• SNITCHING: Criminal Informants and the Erosion of American Justice
  • U.S. Attorney General's Guidelines on the FBI's Use of Confidential Human Sources
  • Sarah Stillman, The Throwaways, The New Yorker (2012) (article on the use of juvenile informants)

Recent Blog Posts

Monday, November 24, 2014

Jailed Mexican mafia snitches receive $150,000 and leniency

From the Orange County Register: Money, cable TV, food delivery: How Mexican Mafia snitches lived like kings behind bars.  Here are a few excerpts:
"As two of the most prolific jailhouse informants in Orange and Los Angeles counties, Raymond Cuevas and Jose Paredes befriended suspects in jail and collected information in more than 30 criminal cases, according to a spreadsheet assembled by prosecutors. ...For their efforts, Cuevas and Peredes received more than $150,000 from local law enforcement agencies during an 18-month period ending in March, records show.

The pair enjoyed other perks, too, including cable TV in their cells and Del Taco food delivered by officers. Cuevas and Paredes also received leniency on criminal charges that could have sent them to prison for life, according to court transcripts and other records.

Thirty-nine-year-old Cuevas, known as “Puppet,” was arrested four times for armed robbery. His last arrest was on charges of possessing a loaded weapon, a possible third strike that could have sent him to prison for life. Instead, the informant received a deal that allowed him to plead no contest in 2013; he received credit for five years already served but no prison sentence.

For several years, Cuevas was the shot-caller for Latino inmates at Los Angeles’ North County Correctional Facility, according to a ruling from the Second District Court of Appeal. On one occasion, he informed his deputy handler that he had just ordered a knife attack on another inmate as part of a jail turf war, the ruling stated. No action was taken by Los Angeles County deputies to prevent the attack, which left the inmate seriously wounded, the ruling said.  Cuevas was not prosecuted for the attack, but two inmates who carried out the order were convicted, according to the appellate ruling."

"Outrageous government conduct" in stash-house stings

A federal judge has dismissed a conspiracy indictment against a defendant accused of participating in a drug robbery in which the ATF, working with a confidential informant, set up an elaborate and imaginary stash-house robbery sting.  Courts have traditionally been slow to invoke the "outrageous government conduct" doctrine, which protects defendants against government operations that are "grossly shocking" and that "violate the universal sense of justice."  But these increasingly common stash-house stings have brought the issue to the fore.  See L.A. Times story here.

In this case, the Court distinguished between permissible government efforts to infiltrate criminal organizations, and "manufacturing crime" in order to generate convictions.   From the opinion:

“The Court finds that the Government’s extensive involvement in dreaming up this fanciful scheme—including the arbitrary amount of drugs and illusory need for weapons and extra associates—transcends the bounds of due process and renders the Government’s actions outrageous.”

In particular, the Court objected to the fact that the ATF  knew nothing about the defendant Antuan Dunlap until he was brought into the scheme five days before the alleged robbery.

“Allowing after-the-fact knowledge . . . in a situation like this creates a perverse incentive for the Government. It encourages the government to cast a wide net, trawling for crooks in seedy, poverty-ridden areas—all without an iota of suspicion that a particular person has committed similar conduct in the past.”

While this case hinged on the fact that the government manufactured the robbery sting from whole cloth (the Court noted dryly that the total amount of drugs taken off the streets in such stings is "zero"), like many such cases the sting depended on a criminal informant who brought the defendants  to the government in the first place, and kept the operation going.  This model--of an undercover agent and/or an informant cooking up nonexistent crimes--may be coming in for new scrutiny.

Pittsburgh Post-Gazette: 1,000 affidavits reveal an "informant mill"

The Pittsburgh Post-Gazette has published a series of in depth articles based on 1,329 affidavits filed in U.S. District Court in Pittsburgh from 2009 through 2014.  "The affidavits reveal an informant mill in which suspects became informants and helped agents to bust others, who then in turn became informants aimed at other targets."  The series also includes stories regarding corrupt police, cases derailed by informants and  wrongful convictions.  From the Post-Gazette:

"The Post-Gazette has uncovered instances in which informants used to build federal cases were convicted murderers, liars or double agents working with both law enforcement and the targets. One informant with a violent past, used in a DEA case that ended in acquittal, wasn't put through the federal review process.
The results have included the indictment and incarceration of people whose lives were turned upside-down prior to their exonerations. Only nine people have been fully acquitted in federal court cases brought in Pittsburgh since 2009, but four of those not guilty verdicts involved shaky informants. Two of those exonerated defendants first spent years behind bars."

