Allegations regarding “Butch” Merritt, Watergate, Intelligence Agencies and “Crimson Rose,” Vol. XXIV

Splitting Hares – Part Four

Written (and first posted) by Kris Millegan, May 3, 2011

Confidential informants, within certain boundaries run their own show – outside the law – similar to blackmailers. So it was an interesting twist of history that set a lowly CI on a course to “interact” with President Richard Nixon.

Since Watergate the use of informants has ballooned. The War on Drugs, what a success!

From, Snitching: Criminal Informants and the Erosion of American Justice, by Alexandra Natapoff (highly recommended, very well written and researched):

A Tale of Three Snitches

Ninety-two-year-old Kathryn Johnston was dead, which meant big trouble for Officers Smith and Junier.

Three hours earlier, everything had looked so promising. Atlanta police had busted Fabian Sheats for the third time in four months, and the local drug dealer-turned-informant had tipped them off to a major stash at 933 Neal Street- an entire kilo of cocaine. Sheats wasn’t one of their registered informants so they couldn’t use him to get a warrant, but Smith and Junier applied for a warrant anyway by inventing an imaginary snitch. They called him a “reliable confidential informant” and told the magistrate judge that this nonexistent snitch had bought crack cocaine at the Neal Street address. The fabrication wouldn’t matter in the end, after they got the warrant, busted in, and grabbed the kilo. It would be a major victory. But nothing went the way it was supposed to. Sheats’s tip was bad – there was no kilo at that address. Once inside the house, the officers opened fire. Now Mrs. Johnston was lying at their feet riddled with police bullets with no cocaine anywhere to be found. So Smith and Junier turned to one of their regular informants, yet another snitch named Alex White. They offered him $130 to say that he’d bought drugs at Mrs. Johnston’s Neal Street home and to corroborate their false warrant application. It wouldn’t bring Mrs. Johnston back, but at least no one would learn that they’d gambled everything on a weak lead from a bad snitch and that the informant in the warrant didn’t exist.¹

CHAPTER 2

To Catch a Thief

The Legal Rules of Snitching

Courts have countenanced the use of informers from time immemorial in cases of conspiracy, or in other cases when the crime consists of pre paring for another crime, it is usually necessary to rely on them or upon accomplices because the criminals will almost certainly proceed covertly.                      – Judge Learned Hand¹

FROM THE 0UTSIDE, informant use often looks like a game without rules in which everything is negotiable and no law is sacrosanct. This state of affairs is a direct function of what I will call “informant law”: that body of laws and court doctrines that define the legal parameters of the relationship between informants and the government. “Informant law” is centrally characterized by official discretion and flexibility, the inapplicability of many traditional criminal procedure constraints} and the overt toleration of criminal behavior and secrecy. In other words, the official rules of the informant game are that the usual rules do not apply.

The legal rules governing criminal informants fall roughly into four categories. One set covers police and prosecutorial authority to create and reward informants, to persuade offenders to become informants, and to let them off the hook when they cooperate. Another set governs the way informants may be deployed as investigative tools against third parties. A third set defines the procedural protections and information to which defendants are entitled when faced with evidence obtained from an informant. And finally, a narrow group of rules sets limits, telling the government what it cannot do in connection with or to its informants.

Each of these arenas has its own laws regarding record keeping and disclosure. Taken together, the informational rules regarding snitching have such a potent effect on the rest of the criminal system that chapter 4 is separately devoted to them.

I. Creating and Rewarding Criminal Informants

Police and prosecutors have vast discretion to create and reward informants. Central to this discretion is the authority to tolerate or authorize crimes committed by those informants. There are few legal limits on the extent to which government officials can reduce a criminal’s potential liability or punishment in exchange for information, or, conversely, to increase liability when a defendant refuses to cooperate.

A. Police

As described in chapter I, police, detectives, and investigative agents are the main officials who typically create and manage informants. It is initially up to them to decide whether to arrest or flip a suspect, to evaluate the potential usefulness of a source, and to convey information about the informant to the prosecutor. An informant and his law enforcement handler may maintain a relationship over many years, with the informant providing ongoing information in exchange for his handler’s help in evading criminalliability.²

When an officer first confronts a potential informant, prior to an arrest or formal criminal charge, there are very few legal constraints. For example, a suspect’s right to receive Miranda warnings is triggered only if he is in custody, so if the suspect has not yet been taken into custody or arrested, his unwarned statements to police can potentially be used against him.³ Similarly, the Sixth Amendment right to counsel applies only once a suspect has been formally charged with a crime, so police can legally – and often do – negotiate directly with uncharged suspects without a lawyer.⁴ As a result, police have wide latitude to confront, threaten, and negotiate with potential informants without the presence of defense counselor other witnesses.

