OFF THE WIRE
agingrebel.com
The old America punished crimes. The new and improved America prevents
crimes. And that is where the prosecution of the Rock Hell Nomads charter of the
Hells Angels Motorcycle Club came from.
This paradigm shift in the fundamental relationship between citizen and cop
is very recent. Days after Arab religious fanatics hijacked four American jet
liners and crashed two of them into the World Trade Center in Manhattan, Federal
Bureau of Investigation Director Robert Mueller wrote a memorandum that called
for “forward leaning – preventative prosecutions.” At the time, America was
crazy with infuriation and grief. Many of those who were to blame for the
national tragedy brainstormed desperately bad ideas in public – and to oppose
the worst of those ideas was to risk being called unpatriotic.
But Mueller’s idea was probably the craziest. It was crazy in the way that
destroying Vietnam in order to save it was crazy. Among all the Princeton
graduates in America, only Robert Mueller seemed not to know Philip K. Dick’s
prescient, 1956 short story “The Minority Report.” Dick’s tale is about a
numbers guy named John Anderton who invents the concept of Precrime. “Precrime
has cut down felonies by ninety-nine and decimal point eight percent,” Anderton
brags. Dick’s point was that there are worse things than a felony. For example,
a police state. If Mueller did know Dick’s story he seems never to have actually
gotten the point.
War On Terror
It took forty-five years for the transformation of Precrime from an obvious
jest into official U.S. policy to occur. Thanks to Mueller, Precrime
prosecutions became a pillar of The Global War on Terror – a war that is
prosecuted mostly by militarized police bureaucracies on American citizens. The
domestic effort to keep America safe is focused around 103 Joint Terrorism Task
Forces.
The FBI describes these task forces as “our nation’s front line on terrorism:
Small cells of highly trained, locally based, passionately committed
investigators, analysts, linguists, SWAT experts, and other specialists from
dozens of U.S. law enforcement and intelligence agencies. When it comes to
investigating terrorism, they do it all: chase down leads, gather evidence, make
arrests, provide security for special events, conduct training, collect and
share intelligence, and respond to threats and incidents at a moment’s notice.”
What the FBI is reluctant to say is that these task forces mostly “combat
transnational/national criminal organizations and enterprises…from mob families
to street gangs to drug trafficking outfits (that) sow violence and crime in our
communities and create underground economies that undercut free enterprise.”
What that last sentence refers to are motorcycle clubs like the Hells Angels and
other social, religious and political non-conformists.
The logic of the war on motorcycle clubs is absurdly circular. Since 1980,
the FBI has routinely assumed and argued that the Hells Angels Motorcycle club
is a mafia on wheels. No one has ever proven that but the accusation provides an
excuse to start an investigation. Last week Devon P. Mahoney, the FBI Agent who
supervised the Rock Hell entrapment, argued offhandedly that the Hells Angels is
a criminal enterprise. Much of the coming week in the Columbia trial will be
devoted to demonizing the Hells Angels. Two of the leading government
authorities on motorcycle clubs, ATF agent John Ciccone and Jorge Gil-Blanco –
an employee of a domestic intelligence network called the Western States
Information Network who mostly, according to his own resume, “provides expert
testimony for the prosecution of Hells Angels” – will testify for the
government.
It is convenient for the war on terror bureaucracy to have a ready made
supply of enemies that can be used to justify the bureaucracy’s continued
existence. The Hells Angels are a nice fit there. Virtually everyone in the
Department of Justice simply assumes that Hells Angels are criminals. The same
airheads assume the Angels must be very accomplished criminals because it is so
difficult to actually catch them committing crimes.
Entrapment
Fortunately for the prosecutors in South Carolina, the useful and now
well-established concept of Precrime has allowed them to lock up a score of
defendants mostly on the basis of what a jury can be convinced those defendants
intended to do. The FBI believes freedom is doomed unless we embrace this
tyranny.
As David J. Gottfried, an instructor at the FBI Academy, put it in an FBI Law
Enforcement Bulletin in January 2012, “In the aftermath of 9/11, it no longer
proves sufficient to solve crimes after people have committed them…. law
enforcement must, in a controlled manner, divert someone determined to harm the
United States and its people into a plot bound to fail from the outset, instead
of one that might succeed…. This approach of proactively identifying criminal
activity in its infancy raises unique concerns…. Where is the line between an
individual’s thoughts and desires and criminal activity?”
