Judge Says Stash House Sting Operations Allow Prosecutors To Be Judge, Jury, And Executioner

from the the-fix-is-always-in dept

The question the government doesn’t want to answer is whether we’re better off pursuing fake criminals or capturing the real ones. Law enforcement does both, but sting operations — both of the terrorist and the drug variety — have been increasing over the years, turning officers and agents into actors and stage directors.

The FBI has been crafting “terrorists” from a collection of outcasts, retirees, and the developmentally disabled for years. Canada’s law enforcement is just as willing to score on unguarded nets, traipsing happily over the line between “highly questionable” and “actual entrapment” in its own terrorist “investigations.”

The ATF and DEA have combined forces to drag weapons into drug dealing using elaborate sting operations to entice no small number of people to get prepped to rob a nonexistent stash house of imaginary drugs. This would be bad enough, as it often appears the ATF is willing to bust anyone that engages in speculation about stash house robberies. Adding insult to injury, the federal government recommends sentences based on the fake amount of fake drugs not actually found in the fake stash house suspects talked about robbing.

Judge Otis Wright tore into the government for its willingness to craft imaginary stash house robberies and followed it up by asking for convicted suspects to be locked up for real years, based on nothing more than what the government told defendants would be located in the fake stash house.

In these stash-house cases, the Government’s “participation in the offense conduct” is what makes them particularly repugnant to the Constitution. Everything about the scheme—and therefore almost everything bearing upon a defendant’s ultimate sentence—hinges solely on the Government’s whim. Why were there not 10 kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly armed—necessitating that Defendants bring weapons along with them? All of these factors came down to the ATF and the undercover agent alone. That sort of arbitrariness offends the Constitution’s due-process demands.

The government loves these cases because they’re easy wins. There are no suspects to track down after a robbery. Instead, every suspect is safely housed in an undercover agent’s vehicle, unwittingly waiting to be arrested. The suspects never lay low until the heat dies down, forcing the government to perform actual investigative work. Instead, the suspects are guided through the process of planning for a stash house robbery, including being given weapons to do so if they fail to provide their own. With massive sentences predicated on made-up drug quantities hanging over their heads, plea deals favorable to federal prosecutors are easy to obtain.

Another federal judge has plenty of problems with the government’s stash house stings. Pennsylvania’s Gerald McHugh has just issued a memorandum [PDF] trimming back the sentence handed to Clifton McLean, mainly due to the government’s sentencing recommendation being based on the amount of drugs it said would be found at the fake stash house, rather than on anything tangible. [h/t Brad Heath]

Early last year, the judge took note [PDF] of the government’s willingness to push people into actions they may not otherwise have taken.

Initially, there is no indication that McLean was involved in an ongoing criminal enterprise to commit stash house robberies prior to his initial contact with the government informant, and there is also no indication that the government believed it was infiltrating an already-existing conspiracy to commit such a robbery. Rather, in the best case scenario for the government, a newly created conspiracy was hatched when McLean allegedly approached the CI for the first time, though this initiation is less than certain. This factor weighs in favor of McLean.


The third factor, and certainly one of the most important, is the nature of government instigation or origination of the crime. The outcome of this inquiry is less clear. The government has asserted that the paid CI in this case was initially approached by McLean, who then inquired about whether the CI knew of any stash houses that McLean could rob. There are many questions surrounding this initial engagement. The encounter was not recorded, which is to be expected since the government asserts that the meeting was not planned, and a CI cannot be expected to wear a wire at all times. However, what this means is that the only person, aside from McLean, who can speak to what occurred at that meeting is the CI, who was not present to testify at the evidentiary hearing. While this is certainly a valid trial strategy, and may reflect government concern over the informant’s safety, I am hesitant simply to adopt this second-hand account of what occurred at this meeting, as told by the agents to whom the CI reported. I certainly do not discredit the testimony of the agents, but all they can testify to is what the CI relayed to them and their impression of his credibility. On top of this, the determination of whether McLean was inquiring about a stash house robbery is based on the CI’s account of slang that McLean used and the CI’s personal interpretation of that slang, with no additional context provided.

