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January 30, 2015

Aggressive litigation prompts federal prosecutor in Chicago to drop stash house sting

As reported in this lengthy front-page Chicago Tribune article, aggressive litigation by the federal defense bar concerning aggressive federal drug-war tactics have now resulted in federal prosecutors backing off the most aggressive federal criminal charges these tactics have generated.  The article is headlined "Chicago prosecutors quietly drop charges tied to drug stash house stings," and here is how it begins:

Federal prosecutors in Chicago have quietly dropped narcotics conspiracy charges against more than two dozen defendants accused of ripping off drug stash houses as part of controversial undercover stings that have sparked allegations across the country of entrapment and racial profiling.

The decade-old strategy is also under fire because federal authorities, as part of a ruse, led targets to think large quantities of cocaine were often stashed in the hideouts, ensuring long prison terms upon conviction because of how federal sentencing guidelines work. Experts said the move by Chicago prosecutors marked the first step back by a U.S. attorney's office anywhere in the country in connection with the controversial law enforcement tactic.

In the court filings seeking the dismissals, prosecutors gave no clue for the unusual reversal, and a spokesman for U.S. Attorney Zachary Fardon declined to comment. But the move comes two months after the 7th U.S. Circuit Court of Appeals issued a stinging rebuke to the policy, ordering a new trial for a Naperville man who alleged he was goaded into conspiring to rob a phony drug stash house by overzealous federal agents.

The stings, led by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, have been highly criticized for targeting mostly minority suspects, many of whom were drawn into the bogus rip-offs by informants who promised easy money at vulnerable points in their lives.

The cases are built on an elaborate ruse concocted by the ATF. Everything about the stash house is fictitious and follows a familiar script, from supposedly armed guards that need to be dealt with to the quantity of drugs purportedly stashed there. By pretending the house contains a large amount of narcotics, authorities can vastly escalate the potential prison time defendants face, including up to life sentences. Earlier this month, federal prosecutors in Chicago sought to drop drug conspiracy charges in seven of the nine pending stash-house cases, leading some of the judges to quickly approve the move without a hearing.

In each case, the defendants — 27 in all — still face weapons and other charges for the alleged scheme and potentially long prison sentences upon conviction. But without the drug conspiracy charges, the mandatory minimum sentences for most of the defendants would drop to just five years in prison from as much as 25 years, according to Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School.

The ATF investigations have also faced legal backlash around the country, including in California, where last year two federal judges ruled the stings amounted to entrapment.

Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York, said hundreds of people nationally have been charged as part of the drug house ruse. The ATF has been using this sting for at least a decade, she said. Tinto said she believes the decision to drop the cases in Chicago is an acknowledgment of the fact that federal agents involved in the sting set the quantity of the phony drugs, a critical factor in driving the sentencing.

The dismissal of the seven cases likely "signals that the government is starting to take a critical look both at these tactics and the immense sentencing these tactics can bring," Tinto said.  "In this tactic the drugs are imaginary, and the amount of the drugs is set by the government."

I have been preaching in recent years that I have come to believe that aggressive litigation taking on some of the worst extremes of the federal drug war and excesses of mass incarceration was more likely to "move the sentencing reform needle" as much, if not more, than legislative advocacy directed and a gridlocked Congress. This story reinforces my sense that more and more federal judges are growing more and more willing to criticize and seek to rein in what they more and more are seeing as federal prosecutorial overreach in the drug war and elsewhere.

January 30, 2015 at 10:07 AM | Permalink


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Commentators have questioned my pushback proposals to legally attack prosecutors, and judges, starting with e-discovery. They ask, is that all you got? No, I also gots boycotts, direct actions such trashing an office, roughing up the staff, Philadelphia rezoning, which is burning the building down, first empty, relentless ethics and regulatory harassment, Section 1983 litigation, one claim at a time, so the rest of his life is spent under investigation, the lash, terrorism, driving a Mobility Scooter, driven by a handicapped Baby Boomer, laden with military explosives, into a judge convention, armed revolution, which has never succeeded.

This story shows that adequate representation should be added to the list. How the defendants got it I s not clear. Perhaps they threatened the lawyers.

Links to motions would be useful if open.

Posted by: Supremacy Claus | Jan 30, 2015 4:36:11 PM

Now, if they would look just as closely at "Sex Offender" Stings along the lines of "To Catch a Predator". Yep, all those guys were JUST looking for underage 14-15 year old young adults, all of them!.

Posted by: albeed | Jan 30, 2015 5:21:37 PM

I agree. There is no principled reason why sex offender stings are any less suspect than ATF drug house stings.

Posted by: C.E. | Jan 30, 2015 6:49:11 PM

Twilight Zone Central here.

First, 14 year old girls are adults in real life, children only in the lawyer Twilight Zone.

Second, there is often no 14 year old girl. The "teen" is a fat 50 year old male detective posting lewd pics of 14 year old girls.

Lastly, the crime is the mental state, alone. There is no actus reus, except coming to someone's home invited and let in.

To deter this witch hunt of the productive male, the above measures, beyond adequate representation seem fitting.

Posted by: Supremacy Claus | Jan 30, 2015 9:21:51 PM

As bullies, lawyers learn quickly from single experiences. One does not even have to have an appellate decision for them to back off, just a nasty experience. They are also quick social learners, meaning seeing another lawyer rewarded or punished changes their behavior as if the consequence were personally experienced.

That is why punishing a prosecutor or judge for attacking a client unfairly, will end a line of jobs for the defense attorney. So they will never do it voluntarily. One has to do it pro se, have a lawyer malpractice specialist terrorize the defense lawyer every day, or threaten to kill the defense lawyer as the defendants in this case may have.

The word also spreads efficiently in this small community. I sued a lawyer. For 5 years, totally unrelated lawyers at depositions would say, I can't believe you sued a lawyer.

Posted by: Supremacy Claus | Jan 31, 2015 12:46:19 AM

Federal Ausa cannot gave unlimited wieding power. They enjoy using it and never look back.

You got 15 yrs. if you appeap you will get more added on. This was happening in the 8th circuit until Gall case made idiots out of the appeaps court. They showed hundreds of cases that ghey increased as the result of appealing. Hiw sare you question the Uthority of the federal white collar thugs.

Thats about the size if it. Look up the Gall case, the appeal to the Ussc. They laid it out that circuits job was not to raise sentences nor question, but to ensure it was done properly. The district judge gad authority and kbew the case better.

Yes, I agree Federal judges are getting better on rejecting outlier sentences and charges.

Posted by: 187Midwest Guy | Jan 31, 2015 8:09:54 PM

Please excuse the multitude of typos above. The small ipad keyboard is not as friendly as a pc.


Posted by: 187Midwest Guy | Jan 31, 2015 8:12:11 PM

Looks like that article is behind a paywall. I was really curious to see how far they let this "conspiracy" go before they arrested the targets. They don't even need an overt act under federal law, right? I mean, did it get as far as everyone showing up with their gear on the night of the supposed "robbery"? Or was it more like, they get them on tape agreeing to participate and boom, arrest?

Posted by: anon | Feb 2, 2015 11:14:22 AM

"The ATF investigations have also faced legal backlash around the country, including in California, where last year two federal judges ruled the stings amounted to entrapment."

Not really, the 9th Cir. reversed the District Judges and removed one of them from the case on remand.

Posted by: AUSA12 | Feb 2, 2015 11:54:11 AM

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