The FBI, DEA, and ATF, whose primary law enforcement responsibilities are to investigate drug, guns, and violence, use informants to carry out these responsibilities. These informants, known as “CIs,” are typically $100 a day, plus expenses, and with a “wink-wink” from their handlers, are permitted to keep proceeds from the criminal activities they are snitching on. It’s a dirty business, albeit a necessary one some say.
No one knows how many paid informants these Big Three law enforcement agencies have on their payroll. Last year USA Today reported that in 2005 the DEA estimated it had 4,000 informants and in 2007 the FBI said it had 15,000. A more realistic estimate is that these two agencies alone have anywhere from 50,000 to 100,000 paid informants in their service.
The ATF doesn’t have much to say about how many informants it has or how it utilizes them, and understandably so. The Seattle Times reported in July 2012 that local ATF supervisor, Jim Contreras, resigned after it became known that a paid informant under his charge sexually abused an 18-year-old woman, for which he received a ten-year prison sentence, while working for the agency. And this past September an internal watchdog for the Justice Department released a scathing report that the ATF misused $162 million in profits from “stings” conducted by the agency between 2006 and 2011 on illicit cigarette sales and smuggling rings. In the process, the agency allowed one informant to keep $4.9 million in profits from sales to criminals involve in the smuggling and lost track of 420 million cigarettes valued at $127 million.
So it should not be surprising how the ATF decided to deal with a rash of “home invasions” of drug “stash houses” in Phoenix, Arizona in 2009. The agency had unsuccessfully relied upon the traditional law enforcement tactic of planting fake drugs in a stash house and taking down the armed crews once they broke into the house intent on robbing it. In an October 23, 2013 decision, United States v. Black, the Ninth Circuit outlined what the ATF said was a newer, safer strategy to combat these kinds of home invasions: “ATF agents, working undercover, would describe a fictitious stash house to suspects, offering them the opportunity to plan and carry out the robbery of the stash house. Once the robbery plan was developed and the crew members were on their way to what they believed was a real armed home invasion, they were arrested.”
In other words, a “reverse sting”—government initiated criminal conduct which results in the arrest of suspects as they begin to carry out a fictitious crime. But reverse stings are also a dirty business; an inevitable byproduct of the government getting involved in creating crime. Here’s how the Phoenix reversed sting worked. Agent Richard Zayas, who worked undercover for the ATF, brought in a CI from Miami to set up the Phoenix deal. This CI was used because he had never worked in the Phoenix area. He was paid $100 a day for his services (plus expenses). His assignment was to frequent the tough bars in the worst parts of the city—bars and neighborhoods known for criminal activity—in search of individuals “already involved in ongoing criminal activity” or who were receptive to engaging in such activity. Once he met such individuals, he would bring Zayas into the picture to provide all the details to the fictitious home invasion.
Within a matter days, the CI approached an individual named Curtis in a Glendale bar, just a stone’s throw from Phoenix, and asked him if he was interested in some “home invasion” work. Curtis said he wasn’t but directed the CI to an individual named Shavor Simpson, aka “Bullet.” Simpson was receptive. The CI told him that he had a “friend” who had “some information on a house possibly with some dope in it.” Zayas entered the picture. He and the CI met with Simpson outside Simpson’s workplace. Zayas laid down his front story that he was a courier for Mexican drug dealers. He was disgruntled because the drug dealers were not paying him enough. To get even with them, Zayas was willing to provide a home invasion crew with all the information they would need to take down the drug stash house. He said there would be anywhere from 22 to 30 kilograms of cocaine in the living room and he didn’t know how much there might be in the backroom where more cocaine was kept.
Zayas informed Simpson that the crew would have to have the “balls to do it because this ain’t no easy lick.” He stressed the “danger” involved in the home invasion because he wanted to make sure he got people who were “truly involved in this type of crime.” Simpson said he had called his “goons” who wanted to know whether they would have to “kill” or “rob” the people in the house. Zayas told him he did not care what they did, so long as they did it. Simpson boasted that he and his goons had done this kind of “shit already.” He then boasted of his criminal history, his dislike for “snitches,” that he had everything needed for the robbery, including an armory of automatic weapons. “Don’t worry Daddy,” Simpson told Zayas, “you met a real Jamaican nigger, that’s my family business, it’s where I work at … I got this shit down to a science man.”
Simpson brought four other individuals into the robbery plan: Cordae Black, Kemford Alexander, Angel Mahon and Terrance Timmons. The latter four showed up at the meeting place in two vehicles. Simpson did not show. Zayas told the crew he had rented a “warehouse” where they could deliver his share of the cocaine. He asked them to follow him so he could show them where the warehouse was located. Once they all arrived at the warehouse, the crew was arrested by federal agents who discovered four loaded weapons in the vehicles. The four crew members were convicted by a jury of conspiracy to possess cocaine with intent to distribute and use of a firearm in furtherance of a drug trafficking offense. Despite all his bravado about hating “snitches,” Simpson cut a deal with the government and testified against his “goons.”
The Phoenix reverse sting worked so well the ATF has since employed it in other major cities. For example, this past August the agency made a similar arrest in Baltimore, Maryland. According to the NorthBaltimorePatch website, the ATF has received information that three suspects—Blake Betters, Tracy Betters and Brandon Harris—had been “suspects in several area commercial and armed robberies.” The agency turned to a CI, who had been working with federal and local law enforcement for four years, to set up a meeting to rob a fictitious drug “stash house.” This meeting was recorded by law enforcement involved in the reverse sting. While the CI tried to discourage the crew from killing the occupants in the stash house, Tracy Betters replied that he would do whatever was necessary to complete the robbery.
The CI then introduced the crew to an undercover ATF agent who said he worked for the drug traffickers and there would be 10 to 12 kilograms of cocaine in the house. Tracy asked the undercover agents if the occupants were “protecting” the drugs to which the agent replied: “They aren’t going to give that [expletive] away.” Much like the crew in Phoenix, the Baltimore crew was arrested as they prepared to take down the fictitious stash house.
The U.S. Supreme Court in 1973 held that if the government engages in “outrageous conduct” to obtain a criminal conviction, the conviction cannot stand. Attorneys for the Phoenix crew moved to have their charges dismissed because of the ATF’s “outrageous conduct” in creating a fictitious drug stash house and enticing unsuspecting individuals to engage in criminal conduct they would not have engaged in absent the government’s solicitation. The trial court rejected the argument, and the Ninth Circuit agreed, citing that government outrageous conduct is “limited to extreme cases” in which the conduct “violates fundamental fairness” and is “so grossly shocking and so outrageous as to violate the universal sense of justice.”
The Phoenix crew could not surmount this high standard, and it’s doubtful if the Baltimore crew will be able to either, even though each case “must be resolved on its own particular facts.” The Ninth Circuit discussed the standard: “ … In assessing the reasonableness of various law enforcement actions and tactics, however, we have set forth ground rules that provide some guidance. For example, it is outrageous for government agents to ‘engineer and direct a criminal enterprise from start to finish,’ or for the government to use ‘excessive physical or mental coercion’ to convince an individual to commit a crime. It is also outrageous for the government to ‘generate . . . new crimes merely for the sake of pressing criminal charges.’ It is not outrageous, however, to infiltrate a criminal organization, to approach individuals who are already involved in or contemplating a criminal act, or to provide necessary items to a conspiracy. Nor is it outrageous for the government to “use artifice and stratagem to ferret out criminal activity.’”
The Ninth Circuit said the ATF’s conduct in the Phoenix “fictitious” robbery case did not meet prohibited government conduct. Smells like a rat to us….