Entice vs. entrap: Court to rule on federal sting
By: JJ Hensley
A federal agency's legal attempt to curb violent home invasions that marred Phoenix's national reputation is now winding its way through the courts, but defense attorneys are trying to derail the effort by arguing the undercover operations were little more than entrapment.
Prosecutors, however, say seven defendants charged in the case willingly participated in the crimes leading to their arrests during the federal Bureau of Alcohol, Tobacco and Firearms' sting operations in Phoenix late last summer.
U.S. District Court Judge Mary H. Murguia has heard two days of testimony from a defendant-turned-state's witness and a federal undercover agent, both of whom were questioned for hours by half a dozen defense attorneys on the specifics of the plot that led to the arrests. Murguia will hear the motion to dismiss the case on April 7.
It started as a federal effort to help diminish Phoenix's status as the "kidnapping capital" of the U.S. Through a series of undercover "reverse sting" operations, federal agents enticed would-be criminals with the opportunity to break into homes where drugs were stored to steal money and cocaine. Part of these "plans" was to leave the drug guards dead. The homes and drugs never existed, and when the targets showed up to do the job - typically with weapons and restraints for the guards - federal agents swarmed in and arrested the suspects.
The operation netted more than 70 arrests. Now, those cases are making their way through federal court. The federal home-invasion stings were the first of their kind in Phoenix, and to beat the charges, defense attorneys have floated an accusation that's frequently alleged and rarely successful: outrageous government conduct.
To thwart the claim, prosecutors need to prove a handful of factors, including that the defendants were already engaged in criminal activity or were part of a criminal enterprise. The defense attorneys claim neither of those are true, and are asking Murguia to throw out the charges.
Attorneys for six defendants jailed on federal drug and firearm charges attacked the credibility of Shavor K. Simpson, 24, a seventh defendant, who helped coordinate the plan to steal up to 40 kilograms of cocaine. He became a witness for the federal government after his arrest.
His testimony is an essential piece of the government's case - he helps establish his co-defendants as a group experienced in home invasions - but even Murguia told prosecutors that relying on Simpson's rambling and sometimes contradictory testimony was not the best bet.
David Eisenberg, a former federal prosecutor and attorney for one of the defendants, said Simpson never could have pulled off the crime - real or not - without the help of the government. "It's a made-up crime in order to catch people who, from the government's perspective, these are bad dudes, but how do you know these are bad dudes?" Eisenberg asked.
A willingness to go forward with the conspiracy, regardless of whether drugs actually existed, will be key to prosecutors' efforts to rebuff claims that the undercover agents engaged in outrageous governmental conduct, said Myles Malman, a former assistant U.S. attorney who is now a defense attorney in Miami. Reverse-sting operations rely on law enforcement making up scenarios that lead to criminal activity, Malman said.
In court on Wednesday, defense attorneys argued that the alleged conspirators were not involved in a criminal enterprise before a government informant approached Simpson about doing the robbery. Attorneys said the men would not have gotten involved in a crime without the government's persuasion.
But the suspects showed up at a Phoenix warehouse on July 28, 2009, with four guns and expressed willingness to do the job, court documents say.
"Enticement is not entrapment," Malman said. "Enticing is OK. People showed up with guns to do a home invasion, they were there for that purpose."
If the defendants try to claim that the undercover agents entrapped them, the test applied in court will allow the suspects' criminal histories to be introduced if they show an inclination to commit crime, said Ashley Adams, a former prosecutor with the U.S. Attorney's Office in Phoenix.
