AMPP front page - The Architecture of Modern Political Power

 

Pittsburgh Post-Gazette Staff Writer Bill Moushey
on the Drug Wars and the corruption of the American legal system

Table of Contents
1Out of control Legal rules have changed, allowing
federal agents, prosecutors to bypass basic rights
2From beginning of cases to end, rule changes led to misconduct
3A sting gone awry
4Fighting to prove innocence led 3 to stiffer sentences
5Federal sting often put more drugs on the streets
6Informant lured him into a costly deal
7Feds sought bigger drug deal to ensure a stiffer prison sentence
8Drug charge beaten, but at high price
9Trapped into trying to settle vendetta


Out of control Legal rules have changed, allowing federal agents, prosecutors to bypass basic rights

November 22, 1998
By Bill Moushey
Pittsburgh Post-Gazette Staff Writer


Loren Pogue has served eight years of a 22-year federal prison sentence on drug conspiracy and money laundering charges.

Pogue, a Missouri native, never bought drugs, never sold them, never held them, never used them, never smuggled them, never even saw them.

But because federal prosecutors allowed a paid government informant to lie about Pogue's involvement in the sale of a parcel of land to supposed drug smugglers, he was convicted. Under tough federal sentencing guidelines, a judge had no choice but to give the Air Force veteran what might effectively be a death sentence.

Pogue - father of 27 children, 15 of them adopted - is 65. He doesn't expect to leave prison alive, and as details later in this story will show, he is baffled that the government he served for more than 30 years worked so hard to betray him.


In another case, hundreds of miles away, federal agents interrogated businessman Dale Brown for four hours at a Houston, Texas, warehouse. When he tried to leave, they stopped him. When he asked for a lawyer, they refused to get him one.

After Brown finally was charged in a government sting called Operation Lightning Strike, federal prosecutors denied that the warehouse interrogation had even happened. They said the dozen others who reported the same coercive tactics in the sting were making it up, too.

Federal sting operations are supposed to snare criminals, but in Operation Lightning Strike, federal agents spent millions of dollars entrapping innocent people who worked on the periphery of the U.S. space program.

The evidence against them was contrived. The guilty pleas were coerced. Those who fought the charges won.

Brown said all it cost him was his business, his savings, his family and his health.


In Florida, prisoners call the scam "jumping on the bus," and it is as tantalizing as it is perverse. Inmates in federal prisons barter or buy information that only an insider to a crime could know - often from informants with access to confidential federal crime files.

The prisoners memorize it and get others to do the same. Then, to win sentence reductions, they testify about crimes that might have been committed while they were in prison, by people they've never met, in places they've never been. The scam succeeds only because of the tacit approval of federal law enforcement officers.

Cocaine smuggler Jose Goyriena used "jump on the bus" testimony to help federal prosecutors put three men in prison for life, and he was set to do it again for prosecutors who promised to cut his 27 year sentence by 10 years or more.

Prosecutors knew Goyriena had bragged about his lies to cellmates, but the prosecutors didn't reveal what they'd heard to any of the men Goyriena had helped condemn - violating one of the fundamental tenets of American justice. It was defense attorneys who finally caught Goyriena in the scam.


In this nation's war on crime, something has gone terribly wrong.

A two-year investigation by the Post-Gazette found that powerful new federal laws designed to snare terrorists, drug smugglers and pornographers are being aimed at business owners, engineers and petty criminals.

Whether suspects are guilty has come to matter less than making sure they are indicted or convicted or, more likely, coerced into pleading guilty.

Promises of lenient sentences and huge government checks encourage criminals to lie on the witness stand. Prosecutors routinely withhold evidence that might help prove a defendant innocent. Some federal agents work so closely with their undercover informants that they become lawbreakers themselves.

Those who practice this misconduct are almost never penalized or disciplined. "It's a result-oriented process today, fairness be damned," said Robert Merkle, whom President Ronald Reagan appointed U.S. Attorney for the Middle District of Florida, serving from 1982 to 1988.

"The philosophy of the past 10 to 15 years [is] that whatever works is what's right."

The Justice Department did not respond to questions the newspaper posed in writing about concerns raised in this series. Nor would it return phone calls requesting comment.

The rules have changed

When this investigation began, the term prosecutorial misconduct would have elicited mostly blank stares. Only a few of the misconduct cases the newspaper was tracking in its nationwide research had generated more than a few lines in the back pages of local newspapers.

Independent Counsel Kenneth Starr changed that. His investigation of President Clinton has generated intense public debate about federal prosecutors and their tactics. Many of the issues Starr's probe has raised parallel concerns found in this investigation - from the huge pools of money available for federal investigations to the lack of safeguards and oversight to the use and abuse of grand juries.

One key component of how federal law enforcement is supposed to work has received only passing notice. In rulings reiterated over and over during the past 50 years, the Supreme Court has made clear that federal agents and prosecutors have a broader duty than simply investigating, capturing and prosecuting criminals. They also are entrusted to ensure that the constitutional rights of suspects and defendants are not abused.

"The function of the prosecutor under the federal Constitution is not to tack as many skins of victims as possible against the wall," said the late Supreme Court Justice William O. Douglas. "His function is to vindicate the rights of the people as expressed in the laws and give those accused of crime a fair trial."

There is every reason to believe that most federal agents and prosecutors respect Douglas's edict, but this investigation found a significant minority do not, and their numbers seem to be on the rise.

"The problem is at the margins - but the margins are growing," said an article titled "Curbing Prosecutorial Excess," which Arnold I. Burns co-wrote in the July 1998 issue of The Champion, a publication of the National Association of Criminal Defense Lawyers.

Burns is no left-wing zealot. A lifelong Republican, he was appointed deputy attorney general by Reagan, resigning that office in the wake of accusations about the conduct of Burns' boss, Attorney General Edwin Meese.

There is a fragile balance between the rights of a defendant and the power of the government, Burns said in a recent interview. That balance has shifted, resulting in misconduct in every phase of federal criminal cases - from the investigation, to the grand jury, to the arrest, to the trial, to the sentencing, he said.

Despite Douglas's eloquent admonition to the contrary, federal law enforcement officers charged with enforcing the law too often decide they're above it.

The powerful prosecutor

Some would argue that's nothing new.

Federal law enforcement officers, after all, have always wielded great power. U.S. courthouses attract the politically ambitious, who can trade on a U.S. prosecutor's crime- fighting stature to pursue higher office.

"The [federal] prosecutor has more control over life, liberty and reputation than any other person in America," said former Attorney General and Supreme Court Justice Robert H. Jackson. And that was in 1940.

But Jackson would have found the array of crime-fighting tools available to federal agents and prosecutors today staggering - from racketeering to money laundering to conspiracy laws.

At the same time, Congress has eliminated many of the checks and balances aimed at preventing the abuse of this power, from trimming protections against illegal searches and seizures to punishing people who plead innocent rather than guilty in federal court. A person who fights a federal charge must, by law, receive more prison time than someone who pleads guilty to the same crime.

Presidents Reagan, Bush and Clinton have signed on to this new crime-fighting order, and a more conservative Supreme Court has upheld these new laws at almost every turn.

The Justice Department - the cabinet agency that is supposed to ensure that these new powers are administrated fairly - has downplayed that role to the point that few complaints about abuse are even investigated.

These changes didn't happen in a vacuum. In the past 20 years, voters have made it clear that they love get-tough-on-crime politicians. A campaign promise to toss drug dealers in prison will trump concerns about fair trials or individual rights every time.

Congress, the Justice Department, the electorate and the courts have combined to give this nation's most aggressive law enforcement agents and prosecutors far more power than they've ever had before and few reasons to worry about the consequences of abusing that power.

Add political ambition to the mix, and the results are predictable and frightening, Merkle said.

A federal prosecutor "is a political animal," he said. "His boss is politically ambitious. He is being pressured for budgetary purposes to get statistics, and that causes them to prosecute absolutely [bogus] cases to get those statistics."

Other former federal prosecutors agree.

"I like to think that most prosecutors are honest and most agents are honest, but there are unfortunately enough examples of dishonesty cropping up that it is troubling to anybody in this business," said Plato Cacheris, who was born and raised in Oakland and worked eight years as a federal prosecutor before becoming one of Washington, D.C.'s, top criminal defense lawyers. He currently represents Monica Lewinsky.

Thomas Dillard, who spent 14 years as an assistant U.S. attorney in Knoxville, Tenn., then four years as U.S. attorney for the Northern District of Florida, said a lack of real world experience among prosecutors also has hurt. "You've seen an increase in career prosecutors that you didn't have 15 years ago, people who never practiced in the private sector," he said. "They sit in this lofty tower with a rather skewed vision of the world. They are on a divine mission, and everything that gets in their way is evil. The ends justify the means."

Huge budgets exacerbate the problem. "The war on crime has gotten to the point that all these [prosecutors'] offices are stuffed to the gills with resources," Dillard said. "They have to justify their existence. They go out and make things crimes that weren't even crimes 10 years ago.

"For it to get to the point where prosecutors honestly believe they are immune from state ethical standards, they honestly believe purchasing witness testimony at any cost is OK, and they honestly believe a grand jury is their own little forum, all of that is . . . bizarre."

Media attention on crime - federal crime in particular - has become huge. A stream of cable television talk shows has put federal crimefighters in the limelight every night on prime time.

Playing to the camera becomes another pressure on law enforcement officers to win at any cost. "The media is always looking for the big crime story, and society in general is always looking for someone to one-up its array of crime," Merkle said.

The person seldom heard in all of this is the victim, Merkle said. "People don't know how they're being suckered."

Nor do federal courts help to prevent misconduct as much as they once did. "The courts used to more consistently monitor both prosecutorial and law enforcement power in general, [but] over the past 10-15 years, the courts have contracted that power to the point of a total nullity," said Bennett Gershman, a former New York State prosecutor who teaches law at Pace University of New York. His law textbook, "Prosecutorial Misconduct," was published last year.

"The courts used to be a buffer between prosecutors and the rights of defendants," he said. "They are now simply a rubber stamp."

Federal law enforcement officers know that in the pursuit of convictions, they have a key advantage: Their actions will do them no harm. No matter what the misconduct, it is almost impossible for a criminal defendant to sue a federal officer or prosecutor for damages. No matter what the misconduct, the Justice Department rarely disciplines agents or prosecutors who cross the line into unethical or illegal behavior.

Government stings

Pogue and Brown were the victims of a government sting operation, a crime-fighting tool that Congress approved in 1974. The law allows federal agents to set up an illegal enterprise with the goal of luring in criminals and then arresting them.

Used properly, it can be effective, but there have been dozens of cases over the past decade in which government stings trapped the innocent or exaggerated the misconduct of suspects. Time after time, former criminals, con artists, dope smugglers, perjurers and killers were employed to help catch suspects in exchange for reduced sentences or even six-figure payoffs. With straight faces, prosecutors insist in court that none of these witnesses have an incentive to lie.

In 1990, Mitchell Henderson was a disgraced former police officer deeply in debt because of alcohol, marijuana and other drug abuse. Even so, the Drug Enforcement Administration promised him as much as $250,000 to set up a sting operation to try to snare Latin American drug dealers.