Police can legally reward informants in a variety of ways. They can refrain from arresting him in the first place, thereby’ permitting the informant to remain at liberty without creating an arrest or other record of the suspected offense. If they do arrest the informant, police can limit the initial description of the crimes or omit other information. For example, in United States v. White, the court described how Officer Mike Weaver manipulated the report writing process as part of his negotiations with a suspect:

Weaver stated that if defendant cooperated with the questioning, Weaver would write the police report to reflect only a charge of possessing drug paraphernalia, a misdemeanor, and that if defendant did not cooperate, he would send the glass pipe [containing methamphetamines to the crime lab and charge defendant with felony drug possession. These matters were entirely within Weaver’s control, and in fact he fulfilled the promise: after defendant made the statements, Weaver wrote the police report to reflect only a misdemeanor charge.⁵

This discretionary police power translates into the practical ability to forgive informant crimes, simply by declining to arrest informants or by failing to record their conduct. This authority is rooted in constitutional law: the Supreme Court has held that no one can force police to arrest a criminal offender.⁶

Police also have the power to permit informants to commit new crimes, and police departments each handle this thorny question differently. Some agencies deny that active informants are permitted to commit crimes at all. For example, the police department in Eureka, California, along with several other California police departments, maintains a standard written policy stating that “criminal activity by informants shall not be condoned.”⁷ The Las Vegas Police Department informant guidelines state that “[c]riminal law shall not be violated in gathering of information,” even though those same guidelines provide procedures for the purchase ‘Of “evidence” such as illegal drugs.⁸

By contrast, the U.S. Department of Justice has issued several sets of comprehensive guidelines governing the way the FBI and other federal investigative agencies handle informants. These guidelines designate “Tier 1” and “Tier 2 Otherwise Illegal Activity” that can be authorized by the handler. Tier 1 Otherwise Illegal Activity includes violent crimes committed by someone other than the informant, official corruption, theft, and the manufacture or distribution of drugs, including the provision of drugs with no expectation of recovering them. Tier 2 activity includes all other criminal offenses. The guidelines state that informants may never be authorized to participate in an act of violence except in self-defense, to obstruct justice, to commit illegal acts that would be unlawful if committed by a law enforcement official, such as breaking and entering, or to initiate a plan to commit a criminal offense. The guidelines also provide that illegal activity by confidential informants must be authorized in advance, in writing, and for a specific period of time, and that the authorizing agent must make a determination that “the benefits outweigh the risks.”⁹

Police and investigative agents do not have the legal authority to bind prosecutors. This means that police cannot confer so-called immunity, i.e., they cannot promise informants that they will not be prosecuted for a crime they did or will commit.¹⁰ But courts occasionally give weight to such promises anyway, on the theory that it is unfair to informants who reasonably believed that they would not be prosecuted for crimes they committed in order to provide the government with information. For example, in United States v. Abcasis, the defendants claimed that government agents authorized their heroin importation scheme. The court reasoned that

[i]f a drug enforcement agent solicits a defendant to engage in otherwise criminal conduct as a confidential informant, or effectively communicates an assurance that the defendant, is acting under authorization, and the defendant, relying thereon, commits forbidden acts in the mistaken but reasonable, good faith belief that he has in fact been authorized to do so as an aid to law enforcement, then estoppel bars conviction.¹¹

The Federal Rules of Criminal Procedure even have a special provision governing cases where defendants allege that they committed their crimes with “public authority,” meaning that the government authorized them to do it.¹²

If police do arrest an informant, file a complaint, or otherwise initiate criminal proceedings, then a prosecutor becomes in charge of that informant’s case. At this stage, the defendant acquires the right to counsel, which means that police and prosecutor alike are not supposed to try to elicit further incriminating information without the Iawyer’s presence.¹³ For this reason, charged defendants constitute an important subgroup of criminal informants because they are represented by counsel and therefore tend to cooperate in more formal, better-documented ways.

B. Prosecutors

Prosecutors have near-absolute discretion over charging decisions.¹⁴ ‘I his means they can add, drop, or alter criminal charges in exchange 1m cooperation from a defendant.¹⁵ Prosecutors can also confer formal or statutory immunity from prosecution pursuant to various immunity statutes, or confer informal immunity by entering into written agreements in which they promise not to pursue certain charges in exchange for a witness’s testimony. Statutory immunity agreements are binding on prosecutors in other jurisdictions as well, although informal negotiated immunity grants may not be binding.¹⁶ In practice, prosecutors are often willing to drop or reduce charges against someone who is cooperating with law enforcement in other jurisdictions, although this may depend on the seriousness of the new offense.