Unlike other stings the ATF has run, McLean showed more interest than most in pursuing a stash house robbery. But even though the judge didn’t see enough to indicate entrapment, he’s less pleased with the government’s sentencing recommendations.

The structure of sting operations such as this is highly problematic. In practical terms, “sentencing discretion is delegated all the way down to the individual drug agent operating in the field.” United States v. Staufer, 38 F.3d 1103, 1107 (9th Cir. 1994). Although the Government defends the specified amount as necessary to protect its agents, I find that rationale troublesome on several levels. First, law enforcement’s tactical concerns should not control either the severity of charges against a defendant or the range of sentences. To the extent that the Government constructs a crime, its elements should be related to a defendant’s culpability. Here, where the record is clear that McLean was “in for a penny, in for a pound,” specifying such a high amount does not truly bear on his culpability. Once the Government established that McLean was willing to engage in an armed robbery of any quantity large enough to resell, its core law enforcement objective was met.


The Government clearly had an interest in exposing the scope of his capability and connections, and in seizing as great a quantity of drugs as possible. No similar interest exists where the crime itself is fictional.

But if the objective is really to hit stash house sting suspects with the full force of sentencing guidelines, then the objective is “whatever nets the most years in prison.” The judge here finds the government always conjures up a quantity of fake drugs that will generate the longest minimum sentence.

From my review of reported cases nationwide, I have not identified any investigation where the specified amount of cocaine in the fictional stash house was less than 5 kilograms. By statute, 21 U.S.C. § 841(b)(1)(A), 5 kilograms is the amount that triggers exposure to a 20-year mandatory minimum sentence.


[B]y the Government’s reasoning, the very nature of this type of undercover operation necessarily requires, for the safety of its operatives, a scenario that automatically triggers mandatory minimum sentences, even if the target of the sting would otherwise have taken the bait, and regardless of whether the suspect had ever before dealt in quantities of this kind.

The government’s “evidence” of its fake drug amounts is nothing more than agents’ testimony. They can swear they told the defendant there would be more than 5 kilos of drugs. It makes little difference that there were never any drugs to be stolen. The government then wraps itself in its “operative safety” blanket and hopes the judge won’t question its inexplicable need to protect its agents by consulting drug sentencing guidelines. Judge McHugh, however, did take a look at it, and doesn’t like what he sees — a government agency pushing judges towards harsher sentences by insinuating anything less would be dangerous for law enforcement agents.

Preliminarily, I have an institutional concern that the Government couches the justification for its techniques in terms of officer safety. Unquestionably, undercover operatives are individuals of great commitment and courage who take risks average citizens would find intolerable. Their safety must be of paramount concern. At the same time, however, tying the physical safety of an agent to a mandatory triggering quantity of drugs is problematic. Such a rationale cannot help but inhibit any judge who must consider the implications of sting operations because no responsible judicial officer would ever want to place agents in harm’s way. But without in any way jeopardizing the safety of any agent, a court can certainly ask why, even if it is necessary for purposes of “credibility” to specify certain amounts as part of an operation, why is it necessary to charge the target of the investigation with such high amounts in every case?


In short, nothing about the actual record in this case validates the proposition advanced by the Government that substantial amounts of cocaine are fundamental to the success of its operation.

This not only prevents judges from exercising discretion, it also prevents the jury from doing its job properly.

Absent some constitutional prohibition, because the jury found McLean guilty of conspiring to possess 5 kilograms or more of cocaine, I am bound to sentence him accordingly. This underscores the due process concerns at the heart of sting operations. Since no drugs existed, McLean was charged with conspiring and attempting to possess the amount of drugs the Government decided to offer him, after he had agreed to participate in a fictional robbery. The Government made a deliberate choice concerning which offenses and quantities to charge, a choice that then constrains the jury.