Henderson mostly failed - he helped the DEA trap one low-level Colombian drug smuggler after more than six months of work. That's when he set his sights on Pogue, whom he'd once worked for in Costa Rica, where Pogue lived and operated a real estate development business.

Henderson told Pogue he'd found businessmen who wanted to buy a piece of property in Costa Rica. Pogue agreed to close the land deal. For a little more than two hours, he listened as federal agents, disguised as Colombian drug smugglers, talked about the illegal drugs they would ship through the landing strip they would build on the land they were about to buy.

Pogue admits he should have left the room when the conversation turned to drugs. Instead, on May 30, 1990, he was arrested.

At Pogue's trial, Henderson told two key lies: first, that a Colombian drug dealer had approved the purchase of the land Pogue would close on, and second, that Pogue had been aware of a drug connection to the land sale from the start.

There never was a deal for any drug smuggler to buy the land, according to DEA and court documents that Pogue obtained after his conviction. Henderson made that up. The documents confirm that Henderson, at another trial, testified that Pogue knew nothing of the drug connection to the land until he arrived to close the deal.

Pogue's attorneys say this evidence would have destroyed the prosecution's key argument: that Pogue had been a willing participant in the drug conspiracy long before he walked into a motel room to close the deal. Despite this clear evidence to the contrary, federal prosecutors to this day insist that everything Henderson said was true.

The grand jury

The framers of the Constitution included grand juries as a safeguard in the Bill of Rights, providing that no person should stand trial for "a capital or otherwise infamous crime" without grand jurors first determining that sufficient evidence existed to press charges.

William B. Moore Jr. laughs at that one. A federal grand jury indicted him on criminal charges that he tried to win a contract for his Texas company by using a lobbyist to bribe the U.S. Postal Service.

At his trial in 1989, the government produced 50,000 pages of evidence and 84 witnesses. Then the judge asked the federal prosecutor: When are you going to link Moore to the crime? The prosecutor never did. The judge dismissed the charges before the defense even presented its case.

Moore and his company spent almost four years and $9 million defending themselves. After the trial, he filed complaints with the Justice Department and sued the government, saying the prosecutor manipulated the grand jury process to indict him.

The suit describes a particularly telling incident: Prosecutors promised a witness leniency if he would testify about the bribery scheme. Outside of the grand jury's presence, a prosecutor questioned the witness about Moore's knowledge of the scheme. Nineteen times during that intimidating session, the witness told the prosecutor that he had no idea if Moore knew about the bribery. The witness said he would not lie to satisfy the prosecutor's demands. The prosecutor tore up the government's non-prosecution agreement in his face.

The witness softened. His lawyer begged for another chance. So under careful questioning by the prosecutor before the grand jurors, the witness hedged enough to hint that Moore might be implicated in the scheme. Grand jurors never learned about the witness's 19 emphatic denials.

The Justice Department's Office of Professional Responsibility found no problem with the prosecutor's conduct. The report of its investigation, kept secret, exonerated him of wrongdoing in 1991.

If the government office that oversees federal officers finds no problem with such conduct, what recourse is there against a federal prosecutor content to manipulate a grand jury to win an indictment? Almost none, the Post-Gazette found. The government enjoys almost absolute immunity from civil suits based on its conduct in criminal trials. Moore's efforts to sue prosecutors for framing him have meandered through the courts for the past eight years, meeting intense government opposition at every juncture.

Discovery violations

Discovery is a cornerstone of American justice. It requires that federal prosecutors turn over to criminal defendants any evidence that might help prove the defendants' innocence or that might show the biases or lack of credibility of witnesses against them.

The reason is simple, the Supreme Court has ruled: Withholding this information could result in an unjust verdict. Yet in its investigation, the Post-Gazette found hundreds of cases where prosecutors intentionally withheld discovery information.

In May 1998, James R. Sterba went on trial in Tampa, Fla., on charges of soliciting a minor over the Internet for an unlawful sexual encounter, a charge he vehemently denied. The key witness against him was a government informant. Federal agents paid her $2,000 to visit Internet chat rooms to lure men to a hotel with the promise a girl would be waiting.

When Sterba's attorneys asked prosecutors for information that might reflect on the credibility of this witness, they were assured there was none. The trial was almost over when Sterba's lawyers learned:

The witness was using a false name that hid her long criminal record.

In exchange for her help in the Internet sting, federal agents dropped an investigation into the witness's connection with an international pornography ring.

Her record included a guilty plea for making a false statement and filing false police reports that led to the arrest of an innocent man.

Prosecutors were duty-bound to turn over this information but did not. On Aug. 13, the judge dismissed the indictment against Sterba, who had been imprisoned for nine months awaiting trial. He finally went free.

This particular type of discovery violation is common. Frequently, defendants aren't told that witnesses against them have committed crimes, including murder; or that they have lied in previous trials; or that they have received money or reduced prison sentences in exchange for their testimony.

But a discovery violation doesn't guarantee a new trial. The Supreme Court has ruled that a verdict stands unless defense attorneys can show the information not made available at trial would have changed the outcome.

In Pogue's first appeal, judges peppered attorneys with questions about the irregularities in the government's conduct, but they let the verdict stand, without even issuing an opinion as to why.

The net result is that the system encourages prosecutors to calculate just how much evidence they can withhold without risking a reversal. They substitute their judgment in determining what evidence is important rather than allowing a judge and jury to decide.

It has not always been that way.

Gary Richardson, whom Reagan appointed U.S. Attorney for the Eastern District of Oklahoma, had an "open file" discovery policy in his office during his tenure, which ended in 1984. Defense lawyers were permitted to come in and look at anything prosecutors had collected on a particular case.

Now, Richardson is a defense attorney and says that "open file" discovery simply doesn't happen any more, and he wonders why. "My attitude was that if you can't take the truth and win, then you weren't supposed to win," he said.

Telling lies in court

Federal prosecutors often face a quandary when they investigate criminals or put them on trial.

Fellow criminals usually don't want to snitch on their colleagues or testify against them, and they surely don't want to spend a lifetime in prison. So deals are made. Sometimes, witnesses with information about criminal activity get paid as informants. Sometimes, they get reduced prison time. In return, they must promise to tell truthfully everything they know.

This sounds good in theory, but Don Carlson knows better. In 1992, federal agents stormed his San Diego area home in search of thousands of pounds of cocaine. They didn't identify themselves. Carlson figured it was thieves trying to knock down his front door. He fired two shots into the door then was shot in the thigh as he dropped his gun and scrambled to a bedroom. There, as he lay defenseless on the floor, an officer shot him twice in the back.

There were no drugs. An informant whom the government was paying $2,000 a month had made up a story about the drugs because he thought Carlson's home was vacant and he needed to feed stories to agents to keep the money coming.

The informant's tendency to lie was well known. Federal agents in South Florida dumped him as an informant because of his repeated lies. But the lure of a major drug bust won out over common sense. Agents used his story to get a search warrant for Carlson's home.

In this case, their misconduct cost the government. Carlson received a multi-million dollar payout after agents almost shot him dead, but he got no apology. "All they said was that they were a victim of circumstances," said Carlson.

Maybe so, but perjury is among the most pervasive problems in the federal justice system - affecting investigations, grand jury testimony and trials.

The courts have hinted at some changes. In a startling decision in July, the 10th U.S. Circuit Court of Appeals ruled, 3-0, that promising leniency to witnesses in exchange for testimony amounted to buying that testimony, which violates federal law. Federal appeals courts in South Florida, Louisiana and Tennessee have issued similar, preliminary rulings in the past few months.

The Colorado court recently pulled back the decision so that all 12 of the court's judges may rehear arguments. If the ruling isn't changed, it will certainly be appealed to the U.S. Supreme Court.

Further appeals might become moot.

U.S. Senator Patrick Leahy, D-Vermont, has introduced an amendment in the Senate that would exempt federal prosecutors from the statutes cited in the ruling.

`Jumping on the bus'

"Jumping on the bus" has taken perjury in the federal justice system to new heights.

Inmates deal for confidential information from other inmates, government informants and snitches within the federal bureaucracy; they then memorize it and recruit others to do the same. Then, to win sentence reductions, they testify to facts only a real insider could know.

The detailed information that inmates deal might sell for $200,000 or more, but it can be traded for a sentence reduction of 10 or more years.

It's not a bad trade for inmates whose misadventures with the law might have left them with substantial assets but a future that included decades behind bars.

Federal authorities haven't responded to inquiries about the "jumping on the bus" phenomenon, but witnesses have told of being questioned in federal investigations of the problem.

Richard Diaz, a former Miami police officer and now a prominent Miami defense attorney, says that since the early 1990s, the practice that earned drug smuggler Goy-riena promises of cuts in his prison sentence has touched hundreds of cases in South Florida and other jurisdictions.

In Atlanta, a former prison inmate opened an office where federal prisoners could buy information they might use to testify against suspects they didn't know.

Diaz believes the phenomenon can be traced to mandatory sentencing guidelines that Congress enacted in 1987, imposing stiff prison terms for most federal crimes and sharp reductions in the amount of time off for good behavior that inmates may earn.

"Jumping on the bus" is one of the few ways left for federal prisoners to cut their prison time.

Dangerous alliances

The close relationships that federal law enforcement officials sometimes develop with criminals are necessary and treacherous.

Mob bosses don't tend to share information about their criminal enterprises, and often the only way for federal agents to pierce their secretive shell is to develop ties with criminal colleagues.

That arrangement can prove slippery. This investigation found dozens of cases where agents became so close to their informers that they crossed the line - sometimes assisting them in their criminal activities or protecting them, or even joining them and sharing in the profits of their crimes.

Few safeguards are in place to prevent the practice or, in some cases, to even discipline the most flagrant abusers.

For decades, FBI Special Agent R. Lindley DeVecchio oversaw investigations involving New York City's Colombo Crime Family. He was also the FBI's lone contact with a key informant in that family, Gregory Scarpa Sr., who was a Colombo captain and a notorious killer.

DeVecchio's superiors and other street agents would be stunned when he was later accused of passing confidential information to Scarpa, helping Scarpa avoid arrest, helping Scarpa punish his enemies, and allowing Scarpa to continue a crime career that included several murders.

DeVecchio is even accused of helping fabricate evidence with Scarpa in order to win indictments, convictions and guilty pleas against Scarpa's enemies.

A strikingly similar case unfolded a few years ago in Boston. Associates of James "Whitey" Bulger, one of the city's most notorious mobsters, could only wonder why he escaped prosecution, even as they were indicted, convicted and imprisoned for the rest of their lives. The reason: The FBI took sides, making sure that Bulger's criminal enterprise flourished while his opponents were arrested and sent to prison.

Just before a federal grand jury was to indict Bulger in 1995, he disappeared and has not been heard from since, casting more suspicions on the FBI and its relationship with Boston's top mobster. No FBI agents were disciplined in that case nor the New York case. Top agents in charge retired with pensions.

DeVecchio has taken the Fifth Amendment in several trials exploring the FBI's complicity, and because of the FBI's conduct in Boston and New York, dozens of criminals convicted on the basis of evidence that these relationships tainted might go free.

Abuse at sentencing time

Federal judges used to determine the sentences of the guilty.

