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STING ON THE CHEAP

Over the past decade, ATF agents have grown to love the “stash house robbery” sting. And why not? It’s economical – you don’t need a real “stash house” or any real drugs – and you don’t have to catch anyone actually committing a substantive crime. What’s more, slamming defendants with staggering sentences is a breeze.

Here’s how the sting works. The ATF agent starts with an informant, who introduces an undercover agent to some “homies” (and, make no mistake, “stash house robbery” sting defendants are overwhelmingly poor and black). The undercover agent tells the boys in the ‘hood about a “stash house” he knows of containing five, 10, even 20 or more kilos of cocaine, and convinces them show up at a specific time and place with guns to rob the place. The defendants are enticed: it seems like easy money, a lot of easy money. They all show up at the staging area, agents arrest them, and they get charged with a drug possession conspiracy and gun offenses. Mandatory minimum sentences usually start at 20 years.

Earlier this week, a Philadelphia federal court finally declared that the “stash house” Emperor has no clothes. District Judge Gerald McHugh refused to sentence Clifton McLean to a mandatory minimum 25 years for his role in a stash house robbery conspiracy that turned out to be an ATF sting. McLean, recruited by an ATF informant, was all too willing to participate in the robbery, but it was the ATF undercover who decided that the fictional “stash house” contained five kilos of coke, which happens to be exactly the amount needed to trigger a 10-year mandatory minimum sentence.

The government argued that pretending there was at least five kilos was necessary to make the scam seem believable (and thus protect the agent from suspicion it was a setup). Judge McHugh was skeptical: “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.”

Drug quantities drive both mandatory statutory sentences and the guidelines. The greater the quantity, the greater the crime. Agents and prosecutors figured out long ago that with conspiracies, actual drugs weren’t necessary, either – what defendants intended to do was all that mattered. The government obliged, driving the defendants’ intent with fanciful stories of drug riches beyond their dreams.

In this case, Judge McHugh held that “imposing the sentence prescribed for the quantity of cocaine charged would violate McLean’s constitutional right to Due Process of Law on the facts of this case.” Instead, the court sentenced McLean to two of the three mandatory minimums that otherwise applied, not accepting that five kilos was really involved. In his 29-page decision, the Judge explained that “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. There is a legitimate and compelling interest in combatting violent crime and narcotics trafficking, but given the implications for liberty when the Government custom designs both crime and punishment, the prosecution that follows should be narrowly tailored so as not to exceed its genuine law enforcement interest.”

United States v. McLean, Case No. 13-CR-487 (E.D.Pa. Aug. 8, 2016)