Federal appeals judge issues scathing opinion in stash house case
By By Ian Duncan and The Baltimore Sun
May 05, 2014 | 8:30 AM
A federal appeals judge in California last week took aim at the ATF's use of fictitious drug robbery schemes to secure lengthy prison sentences for would-be rip off crews, strongly criticizing the practice in a written opinion.
The cases are simple: an informant or undercover agent poses as a disgruntled courier and invites a group of people to rob his employers of a half million dollars or so worth of cocaine. But Judge Stephen Reinhardt wrote that such tactics raise important issues about wealth inequality in the United States and who law enforcement decides to pursue.
"They pose the question whether the government may target poor, minority neighborhoods and seek to tempt their residents to commit crimes that might well result in their escape from poverty," Reinhardt wrote in the readable, politically-tinged filing.
The opinion, which was joined by the chief judge of the 9th Circuit Court of Appeals, was written in opposition to the court's decision not to hear a second round of arguments in a case from Phoenix that ended in the convictions of four defendants.
The key agent in the case, Richard Zayas, is a veteran at the Bureau of Alcohol Tobacco Firearms and Explosives, and has carried out similar operations in Maryland. The Drug Enforcement Administration has been using similar strategies against members of the Black Guerrilla Family Gang.
Authorities in Baltimore say the so-called reverse stings are a vital tool for catching violent groups of criminals who make a living robbing stash houses and who are otherwise difficult to stop. But defense lawyers involved in the cases have questioned whether their clients were really hardened criminals.
The facts of the Phoenix case also raise questions about how carefully agents select their targets. According to court documents, Zayas brought a paid confidential informant - or CI - from Miami and sent him to find "bad guys" in "a bad part of town."
Reinhardt took the instructions to mean the informant should look in neighborhoods home to minorities.
"In an age of widely-reported unequal enforcement of the criminal laws, both at the state and federal levels, the sort of assignment given to the CI is an open invitation to racial discrimination," the judge wrote.
And faced with a large enough score, many people living in poverty might be led astray and puff up their criminal resume to impress the undercover agent and his informant, Reinhardt added.
A majority of a three judge panel of the appeals court said some aspects of the case were troubling, but upheld a lower judge's decision not to throw out the charges against the four people who filed the appeal.
"They were eager to commit the fictional stash house robbery, and they joined the conspiracy without any great inducement or pressure from the government," Judge Raymond C. Fisher wrote.
BGF members “have taken an oath that can be reasonably construed as an obligation to assist other members who make requests of them, and that the penalty for refusing to do so can be fatal if presented by someone (like the paid informant here) who has a well-known violent criminal history,” his attorney wrote.