They don't any more. In an attempt to standardize prison time and stop the practice of judge-shopping, Congress adopted strict sentencing guidelines in 1987. The guidelines mandate exactly how much prison time will be served based on the severity of the crime: so many years for a certain amount of drugs sold, so many for a certain amount of money embezzled.

This change produced an unexpected outcome: Federal prosecutors and agents now have the power to manipulate the charges a suspect will face and, as a result, the sentences that suspect will serve.

That power is broadly abused. For example, when a jury convicted Pogue of closing a land deal with federal agents he thought were drug smugglers, the judge didn't determine Pogue's sentence. Those agents did, when they discussed, in his presence, the quantity of drugs they would ship and the price they would pay for the land, making sure that both amounts met the criteria established for major drug and money laundering conspiracies under federal sentencing guidelines.

The same kind of strange machinations can be found at the other end of the sentencing pipeline. Judges may not arbitrarily reduce sentences - a prosecutor must request a reduction, usually for a suspect who has cooperated and implicated others.

For example, Mary Ann Rounsavall and her brother, James Rounsavall, were charged in 1994 in a multi-million dollar drug operation and money-laundering scheme that stretched from Southern California to Nebraska. The government's evidence was thin. Prosecutors pressed Mary Ann Rounsavall to testify against her brother. She refused. She was threatened and cajoled, she said. Then came the clincher. Prosecutors told her that her brother was dying. She wasn't allowed to talk to him, but she was promised a substantial reduction in sentence if she testified against him.

Her mother assured her that testifying would be the best course - after all, he would soon die anyway. Rounsavall agreed to the deal; her testimony put her brother away for life, and prosecutors seized millions of dollars in assets from him and his sister. Before sentencing Mary Ann Rounsavall, U.S. District Judge Richard Kopf peered down at the prosecutor, asking if he planned to request a sentence reduction based on Rounsavall's substantial assistance. Assistant U.S. Attorney Bruce Gillen did not offer the motion.

Under federal sentencing guidelines, Kopf had no choice but to order Mary Ann Rounsavall imprisoned for 20 years rather than the maximum of eight she'd have gotten with a prosecutor's recommendation for leniency. Long known as a hard-liner on drug offenses, Kopf described the incident as "horribly wrong."

Rounsavall has filed several motions trying to force the government to honor its promises. She said federal agents had given her some of the testimony that had ensured her brother's conviction.

And there's more: Her brother wasn't dying. She says federal prosecutors lied about that, too. He is healthy and now serving a life sentence.

Defense attorneys targets

Defense attorneys have become favorite criminal targets of federal prosecutors, even when they've done nothing wrong.

This investigation turned up dozens of cases where prosecutors filed questionable charges against attorneys who represented big-name criminal defendants, sometimes sacrificing certain convictions in the process.

In 1990, U.S. Attorney Anthony White charged Ciro Mancuso in one of the largest drug conspiracy cases ever brought in Reno, Nev. The evidence against Mancuso, who owned a half dozen homes and estates, was overwhelming.

Still, Mancuso's San Francisco attorney, Patrick Hallinan, filed dozens of motions, accusing White of illegal and unethical conduct in his investigation. White had never taken kindly to such tactics from opposition attorneys - often seeking to disqualify them in court.

Then, Mancuso offered a deal. He would implicate his lawyer and others in the drug conspiracy in exchange for a lenient sentence. White jumped at the deal.

Hallinan seemed an unlikely drug smuggler. An amateur archaeologist, he was a respected defense lawyer whose father was regarded as one of the finest attorneys San Francisco had produced. Hallinan's brother was head of the city's law department. But based on Mancuso's testimony, Hallinan was soon indicted for drug smuggling, money laundering and racketeering.

White wasn't done. In June 1994, federal agents raided Hallinan's San Francisco home, looking for evidence that Hallinan had illegally smuggled Peruvian artifacts and other ancient art.

Hallinan was acquitted on the drug, money laundering and racketeering charges. No charges were filed after the search of his home, though Hallinan has yet to recover hundreds of documents and valuable pieces of art that agents seized in the raid.

Mancuso was sentenced to only 10 years - despite his drug kingpin status and the perjury he committed, but he thought even that was too much. In November 1996, his lawyers appealed the sentence, claiming that White promised him "little or no jail time" for testifying against Hallinan. A 9th Circuit U.S. Court of Appeals panel disagreed, but Mancuso might still be out of prison in a year and a half.

Fixing the problem

Congressman John Murtha, D-Johnstown, says he watched as an out of control federal investigation nearly destroyed Joseph McDade, his colleague in the U.S. House of Representatives.

A Philadelphia federal jury acquitted McDade, R-Scranton, in 1996 on charges that he accepted gifts from defense companies in exchange for helping them win lucrative contracts.

During an eight-year investigation, McDade said prosecutors intimidated his friends, interrogated his relatives and staff and tried to damage his reputation through news leaks.

Murtha wondered how an average citizen with average resources could survive a similar assault. "When I sat beside Joe McDade for eight years and watched him go through the excruciating pain, . . . it made me recognize the tremendous power a [federal] prosecutor has. I could see that if they did this to a Joe McDade, an ordinary citizen has no chance," said Murtha.

Murtha and McDade decided to draft legislation called the Citizens Protection Act. Its most important provision would have established an independent oversight board to monitor federal prosecutors and require them to abide by the legal ethics laws of the states in which they operate. It also provided sanctions against prosecutors who knowingly committed misconduct.

Many of the bill's provisions touched on concerns raised by this investigation, which found that even when misconduct is clear, federal officials are loathe to acknowledge it or punish it or ensure that it doesn't happen again.

Murtha said the bill hit a nerve in the House of Representatives. More than 200 congressmen signed on as sponsors, many saying that constituents in their home districts had asked them to investigate complaints about federal law enforcement officers' misconduct. "It seemed like everyone had a story to tell," he said.

The House approved the legislation in August on a broadly bi-partisan vote, 345-to-82, despite the Justice Department's intense opposition. "I've never seen an effort [to kill a bill] - a focused effort - like I've seen in this particular case, from the Deputy Attorney General right on down the line," Murtha said.

The victory was short lived. The House bill became part of the federal appropriations package that Congress passed in October, and the Justice Department managed to have all but one provision killed in the conference committee that crafted the budget bill. That provision, requiring federal prosecutors to abide by the ethics laws in the states where they work, is important, but the appropriations bill delays its implementation by six months, giving the Justice Department time to try to eliminate it, Murtha said.

That puzzles Burns, the deputy attorney general under Reagan. He recalls drafting a memorandum requiring that all federal prosecutors adhere to the local ethics rules, the very rule his former department is now trying to kill.

"Look at it this way," he said. "[Pretend] there is a case, United States v. Burns. That means it's the whole FBI against Burns - its investigators and forensic accountants and everything else the government has. It's already one-sided.. . . Let's have an even playing field."

But the Justice Department doesn't want a level playing field, the Post-Gazette found. Any push by Congress for substantive change in protecting the rights of citizens is always met with the Justice Department's same dire warnings: Fiddling with the laws that empower federal law enforcement officers might hamstring efforts to fight drugs, child pornography and international terrorism.

In 1995, for instance, the U.S. Senate conducted hearings to demand answers for the disastrous confrontations by federal agents at the Branch Davidian complex in 1993 in Waco, Texas, and at the home of anti-government rebel Randy Weaver in Ruby Ridge, Idaho.

Officials with the FBI and Bureau of Alcohol, Tobacco and Firearms assured senators that changes in policies and procedures had been made to solve the problem, but some of the agents identified as ordering illegal actions eventually won promotions.

Shortly after that hearing, Attorney General Janet Reno announced that, because of its large backlog of cases, she was doubling the size of the Office of Professional Responsibility, which is charged with ensuring that federal officers don't abuse their authority.

The most recent General Accounting Office report on the Office of Professional Responsibility, in 1995, found that it substantiated only 9 percent of the 411 complaints it investigated between 1980 and 1990. The Post-Gazette found that the office still investigates very few cases; the office also has failed to correct the problem mentioned in the GAO report: "[The Office of Professional Responsibility] operated too informally, failing to document key aspects of its investigations, such as decisions not to interview certain people or conclusions that charges were false."

Last year, House Judiciary Chairman Henry Hyde, R-Illinois, introduced legislation that allowed victims wrongfully prosecuted by the federal government to recover attorney fees and other defense costs. Under Justice Department pressure, the bill was diluted - requiring that any such action be filed within 30 days of the completion of the federal action. Justice lobbying also eliminated the sanctions that individuals who commit abuses would have faced.

Still, Murtha believes that the lopsided margin by which the House approved the Citizens Protection Act is a strong base on which to build. "We think it was a step in the right direction, and I guarantee you that I'm going to push it further."

Others share Murtha's cautious optimism. "I think that while our system of justice and the administration of justice and criminal justice is the best in the history of the world, it requires a lot of reform and change and improvement, and I think it's wrong to say this is how it is and how it is going to be," said Burns.


From beginning of cases to end, rule changes led to misconduct

November 22, 1998 By Bill Moushey, Post-Gazette Staff Writer

New laws and court rulings over the past two decades have made it easier for federal law enforcement officials to arrest, convict and imprison the guilty.

Critics say a lack of safeguards has also increased the chance that innocent people will be snared or have their rights violated.

Here is a summary of some of the most significant changes.

Investigations

Sting operations. In 1974, Congress authorized sting operations, which allow federal agents to set up an illegal enterprise with the goal of luring in real criminals and then arresting them. A lack of safeguards has led to abuses, such as the 1984 case in which federal agents talked automaker John DeLorean into a drug deal that might save his business. A jury acquitted him, saying federal agents entrapped an innocent man.

Thornburgh Rule. Former Pennsylvania Gov. Dick Thornburgh served as U.S. Attorney General from 1988 to 1991. In 1989, he issued a memo saying that ethics rules that bar associations established in the areas where federal prosecutors worked did not bind the prosecutors. Attorney General Janet Reno made the memo official policy in 1994. Opponents said it allowed federal prosecutors to engage in conduct - such as contacting a criminal suspect without his lawyer being present - that might cause private attorneys to face disbarment. But legislation attached to this year's federal budget bill, which U.S. Reps. Joseph McDade, R-Scranton, and John Murtha, D-Johnstown, sponsored, requires the department to end the practice, though the legislation delays implementation for six months. The Justice Department already has begun efforts to kill it.

Forfeiture. Like money laundering, federal forfeiture statutes passed in 1990 were aimed at getting at the assets of big- time criminals. Forfeiture allows federal prosecutors to file civil suits to seize property if it can be linked to a criminal activity - even if the owner of the property is never convicted of a crime. Because the standard of proof is lower in a civil suit, the statute was supposed to give federal officers a powerful tool against illegal drug trafficking, but in a series published in 1991, The Pittsburgh Press found that federal agents have broadly abused forfeiture laws and that the homes, cars and cash of ordinary people are most often the targets of forfeiture. An amendment to the law that sought to safeguard the innocent was passed last year, but the measure was watered down under Justice Department pressure. So, despite intense lobbying by opponents of these one-sided actions, little has changed.

Exclusionary rule. From 1914 to 1984, the Supreme Court had a simple rule for police who violated the Fourth Amendment of the U.S. Constitution in any search or seizure: Evidence obtained would be excluded from trial. But Congress, tired of criminals being released on "technicalities," approved a law in 1984 that provided for an exception to the exclusionary rule: Evidence would be allowed into a trial if officers believed in good faith that they had acted properly in a search or seizure. That has caused defense lawyers and constitutional scholars to lament that there are more good-faith exceptions than there are rules of exclusion.

