and at least one judge being considered for appointment to the Supreme Court of the United States would ostensibly, according to the government’s theory, be just the types with the propensity to be narcotraffickers,” wrote Real.

Citing US vs. Black extensively, the U.S. Attorney’s Office appealed Real’s decision. The case is now before the Ninth Circuit Court of Appeals and if other cases are an indication of its fate, his decision will be overturned as well.



The logo of the Vagos Motorcycle Club



The Vagos Motorcycle Club

In another active case, US vs. Halgat, the ATF infiltrated a West Coast motorcycle club, Vagos, to determine if it was a criminal enterprise.

With help from an informant, pretty soon the ATF had one of its own undercover officers initiated as a “fully-patched” Vagos “brother.” That agent became friends with Jeremy Halgat, who was targeted after he bragged about past criminal exploits, including allegedly beating up a Hell’s Angel member and trafficking marijuana and grenades across the Mexican border.

But Halgat gave up trafficking drugs, he said, and in two years of undercover work, the only crime the ATF witnessed him doing was using cocaine.

“[Undercover ATF agent Agostino Brancato] applied pressure, supplied money, designed the plan, initiated four transactions, and falsified a report regarding one of the transactions. After five weeks of refusal, Halgat capitulated and agreed to participate at a minimal level,” Magistrate Judge Cam Ferenbach wrote.

That “minimal level” was introducing Brancato to a man that Halgat knew to be a cocaine dealer and arranged the drug deals. Subsequently, Brancato — who pretended to be a courier for a Mexican drug cartel — asked Halgat to “watch his back” during a big drug deal.

The deal was bogus.

The ATF took ten kilograms of cocaine from its own supply of contraband, rented an airplane, and flew it to Searchlight, Nevada–where one ATF agent handed 10 kilograms of cocaine to another (Brancato).

Halgat never touched the drugs. He stood watch down a nearby roadway. For this, Brancato paid Halgat $1,000.

Halgat was charged with four counts of distribution of cocaine, one count of conspiracy to distribute 10 kilograms of cocaine and one count of using and carrying a firearm. He pleaded not guilty.

Judge Ferenbach recommended that the case be tossed due to “outrageous government conduct,” but a higher court, citing US vs Black, overruled him. That case goes to trial next year.

What Happened to Due Process?

Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law who has written extensively on fake stash-house stings, believes the accumulating case law used to defeat outrageous conduct motions threatens the due process protections guaranteed under the Constitution.

“(It’s) a real problem if you have judges thinking that this tactic (fake stings) really offends our basic constitutional values (but) they can’t really do anything about it,” Tinto said in an interview.

Eugene Marquez, who represented Cordae Black, described the tactic as the culmination of years of aggressive policing in poor neighborhoods.

“For decades we were sanctioning and allowing law enforcement to target poor people, target the weaker,” he told The Crime Report. “They were constitutionally allowed to misinform people who were having contact with law enforcement. They could lie to them legally.

“This is all of that on steroids. (It’s) the extreme culmination of those decades of attitudes, allowing law enforcement to behave with impunity out there in public.”

Cordae Black and his co-defendants are some of the more than 1,000 people the ATF has locked up using this “fake stash-house” tactic, according to reports by USA Today.

As far as the government is concerned, “reverse stings” like the fake stash-house are crucial tools for law enforcement. The ATF conducted 24 of these operations in fiscal year 2014, and nine in fiscal year 2015 through September 16, according to ATF spokesman, Special Agent Brian Garner.

Insisting that those numbers make up an “incredibly small proportion of the ATF’s annual arrests,” he nevertheless added in an email to The Crime Report that the tactic “continues to be a very effective investigative tool in combating violent crime.”

The Drug Enforcement Administration, as well as local law enforcement, have conducted similar operations.



Police lead one of the “Newburgh Four” suspects after his 2010 arrest for plotting to bomb two New York synagogues.



Terrorism, Too

A landmark, controversial terrorism case, US vs. Cromitie, also moved the needle of what courts now consider to be acceptable police behavior.

In our review, we found that Cromitie, a case that has received a fair share of attention in the media and was the focus of an HBO documentary, was cited in numerous rejections of claims of outrageous government conduct.

In 2009, four poor African-American men from Newburgh, N.Y. were convicted of plotting to bomb two synagogues in the Bronx and shoot Stinger missiles at an aircraft base in upstate New York.

