Entrapment and the widespread use of unreliable snitches are realities that every zealous criminal defense attorney must be on the lookout, lest corrupted, or even worse, fabricated evidence make its way before the jury. Paid snitches are inherently unreliable and will often create or alter evidence to support their “work.”
Even with this commonly known fact, federal agents still rely extensively on paid informants and the traps they lay, adding to the ever growing number of wrongly convicted.
Given the widespread misconduct in this nation’s law enforcement efforts to detect and prevent crime, it was encouraging to see that on November 13, 2014 the Seventh Circuit Court of Appeals, in an 8-2 en banc decision, clarified and reinforced the entrapment defense.
The case, United States v. Mayfield, involved a proposed drug stash house robbery set up by an informant and an undercover ATF agent posing as a drug courier.
According to the Seventh Circuit, Leslie Mayfield was convicted in 1987, at age 18, of residential burglary. He spent a little time in jail for it. In 1994, he was convicted of more serious crimes associated with a carjacking. This conviction sent him to an Illinois prison where he stayed until 2005. He made good use of his prison time: earned a GED, certificates in custodial services and cosmetology, and an associate degree in general studies. Upon his release from prison, he went to home town in Waukegan, Illinois where he, as noted by the appeals court, “participated in the Second Chance Program operated by the Urban League of Lake County, the Waukegan Township Coalition to Reduce Recidivism, and Cease Fire Waukegan.”
Despite this record of positive endeavors, Mayfield faced two near insurmountable hurdles: finding employment as an ex-felon and protecting himself (and his family) from gang violence in the neighborhood where he lived. The latter led him to arm himself—and that unwise choice led to his arrest for unlawful possession of a firearm by a convicted felon. Finding only sporadic work and facing yet another serious criminal indictment, Mayfield and his fiancée fled town and moved a nearby community, where he found a full time job. This was in May 2009.
Although he had escaped the gang violence of Waukegan and discovered the good fortune of work in a new town, the long arm of corrupt law enforcement was not about to let Mayfield settle into a normal life. That’s where Jeffrey Potts, a co-worker of Mayfield’s, came into the picture. The two men had something in common: both were convicted felons. Potts had a history of convictions for drug trafficking, robbery, and gun possession. What Mayfield didn’t know about his co-worker was that Potts was a snitch for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).
Life is not easy for ex-felons. No one would seriously dispute that. Put two ex-felons on the same job, with one being a confidential informant and the other facing financial difficulties, is a recipe for trouble. And that is precisely what Mayfield got into when he commiserated with Potts about the life difficulties he was facing: no permanent job, stressed financial resources, and a family in need of support. While Potts may have faced the same difficulties, the Seventh Circuit pointed out that he was getting help by “supplementing his income as a confidential informant” for the ATF.
Potts quickly saw a windfall of snitch information through Mayfield’s disgruntled life situation. He targeted Mayfield by first trying to entice him into illicit drug trafficking. Mayfield rebuffed the offer. During these discussions, Potts learned that Mayfield had the outstanding illegal firearms charge pending against him.
That was the opening the snitch needed.
Potts told Mayfield that he had a “one-time opportunity” that would bring in a “lot of money” if Mayfield was interested. That opportunity involved Potts’s drug supplier who was planning to rob a drug stash house for tens of thousands of dollars. The drug supplier was actually an ATF undercover agent who was supposedly disgruntled with his “drug organization and wanted to rob one of its stash houses.”
But Mayfield refused to take this crime bait as well. Undeterred, Potts kept pressing Mayfield to join the stash house robbery conspiracy. He even showed Mayfield a new Dodge Ram pickup, telling Mayfield he had bought it with $40,000 he had “earned” in another drug robbery.
He then tried to use Mayfield’s family as leverage, telling him that he should consider their “well-being.” Potts underscored that point: “I know you (are) tired of working for this chump change.”
Then Potts found an opening. He had recently loaned Mayfield money to get his truck repaired after it was damaged in an accident. Then, while again pressuring Mayfield about the stash house robbery, the snitch motioned to a tattoo of the notorious Chicago-based gang, the Gangster Disciples, of which Potts said he was still a member. Mayfield took that as an implied threat because the penalty for not repaying a debt to a Disciple is death.
Because he did not have the money to immediately repay Potts the money he owed him, said Mayfield, he agreed to join the robbery conspiracy. The Seventh Circuit explained what happened next:
“According to the standard ATF script for the sting, … Mayfield was to meet with the [fictional drug] courier to discuss logistics, then recruit a crew, gather weapons, and help the courier carry out the robbery.