Search warrants. Prior to 1987, police needed clear and convincing evidence that a crime had been committed before a judge would issue a search warrant. Under new laws and court rulings, officers can get a warrant based on the word of an informant who doesn't even have to be named. In 1984, the Supreme Court allowed evidence obtained through a search warrant not supported by probable cause to be used in court, so long as it was "issued by a detached and neutral magistrate." Congress then approved new laws adding more bite to the ruling. In his dissent, Justice John Paul Stevens wrote that the ruling meant the court's destruction of the Fourth Amendment's guarantee against unreasonable searches and seizures was now complete.

Anti-terrorism. The Anti-Terrorism and Effective Death Penalty Act of 1996 allows the death penalty for certain federal crimes and sharply curtails a defendant's rights in some federal proceedings and appeals. For example, the law allows the government, unilaterally, to designate "terrorist" organizations and makes it a felony to support even the lawful and humanitarian activities of such organizations. It also permits the president, using undisclosed and even illegally obtained evidence, to designate as terrorists aliens residing in the United States and to deport them, even if they have committed no crime. The law also explicitly prohibits the FBI from investigating people because of their views, affiliations or other First Amendment activity.

Wiretaps. The Anti-Terrorism and Effective Death Penalty Act of 1996 also expands the use of roving wiretaps for investigations and allows federal agents to tap any telephone calls of suspects for as long as 48 hours without a court order. This covers cellular telephones and situations where suspected criminal organizations use call-forwarding to hinder the government's ability to find them.

Grand juries. A federal grand jury, which usually is composed of 23 people, hears accusations that a federal prosecutor presents to determine if enough evidence exists to indict a suspect for a crime. Since the defense is not allowed rebuttal, this proceeding gives prosecutors tremendous power. The late U.S. Supreme Court Justice Learned Hand lamented that "a good prosecutor could indict a ham sandwich." While judges overseeing grand juries may hear motions on the conduct of prosecutors in the secret proceeding, such motions are seldom granted, and a recent Supreme Court ruling adds to a prosecutor's power: It said that federal courts do not "possess broad supervisory powers over grand jury proceedings."

Trials

Perjury. In 1935, the Supreme Court ruled in Mooney vs. Holohan that prosecutors may not admit testimony they know to be false. That ruling has been refined and expanded several times, but increasing reliance on the so- called "harmless error" rule of modern law has further diluted it. Under this doctrine, unless a defense lawyer can prove to a judge that perjured testimony would have changed the verdict - even if that perjured testimony was known to prosecutors - a criminal defendant gets no relief.

Brady Rule. A 1963 ruling set the standard for what prosecutors must do to help a defendant. Called "discovery," it requires prosecutors to turn over to defendants any evidence that might help prove them innocent or show the biases and criminal records of witnesses against them. The Supreme Court also has ruled that if a prosecutor improperly withholds discovery material, a conviction should be reversed only if the verdict would have been different had that material been known at the trial. To ensure against discovery violations, some federal prosecutors, as recently as 15 years ago, opened all of their files on a case to the defendant's attorney. Over the past decade, prosecutors have intentionally withheld discovery evidence in hundreds of cases, but only in extreme cases have verdicts been overturned.

Sentencing

New rules. In 1987, Congress passed legislation that effectively switched the authority for sentencing a criminal defendant from a judge to a prosecutor. The law establishes sentencing guidelines that must be followed when a defendant is found guilty, and those guidelines are based on the severity of the crime. For example, a defendant found in possession of a few ounces of drugs would get a more lenient sentence than a defendant who possessed a few pounds. Congress believed the guidelines would ensure fairness and stop defense attorneys from shopping for lenient judges. However, the guidelines have fostered a new form of misconduct called sentencing entrapment, where prosecutors seek to boost the charges against a defendant up front to ensure he will face a maximum sentence. In a drug conspiracy, for example, a person may be found guilty for simply discussing a drug deal. So informants trying to snare a suspect make sure the quantities discussed are huge, to ensure maximum sentences. This gives prosecutors more clout in negotiating a plea bargain.

Early release. In 1987, the U.S. Sentencing Commission dramatically cut the amount of time that was permitted to be cut from a prisoner's sentence for good behavior. Before this change, a prisoner who behaved in prison could reduce his sentence by at least one-third and sometimes by as much as one-half. Under the new rules, a convict may earn only 54 days of "good time" per year. When added to stiff mandatory sentencing laws that Congress adopted, the cut in good behavior time has swelled the population of federal prisons and produced another unintended result: a surge in federal prisoners willing to lie against defendants in court. The reason? A witness who helps win a conviction usually gets a sentence reduction at the request of the prosecutor, one of the few avenues left for prisoners seeking to cut their prison time.

Appeals

Appeal limits. The Antiterrorism and Effective Death Penalty Act of 1996 makes it much more difficult for a federal prisoner to file an appeal once a year has passed after his conviction. This has forced prisoners to rush their appeals and sometimes miss presenting the most compelling evidence for a new trial. One example: The Post-Gazette found that when the government withholds evidence that might help a defendant, it is often uncovered long after a conviction through a Freedom of Information Act request to federal law enforcement agencies. These agencies sometimes take years to respond to a FOIA request. The new appeal limits make it much more difficult for this new evidence to get before an appeals court.

Oversight

Office of Professional Responsibility. This office within the Justice Department is supposed to oversee the conduct of federal agents and prosecutors, but little oversight is happening. The office opened official investigations into only 9 percent of the 4,000 complaints filed against federal law enforcement officials during the past 20 years. The office found that only 4 percent of those complaints had merit. Since the office only discloses specifics of its investigations on rare occasions, it is not clear what punishment might have been meted out.

Congress. Last summer, the U.S. House approved the Citizens Protection Act, 345-82, a major legislative victory for Pennsylvania Reps. John Murtha, D-Johnstown, and Joseph McDade, R-Scranton. But only one provision survived as part of the federal appropriations bill that Congress approved last month: the repeal of the Justice Department's Thornburgh Rule, which had exempted federal prosecutors from abiding by the ethics rules in the states in which they operate.

Killed were provisions that would have established an independent oversight board to monitor federal prosecutors, and sanctions for prosecutors who committed misconduct. A section that would have included independent counsels such as Kenneth Starr under the bill's provisions also was killed.

Last year, a bill that House Judiciary Chairman Henry Hyde, R-Illinois, introduced was signed into law, allowing victims wrongfully prosecuted by the federal government to recover attorney fees and other defense costs, but under Justice Department pressure, it was watered down to require that any such action be filed within 30 days of the completion of the federal action, and it provides for no sanctions against those who commit abuses.


A sting gone awry

When a trap didn't net big game, government targeted the little guys

November 23, 1998 By Bill Moushey, Post-Gazette Staff Writer

Dale Brown was a poster boy for the American dream, an athletic former Eagle Scout whose start-up company near the Johnson Space Center outside Houston hustled contracts with NASA.

Brown worked seven days a week, 18 hours a day getting his company started in the late 1980s, trying to pair clients and their promising technologies with niches in the billion- dollar needs of the U.S. space program.

Like most small companies, Brown's Terraspace Technologies Inc. sometimes struggled to make ends meet. A man who bragged about his Mississippi roots and his ability to make things happen promised to change that in 1992. John Clifford told Brown he had developed a product that NASA might use and he was prepared to spend big money to get it noticed.

It was called a miniature lithotripter, an ultrasound device whose technology might one day be used to improve the medical monitoring of astronauts in space.

Brown checked out Clifford and his companies with Dunn & Bradstreet, the Better Business Bureau and the banks that worked with him. All gave the Mississippi man a thumbs- up.

"I came to believe this guy was our savior, our knight in shining armor," Brown said.

Brown, though, was wrong.

John Clifford was actually Hal Francis, an agent for the FBI. His new device was phony, though legitimate companies had agreed to help the FBI by pretending to manufacture it. It was part of an FBI sting operation aimed at trapping Brown and several others who worked in the space program or on its periphery.

Francis and dozens of other federal agents and prosecutors had set their sights much higher: Key employees at NASA and a few of its contractors were suspected of giving and taking bribes, but the feds had failed to snare these high- placed managers.

Millions already had been spent on Operation Lightning Strike, including enormous bills for luxury hotel suites, gourmet meals, deep-sea fishing trips and booze-filled nights at Houston strip clubs. Federal agents needed something to show for their effort. So they went to work trying to lure minor space agency players into doing something illegal. Brown would be one of these consolation prizes.

It was a scenario similar to dozens of other failed government stings that the Pittsburgh Post-Gazette uncovered in a two-year investigation of federal law enforcement officers' misconduct.

Brown, now 38, eventually was charged with 21 counts of mail fraud and one count of bribery. After a jury deadlocked, all charges were dismissed, but the price of fighting for his innocence proved costly. Brown lost his business, his savings, his fiancee, his health and his belief in the American dream.

Not an isolated case

Brown was in good company.

The other 14 targets in Operation Lightning Strike were also college graduates. Most had families. Only one had previously been the target of a criminal investigation.

In 1994, two years into the government sting, federal prosecutors charged each with violating federal laws. Several of the cases started with the lithotripter. The government contended that Brown knew the device was phony, and thus every act he performed in trying to win a NASA contract for it constituted a crime, but that argument eventually self-destructed in court.

Brown produced a picture of the prototype he took while visiting a firm that would supposedly manufacture the lithotripter. Francis showed Brown the device to assure him it was real, and he didn't know Brown had taken the picture.

Francis cajoled other sting targets into situations that would bring criminal charges, even though several said they couldn't imagine that what they were doing might be construed as a crime.

All but two of the 15 suspects were coerced into quickly pleading guilty. Federal agents assured them that fighting the charges in court would result in long prison terms, huge fines and prolonged humiliation for their families.

The physical and psychological toll of "Operation Lightning Strike" was great. Seven small companies employing more than 100 people went bust. Three of those arrested had nervous breakdowns. One attempted suicide. Others experienced health problems that ranged from heart attacks to strokes.

"The government agents intentionally and methodically drove our companies and personal bank accounts to zero and drove our reputation to ruin," Brown said.

Court documents show the misconduct in this case originated with the government, not the people the government had charged, nor was Operation Lightning Strike an isolated case of a sting gone bad.

Time and again, the Post-Gazette found poorly executed government stings that followed a similar pattern:

Federal agents took aim at wrong-doing in high places and spent large sums of money pursuing it. When they failed to snare their high-ranking targets, they scrambled to charge minor characters, often people with financial problems, by enticing them into actions that might be construed as violations of the law.

Federal agents often used former criminals to pursue their quarry, promising con artists, dope smugglers and perjurers money, freedom and reduced prison sentences to help nab the targets of a sting.

Because the charges were often flimsy or based on lies, government agents worked hard to elicit guilty pleas. They would threaten defendants and their families with adverse publicity or long trials that would deplete their bank accounts.

Plea bargains had another advantage: Once a defendant pleaded guilty, federal agents weren't required to reveal their evidence or their tactics.

