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August 18, 2009

Posted by Alexandra Natapoff at 02:54 PM

Committing Crime While Working for the Government

TalkLeft picked up on this story about a Secret Service informant who, while assisting the government, launched one of the largest identity theft operations in U.S. history. Back in 2003, Albert Gonzalez avoided indictment for identity fraud by becoming a snitch; his cooperation resulted in the dismantling of a significant identity theft ring of which he appeared to be the ringleader. He kept on with his criminal activities, however, apparently even using his government connections to warn other hackers.

This is simply one of the biggest problems with informant use: the fact that offenders can use active cooperation not only to avoid punishment but to continue offending. It is a problem inherent in snitching: the most useful informants are typically the most active criminals, so the government has to tolerate some amount of criminality in exchange for information about and access to criminal activities. The scale of the phenomenon ranges: from the small (addicts who stay on the street by providing information to police) to the large (drug dealers who remain in operation by informing on colleagues and competitors) to the mind-boggling (terrorists who provide information to the U.S. government while participating in new terrorist activities). In my book I write extensively about the harm that this practice can cause in high-crime urban communities in particular. When law enforcement tolerates crimes committed by cooperating offenders, whether it is drug use, property crimes, or violence, the neighborhoods in which those offenders live have to put up with it.


August 17, 2009

To Whom It May Concern:

The time has come for congress to step in and take look at our federal court system. Congress must enforce existing anti-bribery legislation. It is almost impossible for defense attorneys to win a conspiracy case when federal prosecutors promise to pay out thousands, sometimes millions of dollars and give leniency to career criminals wasting tax payer money on people who should be in prison, all because the government can not make a real case. Someone who's in a drug conspiracy, up against a mandatory minimum has a great incentive to lie. It's worrisome because you have somebody who has been engaging in criminal conduct, and the questions is now, is there validity to their testimony? Are we to believe that with all the training that federal agents are given, that at the end of the day, the United States government must use bribery and shake hands with carrier criminals to get a conviction? Authorities rely exclusively on paid informants and co-defendants-turned-informants that have no corroborating evidence to support the informant's testimony. How are these witnesses credible?

The federal bribery law says “whoever” offers” anything of value to any person” for the testimony commits a crime.

My name is Gary Jacques and November 19, 2008 I was indicted on some very serious alleged drug conspiracies as well as mortgaged fraud. I am currently on 1.5 million dollars bond and on home surveillance awaiting trial. I would like indicate that I’ve been offered a 25 year plea bargain for non violent charges because I refused to cooperate against family and friends. I personally am aware of three cooperating witnesses that have been given something of value and at least one that has been paid by the Justice Department to testify against me with no corroborating evidence to support whatever testimony that they will give. I am an American, born and raised in the United States of America, the best country in the world. All I ask, is that congress take a look at what’s going on because that is the only way
Americans can get a fair trial!

: The Fifth Amendment of the U.S. Constitution reads, in part, "No person shall be ... deprived of life, liberty, or property without due process of law ..."

Thank you,
Gary Jacques

I have just now come across your blog, which looks extremely interesting. My partner and I have a practice focused on criminal defense in state and federal courts. We have spent substantial time devising ways to use the AG's Guidelines creatively in defending cases. A couple of years ago we presented an argument to the First Circuit challenging the practices of federal law enforcement agencies authorizing their informants to commit crimes or, an Guidelines terms, to engage in "otherwise unlawful activity." We argued for suppression of evidence obtained by the FBI using a CI to obtain evidence by committing crimes under state and federal law -- buying and selling drugs. Our premise was that no statute or case law actually authorizes the AG to issue such commissions to anyone who is not an employee of the Justice Department. Because the evidence was obtained by means of illegal conduct, we argued, it should be suppressed. The COA assumed that our premise was correct but held that suppression is not an available remedy. This may be an argument others would like to use in other courts. See United States v. Henry, 482 F3d 27 #1st Cir.#, c.d. 128 S.Ct. 223 #2007#.
John Thompson

John, thank you for the cite to the Henry case. Sounds like a great argument -- I'll definitely take a look. Alexandra

I think you are misapprehending what "assuming arguendo" means when used as the 1st Circuit used it.

It did not mean "we accept your premise that the procedures constitute misconduct or were unlawful but find exclusion the improper remedy." The court means, "even if your assertion was correct, it would not exclude." That's a big difference.


From the opinion:


21 The government says that neither the lack of authority nor the guideline violation claims were adequately preserved as bases for suppression. This is quite arguably so as to the former; the latter may have been preserved. But, by-passing waiver or plain error requirements, we reject the exclusion claim on the merits. Even assuming arguendo infirmities as to authority, delegation or compliance with Justice Department guidelines, exclusion of the evidence was not warranted in this case.

22 Nothing here involves evidence made unreliable by government misconduct, so exclusion would serve only a deterrent value—if misconduct there were—at the cost of letting an otherwise guilty defendant go free. The Supreme Court has been willing to pay that price in the case of evidence secured by certain constitutional violations, although even in such instances it has adopted a number of qualifications. See, e.g., United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Stone v. Powell, 428 U.S. 465, 493, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

23 The Court has been far less ready to require exclusion for violations of any non-constitutional rubrics. A few supposed examples are older cases dealing with provisions designed to protect constitutional interests. E.g., McNabb v. United States, 318 U.S. 332, 347, 63 S.Ct. 608, 87 L.Ed. 819 (1943). More recently, the Court has said that the cases of suppression for statutory violations are "few," Sanchez-Llamas v. Oregon, ___ U.S. ___, ___, 126 S.Ct. 2669, 2681, 165 L.Ed.2d 557 (2006); for obvious reasons this is even more clearly true of regulations.6

Similarly, this court has said that "[t]he exclusionary rule was not fashioned to vindicate a broad, general right to be free of agency action not `authorized' by law." Hensel, 699 F.2d at 29. Judge Posner has explained why: "Exclusion confers windfalls on the guilty and therefore, at least as a device for enforcing nonconstitutional rules, is disfavored." United States v. Dawson, 425 F.3d 389, 394 (7th Cir.2005), reh'g granted on other grounds, 434 F.3d 956, cert. denied, ___ U.S. ___, 127 S.Ct. 831, 166 L.Ed.2d 675 (2006).

There is a good deal of precedent supporting the use of sting operations in law enforcement, including drug transactions involving undercover agents or cooperating private persons;7 and while undercover operations can be, and have been, abused, an exclusionary rule based on the principle that all such operations are unlawful would be an extraordinary step.

Justice Department guidelines were not compelled by statute, nor intended to create private rights. United States v. Flemmi, 225 F.3d 78, 88 (1st Cir.2000), cert. denied, 531 U.S. 1170, 121 S.Ct. 1137, 148 L.Ed.2d 1002 (2001). Henry may be right in saying that the guidelines are underenforced, and this would be cause for concern, but that is primarily a matter for the Justice Department or, if Congress wishes, for its supervision

its cutthroats and crooks playing off each other in a sick game in order to get the bad guys off the streets.What ever happened to good old fashioned police work.Good guys are making deals with the devils just to get a pat on the back, meanwhile, the devils are raking in all they can financially for the time that they are able to return and utilize their earnings all made under the watchful eye of the law.How hyppocritical,jeez.Wake up America!

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