Prosecutors can also charge third parties, such as family members, in order to pressure a defendant to cooperate. This is sometimes referred to as a “wired plea” because the outcome of the family member’s case is attached or “wired” to the defendant’s cooperation.¹⁷

In deciding whether to turn a defendant into an informant, prosecutors may negotiate with defense counsel over a defendant’s cooperation, potential charges, and sentencing concessions. They may also seek more information from the defendant before they decide.¹⁸

Often the prosecutor and the defense will agree to postpone the case while the defendant tries to “work off” his charges by obtaining more information or generating new suspects.¹⁹

If a defendant does not want to cooperate, prosecutors can charge him with more serious offenses in order to induce a plea or cooperation. If the defendant remains uncooperative, the Supreme Court has held that the government can seek and a court can impose harsher punishment. ²⁰

In an example that became nationally infamous, Kemba Smith was charged with drug conspiracy in order to pressure her to testify against her boyfriend, a suspected drug dealer. Because she did not cooperate, she received a 24-year sentence even though she had no prior record and had never handled or sold any drugs herself. She served six years before her sentence was commuted by President William Clinton in 2000.²¹

Prosecutorial charging decisions are unreviewable by courts. The only exception is where there is clear evidence that a prosecutor has charged someone on an impermissible basis such as race, vindictiveness, or to punish the defendant for exercising his constitutional rights.²² In the context of negotiating with informants, prosecutors have near-complete latitude.

C. Sentencing and the U.S. Sentencing Guidelines

Once a defendant has been convicted – typically as a result of pleading guilty – he can seek a lower sentence from the court for having cooperated with the government. The general theory is that a defendant who has been helpful to the government has mitigated his crime and shown some remorse, and therefore should be punished less harshly. Judges routinely impose lower sentences on defendants who have cooperated. In some jurisdictions, judges may do so however they see fit as a matter of sentencing discretion.²³ In other jurisdictions, notably in federal court, sentencing is governed by “guidelines” that tell judges what kinds of sentences they should impose. Such guidelines typically have special provisions authorizing judges to award lower sentences to cooperating defendants.²⁴ In Virginia, for example, the fact that a defendant “cooperated with authorities” is the reason most often given by courts in justifying the reduction of a sentence.²⁵

Twenty years ago, Congress created special sentencing statutes and the U.S. Sentencing Guidelines, which have strongly influenced the law and culture of federal cooperation. First, as part of the war on drugs, Congress established high mandatory minimum sentences for drug crimes that can only be avoided through cooperation. It also created sentencing guidelines to guide all federal judges. The guidelines set presumptive sentences as well as a system of “departures” through which courts can impose higher or lower sentences than those contemplated by the guidelines. Because these provisions make cooperation central to a defendant’s ability to get a lower sentence, they turned cooperation into a dominant feature of federal plea bargaining and sentencing’ ensuring that a large percentage of federal defendants become informants of one kind or another.²⁶ More federal defendants receive departures, namely, reduced sentences, on the basis of their cooperation than for any other reason, and they do so in every category of federal offense, including child pornography and murder, although drug offenders constitute the largest class of cooperators, with one-quarter of all drug offenders receiving lower sentences.²⁷ Moreover, many more defendants cooperate and never receive public credit at all.²⁸

The first way in which the federal system promotes cooperation is by permitting courts to impose sentences below the minimum sentence prescribed by statute if the government files a motion stating that a defendant has provided “substantial assistance:’ The statute reads,

Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.²⁹

This provision is crucial because the statutory minimum sentences contained in the U.S. criminal code – especially for drug sentences – can be extremely high. For example, an offender charged with manufacturing five grams of crack cocaine (less than the weight of two sugar packets) faces a mandatory sentence of at least five years.³⁰ The only way such an offender can obtain a lower sentence for that offense is by providing the government with “substantial assistance.”³¹

Separate and apart from these statutory requirements) the U.S. Sentencing Guidelines have a specific provision governing cooperation rewards. The provision is referred to as section 5K1.1 and it reads) “Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense) the court may depart from the guidelines.”³² Typically, when the government is satisfied with a defendant’s cooperation) the prosecutor will file a motion – often referred to as a “5K” motion – acknowledging the defendant’s substantial assistance. The judge will then consider the motion in deciding whether to reduce a defendant’s sentence below the range recommended by the guidelines.