That's what almost happened in "Operation Lightning Strike." The 15 people charged were told they faced decades in prison and hundreds of thousands of dollars in fines for their crimes.

They were promised that guilty pleas would bring leniency. Of the 13 who pleaded guilty, 11 got only probation. One man served five months in prison; another served two months.

Brown was the first to plead innocent and fight the charge.

Ignoring the safeguards

Congress authorized government sting operations in 1974.

The law allows federal agents to set up an illegal enterprise with the goal of luring criminals and then arresting them. Federal agents promised it would be a powerful tool.

But wary drug smugglers and other criminals are pretty good at spotting a government sting. That might explain why sting targets so often end up being people who haven't previously been involved with crime.

In 1986, industrialist John DeLorean was tried on charges of cocaine trafficking after his arrest in a government sting. In a videotape shown at his trial, DeLorean said a suitcase full of cocaine that an undercover officer brought was "better than gold," but a jury determined that the government, not DeLorean, had crossed the line. DeLorean's company was on the brink of financial collapse, and undercover federal agents proposed a drug deal to him that would bring in millions to save his business.

Federal agents didn't go after a criminal, the jury decided. They persuaded a desperate man to commit an act he would not otherwise have considered.

The DeLorean verdict reaffirmed safeguards that supposedly were already part of the 1974 law:

Sting targets must be predisposed toward committing a crime. Usually this means they already have done something criminal and the government wants to catch them doing it again.

Sting targets must be willing to commit a crime. Talking innocent people into doing something wrong through bribes or other means is not supposed to be tolerated.

Not only must the targets of a sting want to commit the crime, they must have the ability to do so. This might mean having the money or the connections to pull it off.

The Post-Gazette's investigation found these safeguards frequently are ignored, especially when a sting fails to nail its original target.

No guarantees

Many judges are willing to chastise government agents and prosecutors for overstepping their authority in running a government sting, but there's no constitutional guarantee that an injustice will be discovered or, if it is, that it will be corrected quickly.

Several South Carolina legislators can vouch for that. In 1990, federal agents announced their open-and-shut case: They would indict 28 legislators, lobbyists and other officials caught red-handed swapping votes for money in a sting operation called Operation Lost Trust. But as often happens in sting operations, the key government witness, Ron Cobb, was a criminal and drug addict.

Agents had arrested this former state legislator on drug charges in 1989, while he was working as a lobbyist, then promised him money and immunity if he'd become the key figure in their sting operation. Federal agents paid him as much as $4,000 a month to operate a phony lobbying firm and promised him a $150,000 bonus if he helped win convictions against legislators.

Over the next few years, legislators and lobbyists pleaded guilty and went to trial, with Cobb serving as the key witness against them.

Then, the truth came out. Cobb had lied to a grand jury about the activities of the people he had nailed. Prosecutors knew of the lies yet withheld the information from defense attorneys, a violation of the law. Cobb's actions made it impossible to determine whether individuals snared in the sting had really committed crimes. In addition, prosecutors withheld hundreds of other pieces of evidence that would have allowed the defendants to craft their defenses.

Last year, an outraged U.S. District Court Judge Falcon Hawkins dismissed every outstanding charge involving the sting. Some defendants who pleaded guilty or were found guilty before the case unraveled have started the process of seeking to withdraw their pleas or have their convictions reversed.

"The breadth and scope of the government's misconduct . . . [and] the involvement of the FBI during this entire incident was and is shocking to this court," Hawkins said. He said FBI agents hid information about Cobb's past, including his drug arrest.

"Most offensive to this court, however, is that the government sat silent when it knew that its silence would not only fail the efforts of the defendants to fully develop defenses to which they were entitled but would misrepresent facts to both the grand jury and the trial jury and mislead . . . the court to such an extent as to affect its rulings. . . . As reluctant as this court is to call it such . . . this silence in several instances was subornation of perjury."

A citizen who suborned perjury might face criminal charges, such as those included in the articles of impeachment being considered against President Clinton over his conversations with Monica Lewinsky prior to her appearance before a federal grand jury. But the Post-Gazette found no evidence that any federal agents or prosecutors in Operation Lost Trust were disciplined for their conduct. Nor was Cobb charged with perjury, despite his repeated lies.

The judge made clear prosecutors failed in their most important role: to make sure defendants receive a fair trial. "While lawyers representing private parties may - indeed, must - do everything ethically permissible to advance their clients' interests, lawyers representing the government in criminal cases serve truth and justice first," Hawkins wrote. "The prosecutor's job isn't just to win but to win fairly, staying well within the rules."

The Justice Department has appealed the judge's dismissals in Operation Lost Trust.

Sting operations and other new crime-fighting tools that Congress authorized come with few protections against overzealous federal agents and prosecutors, said Bennet L. Gershman, a former New York state prosecutor and a law professor at Pace University of New York. "There's really no significant restraint on federal law enforcement power," said Gershman, whose 1997 law book "Prosecutorial Misconduct" is in its second printing. "It's a green light to federal officials to do virtually anything they want to do."

`Lightning' strikes

Dale Brown learned he was a target of Operation Lightning Strike on a sweltering summer's day - Aug. 4, 1993 - at a Houston warehouse, about a year after he met John Clifford.

A videotape showing him talking to an undercover agent was playing on a videocassette recorder. Audio tapes with his name on them were stacked on the floor. Photographs of Brown, surreptitiously shot, were enlarged and tacked to the walls.

He'd come to the warehouse to meet Clifford, the man with the invention that Brown was trying to peddle to NASA. Brown hadn't seen his so-called partner for months and Clifford owed him $30,000, a sum Brown was eager to collect.

Clifford was there but he identified himself as FBI Agent Hal Francis. Several other FBI agents were with him. Francis told Brown the felony counts he faced might mean 30 years in prison and more than $1 million in fines.

For four hours, agents questioned Brown. He repeatedly asked if he was under arrest and was told he was not. He asked to leave. Twice, agents physically restrained him, he said. He asked for a lawyer. They refused his request.

Federal law says that once a suspect requests a lawyer, all questioning must stop until he gets one. In Operation Lightning Strike, agents simply ignored the law, said Brown and other suspects who were taken to the warehouse.

Other Operation Lightning Strike suspects independently described their warehouse experience as almost identical to Brown's, yet the government has denied in court that it took anyone there. "They did the same thing to everyone that went [to the warehouse]," said Charlie Portz, a Houston lawyer who would eventually represent other targets of the sting. "Every story was identical."

Brown said the government has thousands of documents describing various aspects of the sting but not one interview log for the day Brown spent in the warehouse or for the warehouse visits of any other person charged in the operation.

At the warehouse, Brown said, the agents told him he could help himself by helping them. The officers took him to a 10th-floor suite at Houston's Astrodome Hilton Ho-tel. Behind the mirrored walls, more agents sat with recording equipment and cameras.

Gone were Francis and the heavy-handed threats. Now, agents told Brown that Francis had made a lot of mistakes and that they knew Brown was a good guy. If Brown would testify against others who were targets in the sting, including a businessman named Scott Sadaway and an astronaut Brown knew named David Wolf, they promised leniency.

Brown balked at the offer. "I told them Sadaway was one of the nicest businessmen I'd ever met, and for them to want me to help them go after David Wolf, I decided right on the spot that I was going to fight these people as hard as I could," Brown said.

But Brown hedged his bets. He provided the agents information about a former business partner whom Brown said once claimed to be involved in contract corruption, but no charges were ever filed against the man.

Burdens on the psyche

Besides Brown, only Sharon Hogue of Houston pleaded innocent in Operation Lightning Strike.

A judge dismissed all charges against her after the prosecution concluded its four-week case, ruling there was no evidence to find her guilty.

Had other targets of the sting not succumbed to the government's tactics, they, too, would have been exonerated, Brown believes.

Anthony Verrengia, a retired Air Force reserve general, was indicted for accepting a kickback in Operation Lightning Strike. He said the money was payment for legitimate work. The indictment cost him his job as the manager of advanced programs for the Space and Aeronautics Division of Martin Marietta Services Group.

He said he pleaded guilty because fighting the charge seemed an insurmountable task.

The ordeal destroyed him mentally.

"It was a culmination of knowing you're trapped, knowing you're not guilty, but there is no way for you to escape this situation," he said. He ingested 200 sleeping pills in a suicide attempt a few months after his indictment.

Other targets of the sting also plunged into depression.

Verrengia has asked a federal court judge to allow him to withdraw the guilty plea he says was coerced.

The other targets of Operation Lightning Strike are considering similar actions.

Charges' costly legacy

Brown knew there was no way he could win.

Even if he were exonerated, his business was destroyed. The indictment ensured that Brown would never win another contract in the space community.

At the time of his arrest, Brown had little money to pay an attorney. His uncle hired Dick DeGuerin, a well-known criminal lawyer, to take the case.

The government almost immediately reduced the 21 felonies against Brown to one bribery charge. DeGuerin's defense was that Brown would never have committed a crime - if prosecutors could even prove his action constituted a crime - had the government not entrapped him.

FBI Agent Francis assured jurors that Brown knew the lithotripter, the device he was trying to sell, was phony and was part of the effort to defraud NASA by trying to win contracts for a bogus product. Francis said Brown had never seen a prototype of the device because none existed.

That's when Brown produced the picture of the prototype.

Francis also testified about the "bribe" Brown had offered a lobbyist to help get the lithotripter noticed. Brown said Francis gave him the $500 and called it "entertainment money." Brown said he thought that's exactly what it was - spending money to give to the lobbyist while he was in Houston.

The FBI recorded the March 1993 conversation that followed the "bribe":

Francis: "How did that feel?"

Brown: "I didn't mind doing it. We gave the guy five hundred bucks. You're making it sound bad."

Francis: "You bribed that guy."

Brown: "I did?"

Brown said that conversation exemplified the government's approach in Operation Lightning Strike: convoluted actions aimed at trapping someone into saying or doing something that might be construed as incriminating.

The jury deadlocked in Brown's case. Rather than retry him, prosecutors asked the judge to dismiss the charges.

Brown was elated, broke and outraged. He spent the next two years investigating the government's sting. He said he found 200 occasions where government agents and prosecutors had lied or destroyed evidence.

He battled health problems. While he was under investigation, the 33-year-old Brown had a massive heart attack that led to open-heart surgery. That caused a viral infection that forced another operation; he was on life support in a California hospital on the day he was indicted.

A few days after he turned over the information he'd gathered about government misconduct to his attorneys to prepare a lawsuit, he had a massive stroke that left the right side of his body partially paralyzed. "I lost my [fiancee], my health, my cars, my house, was forced into bankruptcy and underwent two open-heart surgeries, intestinal surgery and brain surgery because of a massive stroke due to the stress," he said.

During a recent walk down a Houston street, Brown lamented the disastrous turn in his life. He had been an athletic entrepreneur who enjoyed skydiving, deep-sea diving and fast living. Now he is almost destitute and physically broken. Brown refuses to use crutches, braces or a wheelchair, despite having problems walking. He swears he will again go deep-sea diving but also admits that doctors believe his health problems have shortened his life.

His lawsuit charging misconduct against the government and others involved in the sting was dismissed, though he has appealed. His chances are slim. The Supreme Court has long ruled that federal law enforcement officers are immune from most civil lawsuits related to their job-related actions.