The judge goes on to note the government even cited a decision finding against mandatory minimum sentences to support its argument for a mandatory minimum sentence. On top of that, it used the fake drug quantity to ensure it got the sentence it sought, leaving no room for meddling from troublesome judges or jurors.

It is certainly true that the jury “found” the defendant guilty of a conspiracy to possess greater than 5 kg of cocaine, but the Government assured such a result in advance by the script that it wrote and the charges that it brought. In that sense, a stash house sting operation is the “perfect” crime, at least from the standpoint of the prosecution, in that it predetermines both verdict and sentence.

In the end, Judge McHugh does what he can… which isn’t much. He boots the government’s mandatory minimum-triggering claim of five kilograms and uses a lower amount. In total, it only takes away five years of McLean’s 19-year sentence. But McHugh shows his courtroom won’t be a place where the government can expect easy wins with prosecutions where the fix is in from the moment the indictment drops.

Some courts have suggested that so long as there is a “reasonable” explanation for the amount of drugs specified in an undercover operation the Government’s conduct will pass constitutional muster. I am not prepared to adopt such an approach where the Government’s premise cannot be tested in any meaningful way and is refuted by specific evidence of record

To the extent that principles of Due Process are meant to be a check on government power, there is no more fundamental interest than liberty. A sting operation that constructs a crime implicates liberty interests in a unique way, in that the Government seeks out its citizens for the purpose of testing their willingness to commit a criminal act. There can be no greater manifestation of the coercive power of Government than creating what is, in effect, a morality test, while specifying the penalty for failing that test in advance.

A check on government power is what’s needed. Very few courts have been willing to place themselves between defendants and law enforcement agencies that would rather create criminals than go after those already in circulation.

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Comments on “Judge Says Stash House Sting Operations Allow Prosecutors To Be Judge, Jury, And Executioner”

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Anonymous Coward says:

Re: Re: Re:

I think examples like this show exactly why a separation of powers and due process is important. Otherwise you have a state that simply turns everyone into a criminal and picks on the weak minded and mentally ill and pats itself on the back for being successful and being able to manipulate a mentally ill person to their own detriment.

The fact that the government resorts to manipulating the mentally ill tells us how incompetent our government is. They aren’t competent enough to go after actual and competent criminals so they target the mentally ill instead. Much easier and more on par with the government’s competence level. Also a waste of our taxpayer money and resources, resources that should instead be targeting real criminals are now being wasted and diverted which allows real criminals more opportunity to get away. Our government hard at work.

Anonymous Coward says:

Re: Re: Re: Re:

Otherwise you have a state that simply turns everyone into a criminal and picks on the weak minded and mentally ill and pats itself on the back for being successful and being able to manipulate a mentally ill person to their own detriment.

Already done! You practically cannot get to work without breaking a couple of laws.

The government is already a Tyranny, it just has ‘decided’ to not flex that tyranny too much.

Richard (profile) says:

Re: Re:

So the link between fiction and law enforcement goes full circle.

There is little doubt in my mind that the contempt for due process that has been displayed by fictional detectives since… forever has influenced the behaviour of actual detectives – many of whom will have grown up watching these shows. Hell if a nice gentle forensic scientist like Quincy can threaten a newspaper man with “I can always come back tonight with a warrant and 20 officers tonight and ‘trash’ this place” in order to get a list of people who responded to a particular advert* – then why shouldn’t I?

*old episode probably mad in the 70’s I saw just the day before yesterday.

Anonymous Coward says:

Not about stopping crime

The law is not about stopping crime, it’s about working the system to generate revenue.

Without a constant fresh supply of criminals we cannot justify expense or the presence of all the police, courts, lawyers, fines, and privately run prisons. Oh… and along with all of the ‘tough on crime’ people running for office.

The law itself has become criminal!

