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This will be a long post so I apologize in advance but I think it's important to get this info out. There is a Federal case out of San Jose California where the defense filed a motion to dismiss due to outrageous government conduct based on US v Black. This kind of dismissal is extremely rare at the federal level and it came close to working for the defense. This case is also a rarity because unlike the vast majority of sting cases this one occurred in a place where you would actually expect enticement activity to take place. Ultimately the motion was denied but there are still some important things to note. For the most part the case is instructive on how a defense attorney should approach a sting case but the defense also blew it in one key area covered below. Much of the chat is included in the order and it is very graphic and disturbing so consider yourself warned.
This is the order on the motion to dismiss http://tinyurl.com/pqvfcer and this is an order on the government's motion to quash subpoenas http://tinyurl.com/nehhpf7
The undercover investigator was a DHS Agent. The government was able to avoid some things because of this
The defense used a Ms Francey Hakes as an expert witness. She was the National Coordinator for Child Exploitation Prevention and Interdiction from January 2010 to March 2012. She set nationwide policies for acceptable undercover enticement investigations and coordinated nationwide training.She testified that the actions of the investigator were "egregious and are uniformly condemned" and "Agent Beagle's chat handle and the initial chats were far outside accepted norms for law enforcement, and violated the minimum standards for undercover operations in child exploitation matters." She apparently referenced ICAC Standards as being the minimum standards for undercover operations. There is a footnote concerning the total lack of documentation "At the hearing on this Motion, the Court queried defense counsel as to the foundation for Ms. Hakes' opinions, as her declaration contains no references to specific documents, rules or other pronouncements of DHS, or even any other federal government agency as to their minimum standards for investigation. Counsel could point to no specifics in the record."
The defense tried to subpoena "All materials, including written, electronic and video, used in 2012 and those presently used, to train governmental agents investigating child exploitation pursuant to undercover operations that relate to Internet communications, including the use of screen names, initiation and content of dialogue, best practices, initiatives and `do's and don'ts" from five agencies, DHS, FBI, The National Advocacy Center, The OJJDP ICAC task force program and the Child Exploitation and Obscenity Section of the Department of Justice. The government filed a motion to quash the subpoenas and the defense was unable to provide a link between DHS and the other agencies listed. As a result the only subpoena that was allowed was the one for DHS
The defense failed to provide any documentation linking DHS to the ICAC program or even the local ICAC task force. Basically they didn't even provide a memorandum of understanding between the local DHS office and the local ICAC task force coordinator the San Jose PD. It appears they didn't even provide any ICAC program announcements mentioning DHS. Absolutely nothing. It also appears the defense failed to cite 42 U.S.C. 17614 which covers the functions and duties of ICAC task forces and mandates compliance with investigative standards..
The government used the lack of documentation to their advantage. They went so far as to bring in an unrelated witness, another agent with DHS, to testify that there was nothing indicating that DHS "had adopted those minimum standards during the relevant time period" and the court gave great weight to this declaration. This appears to be becoming a new universal tactic. Get somebody to lie on the stand to distance the investigation from anything ICAC.
Primarily because of the lack of documentation the investigator's actions were never evaluated against ICAC Standards.
The court characterized much of the investigator's chat as "encouraging". Encouragement doesn't do much for a case in federal court but if your case is in a Florida state court the level of encouragement noted here should support an entrapment defense thanks to Gennette v State
The chats started on IRC channels of the type where you would expect this exact type of activity to occur. The court noted that this did not meet one of the prongs of the Black analysis and while it did help the government meet a different prong that in and of itself this factor carried little weight.
The court noted it was always the defendant that initiated contact and was eager to participate. This negated any initial overreaching on the part of the investigator.
This is a trial level order so it isn't binding or precedent setting.
All in all if the defense had had the proper documentation to link DHS to the ICAC program the outcome would have likely been different. I have no idea why they didn't provide any documentation because in seconds with Google I found the local ICAC task force, The Silicon Valley ICAC task force (SVICAC) and they list DHS as an affiliate agency on their website so there has to be a memorandum of understanding or some other agreement. With just that it's likely none of the subpoenas would have been quashed because the defense would have been able to show a direct link making the documents requested relevant. It also could have been used to impeach the testimony of the DHS agent brought in to declare DHS had not adopted any minimum investigation standards shifting the balance of the testimony to heavily in favor of the defense witness Ms. Hakes.
In all honesty this is probably the kind of case that should be investigated and prosecuted but because these investigators are incapable of following a few simple rules this case was nearly dismissed and probably would have been had the defense submitted about 4 more pieces of paper linking DHS to the ICAC program. Instead of following the rules however we have a federal prosecutor that knowingly had a DHS agent provide perjured testimony just to avoid the rules. The DHS has ALWAYS been a part of the ICAC program and there's no way the prosecutor and DHS agents didn't know that.