"No one wants to listen, but I won't stop until someone does," he said.

Agent Francis left the FBI. He is a private investigator in Houston. He has not responded to written requests for an interview.

Brown remembers the last time he heard from Francis outside a courtroom. On Oct. 20, 1993, his voice was on Brown's answering machine, though Francis didn't realize it. An associate of Francis had made the call then forgot to hit the end button on her cellular phone. Brown's answering machine picked up her subsequent conversation with Francis.

Francis talked about Operation Lightning Strike. He described himself as a "study in aberrant behavior" who could get anyone to do anything.

Brown thought at first Francis might be talking in jest, then he decided he wasn't. "He sure got me to do what he wanted." Brown said those few minutes of conversation scared him more than anything else he'd heard in Operation Lightning Strike.


Fighting to prove innocence led 3 to stiffer sentences

November 23, 1998 By Bill Moushey, Post-Gazette Staff Writer

The three men were all about 60 years old, successful in their careers, active in their communities.

They were snared in three government stings. Two are serving long prison terms. The third expects to begin serving his sentence soon.

Their lives are ruined, their assets gone. Two say they have little hope of leaving prison alive.

The government offered them deals if they would plead guilty to minor criminal offenses. They would have done little, if any, prison time, but all steadfastly maintained their innocence, and because they fought for that innocence, they are paying dearly.

They say they cannot understand how their government could have lured them into situations that federal prosecutors would then describe as crimes.

They say they have learned one thing from the shadowy world of government sting operations: The line between guilt and innocence is a shifting one, and federal law enforcement officers control the strings.

Loren Pogue

Loren Pogue, an Air Force veteran and co-founder of a home for orphans, is serving 22 years in prison on charges he conspired to smuggle drugs into the United States and launder drug money.

Pogue never bought drugs, never sold them, never held them, never used them, never smuggled them. But a government informant with an alcohol and drug habit, who would later lie at Pogue's trial, managed to snare Pogue in a 1990 government sting operation that had little else to show for the hundreds of thousands of dollars it cost.

A real estate agent and Missouri native who'd made a second home for himself and his family in Costa Rica, Pogue admits he'd had a previous scrape with the law. In the 1970s, he served 14 months for tax evasion related to an ill-fated business venture.

His life since had been free of trouble.

Pogue and his wife, Delores Jean, have 27 children, 15 of them adopted. Friends, neighbors and preachers have written letters to the federal government detailing his contributions to their communities and their outrage at his treatment.

Federal prosecutors said he set up and completed a deal to sell a parcel of land in Costa Rica to drug dealers who intended to use it as a stopover airstrip for illegal drug shipments to the United States. He denied the charges vehemently.

After his conviction, Pogue obtained government documents that showed the key witness in his case committed perjury at his trial, weaving a web of lies that convinced jurors of Pogue's guilt.

The witness, Mitchell Henderson, was a government informant, a disgraced ex-police officer, an abuser of alcohol and drugs whom the Drug Enforcement Administration had promised $250,000 to set up a sting operation to try to snare Latin American drug dealers.

Henderson testified that a high-ranking official of the Cali Cartel in Colombia had arranged to buy the land for the airstrip. However, DEA documents that Pogue obtained after his conviction show Henderson never met the cartel official, and the DEA knew it.

Henderson also testified that Pogue, from the start, knew that the land sale was connected to Colombian drug runners, a key point in proving conspiracy charges. But at a later trial, Henderson testified that Pogue knew nothing about the deal until the day he showed up to close the agreement on the land.

The DEA documents alsomake clear that government officials knew Henderson was lying at Pogue's trial. Neither Pogue nor the court was informed of that fact, despite discovery rules that require it.

DEA tapes show Pogue balked at the land deal when the subject was first raised in the Tampa hotel room where the deal was to be closed. Pogue admits he finally agreed to sell the land, partly out of fear of what the supposed drug dealers might do to him if he did not.

Pogue says he knew something else about the property they did not: No one could build an airstrip on the land. It was a rocky parcel on a steep hillside with a view of the Pacific Ocean. Building an airstrip there would be nearly impossible.

Because he listened for a little more than two hours to undercover agents talk about the thousands of pounds of cocaine that would go through this airstrip and the thousands of dollars in drug money they would use to pay for it, the federal charges he faced were major: drug and money laundering conspiracies. His lawyer says the jury believed the lies of the government's key witness because at one point, Pogue told the supposed drug smugglers he didn't care where the money came from.

The 11th United States Court of Appeals upheld Pogue's conviction, not even issuing an opinion after its judges had peppered attorneys in the case with questions.

George Pararas-Carayannis

The federal government needed an estimated $4 million and a sexy undercover police officer to snare Dr. George Pararas-Carayannis in a government sting operation aimed at drug dealers who were laundering money.

The only person to face charges was Carayannis. There was no evidence he was involved in drugs.

Carayannis was accused of laundering $4,000 and netting all of $35 for himself. He faces a 41-month sentence, though he has so many medical problems that doctors have postponed his trip to prison, fearing it might kill him.

It was the first time he was charged with a crime.

Carayannis is one of the world's foremost authorities on tsunami, tidal waves that earthquakes trigger and that have killed thousands in coastal communities around the globe. He was named director of the International Tsunami Information Center in Hawaii in 1974 and was responsible for assisting more than 28 nations with natural disaster preparedness. He was fired from the post after he was indicted in 1995 on money laundering charges.

His nightmare began after a friend who was an interior decorator introduced him to Lauri McEwen in 1992. Carayannis didn't know that the interior decorator was an illegal alien whom federal agents had arrested on drug charges. She agreed to help in the sting in exchange for the right to stay in the country.

McEwen told Carayannis she was a 26-year-old Canadian who had recently broken up with her boyfriend. Carayannis said she was beautiful, often dressing in tight, revealing clothing that highlighted a spectacular figure. Carayannis, then 56 and divorced, was amazed she found him interesting. Soon they were meeting for lunch and dinner. They held hands and kissed tenderly as he courted her, he said. They talked about life and trips they might take together.

What he didn't know was that McEwen's real name was Dana Kresich, an undercover Honolulu police officer assigned to the government's sting.

Kresich told Carayannis that she recently had started an escort service, a euphemism often implying a prostitution ring, but Caray-annis said he never made that connection. In government tapes of conversations between him and Kresich, she is never heard to define escort service as being anything illegal.

He said the undercover agent assured him that the business was not only legal but that it was registered in the State of Hawaii. Kresich insisted in court that Caray-annis knew it was an illegal operation.

Since her escort business was new, Kresich told Caray-annis she had not yet established a credit card account. So several times she asked him if she could run credit card bills from her business through the machine at a small jewelry business that Carayannis owned as a sideline to his government job.

Carayannis gladly agreed. He reimbursed her for the $4,000 or so that the charges totaled. He earned $35 in fees on the charges, the government said. Because the credit card companies also charged him that amount as their fee for the service, the transaction was a wash. Government documents showed that Carayannis listed the $35 on his tax returns and paid taxes on it.

Federal prosecutors said his actions constituted money laundering because he ran transactions from a prostitution ring through his credit account. Carayannis couldn't believe it.

After his arrest, he next saw Kresich in court. Gone were the low-cut dresses, short-shorts and bedroom eyes. "She was dressed like a nun," he said.

Prosecutors quickly offered a deal. "They told my lawyer to pick any one of the charges [to plead guilty to] and this would end," he said. "But I wasn't guilty of anything, and I wasn't going to plead guilty to something I didn't do."

Now he's not sure he did the right thing. Fighting the government has cost him everything.

Carayannis emigrated to this country from Greece as a young man. He is the grandson of Lela Carayannis, who led that nation's largest anti-facist resistance organization during World War II. She and 71 of her followers were executed. Other members of Carayannis' family were tortured in concentration camps.

"I had faith in this system," he said. "I thought with this kind of evidence and due process, I would be acquitted." But he wasn't. He was convicted and sentenced to 41 months in prison.

Hundreds of supporters have sent testimonials to the offices of federal judges and congressmen on Carayannis's behalf along with questions about the government's tactics. They have accomplished nothing.

Carayannis is in a legal limbo because doctors have said he is not healthy enough to travel to prison because of the effects of three heart attacks. So his seven-year odyssey continues.

He says he's sure of only one thing: Because of his medical problems, the 41 months in prison he faces amounts to a death sentence.

Beryl L. Johnston

Beryl L. Johnston was a Pappillon, Neb., gentleman farmer, contractor and finance company owner who thought he was getting a good deal on refinancing a farm, but his 1993 trip to Florida to seal the deal ended in a 78-month federal sentence for money laundering.

As often occurs in government stings, Johnston wouldn't learn until after his conviction that the key witness against him had lied to him, to the government and to the court in the sting that would cost him his freedom, his farm and most of his assets.

Based on the evidence, the government violated its rules when it snared Johnston in the sting, but because appeals take so long to resolve, vindication might come after his sentence is completed sometime next year at the Federal Correctional Institution at Yankton, S.D.

It all started in June 1993 when Jerry Woody, a man Johnston had tossed out of his office years earlier, met two U.S. Drug Enforcement Administration agents who were posing as agents for the Cali Drug Cartel. The agents told Woody and an acquaintance that they needed to launder $10 million from cocaine proceeds.

People who operate on the fringes of the law usually know that Cali Cartel members don't share their affiliation with new acquaintances unless they plan to kill them, but these agents had no trouble hooking Woody, who had once been a banker but was as financially unstable in 1993 as he had been most of his life.

Although he'd never laundered anything more than a load of clothes, Woody told the smugglers he owned a bank on the Island of Palau, a U.S. Territory off the coast of the Philippines. He said he'd laundered "billions of dollars" over the past decade through connections in Lichtenstein.

He didn't mention that he couldn't pay his phone bill, had recently run out on several hotel bills and that his foreign bank was simply a piece of paper. His bank charter in Palau had been revoked years earlier because Woody didn't pay the $50 renewal fee.

Virtually everything he told the agents was a lie.

The clincher came when Woody said he could arrange to launder money already in the United States through a Nebraska farmer who would be willing to put up his farm as collateral.

The undercover police officers said they wanted to meet the farmer - they had $2 million in small bills ready to launder. That complicated things a bit. The farmer was Johnston, and Woody hadn't spoken to him in years. Johnston simply happened to own a 25 percent interest in a $6 million Nebraska farm and Woody had added his name to the growing list of lies he was feeding the feds.

Woody called an old friend, John Velder, in Kansas City, Mo. - a man who knew Johnston through business dealings. Velder, who'd helped Johnston with a loan in 1991, listened as Woody told him that friends he knew had recently inherited $20 million - another lie - and wanted to invest it. Woody thought that Johnston, a partner in Fleetwood Farms, might be a candidate for a low-interest loan.

He also asked Velder not to tell Johnston that Woody was behind the deal, since Johnston had refused to deal with him on financial matters because of Woody's tendency to skirt the law. Velder agreed and called Johnston, who jumped at the offer of a 6 percent loan. The deal would get worked out on July 7, 1993, in Orlando, Fla.

Johnston was outraged when Woody showed up with Velder, but the good interest rate kept him talking. At a motel room, the undercover agents joined them. That's when Johnston says he first learned of the money laundering scheme.