Gottfried’s article goes on to discuss “the importance of structuring an
investigation in anticipation of an entrapment defense…. To successfully assert
an entrapment defense in federal and most state courts,” Gottfried explains,
“defendants must show by a preponderance of the evidence (hence the
characterization of entrapment as an “affirmative” defense) that officers
induced them to commit the crime. Assuming defendants make their showing of
inducement, the burden of proof moves to the prosecution, which must prove
beyond a reasonable doubt that the defendant was predisposed to commit the
crime. Thus law enforcement officers play a critical role in preventing a
successful entrapment defense. Recognizing that this role starts at the
inception of the operation, not in the courtroom, is essential…. As part of the
operation, the officers may develop a plan, perhaps, created in consultation
with prosecutors. This plan could identify both the inducements to be used, as
well as how to demonstrate predisposition. In addition, law enforcement officers
and attorneys working together could identify specific places during the
operation where predisposition may be documented and used in court later. To
help ensure a successful prosecution, law enforcement officers need to recognize
the risks associated with proactive investigations and anticipate affirmative
defenses, such as entrapment, as they initiate undercover operations.”
The facts of the Hells Angels case in South Carolina suggest that Agent
Mahoney got Gottfried’s memo. Perhaps fortunately for the defendants, Mahoney
and the chief
agent provocateur in the case, a man named Joe Dilulio,
are bumblers. Last week jurors heard Mahoney prevaricate on the stand, day after
day. In one unguarded but tape recorded moment that prosecutors tried to keep
the jury from hearing, Mahoney asked Dilulio, “So how do we get these guys, Joe?
RICO?”
The defendants in South Carolina, men named Mark William Baker, David
Channing Oiler, Bruce James Long, Donald Boersma and Thomas McManus Plyler, will
go free or go to prison depending on whether a jury believes they were
entrapped.
The prosecution saw this coming. On January 11 Assistant United States
Attorney Julius N. “Jay” Richardson filed a motion with the court “to prevent
(the defendant) from using the entrapment defense.” Richardson’s argument was
all legal mumbo jumbo and insisted that, in effect, that the defendant Hells
Angels were guilty until proven innocent because Hells Angels must be guilty and
so on. “Evidence that the government solicited, provided the opportunity, or
initiated the crime cannot establish inducement, for a defendant ‘cannot by a
showing of solicitation alone succeed in shifting the burden’ to the government
to show predisposition.
“Moreover, to meet the burden of showing inducement, the defendant must show
that the Government – and not a third party (like government freelancer Joe
Dilulio) – performed the improper inducement. A person led into criminal conduct
by a private actor rather than by a government agent may not claim entrapment,
or for that matter argue that his conduct is ‘less criminal’ because it was
induced by another.”
Richardson withdrew the motion two weeks later but he showed his hand.
The Issue In Columbia
The primary issue in the Columbia trial is entrapment and a secondary issue,
as with virtually every biker case, is government corruption.
Mahoney was on the stand for most of the first week. His testimony was so
contrived and rehearsed and he is such a poor actor that throughout his direct
examination by Richardson the jury yawned and dozed. Even Judge Cameron Currie
yawned and at one point the jury slipped her a note asking if Richardson could
speed it up. The jury revived during Mahoney’s cross examination.
Much of that cross examination was intended to help jurors understand how an
FBI entrapment works. Now only do government employees attempt to induce their
targets to acquiesce – not agree but acquiesce – to some technical participation
in an illegal scheme. But, the inducement must be carefully contrived beforehand
to prevent an entrapment defense.
One defense goal last week was to trick Mahoney into saying the word
“entrapment.” The defense barely succeeded. It happened like this.
Richardson questioned Mahoney about “proactive investigations.” Mahoney
talked about a Las Vegas sting that tried to entrap potential child molesters.
NBC television broadcast a reality series called
To Catch A
Predator about similar stings. The idea was probably to equate Hells Angels
with child predators.
When one of the defenders got his turn, he asked Mahoney about the training
and instructions given to the actors who participated in the Vegas sting.
Mahoney was questioned at a little length about why the actors were told “to
never initiate sexual conversation and never initiate any conversation about
meeting in person. Is it because for the government to initiate any criminal
activity would be entrapment.”
Mahoney replied that “entrapment is a legal term and I can’t comment.”
So the case inched onward like a very slow chess game. There will probably be
at least four more weeks of this.