Mayfield contends that because he was still reluctant to participate, Potts went off script and instead urged him to play along with the plan to rob the stash house but at the last minute rob the courier instead, which would be a less risky way to repay the debt – or at least not as dangerous as running into a guarded stash house…”
Mayfield and the crew drove in a van to the parking lot where ATF agents had set the meeting. When all the individuals arrived at the scene and after the undercover agent made sure that all the participants were aware of the impending robbery and willing to take part in it, ATF agents “swarmed the scene and arrested the four men.”
The agents seized a stash of weapons from the van. Mayfield, and the others, were charged with conspiracy and attempt to distribute cocaine, possession of a firearm in connection with a drug crime, and unlawful possession of a firearm by a felon.
At the outset, the government successfully moved the trial court to preclude Mayfield from presenting an entrapment defense. The defendant wanted to raise the defense based on Potts involvement in the case: his initial effort to get Mayfield into illicit drug trafficking, his repeated attempts to persuade Mayfield to join the stash house robbery, his implied threat through the Gangster Disciples, and his coaching Mayfield on what he should say to undercover agents.
Mayfield also informed the court that Potts had provided the weapons for the robbery—something the government denied.
There’s no question that Potts initiated the robbery conspiracy. He was earning money as a confidential informant. But he got the ATF snitch money only if he produced results—ensnaring unsuspecting individuals into criminal activity he orchestrated.
The AFT really didn’t care how the snitch worked the deals. Last year, an internal watchdog for the Justice Department released a scathing report that the agency had misused $162 million of its sting profits between 2006 and 2011.
Some of that misused sting profits went to Jeffery Potts who targeted people like Mayfield to draw them into drug or robbery related conspiracies so he could earn his ATF snitch money.
Mayfield was not looking for a drug stash house to rob. He was just trying to survive and take care of his family with his limited employment income. Potts seized on that weakness, pressuring Mayfield to join his conspiracy. And when Mayfield repeatedly resisted the pressure, Potts turned to threats to force him into the conspiracy. Whether or not the ATF was aware of what Potts was doing is unclear, but a reasonable assumption can be made that it did.
In finding the trial court committed reversible error by not allowing Mayfield to present an entrapment defense based on Potts’s enticements, the Seventh Circuit concluded:
“To recap, entrapment is a defense to criminal liability when the defendant was not predisposed to commit the charged crime before the intervention of the government’s agents and the government’s conduct induced him to commit it.
The two elements of the defense—lack of predisposition and government
inducement—are conceptually related but formally and temporally distinct.
“The predisposition element focuses on the defendant’s circumstances before and at the time the government first approached him with a proposal to commit the crime. A defendant is predisposed to commit the charged crime if he was ready and willing to do so and likely would have committed it without the government’s intervention, or actively wanted to but hadn’t yet found the means.
“As for the inducement element, the fact that the government initiated contact with the defendant, suggested the crime, or created the ordinary opportunity to commit it is not sufficient; something more is required, either in terms of the character and degree of the government’s persistence or persuasion, the nature of the enticement or reward, or some combination of these. Conduct by the government’s agents amounts to inducement if, considering its character and the factual context, it creates a risk that a person who otherwise would not commit the crime if left alone will do so in response to the government’s persuasion.
Procedurally, entrapment is an issue of fact for the jury. The defendant is entitled to present the defense at trial if he shows that some evidence supports it. This initial burden is not great; the defendant must produce some evidence from which a reasonable jury could find government inducement and lack of predisposition. If he can make this showing, the court must instruct the jury on entrapment and the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the charged crime, or alternatively (but less commonly), that there was no government inducement. When the issue is raised before trial on the government’s motion to preclude the defense, the court must accept the defendant’s factual proffer as true and not weigh it against the government’s evidence.
“Applying these substantive and procedural principles here, we conclude that Mayfield’s proffer was sufficient to overcome the government’s motion in limine [to preclude an entrapment defense]. The district court erred by crediting the government’s evidence over Mayfield’s and precluding him from presenting his entrapment evidence at trial. He is entitled to a new trial.”
Mayfield certainly presented some evidence that Potts, acting under the supervision of agents from the ATF, was persuaded to engage in criminal activity he was not predisposed to commit. At the very minimum, he should have had the opportunity to present his case in court before the jury.