"They told me they were going to give me the loan, but you're going to launder our money," he said in a recent phone interview from prison.

Velder left the room before they discussed specif-ics and was acquitted of charges filed against him.

Johnston's apprehension with the agents is evident in several conversations the government recorded, but in the end he agreed to the money-laundering deal.

Why would he do something so stupid? Fear, Johnston says. Woody took him aside during the talks, informed him the men were members of the Cali Cartel and pointed out guards stationed in the hall - to make sure no one tried to sneak away. They were actually FBI agents in disguise.

After his arrest, the government offered Johnston a deal if he would plead to a lesser charge. He refused. "I told [my attorney to tell prosecutors], `You know there's a law against perjury, and if I admit doing this, I've committed perjury.' "

But based mostly on the videotaped conversations from the room, he was convicted. After the trial, he began to discover evidence that the government should have given to his attorneys.

Woody wasn't interested in laundering money. He was trying to rip off $25,000 in front money from the supposed Colombian money men, and because he was broke, there was no way Woody could launder money. In court, the FBI presented him as an accomplished money launderer of some wealth. Sting operations aren't supposed to target people who don't have the means to pull off the crime in question.

Johnston's attorney asked DEA Agent Russell Permaul, "Do you have any evidence that Woody handled billions of dollars?"

"No, not short of him owning a bank," replied Permaul.

There was no bank. Woody had been living on his girlfriend's credit cards.

Johnston maintained at the trial that he'd known nothing about the money laundering deal until the day he walked into the motel room, which the government disputed.

Johnston's son would later learn that DEA documents showed no record of Johnston until the day before the Orlando meeting. Further, Woody was prepared to verify Johnston's story on the witness stand, if prosecutors granted him immunity for those statements, since otherwise he might face still more charges.

Federal prosecutors refused, Johnston said. So the witness who had lied to set him up was denied the opportunity to set him free. Woody was sentenced to 80 months for his role in the deal.

Finally, Johnston wasn't satisfied with the videotaped conversations from the sting that prosecutors had played in court. The tape abruptly ended the moment they announced his arrest. After he was convicted, the jury foreman told his attorney that he couldn't understand why Johnston didn't simply flee the room.

Had the foreman seen the agents throw him to the ground and handcuff him, he might have appreciated the fear Johnston says he experienced.

"I was scared; what else can I say," Johnston said. "I'd like to see the jury foreman in my shoes when they grabbed me."

Johnston's repeated requests that the government turn over the original tape have been denied. Johnston figures the DEA's real interest in him stemmed from one thing: his substantial interest in a Nebraska farm that could be seized under federal forfeiture laws.

He was right. The DEA seized Johnston's $1 million interest in the farm then sold it for $360,000 to his former partners.


Federal sting often put more drugs on the streets

November 23, 1998 By Bill Moushey, Post-Gazette Staff Writer

Rodney Matthews noticed lawmen waiting as he veered his airplane loaded with 700 kilograms of cocaine toward a remote Houston airstrip on New Year's Eve in 1989. He landed anyway.

Police sirens blared, and officers drew their guns, thinking they had made a major bust

Matthews didn't flinch. He handed over the high-quality Colombian cocaine with a street value of more than $50 million, and before the new year was even a few hours old, Matthews - who could have been imprisoned for life based on the weight of his load - was at home in Texas with his family, with the blessing of the U.S. Customs Service.

All it took, Matthews said, was a phone call to a key federal agent. For not only did he have the government's blessing to bring in the drug; he had permission to sell it, too.

That might seem like a strange way to fight the war on drugs, but it's a common tactic used in government sting operations, the Post-Gazette found. The object is to snare key leaders in drug smuggling operations. In this case, it succeeded only in putting more drugs onto America's streets.

When feds deal in drugs

It is against the law for federal agents to distribute illegal drugs, just as it is for ordinary citizens, but there are exceptions.

Under "extraordinary" circumstances - to nab big-time dealers or smugglers, for example - top Drug Enforcement Administration, FBI or Custom's officials may issue an order to allow it.

It is that kind of order that Matthews said he was given, but two years after his close encounter near Houston, Matthews was arrested with a boatload of cocaine in Florida and eventually sentenced to three life terms in prison. He insisted that he was double-crossed, that he was busted for an operation that the government had approved.

Two U.S. Customs agents corroborated his story in court, but top officials at the U.S. Justice Department denied that. They even brought perjury charges against the two agents who vouched for Matthews, saying they wouldn't go along with what Matthews calls a "high-level coverup." A jury acquitted the agents.

The only certainty in this mess is that Matthews is doing life in prison at the U.S. Penitentiary at Leavenworth, one of the toughest in the country.

From his cell, he has staged a one-man assault against the government, which, he says, tried to cover up its deals with him by asking him to perjure himself and then condemned him to life in prison because he refused.

A criminal's initiative

Often, it's the criminals who suggest this country's drug stings - even when those suggestions seem far-fetched.

Mustaq Malik knew the only way he'd be freed early from his 24-year sentence at the federal prison in Petersburg, Va., for drug trafficking was to help federal agents set up a sting that would snare other big-time drug dealers.

The native of Pakistan would do anything to ensure the sting's success, even lie in court, he later told a defense attorney.

Malik testified in 1993 that he had lied in court before and that he was willing to testify against people he didn't even know, so long as prosecutors agreed to shave years off his prison sentence.

Defense Attorney: "What you would do is . . . use the government in any way that you possibly could [in] . . . getting your sentence reduced from 24 years and five months to something lesser, wouldn't you?"

Malik: "Well, that's the system."

The deal that Malik offered federal agents in 1990 seemed especially odd. The guy he set up, 63-year-old New Yorker Raphael Santana, was already serving a life sentence in prison. As part of the sting, Malik persuaded Santana to arrange from prison for the distribution of a shipment of heroin that Malik would bring into the country. Then the federal government would bust everyone involved.

But in its zeal to grab a few small-time colleagues of this lifer, the federal government turned over a package of almost pure heroin from its own drug lockers to Frank Fuentes, a small-time criminal with a bad drug habit.

Agents could have arrested Fuentes, Santana and the other conspirators before Fuentes took possession of the heroin. For reasons not clear, they did not. So Fuentes promptly got the heroin into the hands of street dealers in New York City.

Experts testified that it would have been cut into 8,500 individual packets and sold on the street for $170,000.

Federal agents arrested Santana; Fuentes, a down-on-his- luck former dealer who was so broke that he once missed a meeting with federal agents because he didn't have money to get his car out of a tow pound; Santana's wife, who was dying of cancer; and four street-level dealers.

A Senior U.S. District Judge eventually ordered that the conspiracy charges against the defendants be dropped, saying the amount of heroin given to Fuentes "boggles the mind" and constituted outrageous government misconduct.

His ruling was overturned on appeal, and Fuentes is again appealing his life sentence.

Most of Malik's court records are sealed, so his fate isn't clear, but the Post-Gazette found a few records that show he continued to buy down his prison term as an informant in New York and Chicago. One court paper also shows the government paid him $50,000 for his efforts. At last report, he was in the federal witness protection program.

A little help from his friends

There's another problem with government drug stings: They sometimes create a drug problem where none existed.

Ben Kalka had been a bit player in the San Francisco drug world off and on for most of his life - mostly scoring small hits of cocaine - but at the time of his arrest in 1982, he'd become a major supplier of methamphetamine on those same San Francisco streets.

Cheaper than cocaine and heroin, it induced many of the same sensations, including quick addiction.

Federal agents had set Kalka up in a sting. But by the time Kalka began manufacturing the drug, the Drug Enforcement Administration insists the sting had ended, an argument Kalka finds bizarre.

By the time the government caught up with him, Kalka figures he'd produced 8,000 pounds of drugs worth $10 million, using ingredients federal agents had arranged for him to buy.

Kalka should have been suspicious of his good fortune in 1980.

A chemist friend had asked him to find a barrel of phenyl acetic acid, a key precursor for the manufacture of methamphetamine. Kalka had a contact at a chemical company who said there was no way he could get him the chemical. While it wasn't illegal, the government scrutinized who bought and sold the chemical.

A week later, this contact called to say he could get Kalka a semi-truck load of the chemical precursor weighing 25,000 pounds. All Kalka needed was the money - $250,000.

What Kalka didn't know was that in the interim, the contact, Paul Palmer, had become an informant for the government after being busted for selling the very precursors Kalka had bought.

By now, Kalka was hooked. He set up a partnership with another drug dealer, Paul Morasco, to get the money, then began his search for the last ingredient he'd need for the speed - monomethylamine. Palmer put him in touch with Michael Riconosciuto, whose past included shadowy connections with various U.S. intelligence agencies, unbeknownst to Kalka.

Riconosciuto greeted Kalka like a long, lost brother. He claimed Kalka had once talked him out of suicide when they were imprisoned in the 1970s at Lompoc federal prison. Kalka vaguely remembered Riconosciuto.

Riconosciuto said in a recent interview that he was working for the FBI when he connected with Kalka and the agency told him to find the monomethylamine for Kalka as part of the sting operation. When the chemical was delivered, the FBI planned to bust Kalka and various subordinates.

The plan failed miserably, an array of court documents show. Kalka, naturally mistrustful of almost everyone, managed to divert the tractor-trailer truck carrying the chemicals away from federal agents who were tailing it.

Even so, Kalka wonders today why the FBI didn't track him down once the methamphetamine began hitting the streets. The agency maintains it eventually stumbled across Kalka's drug enterprise during another undercover operation.

Soon, he had produced what might have been the largest batch of methamphetamine produced in this country.

And it was all with chemicals supplied with the help of federal agents.

When he was finally arrested, Kalka gave the government $1 million and 1,000 pounds of methamphetamine, all that remained of the 8,000 pounds of the drug he'd produced, in exchange for a promise that he would serve no more than 10 years in prison.

A judge ignored the prosecutor's request and slapped Kalka with a 20-year sentence. In the meantime, Riconosciuto was arrested and convicted on a methamphetamine manufacturing charge. From his prison cell in Coleman, Fla., he described the role of federal agents and their authorization for him to sell Kalka the final ingredient needed to make the methamphetamine.

Kalka says the government's complicity in supplying the drugs might yet win him release from prison if he can convince a court to hear him.

In the meantime, he has been moved from one prison to another because of his repeated attempt to sue the government over his case and the conditions of his incarceration.

A drug-related millionaire

Charles Hill also earned a fortune in illegal drugs, but he did it legally.

He opened Triple Neck Scientific Co. in 1985 near San Diego. Four years later, he had amassed more than $9 million in profit from the specialty chemical business, selling the precursors needed to manufacture methamphetamine, which was becoming popular in Southern California.

Hill didn't need to hide his operation from the government. He was working for the U.S. Drug Enforcement Administration, which tracked down more than 100 of his customers, arresting them for using the precursors in illegal drug-manufacturing operations.

The only problem was that the government didn't recover all the chemicals that Hill had sold. Federal officials admit that the precursors they didn't recover were likely transformed into thousands of pounds of methamphetamine that was eventually sold on American streets.

Most of those caught in the government's web quickly pleaded guilty and went off to prison.