Mattheus (profile) says:

Re: Not about stopping crime

In the words of a great intellectual hero Freddie Bastiat:

When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law, two evils of which one is as great as the other, and between which it is difficult to choose.

That One Guy (profile) says:

Re: Re: Not about stopping crime

Objection: Giving up your morals in order for them to match what the law says is much worse than losing respect for the law. Not having respect for something that isn’t deserving of respect is perfectly natural and understandable, whereas sacrificing your sense of morality in order to keep them in line with immoral laws is a very real loss and takes deliberate intent.

Mattheus (profile) says:

Re: Re: Re: Not about stopping crime

“Giving up your morals in order for them to match what the law says is much worse than losing respect for the law”

No disagreement here. I was just offering Bastiat’s words without comment.

He does say later in The Law that “the best way to make men respect laws is to make laws respectable.”

Anonymous Coward says:

Re: Re: Re: Not about stopping crime

Bastiat lived in the 1800s and the rule of law was a more tenuous thing then. It makes a huge difference between countries and regions today. It’s not to be underestimated. Replace morality vs law by health versus food or freedom versus sanity and see how the analogy flies. People on the left and various idealists usually give zero weight to law, conservatives give it a value for itself. Then you have Socrates…

Ninja (profile) says:

I wonder if the judge could toss everything based on the simple fact we don’t know the defendant would actually carry out any crime without the helping hand of law enforcement. What would have happened if the guy was left alone? Would he engage actively with criminals and actually try to carry out the robbery or whatever? This is Minority Report all over with less tech and enslaved minds spewing prophecies.

I do hope some judge is balsy enough to try that route.

Quiet Lurcker says:


No true crime was committed. Nothing stolen. No one shot or killed. From the above, no indication that possession of firearms was illegal. Nothing.

The conviction should have been reversed and expunged, and the “law enforcement” (more like crime creation, here) agents should have been dealt with in the harshest possible terms.

RRob says:

Re: Really?

> No one shot or killed.

I believe one of the fake guards at the fake drug house was going to kill an undercover police officer.

>> I have not identified any investigation where the
>> specified amount of cocaine in the fictional stash house
>> was less than 5 kilograms.

In fact 5 officers were going to be killed. But if you accept this plea bargain, we’ll only charge you with one murder.

Uriel-238 (profile) says:

Perverse Incentive

The DoJ is going to push for convictions through the least amount of work. If it’s easier to frame innocent civilians than it is to find real criminals, we can expect they’re going to go for the low hanging fruit while high-ranking producers and distributors continue their work unmolested.

If we want them to catch upstream operators, we’re going to have to change entirely how they get rewarded.

Really, I can’t imagine a sting operation bagging a producer or a distributor. These sound like large police operations for small-potatoes busts, grossly inflated by mandatory minimums.

Anonymous Coward says:

These judges should clearly send a message to these federal prosecutors. If the government wants to pursue these type of charges, they should allow a trial to go through and then simply impose a 1 day jail sentence to those caught in these loops.

Then watch the government explain how it could justify spending thousands of dollars to prosecute people for fake crimes.

That One Guy (profile) says:

Re: Re:

Three words: Mandatory minimum sentencing.

The judges have no choice, they have to hand out certain amounts of jail time, because the drug laws in this country are completely and utterly insane, up to and including taking away the discretion from judges in how they hand out sentences.

They can always add more time(because what’s a few more years?), but they are contained from handing out less.

crade (profile) says:

Re: Re: Re:

They might be willing to try. But they didn’t score because the goalie is there to throw out the case.

Although, the court tossing it out has everything to do with what law enforcement is willing to do. They might have tried it once in that link, but that hardly means they are willing to waste their time trying the same thing over and over when they already know it doesn’t work.

Much of the purpose of tossing cases out when law enforcement oversteps is to keep them in line.

TripMN says:

In a perverse way, I kinda understand the DEA agents desire to have a tough minimum sentence handed down for their own personal safety.