This is the order on the motion to dismiss http://tinyurl.com/pqvfcer and this is an order on the government's motion to quash subpoenas http://tinyurl.com/nehhpf7
The undercover investigator was a DHS Agent. The government was able to avoid some things because of this
The defense used a Ms Francey Hakes as an expert witness. She was the National Coordinator for Child Exploitation Prevention and Interdiction from January 2010 to March 2012. She set nationwide policies for acceptable undercover enticement investigations and coordinated nationwide training.She testified that the actions of the investigator were "egregious and are uniformly condemned" and "Agent Beagle's chat handle and the initial chats were far outside accepted norms for law enforcement, and violated the minimum standards for undercover operations in child exploitation matters." She apparently referenced ICAC Standards as being the minimum standards for undercover operations. There is a footnote concerning the total lack of documentation "At the hearing on this Motion, the Court queried defense counsel as to the foundation for Ms. Hakes' opinions, as her declaration contains no references to specific documents, rules or other pronouncements of DHS, or even any other federal government agency as to their minimum standards for investigation. Counsel could point to no specifics in the record."
The defense tried to subpoena "All materials, including written, electronic and video, used in 2012 and those presently used, to train governmental agents investigating child exploitation pursuant to undercover operations that relate to Internet communications, including the use of screen names, initiation and content of dialogue, best practices, initiatives and `do's and don'ts" from five agencies, DHS, FBI, The National Advocacy Center, The OJJDP ICAC task force program and the Child Exploitation and Obscenity Section of the Department of Justice. The government filed a motion to quash the subpoenas and the defense was unable to provide a link between DHS and the other agencies listed. As a result the only subpoena that was allowed was the one for DHS
The defense failed to provide any documentation linking DHS to the ICAC program or even the local ICAC task force. Basically they didn't even provide a memorandum of understanding between the local DHS office and the local ICAC task force coordinator the San Jose PD. It appears they didn't even provide any ICAC program announcements mentioning DHS. Absolutely nothing. It also appears the defense failed to cite 42 U.S.C. 17614 which covers the functions and duties of ICAC task forces and mandates compliance with investigative standards..
The government used the lack of documentation to their advantage. They went so far as to bring in an unrelated witness, another agent with DHS, to testify that there was nothing indicating that DHS "had adopted those minimum standards during the relevant time period" and the court gave great weight to this declaration. This appears to be becoming a new universal tactic. Get somebody to lie on the stand to distance the investigation from anything ICAC.
Primarily because of the lack of documentation the investigator's actions were never evaluated against ICAC Standards.
The court characterized much of the investigator's chat as "encouraging". Encouragement doesn't do much for a case in federal court but if your case is in a Florida state court the level of encouragement noted here should support an entrapment defense thanks to Gennette v State
The chats started on IRC channels of the type where you would expect this exact type of activity to occur. The court noted that this did not meet one of the prongs of the Black analysis and while it did help the government meet a different prong that in and of itself this factor carried little weight.
The court noted it was always the defendant that initiated contact and was eager to participate. This negated any initial overreaching on the part of the investigator.
This is a trial level order so it isn't binding or precedent setting.
All in all if the defense had had the proper documentation to link DHS to the ICAC program the outcome would have likely been different. I have no idea why they didn't provide any documentation because in seconds with Google I found the local ICAC task force, The Silicon Valley ICAC task force (SVICAC) and they list DHS as an affiliate agency on their website so there has to be a memorandum of understanding or some other agreement. With just that it's likely none of the subpoenas would have been quashed because the defense would have been able to show a direct link making the documents requested relevant. It also could have been used to impeach the testimony of the DHS agent brought in to declare DHS had not adopted any minimum investigation standards shifting the balance of the testimony to heavily in favor of the defense witness Ms. Hakes.
In all honesty this is probably the kind of case that should be investigated and prosecuted but because these investigators are incapable of following a few simple rules this case was nearly dismissed and probably would have been had the defense submitted about 4 more pieces of paper linking DHS to the ICAC program. Instead of following the rules however we have a federal prosecutor that knowingly had a DHS agent provide perjured testimony just to avoid the rules. The DHS has ALWAYS been a part of the ICAC program and there's no way the prosecutor and DHS agents didn't know that.
Advocate2
Aladdin can this case be brought back because of ineffective counsel? Of are there any appeals?
aladdin4d
This one is still ongoing at the trial level and I haven't had any contact with anyone involved. I just came across the published orders while I was doing some research. The motion to dismiss was denied just over a month ago.
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