From the affidavits, the Post-Gazette constructed a picture of how often different federal agencies used informants in that jurisdiction.  On average, approximately 40 percent of the affidavits relied on informants, but agencies diverged. For example, an article entitled "Gathering and Analyzing Data," the Post-Gazette explained:

"Confidential informants were much more prevalent in drug cases. Of the 94 cases led by the Drug Enforcement Administration or its task forces, 60 were built using confidential informants. Thus nearly two-thirds of the DEA's cases were based on secret sources.  By contrast, the FBI used confidential informants in just under one-third of the 126 cases that stemmed from its affidavits. The Bureau of Alcohol, Tobacco, Firearms and Explosives used confidential informants in 13 out of 34 cases, or 38 percent, consistent with the average."

The last in the series here: Experts offer solutions to confidential informant problems.

Monday, November 10, 2014

More on the Orange County snitching scandal

The revelations that the California Orange County District Attorney's Office has been secretly using jailhouse snitches without disclosing information to defense counsel has led to some stunning developments, including dropped homicide cases and the release of a man held for two murders.  As Radley Balko at the Washington Post put it, "Incredibly, Orange County prosecutors appear to be ready to let accused murderers and other alleged felons go free rather than open up practices and tactics to scrutiny."  In an article entitled "Here is why an admitted killer walked free," the OC Register explains one case:

"Isaac John Palacios admits he shot and killed a rival gang member, pulling the trigger at least 15 times in a Santa Ana driveway. Last month, he pleaded guilty to second-degree murder, a crime that often carries a life sentence.

But Palacios walked free hours later from the county jail. Despite the guilty plea, Orange County prosecutors agreed to release the 30-year-old gang member, giving him credit for time served, and dropping charges against him in a second gang killing.

The lenient deal is a casualty of the district attorney’s surreptitious use of jailhouse informants to gather information from suspects awaiting trial and the office’s tardiness in turning over evidence to the defense. This conduct came under legal attack this past year during the prosecution of Orange County’s largest mass killing case. ...

The lead prosecutor in the Palacios case, Marc Rozenberg, said he agreed to the deal, in part, because he didn't want another judge to review evidence of discovery and informant violations. One local judge already ruled prosecutors committed misconduct."

Sunday, November 9, 2014

HuffPost on DEA snitching debacles

In a two-part series about "the sketchiest things the DEA has done while waging the war on drugs," informant debacles take the lead in this Huffington Post article.  Here are a few of the headlines:

-The DEA once turned a teenager into a drug kingpin so he could act as an informant.

-The DEA allows informants to break the law, but have no records as to how often it happens.

-One of America's most notorious terrorists once served as a DEA informant.

-The DEA strung one informant along for 20 years with the promise of citizenship. She still hasn't received it.

Wednesday, October 15, 2014

"The Prosecutor and the Snitch"

In this extensive review of the infamous Cameron Todd Willingham case, the Marshall Project zeroes in on the role of the jailhouse informant, Johnny Webb, and the prosecutor who covered up his rewards.  Story here: The Prosecutor and the Snitch: Did Texas execute an innocent man?  According to the article, Webb "lied on the witness stand in return for efforts by the former prosecutor, John H. Jackson, to reduce Webb’s prison sentence for robbery and to arrange thousands of dollars in support from a wealthy Corsicana rancher. Newly uncovered letters and court files show that Jackson worked diligently to intercede for Webb after his testimony and to coordinate with the rancher, Charles S. Pearce Jr., to keep the mercurial informer in line."

In post-trial interviews, Webb said that the prosecutor approached him about testifying:

"[H]e asked Jackson, “What’s going to be my deal?” and Jackson said, “If you help me, that robbery will disappear ... even if you’re convicted now, I can get it off of you later.”  ...“He says, ‘Your story doesn't have to match exactly... He says, ‘I want you to just say he put fires in the corners. I need you to be able to say that so we can convict him, otherwise we’re going to have a murderer running our streets.’ ” ...  “He [Jackson] had me believing 100 percent this dude was guilty — that’s why I testified,” Webb said. “The perks — they was willing to do anything to help me. No one has ever done that, so why wouldn’t I help them?” In fact, Webb said, Willingham “never told me nothing.”