Lead defendant James Cromitie was recruited into the scheme by paid FBI informant Shahed Hussain, who had been working with the FBI since 2002 as part of a deal to avoid being charged for accepting cash to help drivers cheat on tests while he worked at the New York State Department of Motor Vehicles.

Cromitie, in turn, recruited three others.

To complete the “mission,” Hussain offered Cromitie $250,000, a barber shop, a vacation, and a BMW, as well as thousands of dollars to the other defendants.

At one point, Cromitie cut off contact with Hussain, telling him he left town when he was really still in Newburgh.

Six weeks later, when Cromitie needed money, he called the informant.

“I have to try to make some money, brother,” Cromitie said.

“I told you. I can make you $250,000, but you don’t want it, brother. What can I tell you,” Hussain said.

So Cromitie agreed to participate. The FBI informant drove the men, none of whom owned a car or had a driver’s license, across state lines to Connecticut (so the case could be prosecuted in a federal court) to check out inert Stinger missiles. Later, the FBI informant drove the men to the Bronx with fake bombs.

There, Cromitie did not even know how to prepare the (fake) bomb, causing a judge on appeal later to refer to him as “comically incompetent.” All four men were arrested with conspiracy to detonate weapons of mass destruction. Each is serving 25 years in prison.

During trial, the motion to dismiss for outrageous government conduct was denied.

“For a strong outrageous government conduct defense to exist it would have to include cases like the Cromitie case, where you’ve got a bunch of guys that can barely feed themselves and they tried to get away from this informant,” said 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.

Sting operations in the Second Circuit have used this case as a barometer for determining outrageous conduct.

Using Cromitie as a guide, courts have ruled that creating the opportunity to commit a crime to the point of “supplying defendants with materials essential to commit crimes,” as well as “feigned friendship, cash inducement and coaching in how to commit the crime,” does not warrant dismissal based on outrageous government conduct.

In a ruling on a sting case earlier this year, Connecticut District Court Judge Jeffrey Meyer expressed clear hesitation about the case, even quoting harsh criticism of similar stings in his order.

Nevertheless, after referencing the Cromitie case, he wrote, “… I am bound to follow the law of the Second Circuit. Unless the Second Circuit is prepared to reconsider or modify its precedent in this field, the facts of this case fall well short of establishing an indictment that is the product of outrageous government conduct.”

Sam Braverman, a New York defense attorney who represented one of the defendants in US vs. Cromitie, appealed to the Supreme Court, which declined to hear the case. He said if the Supreme Court were to take up a case involving claims of “outrageous government conduct” — or if Congress took some initiative — what type of conduct is allowed and not allowed would become clearer.

“We’re stuck in a position where we can’t get judges to change the law and we can’t get Congress to change the law,” said Braverman in an interview with The Crime Report.

Minnesota Stings

During The Crime Report’s investigation, we came across one example where a claim of outrageous government conduct impacted law enforcement behavior in the opposite way–setting clear limits on law enforcement behavior by changing police policy.

In a campaign to close massage parlors suspected of being fronts for prostitution in Minneapolis, an undercover police officer arrested a woman after paying her to rub her bare breasts on his chest and stomach, and to touch his genitals. A court ruled that was an example of outrageous government conduct.

In most prostitution cases, a sexual act is not necessary to charge the crime, just the agreement. But the officer in this case went far beyond that. The entire interaction was recorded, including all of the moaning by the officer, and so the Hennepin County Public Defender’s Office filed a motion to dismiss.

A judge agreed and in August, the case was tossed, along with a second similar case. (Minnesota vs. Jackson and Minnesota vs. Brady)

Mary Moriarty of the Hennepin County Public Defenders Office said the outrageous conduct in this case was obvious.

“I tend to think that there is a little more awareness and more of a sense that this is just too far,” she told The Crime Report.

In an unusual move, the government did not appeal the two cases that were tossed in August. Instead, the Minneapolis Police Department issued a statement saying it would no longer conduct such prostitution stings.

Totalitarian Future?

While the outrageous government conduct defense is still massively unsuccessful, those Minnesota cases show that it is an important safeguard against the threats outlined by Justice Rehnquist over 40 years ago.

Evidently, many judges still agree with him.

