By Ian Duncan, The Baltimore Sun
1:25 PM EDT, July 28, 2013
The robbery would be simple, the five men were told: The crew would burst into a Baltimore hotel room and grab $400,000 worth of cocaine stashed there by an out-of-town supplier. They should bring guns, just in case.
But as the men headed to the hotel, Baltimore police working with the Drug Enforcement Administration swooped in to arrest them.
The entire story — the coke, the supplier and the hotel room — had been made up by law enforcement. The suspects in the supposed December robbery were charged with conspiracy to distribute drugs, robbery and gun violations.
Federal authorities are using increasingly sophisticated "reverse stings," in which informants and undercover agents set up would-be robberies. It's a high-wire strategy that has netted at least 17 convictions in Maryland in two years. Authorities say it has helped rid the streets of criminals who are driving the violent drug trade who would otherwise be difficult to catch.
But defense attorneys say the government is luring petty criminals into imaginary crimes with promises of big payoffs. As more cases come to court, prosecutors are being forced to defend the government's distinction between aggressive policing and entrapment.
"Five young men each face over a decade of mandatory prison time for something which did not, and simply could not, ever take place," attorney Michael D. Montemarano wrote in court filings in the hotel robbery case.
Montemarano wrote that his client, Sean Thornton, 21, never would have considered such a robbery on his own. Prosecutors describe Thornton as an "armed drug trafficker."
Thornton and two co-defendants are due in court next week.
The DEA and the Bureau of Alcohol, Tobacco, Firearms and Explosives have been using reverse stings since the 1990s, with increasing sophistication over time. The DEA has run eight such operations in Maryland since 2007.
The question of whether a defendant would have committed a crime without law enforcement intervention is crucial in weighing entrapment claims, legal analysts say.
Some lawyers say investigators have broad authority to include specific details in stories — the amount of drugs or the necessity of bringing guns — that can help secure longer sentences. Law enforcement officials say they must be realistic in their descriptions to make sure they're attracting serious, savvy offenders.
The DEA says the original targets of the Baltimore operation — Thornton; Antonio Davis, 33; and Rodney Proctor, 21 — are members of the Black Guerrilla Family gang. The gang has been linked to murders around Baltimore and has been at the heart of a drug-smuggling scandal at the Baltimore City Detention Center.
Assistant U.S. Attorney James Wallner wrote in court filings in the hotel robbery case that law enforcement merely opened a door to people who "were predisposed to commit the robbery."
"The Government did not induce the defendants to commit the robbery, but simply offered them an opportunity to commit a crime that they willingly accepted," he wrote.
U.S. Attorney Rod J. Rosenstein said his office is confident in the legality of such operations, which he said catch "people who are driving the murder rate in the city."
"Colloquially, people will use the word entrapment when all they mean is sting," Rosenstein said. "Just providing the opportunity is not entrapment."
Defense attorneys acknowledge that they're fighting an uphill battle against the tactic. Defendants have successfully argued illegal entrapment in scattered cases around the country, but many more cases end in convictions. No case in Maryland has been thrown out for entrapment.
The 4th Circuit Court of Appeals, considering a reverse sting in Virginia, ruled recently that conspiracy convictions remain valid even if the object of the crime does not actually exist.
Sting operations, which target offenders before the commission of a crime, have existed for years in the form of prostitution busts and drug buys. A police officer might pose as a prostitute and arrest a would-be john soliciting sex.
But R. Michael Cassidy, a professor at the Boston College Law School, said authorities have grown "more creative as time goes on."
In the years since the Sept. 11 terror attacks, the FBI has used similar snares to catch suspected terrorists.
A 2010 FBI operation in Catonsville led to the arrest of Antonio Martinez, who authorities said agreed to blow up a military recruiting center using a car bomb supplied by undercover agents.
Retired Alabama Judge Joseph A. Colquitt, who has studied entrapment standards, said law enforcement officials must carefully balance public safety and civil rights.
"Aggressive operations by police protect the public and prevent crime," Colquitt said. "Sometimes, though, the entrapment doctrine fails to protect otherwise innocent actors from being drawn into criminal activity."