Tuesday, October 14, 2014

DEA found liable for failing to protect its informant

In an unusual case, the U.S. Court of Federal Claims has held the DEA liable for over $1 million in damages for failing to protect its informant, the "Princess."  The Court held that the DEA "breached an implied-in-fact contract and its duty of good faith and fair dealing" when it compromised the informant's identity which led to her kidnapping and the worsening of a severe medical condition.   Opinion here.

Professor Stephen Carter wrote about the case in this article:  How the DEA Ditched an Informant, and he writes: "It was the DEA's repeated bungling that essentially blew her cover. Then, after her release, she developed a chronic medical condition that would require increasingly expensive care. The DEA refused to help out. She therefore brought an action claiming breach of contract. In particular, she argued that the DEA, in hiring her as an informant, had agreed to protect her.  It broke that promise."

It's an important decision because courts often find that the government does not have a duty to protect its informants.  See this post.

Thursday, October 2, 2014

The Economist on the power of informants

Today The Economist published The kings of the courtroom, exploring how the use of informants helps make "American prosecutors more power than ever before."  The article covers examples ranging from Cameron Todd Willingham, who was wrongfully executed for arson based in part on a jailhouse snitch, to the Enron prosecutions which involved over 100 potentially cooperating unindicted co-conspirators.  From the piece:

     "The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with “co-operating witnesses”, once rare, have grown common. In federal cases an estimated 25-30% of defendants offer some form of co-operation, and around half of those receive some credit for it. The proportion is double that in drug cases. Most federal cases are resolved using the actual or anticipated testimony of co-operating defendants. 
     Co-operator testimony often sways juries because snitches are seen as having first-hand knowledge of the pattern of criminal activity. But snitches hoping to avoid draconian jail terms may sometimes be tempted to compose rather than merely to sing."

Monday, September 29, 2014

Student Informants

A series of recent news articles have documented the use of college student informants by campus and local police.  A 20-year-old student named Logan at U. Mass Amherst was permitted to continue his drug habit, and keep the secret from his parents, by becoming an informant.  He died from a heroin overdose.  From the Boston Globe story, "UMass police helped keep student's addiction secret":

   Campus police agreed not to seek criminal charges against Logan or notify his parents after he agreed to become a confidential informant, code named “CI-8,” something Logan called “an offer I can’t refuse” in a text message to a friend. In December 2012, Logan led police to another dealer — who was immediately arrested and suspended — while Logan remained a student in good standing. Police even refunded $700 they had seized from his room, which he immediately used to buy drugs, according to another text to a friend.

At several University of Wisconsin campuses, police acknowledge converting students  into informants who have been arrested for drugs.  According to the Wisconsin Center for Investigative Journalism,

  One UW-Whitewater student used as a confidential informant, speaking on condition of anonymity, says he was arrested for selling marijuana and ended up buying ecstasy. Within three hours of his arrest, he says a campus detective searched his phone, identified potential targets and had him sign an agreement.  The student, facing felony charges, says he made multiple controlled buys on campus.

These stories follow on the heels of developments at the U.S. Air Force Academy where a student informant program was dismantled after it was made public by the Colorado Springs Gazette.  Post here.

Sunday, August 31, 2014

Air force academy informant policies ignite debate

The New York Times has been following developments at the Air Force Academy in Colorado Springs after the academy's informant program came to light and was subsequently dismantled. NYT story here: Informant Debate Renewed as Air Force Revisits Cadet Misconduct. The informant program turned out to be the impetus for the only three prosecutions of sexual assault in the last 15 years. The ability of the informant program to produce such benefits, even as it mistreated and eventually expelled its own participants, reflects the constant dilemma of informant use: is the information it produces worth its significant costs? From the NYT:
Defending the practice, a retired deputy judge advocate general Maj. Gen. Steven J. Lepper, said [] that the academy’s honor code sometimes had to be broken to expose crimes like drug dealing and sexual assault. ... But the idea of having students spy on one another is controversial, with both alumni and experts on campus sexual assault arguing that it violates the honor code's ban on lying and erodes trust among cadets.