In 2013, Tenth Circuit Appellate Court Judge Neil Gorusch provided a powerful endorsement when he approvingly quoted commentators who suggest that it protects Americans against the “the day when our government finds itself at liberty to enlist everyone to spy on everyone else, a sort of hedge against a bleak totalitarian future.”

Some critics might argue that the actions of some of our overzealous law enforcement agents have brought such a future closer.

That may be hype. But as the outrageous conduct defense continues to lose viability, the limits on what courts consider acceptable law enforcement behavior have expanded.

In Part Two, we’ll look at how public defenders fighting these types of sting cases are developing new defense techniques in response to the persistent failure of outrageous government conduct motions.

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Can law enforcement use “fairy tales” to step up sentences? part 2

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 was going to happen, and that was a fairy tale?” he asked.

Judge Irenas is one of the latest judges 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 which were arguably violated by the government’s overzealous use of strategies like “fake stash-house stings.”


Former Chief Justice William Rehnquist



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 individuals who the government claims are threats to society for more than a decade.

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, and put them behind bars for decades.

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. (More on that below.)

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 the chorus of condemnation over 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 reportedin 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 both sentencing manipulation and sentencing entrapment.

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?’”



Police lead one of the “Newburgh Four” suspects after his 2010 arrest for plotting to bomb two New York synagogues.



Terrorism and Sentencing Entrapment

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 highly watched 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 paid informant drove them 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 is quoted as saying she has no discretion to sentence the defendants to less than 25 years, “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 in 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 lateroverturned 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.


Evening News Online, 08.30.11




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 theExecutive 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 fork 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.

In January, the Assistant U.S. Attorney’s Office 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.”

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Live Oak Police Sergeant Indicted for Possessing Child Pornography

JACKSONVILLE, FL—United States Attorney A. Lee Bentley, III announces the return of an indictment charging Kyle Adam Kirby (age 35, Live Oak) with possession of child pornography. He faces up to 20 years in federal prison, and a potential life term of supervised release. Kirby was arrested on October 28, 2015, at the Live Oak Police Department. His trial is scheduled to begin on January 4, 2016; Kirby is being detained pending trial.

According to court documents, FBI agents and other law enforcement officers executed a federal search warrant at Kirby’s residence as the result of an online child pornography investigation. That same morning, the Live Oak police chief authorized the agents to inspect and search the computer located inside Kirby’s patrol car. A forensic examination of the patrol car computer used by Kirby revealed that it contained at least 87 thumbnail images in a “Downloads” folder that either depicted minor children engaged in sexually explicit conduct, including one involving a toddler, or that had titles indicative of child pornography. In addition, the Internet browser history on the computer contained search terms commonly used by individuals who search for child pornography online.

This case was investigated by the Federal Bureau of Investigation, the Columbia County Sheriff’s Office, and the Florida Department of Law Enforcement. It is being prosecuted by Assistant United States Attorney D. Rodney Brown.

It is another case brought as part of Project Safe Childhood, a nationwide initiative launched in May 2006 by the Department of Justice to combat the growing epidemic of child sexual exploitation and abuse. Led by United States Attorneys’ Offices and the Criminal Division’s Child Exploitation and Obscenity Section, Project Safe Childhood marshals federal, state, and local resources to locate, apprehend, and prosecute individuals who sexually exploit children, and to identify and rescue victims. For more information about Project Safe Childhood, please visit www.justice.gov/psc.

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St. Pete police officer accused of roughing up suspect quits

ST. PETERSBURG, FL (WFLA) – A St. Petersburg police officer is out of a job after being accused by other officers of using excessive force during an arrest.  Video of the arrest shows officer Andrew Cane confronting a suspect in downtown St. Petersburg.

Witnesses reported seeing the man urinating in public and exposing himself. The video shows Cane arriving on the scene, confronting the man and then handcuffing him.

There is no audio with the video, but after pressing the handcuffed man against the wall, Cane then throws him to the ground. In his official police report on the incident, Cane claimed he told the suspect to “stop resisting” but that he appeared aggressive and wanted to fight.

Cane then claimed in the report that each time he looked around for his backup, the man twisted and “adopted a stance as if to attack me”. The video shows a different story. Other officers were already on scene and just feet away when Cane slammed the man to the ground.