Those who appealed based on the government's tactics were rebuffed. The appeals court said convictions could be overturned only if "government misconduct has been so outrageous that it results in a violation of due process," or was "so grossly shocking and so outrageous as to violate the universal sense of justice."

The court ruled it was not. "Unsavory conduct alone will not cause the dismissal of an indictment."

Turning the tables

Rodney Matthews was the centerpiece in the government sting called "Operation Shanghai," an example of just how little control the U.S. sometimes has in its drug interdiction efforts.

Matthews agreed to smuggle drugs with the government's blessing in 1984 to avoid a three-year prison term for smuggling marijuana.

It wasn't a bad trade. Government agents said he could keep anything he earned from the smuggling operations, and he earned millions.

The government sting had two objectives, Matthews said in several letters responding to questions the Post-Gazette posed:

Snare a South Texan named Vic Stadter, an outspoken government critic who made his opinions known through his newspaper. Federal agents believed he was a longtime drug smuggler. Stadter denied the charge and accused the government of harassment.

Bust Pablo Escobar, the notorious leader of the once-feared Medellin Cartel in Colombia, which the government said was responsible for 80 percent of the cocaine that came into this country during the 1980s.

Matthews said he got nowhere with Stadter, managing only to take one of his secretaries on a few dates.

His pursuit of Escobar was more complicated and ultimately unsuccessful. Escobar died of multiple gunshot wounds after a shootout with Colombian police in December 1993, before U.S. agents ever laid a hand on him.

During the years in between, Matthews smuggled more than 50 loads of cocaine for the U.S. Customs Service. At the direction of federal agents, he delivered his loads to illegal drug syndicates in the United States, which then distributed them across the nation. Matthews said he invested most of his profits in property and aircraft and made sure the operation never cost the government a cent.

He said the government wasn't interested in pursuing the people who bought his drugs. By not busting them, agents hoped to enhance Matthews' reputation with Escobar and Stadter, creating an image of a super trafficker who could avoid the government's web.

That he never got close to Escobar wasn't for lack of imaginative schemes.

At one point, Matthews tried to sell the cartel leader the coastal schedules of U.S. AWACS surveillance planes, used to detect smugglers in boats and planes, for $6 million. It was all a scam, he said. He was hoping the ploy would get him closer to the Colombian.

He said his encounter with scores of federal agents in 1989 at the airport near Houston was a wakeup call. His contacts for the smuggling sting were two Customs Service agents and two Texas Department of Public Safety narcotics agents, and he no longer believed they had enough support for the operation to protect him.

"It was glaringly apparent that the people who had given me authorization had over-reached their authority, so from that point on I made sure that no cocaine hit the street," he said.

Soon, he was accepting only contract assignments from federal law enforcement agencies, for a fee of $50,000 a flight. He brought in the drugs and let the federal agents take it from there.

These flights often included overnight stops at U.S. military bases in the Caribbean, including Guantanamo Naval Base in Cuba, "where I would fly in loaded with Colombian cocaine, using prearranged code names like `Dark Cloud' and `Hot Rod' for tower clearance."

The final irony: The government still owes him $180,000 for those flights, which agents corroborated during his trial.

Matthews' last operation was in 1992 in Fort Lauderdale, Fla. An old friend set him up to be busted.

Jimmy Norjay Ellard was an ex-police officer from Texas, a pilot and a longtime associate of Escobar, and he had served as liaison for Matthews with the cartel leader.

Ellard's resume was bloody. He had instructed Escobar in how to attach a bomb to an Avianca Airlines plane, which the drug leader did in the early 1980s to eliminate two informers. More than 100 innocent people died in the mid-air blast.

Federal agents busted Ellard in 1985 for cocaine smuggling, and he was sentenced to life in prison. He had been in jail for four years when he cut a deal with an assistant U.S. attorney in Fort Lauderdale, based on his promise to deliver Matthews.

From prison, he arranged an illegal drug shipment that Matthews would pick up.

Federal agents had falsely told Ellard that Matthews not only worked for the government but had been responsible for setting Ellard up in his 1985 arrest, Matthews said.

Federal prosecutors and agents in South Florida told Matthews they didn't believe his story about working for the federal government, despite the drug agents' corroboration. During pre-trial meetings, when Matthews' lawyer named the agents he was working with, prosecutors suggested they had conspired in his crime.

So prosecutors offered Matthews a deal: Implicate the agents in some of his crimes, and he'd be recommended for a reduced sentence.

Matthews refused; they were honest officers, he said.

Matthews was convicted of drug conspiracy and sentenced to three life terms in prison, based on the amount of drugs he'd smuggled. Ellard, because of his help in nailing Matthews, got only five years, but his luck didn't last. In September, he and his son were arrested in Fort Lauderdale and charged with conspiring to import marijuana. He is back in jail.

The agents were charged with conspiracy based on facts that came out of Matthews case. Both were acquitted.

Matthews thought he would find some relief, because he believed the government would surely come to its senses - the government's agents, after all, had corroborated his story and been found innocent of trumped up perjury charges. He sent a package of information to 140 Members of Congress.

He got five responses, most of them "offering good wishes," he said. Last summer, he did an extensive interview with the ABC show "Prime Time Live" in which he explained his story.

Shortly before that story aired, he was put into an isolation cell at Leavenworth, where he is only allowed out for a short walk each day.


Informant lured him into a costly deal

November 23, 1998 By Bill Moushey, Post-Gazette Staff Writer

It was the kind of part-time job that never makes the classified pages.

Albert Barruetta needed money. The U.S. Customs Department needed to nab drug dealers. So Barruetta told agents he had a line on a major methamphetamine dealer in Pasadena, Calif.

Barruetta knew no major drug dealers, but he did know Cristobal Crosthwaite-Villa, a Mexican citizen whose car U.S. Custom's officials had seized in September 1992 at Tijuana, Mexico, as he was trying to cross the border illegally.

Barruetta tried to fleece Crosthwaite, telling him that for $1,000 he would not only get his car back but would get him permanent residency status in the United States. Then he learned Crosthwaite sometimes used drugs, so he told Customs agents that Crosthwaite was a major drug dealer.

The agency, without checking Crosthwaite's background, agreed to hire Barruetta as a confidential informant and pay him, on a contingency basis, cash for each drug dealer he could lure into a sting operation.

Barruetta began cajoling Crosthwaite to find him a source who might buy methamphetamine. Crosthwaite had no luck until he encountered Bobby Thomas, who had used drugs with Crosthwaite in the past and, on one or two occasions, had sold Crosthwaite a few $20 doses of the drug.

Barruetta offered to sell Thomas drugs, saying the deal would also get Crosthwaite's car returned. Thomas told him he couldn't help. Barruetta kept pressing him with offers to sell him cocaine, marijuana, methamphetamine.

Thomas finally relented, agreeing to buy three pounds of methamphetamine in the hopes of helping Crosthwaite get his car.

Thomas, who had no prior criminal record, was arrested, found guilty and sentenced to more than 12 years in prison. The amount of drugs Barruetta had pressed Thomas to buy determined the sentence length.

In January, the 9th U.S. Circuit Court of Appeals reversed Thomas's conviction, in part because he'd been cajoled and entrapped into committing the crime. He is awaiting a new trial.


Feds sought bigger drug deal to ensure a stiffer prison sentence

November 23, 1998 By Bill Moushey, Post-Gazette Staff Writer

Michael Staufer lost his minimum wage job at about the same time he was robbed and beaten in August 1992 on a Los Angeles street.

Times were so tough he lived in a garage.

So when a friend named Scott suddenly pressed Staufer to find him 10,000 hits of LSD, Staufer wondered if the guy might have been high on the drug himself.

Staufer was 21 years old, partied hard and used LSD when he could afford it. Once, he'd bought 20 or 25 hits of the drug that he resold to his friends, but he wasn't a dealer, and he certainly didn't have the money to finance 10,000 hits.

What Staufer didn't know was that federal agents had busted Scott on drug charges and promised him leniency if he would help the feds snare other drug dealers.

So Scott pressed Staufer, hoping to set him up in a drug deal that agents could then bust. So persistent was Scott that Staufer almost lost a part-time job he'd landed because of Scott's repeated phone calls.

Finally, Staufer gave in and was introduced to the supposed buyer, who was an agent of the U.S. Drug Enforcement Administration. The agent wanted 10,000 hits of LSD.

Staufer's LSD supplier, who barely knew Staufer, initially resisted the deal because he knew Staufer was not in a position to pay for it. Then, the dealer told Staufer he would sell him 5,000 doses of the drug.

That wasn't good enough for the undercover agent, who insisted on buying 10,000, knowing it would double Staufer's prison time. After several conversations, Staufer finally cajoled his supplier to provide the larger amount. He was arrested when he showed the LSD to the agent.

A judge sentenced Staufer to the mandatory 12-year sentence federal law required.

"[The judge] explained to Staufer that the court of appeals had just reversed him for giving a life sentence to a man who had killed his wife by throwing her off a ship where they were spending their honeymoon, and [the judge] expressed his disapproval of a system that compelled him to `give Mr. Staufer for the transaction more time in prison than [he was] authorized to give a man who murdered his wife on their honeymoon,' " according to Staufer's appeal.

An appellate court eventually affirmed his conviction, but it was sent back to the lower court for re-sentencing. The court ruled his sentence should be reduced because of "sentencing entrapment" - the government forced Staufer into a bigger deal than he could really handle, just so the feds could double his prison term.

Staufer's sentence was reduced to just more than six years.


Drug charge beaten, but at high price

November 23, 1998 By Bill Moushey, Post-Gazette Staff Writer

John Gardner was a 33-year-old Pittsburgh postal employee when he was arrested on drug charges in 1989.

Gardner had worked for seven years at the post office distribution facility in Warrendale and had won awards for his exemplary service.

He was charged after a government informant with an expensive drug habit talked him into buying drugs to help feed the informant's drug habit. It was all part of a government sting.

Two years later, a federal judge dismissed the charges, saying the government had "acted outrageously in inducing the defendant to engage in conduct that led to his prosecution."

By that time, Gardner had lost his job and most of his assets fighting the case. No federal agents or prosecutors were punished.


Trapped into trying to settle vendetta

November 23, 1998 By Bill Moushey, Post-Gazette Staff Writer

Qubilah Shabazz, daughter of assassinated black leader Malcolm X, was arrested in June 1995 and charged with plotting to kill Nation of Islam leader Louis Farrakhan, the man she thought murdered her father 30 years before.

The story behind the headline was even more bizarre: Michael Fitzpatrick, the government informant from New York who tipped the feds to the plot, had a history of trying to persuade people to commit violent acts, dating to the 1980s. He also had a history as a paid informant for federal agents.

He told federal agents that, for a fee, he could deliver evidence about the supposed plot. They agreed to pay him $45,000 to nail Shabazz in the sting, court records show.

He sought out Shabazz, whom he'd known since high school, lured her from New York City to Minneapolis, convincing her his interests were romantic, then planted the idea of arranging to have Farrakhan killed, according to court records.

She never went to trial. Instead, she signed a statement accepting responsibility for her involvement in the plot and agreed to two years of psychiatric and drug and alcohol treatment. She received two years probation, which ended last year and all charges were dismissed.

Prosecutors said the paper she signed proved her guilt. Defense attorneys insisted it proved nothing but a government conspiracy that had entrapped an innocent person.