Thursday, August 28, 2014

Families sue DEA for informant handling policies

From the Associated Press:
"The family of Jason Estrada recently filed a $50 million lawsuit against the agency, the second suit in recent months alleging problems with the DEA's handling of informants. . . . Edward Quintana, 31, has been charged with killing Estrada. He also is charged with criminal sexual penetration of a child under 13. . . . The lawsuit and attached documents show Quintana became an informant for the agency in 2011 after Bernalillo County sheriff's deputies served a search warrant on his home and seized nine ounces of heroin, $12,000 and three loaded semi-automatic handguns. . . . Another lawsuit filed last month said DEA agents paid a struggling addict in crack cocaine during an undercover investigation into a Las Vegas, New Mexico, drug operation."

Thursday, July 24, 2014

Florida Supreme Court regulates criminal informant testimony

In 2012, the Florida Innocence Commission made a series of reform recommendations in recognition of the "dangers of false informant and jailhouse snitch testimony." The Florida Supreme Court has now amended the rules of evidence to reflect those recommendations. See In re: Amendments to Florida Rules of Criminal Procedure 3.220. The Miami Herald reported the story here: Florida's high court puts brakes on snitches' testimony.
The Florida Supreme Court . . . finally has changed the rules of evidence. Beginning this month, prosecutors now are required to disclose both a summary of the jailhouse informant's criminal history and just what kind of deal a snitch will be getting in return for testimony. And now, jurors will hear about prior cases that relied on testimony from that particular informant. The justices ordered new restrictions on the much abused informant testimony, because snitches, the court noted, "constitute the basis for many wrongful convictions." It was an unanimous decision. It was about time.
The new rules require greater disclosure of an informant's criminal background, prior history of providing information to the government, and all their deals. Of particular importance, the Florida court included all informants who allege that they have evidence about defendant statements, not merely "jailhouse snitches," i.e., those who happen to be in jail at the time. The new rule also requires disclosure of benefits that the informant "expects to receive" for his testimony, and it defines benefits broadly as "anything...[including any] personal advantage, vindication, or other benefit that the prosecution, or any person acting on behalf of the prosecution, has knowingly made or may make in the future." This is an important counter to the fact that informants know that they are likely to be rewarded for providing information even if no one explicitly promises them anything up front. Thanks to EvidenceProfBlog for calling attention to this important development.

Tuesday, April 1, 2014

Secret police bonuses for informants

Prosecutors in Durham, North Carolina, say they were unaware of a ten-year program under which police paid informants extra money to testify in drug cases. Story here: Durham Police bonus payments to informants could violate defendants' rights. Since prosecutors are responsible for providing discovery to defendants, these payments were not disclosed as required.

Law review article on informant bounties

As the informant model spreads from traditional criminal law to administrative enforcement agencies like the IRS and the SEC, some have questioned its efficacy: do bounties work? are they a good idea in the white collar context? See for example this article from Forbes on the use of cash bounties, and this post: IRS expands use of informants.
This article--Bounties for Bad Behavior: Rewarding Culpable Whistleblowers under Dodd-Frank and the Internal Revenue Code--explores the use of the criminal snitch model in the white collar context. Here's the abstract:
In 2012, Bradley Birkenfeld received a $104 million reward or "bounty" from the Internal Revenue Service ("IRS") for blowing the whistle on his employer, UBS, which facilitated a major offshore tax fraud scheme by assisting thousands of U.S. taxpayers to hide their assets in Switzerland. Birkenfeld does not fit the mold of the public's common perception of a whistleblower. He was himself complicit in this crime and even served time in prison for his involvement. Despite his conviction, Birkenfeld was still eligible for a sizable whistleblower bounty under the IRS Whistleblower Program, which allows rewards for whistleblowers who are convicted conspirators, excluding only those convicted of "planning and initiating" the underlying action. In contrast, the whistleblower program of the Securities and Exchange Commission ("SEC") under the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"), which was modeled after the IRS program, precludes rewards for any whistleblower convicted of a criminal violation that is "related to" a securities enforcement proceeding. Therefore, because of his conviction, Birkenfeld would not have been granted a bounty under Dodd-Frank had he blown the whistle on a violation of the federal securities laws, rather than tax evasion. This Article will explore an area that has been void of much scholarly attention -- the rationale behind providing bounties to whistleblowers who have unclean hands and the differences between federal whistleblower programs in this regard. After analyzing the history and structure of the IRS and SEC programs and the public policy concerns associated with rewarding culpable whistleblowers, this Article will conclude with various observations justifying and supporting the SEC model. This Article will critique the IRS's practice of including the criminally convicted among those who are eligible for bounty awards by suggesting that the existence of alternative whistleblower incentive structures, such as leniency and immunity, are more appropriate for a potential whistleblower facing a criminal conviction. In addition, the IRS model diverges from the legal structure upon which it is based, the False Claims Act, which does not allow convicted whistleblowers to receive a bounty. In response to potential counterarguments that tax fraud reporting may not be analogous to securities fraud reporting, this Article will also explore the SEC's recent trend of acting increasingly as a "punisher" akin to a criminal, rather than a civil, enforcement entity like the IRS. In conclusion, this Article will suggest that the SEC's approach represents a reasonable middle ground that reconciles the conflict between allowing wrongdoers to benefit from their own misconduct and incentivizing culpable insiders to come forward, as such persons often possess the most crucial information in bringing violations of the law to light.