Two of the officers present that day reported Cane for his actions. “As a chief, you don’t want to believe that one of your officers would take a suspect down to the ground after he has been handcuffed, so for two officers to come forward and say they saw something that they didn’t like, really means a lot to me,” said police chief Anthony Holloway.

Cane has been in trouble with the department before. He was suspended from the department for more than 80 days after a tow truck driver reported seeing the officer in his personal car, pleasuring himself in public. This time, Cane resigned before an investigation into the incident could be completed.

“We want to tell people if the officers are using force unnecessarily that we will do something about it,” said Holloway.

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Broward downgrades penalty for pot possession

Pot smokers busted by cops in Broward County with a joint or a baggy of marijuana could walk away with a civil fine and a clean criminal record.

Broward commissioners voted unanimously Tuesday to create a lighter penalty for small-time possessors of marijuana. The county can’t decriminalize an illegal drug, and police officers still have the option to treat the offense as a misdemeanor crime.

But commissioners lamented the lives they say have been ruined by arrest or jailing on what they consider a minor infraction. Twenty states have decriminalized marijuana under certain circumstances, and voters in Broward overwhelmingly supported legalization of medical marijuana when it hit the Florida ballot, but failed, last year.

Broward Commissioner Marty Kiar, who sponsored the legal change, said he’s never smoked pot in his life, and doesn’t think anyone should. But he said the civil citation option would save money by keeping people out of jails, and allow struggling people to avoid the complications that accompany an arrest record.

“It will change people’s lives,” agreed Bernard Cantor, a retired doctor who said he’s seen “many who suffered consequences of the war on drugs.”

“I don’t think this is a crime that should ever end up with somebody in jail,” Commissioner Beam Furr said. “I just think we’ve been on the wrong track for a long time.”

Under what was approved Tuesday, a person would be eligible for a civil citation instead of a misdemeanor arrest if the amount of drug is 20 grams or less, and the person didn’t also commit a crime of domestic or other violence, driving under the influence, or a felony.

The pot-ticket option would be available to a person only three times; after that, it could only be treated as a crime. Fines would escalate from $100, to $250, to $500. On the third offense, the person would be screened for a drug problem and treated or educated if necessary.

Discretion on how to handle offenders will remain with law enforcement, and a person could still be arrested for possessing a joint. Also, any Broward city could vote to opt out.

Miami-Dade County commissioners have already passed a similar law. Palm Beach County commissioners put a vote on hold until December, after the sheriff there raised concerns.

In Broward, the sheriff and the state attorney endorse this route, to keep small-time pot smokers out of jail and allow them to fill out job applications for the rest of their lives without telling anyone they were caught with an illegal drug. The civil citation would not be an “arrest’ — it would be more like a speeding ticket.

Still, a lineup of speakers in the substance abuse field urged caution and successfully argued for the drug-addiction assessment and subsequent drug education and treatment.

Garry Smyth, who deals with drug and alcohol addicts, was among those worried about the message that would be sent to young people, who are taught to reject illegal drugs. Smyth held up a doctored version of the Sun Sentinel, with a photo of the County Commission and the headline “County Commission says it’s OK to smoke pot.”

In other action, Broward County commissioners:

•HUMAN TRAFFICKING: Voted to draft a law allowing the county to enforce with fines a new state law requiring postings of human trafficking public awareness signs throughout specified areas. The law, which takes effect in January, requires the state Department of Transportation to post awareness signs in rest areas, welcome centers, railroad centers and airports. The signs, containing a hotline number, must also be posted in hospitals, strip clubs and massage parlors.

•LIBRARY LAND: Gave property at 6600 Sunset Strip back to the city of Sunrise. It was originally a site for a new library but was determined to be too small.

•WEST SIDE SCHOOL: Voted in favor of suing the landlord of the Historical Commission Building in Fort Lauderdale. Officials say the historic West Side Grade School building is unusable after flooding problems.

•CLIMATE CHANGE: Set a Dec. 8 public hearing to consider five amendments to theBroward County Comprehensive Plan refining the process for designating “Adaptation Action Areas.” Broward was the first county in Florida to include the areas — low-lying coastal zones subject to flooding and vulnerable to sea level rise — in planning documents. The county can designate action areas, then consider policies there to plan for high tides, storm surge, flash floods, stormwater runoff and other impacts of sea-level rise.