Under old Supreme Court case law) courts had very little discretion to depart below the guidelines. Moreover) courts could not depart based on a defendant’s cooperation unless the prosecution filed a tnotion.³³ This made cooperation one of the only ways in which a defendant could obtain a lower sentence. But the Court recently decided three cases that upended many aspects of guideline sentencing- United States v. Booker) Gall v. United States) and Kimbrough v. United States.³⁴These cases held that courts may not increase sentences based on facts that have not been decided by a jury) a central feature of guideline sentencing. As a result) the U.S. Sentencing Guidelines were rendered merely advisory and no longer constrain federal judges as they used to. In particular) sentencing courts may consider a wide range of factors that they previously could not) such as a defendant’s personal history or the proportionality of the punishment to the defendant’s culpability. While sentencing courts must still calculate guideline sentences and use them as a “starting point and the initial benchmark/’ courts are free to impose sentences above or below the guidelines as long as they are adequately explained and justified.³⁵

It is too early to tell what the full impact of these new cases will be on federal cooperation and sentencing. On the one hand) because courts can now impose lower sentences on any basis) cooperation is no longer the only realistic way in which a defendant can obtain a below-the-guidelines sentence. But cooperation remains powerful in many ways. First and foremost) sentencing departures are not the only benefits available to cooperators: their charges may be dropped or reduced before they ever get to sentencing. Federal defendants must also cooperate if they want a sentence below the statutory mandatory minimum. Moreover) even after Gall and Kimbrough) Judges must still calculate the guidelines in setting sentences and so cooperation will remain a valuable commodity in persuading judges 10 impose lower sentences and in justifying those sentences. Interestingly, cooperating defendants can now circumvent the prosecution and bring evidence of their cooperation directly to the judge) even if the government does not file a 5K motion. As a result) courts are likely to playa greater role in evaluating and rewarding defendant cooperation.³⁶

The Federal Rules of Criminal Procedure contain an additional provision that makes defendant cooperation even more valuable. Rule 35 is entitled “Correcting or Reducing a Sentence/’ and it permits courts to reduce sentences after they have been set) sometimes years after) as a reward for a defendant’s further cooperation. Rule 35 reads in part,

(1) In General. Upon the government’s motion made within one year of sentencing) the court may reduce a sentence if the defendant) after sentencing) provided substantial assistance in investigating or prosecuting another person.

(2) Later Motion. Upon the government’s motion made more than one year after sentencing) the court may reduce a sentence if the defendant’s substantial assistance involved: (A) information not known to the defendant until one year or more after sentencing;

(B) Information provided by the defendant to the government within one year of sentencing) but which did not become useful to the government until more than one year after sentencing; or

(C) Information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant

Rule 35 thus permits a sentenced defendant to continue to try to provide information to the government, even while he is incarcerated, in an effort to reduce his sentence. Some judges have publicly complained of the dangers inherent in this arrangement, pointing out that it encourages jailhouse snitches to fabricate information.³⁷

In sum, the use of informants plays a powerful role during sentencing, and at least in the federal system, this is true by legislative design. Defendants, lawyers, and judges alike all recognize that the defendant’s eventual sentence may depend heavily on whether he provides information to the government. This realization influences investigations, plea negotiations, legal strategies, disclosure rules, and all sorts of other decisions that shape sentencing and beyond.

D. Additional Benefits: Money and Drugs

Informants often work for money. The FBI and DEA have budgets of millions of dollars for paying informants – in 1993, federal agencies paid informants approximately $100 million.³⁸ Informants can also receive up to $500,000 or 25 percent of the take in a drug bust or seizures of other property or cash, whichever is less, though the rules of forfeiture.³⁹ For example, Rob Roy was facing up to eighty years’ imprisonment for cocaine distribution in Philadelphia. Instead, as a result of his substantial cooperation with the FBI over four years, he eventually received a sentence of five years’ probation, a $100,000 lump sum payment, and $84,424.77 to cover expenses.⁴⁰ Local police departments typically pay small-time informants through vouchers or in cash.⁴¹

Police also give drugs directly to informants, legally as well as illegally. The legal justification for doing so is to give informants the ability to set up deals. But some police admit that informants “skim” drugs from buys, or that police give small amounts of cash to addict-informants knowing that the money will be used for drugs. Sometimes police even give addict-informants drugs directly in exchange for information.⁴² 

to be continued…

Watergate Exposed: How the President of the United States and the Watergate Burglars Were Set Up (as told to Douglas Caddy, original attorney for the Watergate Seven), by Robert Merritt is available at TrineDay, Amazon, Barnes & Noble, The Book Depository, and Books-a-Million.