New evidence in Willingham case highlights role of informant

Cameron Todd Willingham was wrongfully executed for the arson deaths of his three children based on shoddy forensic expertise and the testimony of a single jailhouse snitch. See this New Yorker article. Now the Innocence Project has uncovered further evidence that the prosecutor in the case--now a judge--lied about the informant's deal. Here's the story: New Evidence Suggests Cameron Todd Willingham Prosecutor Deceived Board of Pardons and Paroles About Informant Testimony in Opposition to Stay of Execution.

Orange County jailhouse snitch operation

The District Attorney's Office in Orange County is accused of running an unconstitutional jailhouse snitch program, much like the infamous one in Los Angeles that ended twenty years ago. See these stories from the L.A. Times , the Voice of OC, and and Orange County Register. From the Register:
[Defense attorneys] say sheriff's deputies, including one who worked as a "handler" for jailed informants, arranged for informants to be placed next to selected inmates and lure them into making incriminating statements. Deputies and prosecutors then conspired to hide the fact the men were informants from defense attorneys and pretended their encounters were coincidental, despite the longstanding legal requirement that prosecutors turn over information that could help the defense.

Air Force academy pressures cadets into snitching

The Colorado Springs Gazette ran this extensive story about "a secretive Air Force program [that] recruits academy students to inform on fellow cadets and disavows them afterward." Story here: Honor and Deception, and also Fox News story here. The program--which pressures cadets, especially those of color, into violating Academy rules under pressure of expulsion--appears to exhibit the classic corrosive costs of informant culture. From the Gazette report:
For one former academy student, becoming a covert government operative meant not only betraying the values he vowed to uphold, it meant being thrown out of the academy as punishment for doing the things the Air Force secretly told him to do....Eric Thomas, 24, was a confidential informant for the Office of Special Investigations, or OSI -- a law enforcement branch of the Air Force. OSI ordered Thomas to infiltrate academy cliques, wearing recorders, setting up drug buys, tailing suspected rapists and feeding information back to OSI. In pursuit of cases, he was regularly directed by agents to break academy rules....Through it all, he thought OSI would have his back. But when an operation went wrong, he said, his handlers cut communication and disavowed knowledge of his actions, and watched as he was kicked out of the academy....The Air Force's top commander and key members of the academy's civilian oversight board claim they have no knowledge of the OSI program. The Gazette confirmed the program, which has not been reported in the media through interviews with multiple informants, phone and text records, former OSI agents, court filings and documents obtained through the Freedom of Information Act. The records show OSI uses FBI-style tactics to create informants. Agents interrogate cadets for hours without offering access to a lawyer, threaten them with prosecution, then coerce them into helping OSI in exchange for promises of leniency they don’t always keep. OSI then uses informants to infiltrate insular cadet groups, sometimes encouraging them to break rules to do so. When finished with informants, OSI takes steps to hide their existence, directing cadets to delete emails and messages, misleading Air Force commanders and Congress, and withholding documents they are required to release under the Freedom of Information Act. The program also appears to rely disproportionately on minority cadets like Thomas.