•SEA LEVEL RISE: Adopted new projections for sea level rise, anticipating six to 10 inches by 2030, and 14 to 26 inches by 2060, above the 1992 sea level. For longer term, sea level rise by 2100 is expected to be 31 to 61 inches. For “high risk critical infrastructure” projects that will last more than 50 years, the county will use a projection of 34 inches in 2060 and 81 inches in 2100.

•BEACH RENOURISHMENT: Gave approvals for the “Segment II” long-awaited beach renourishment project, accepting that the feds will pay 55 percent, and of the remaining share, the state will pay 25 percent, and local government the rest. The county pays the highest local share, at 67 percent. Of the city portion, Fort Lauderdale pays a little more than 72 percent, Pompano Beach 22 percent and Lauderdale-by-the-Sea a little more than 5 percent. Fort Lauderdale has not signed the agreement, though, and county officials will meet with city officials about it Thursday, to attempt to avoid a delay. The work must be done before sea turtle nesting season begins again in March.

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Is Involuntary Manslaughter a Lesser of Second-Degree Murder by Drug Overdose?

Is Involuntary Manslaughter a Lesser of Second-Degree Murder by Drug Overdose?

In North Carolina, second-degree murder occurs when a person kills another living human being with malice. See Jessica Smith, North Carolina Crimes, A Guidebook on the Elements of Crime 90 (7th ed. 2012) [hereinafter NC Crimes]. North Carolina law recognizes three forms of malice:

(1)  the express emotions of hatred, ill will, and spite;

(2)  the commission of an inherently dangerous act in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief (which I refer to below as “inherently dangerous act” malice); and

(3)  a condition of the mind which prompts a person to take the life of another intentionally, or to intentionally inflict serious bodily injury which proximately results in death, without just cause, excuse, or justification.

NC Crimes at 84 & 91.

Suppose the defendant is charged with second-degree murder. Suppose further that the victim died of a drug overdose after having purchased drugs from the defendant. If the evidence supports it, can the judge instruct on involuntary manslaughter? Put another way, is involuntary manslaughter a lesser-included offense of second-degree murder based on a drug overdose? For the reasons below, I think that the answer is yes.

In State v. Barnes, 226 N.C. App. 318 (2013), the defendant was indicted for second-degree murder of victim Cardwell. At the time, G.S. 14-17 defined first-degree murder and provided:

All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or cocaine or other substance described in G.S. 90-90(1)d., or methamphetamine, when the ingestion of such substance causes the death of the user, shall be deemed murder in the second degree, and any person who commits such murder shall be punished as a Class B2 felon.

The evidence showed that Cardwell died of a methadone overdose, that the defendant had sold methadone to Cardwell the night before, and that defendant himself recently had nearly died from a methadone overdose. The trial court charged the jury on second-degree murder and involuntary manslaughter. After being convicted of involuntary manslaughter, the defendant appealed arguing that the trial court erred by instructing the jury on involuntary manslaughter. The Court of Appeals disagreed. It began by noting that the recklessness supporting second-degree murder and the recklessness supporting involuntary manslaughter differ only in degree, not kind. As has long been established in North Carolina, involuntary manslaughter requires only criminal negligence, defined as a carelessness or recklessness that shows a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others. NC Crimes at 100. By contrast, the malice required for second-degree murder includes commission of an inherently dangerous act in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief (a/k/a “inherently dangerous act” malice). Id. It’s also well established that involuntary manslaughter is a lesser of second-degree murder. State v. Greene, 314 N.C. 649, 652 (1985). Noting the case law on the required showing of recklessness for murder and manslaughter, the Barnes court held that the evidence “would support a finding by the jury of reckless conduct under either [crime].” The court rejected the defendant’s argument that the language in G.S. 14-17, quoted above regarding drug-related second-degree murders meant that the defendant only could have been convicted of second-degree murder. Citing State v. Liner, 98 N.C. App. 600, 605 (1990) (“inherently dangerous act” malice existed when the defendant, knowing that two people became violently ill after using certain drugs, supplied the same drugs to the victim, who later died), the court held that the statutory language does not change the elements of the crime; the State still must prove malice to support a charge of second-degree murder. And, where, as here, the jury would have grounds to reject second-degree murder recklessness but accept involuntary manslaughter recklessness, the trial court properly instructed on the latter crime.