Veteran ATF Agent Richard Zayas, testifying in cases in Maryland and Arizona, has said the agency honed its operations over time to ensnare drug-robbery crews and minimize risks to the public.
When the ATF began running the operations back in the 1990s, Zayas said, agents sometimes would conduct surveillance on crews and try to arrest the targets before they carried out a real robbery, only to come away without enough evidence to press serious charges.
Later, the authorities would lure suspected robbery crews to a house owned by the government and stocked with real drugs. But that sometimes led to shootouts, Zayas said, as crews confronted armed agents.
Eventually, the ATF hit upon the idea of describing a robbery at an undisclosed location but making the arrests at a separate meeting point. Now the operations by both the ATF and DEA are structured in the same way, court filings show.
Special Agent Edward Marcinko, a DEA spokesman, said the agency has the technology to remotely disable specially wired vehicles to prevent any getaway attempts.
Wallner, the prosecutor in the hotel robbery case, wrote in court filings that the current strategy is "universally accepted."
"The script utilized by law enforcement in this case, and perfected over time, is nearly identical to the scripts used in dozens of other similar cases throughout the country," he wrote.
While authorities say the stings are now designed to minimize danger, the new tactics don't always end in peaceful arrests.
Two ATF-led robbery stings in Baltimore erupted in gunfire last year. In one incident in Hampden, authorities say a suspect attempted to run down an officer as federal agents closed in. He was shot as a quick-response team threw stun grenades to disorient others.
The hotel robbery setup, like other stings, began when an informant approached a group of people suspected of being involved in drug robberies and explained that he felt slighted by his superiors.
Authorities say the informant complained to the suspects that he had been overcharged for drugs — then suggested they help him with a robbery to get even.
The targets were eager to get involved in the robbery, according to charging documents.
"This [stuff] right here … this make my day … this my line of work," Michael Johnson, one of the crew's members, said in a conversation summarized in court filings.
Johnson has pleaded guilty to a robbery conspiracy charge and faces 15 years in prison. Johnson had a criminal history, but his attorney questioned whether investigators were really catching only the most serious offenders.
"They could go into any neighborhood and make this type of offer, and you'll get guys to jump at it," attorney Christopher Purpura said after the hearing. "I don't know they're getting the worst of the worst."
Rodney Proctor also pleaded guilty to robbery conspiracy and gun charges. He faces up to 12 years. The remaining defendants are fighting the charges.
Montemarano contends that the police targeted his client based on "no more than the belief that 'these guys are bad.'"
Prosecutors say the men were looking for a "big score" ahead of Christmas.
Law enforcement can determine the amount of prison time the targets will face by increasing or decreasing the volume of drugs said to be at stake. Encouraging the use of guns can also beef up potential sentences.
For two of the defendants in the hotel case, the government has said it will seek mandatory minimum sentences of 20 years, based on the combination of 5 kilograms of cocaine and their prior felony convictions.
In cases elsewhere, lawyers have successfully argued that inflating the story to manipulate sentences amounts to a form of entrapment. While not enough to get an acquittal, the argument has sometimes resulted in lesser sentences.
Zayas, the ATF agent, testified in a recent Maryland case that investigators concoct their stories in such a way that the robbery appears difficult and potentially dangerous.
"What we do is by raising that level of violence, we then weed out individuals that aren't truly involved in this type of crime, which has happened to us in the past," Zayas said. "We have had individuals walk away from the scenario."
Marcinko said carrying out the robbery is not needed to prove the conspiracy.
"We're not inventing a crime. This type of activity is coming our way through human sources, through intelligence," he said. "We don't plant the seed."
Drug-related robberies are rarely reported to police because the victims are also involved in crimes. But Rosenstein said they can lead to other crimes as the violence spills over.
That makes it more important for authorities to bring in those responsible, he said.
"Home-invasion robberies are responsible for a significant amount of murders and shootings in the city," Rosenstein said. "You most often hear about it when there's some innocent bystander shot."
Added Steven Pugmire, a senior agent with the ATF in Baltimore: "If we can use a tool available to us that is perfectly legal and it targets the worst of the worst people and it takes them off the street for a significant amount of time, we're going to do that."
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