If a normal cop stops someone committing a crime, like robbing a bank, they are just doing their job and the criminal probably doesn’t hold them personally responsible. But if you set them up and play them as a patsy in a false operation that they wouldn’t have normally done without enticement and goading… of course they won’t cool off easily and will come gunning for the amoral agent(s) and CI(s).

What the DEA agents have to make sure of is that the patsy they net doesn’t have buddies on the outside which he can direct to go after them while he rots in a jail cell for 20 years. This has to figure into why they go after solo criminals and the mentally ill/challenged.

That One Guy (profile) says:

Re: Re:

Yeah, I have absolutely no sympathy for them whatsoever.

They created the conditions where someone would be furious at them for tricking them into decades of jail time. They are the ones responsible for putting people into that state, if they don’t want people to be furious at them and their agents then they simply need to stop framing people.

There’s also the problem with using incarceration not as punishment for someone committing a crime(or ‘punishment’ for ‘committing’ a ‘crime’ as these cases are) but to protect government agents. That’s the kind of logic that keeps places like Guantanamo Bay filled with bodies, ‘If we let them out they might do bad things because they’re mad at us for locking them up, better keep them locked up permanently just in case.’

That One Guy (profile) says:

No drugs = No crime

If there were no drugs in the house to steal, or even conspire to steal, then it stands that you can’t charge someone with any crimes relating to them.

At most you could perhaps charge them with conspiring to steal all the drugs that were actually in the residence, that being none at all, which I don’t imagine carries much of a sentence.

Cases like this are just made for jury nullification, it’s no wonder the government hates the very idea.

freedomfan (profile) says:

What if the targets of such "stings" were cops ?

I wonder how quickly this practice would stop if Internal Affairs (or federal/state equivalent) used such tactics against the folks wearing the badges? In other words, suppose IA contrived a situation in which an officer with, say, a history of excessive use of force, being creative with suspects’ supposed actions and “confessions”, and a penchant for “commandeering” valuable goods for personal use, would be called to the scene of a crime. But, unknown to the corrupt cop, the “perp” was actually an actor who was well trained to verbally taunt the officer but to never actually resist arrest and the whole scene was on camera and scripted to temp the target. (To be sure, I certainly wouldn’t want to be in the role of the “suspect”.)

Now, make things analogous to what happens in these fake stash house stings. Plan out the scenario to make sure the cop was likely to offend and offend in ways that are the worst violations of both law and proper police procedure. For instance, hint at rumors that the “suspect” has a record and might be involved in drug sales or something similar; make sure the corrupt cop thinks his partners were unlikely to report him and who would sign whatever he put in the police report; his body cameras were the type that could be turned off when he wanted (but they really stay on); ensure contraband is nearby like a gun or drugs that he could plant on the “suspect”; make sure there are iPhones, loose cash, and so on at the scene to tempt sticky fingers; etc. In other words, set up the scam so that every possible thing that could make the corrupt cop look corrupt was likely to happen and those things were all calculated to show him violating the law and proper procedure in the most egregious way.

Would the folks who think these stash house stings are such a great idea feel the same way if those tactics were used to target their own?

R2_v2.0 (profile) says:

This is what you paid for

The focus is on the wrong problem here. If you have a law that criminalizes ‘conspiring’ then, by definition, you’re criminalizing something that hasn’t happened.

If you accept that conspiring to commit certain crimes is itself a crime then you have to accept certain imaginary elements as evidence. At that point, someone has to decide which imaginary things are ‘real’ imaginary things – it’s hilarious….unless you’re staring down the barrel of 20 years in prison.

Something that isn’t addressed is the criminality of the government. The government was part of this conspiracy and imaginary evidence isn’t a barrier to prosecution so does that make their behavior criminal? It’s accepted that police have some latitude to break the law but does that/should that extend to crimes with a mandatory 20 year sentence?

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