Read together, Liner and Barnes hold that a drug overdose death can constitute an “inherently dangerous act” malice second-degree murder and that when the evidence could support the lower showing of recklessness for involuntary manslaughter, that offense should be submitted to the jury as a lesser of second-degree murder. I’ll that note in 2012 the General Assembly amended G.S. 14-17, deleting the language quoted above and replacing it with a new subsection (b), setting the default punishment for second-degree murder at Class B1 and carving out two exceptions when punishment remains at Class B2. The two exceptions are for “inherently dangerous act” malice second-degree murder cases and those where death is proximately caused by the unlawful distribution of specified drugs and the ingestion of the drug caused the user’s death. S.L. 2012-165 sec. 1. As I recall, the primary purpose of this change was to afford the prosecution greater flexibility in plea bargaining in homicide cases. I’m not aware of anything in the legislative history that would suggest that the General Assembly intended this change to abrogate existing case law regarding the lesser-included offenses of second-degree murder. Certainly nothing in the statute suggests that to be so.

As always, if you have a different take on any of these issues, please chime in.

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Prosecutors: Police should be able to seize assets before conviction of a crime

COLUMBUS – Ohio prosecutors are concerned that a proposed state forfeiture reform bill — which would require a person to be convicted of a crime before police could seize cash or possessions — would neuter their ability to stop major drug trafficking in the state.

Right now, law enforcement only needs evidence of a crime before they can claim ownership of belongings.

But Ohio Prosecuting Attorney’s Association Director John Murphy said asset forfeiture is a major tool in their attempts to disassemble state drug rings.

RELATED: What if your property could be seized before you’ve been convicted of a crime? 

“It takes the profit out of the process,” Murphy said. “If you take the profit out of the drug trade, the drug trade is going to collapse. We’re not under any illusion that we’re about to collapse the drug trade, but we’re having some affect by enforcing civil forfeiture in some cases where we can identify the proceeds.”

Murphy said that the level of proof that they need to achieve is already high enough, and that raising it higher would be a mistake. He and other state prosecutors testified against the bill this week.

Under current law, an accused drug trafficker doesn’t need to be convicted of that crime for the state to seize cash or, for example, the vehicle associated in the alleged crime. Prosecutors just need to prove that those assets could have been involved in a crime.

Assistant Hamilton County Prosecuting Attorney Mark Tierney said he opposes the bill on the grounds that it mixes civil and criminal proceedings, a move that prosecuting and defense attorneys may find unethical or impractical.

“The way they have the legislation drafted, it makes it very difficult, if not impossible, to separate those two,” Tierney said. “If we were at trial, the jury would have to deal with two different standards of proof, two different categories of evidence that don’t necessarily or rarely have anything to do with one another.”

Tierney said that the legislature is welcome to reform civil forfeiture, but that it likely won’t make a huge impact on actual cases of misuse, as most drug cases that involve forfeiture usually include a conviction, at least in Hamilton County.

Proponents of the bill say there are measures meant to protect cases of misuse that still allow for major drug criminals to have their illegally-gained proceeds confiscated.

Rep. Robert McColey, R-Napoleon, co-sponsor of the bill, said that it is solely meant to protect the innocent.

“It violates basic presumptions that we have in our society,” McColey said. “The fact that we are innocent until proven guilty. If we are willing to punish individuals on the basis of a crime without proving they’re guilty beyond a reasonable doubt, that’s an affront to one of our most basic principals of criminal justice.”

McColey said that he understands the concerns that state prosecutors have about drug trafficking, especially in cases where a conviction is not possible, such as when the alleged criminal has died or fled the jurisdiction.

But he said that he doesn’t think these cases are all that common.

Another proponent, Greg Lawson from the Buckeye Institute, recalled the case of Charles Clarke , who was detained at the Cincinnati/Northern Kentucky Airport, where police seized $11,000 in cash. He was never charged with a crime but the money remains in police custody.

READ: Report: Cops at CVG seized student’s life savings 

Lawson said that provisions in the bill would prevent the government from targeting people like Clarke.

Murphy said that he doesn’t see it that way, and that the process for seizing possessions is difficult enough as it is, and they protect the rights of individuals.

“The statute is very clear; it is full of due process protections, not only for the property owner but also for third-persons who might have a claim in the property as well,” Murphy said. “We have to satisfy the court that it’s been used in criminal activity, notify the persons who might have a claim on the property and they get full due process protections through that court.”

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