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.
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 pros ecutors 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."
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.
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.
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.
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 The entrance to the Johnson Space Center in Houston, where a multimillion dollar federal sting netted 15 low-level arrests. (Darrell Sapp/Post-Gazette) 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. Dale Brown discusses his interrogation by federal agents. Brown said he was not allowed to call his lawyer during the questioning, which was done in a Houston, Texas, warehouse. He fought a bribery charge leveled against him and won, but he lost his business in the process. (Darrell Sapp/Post-Gazette) 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.
A sting gone awry (cont.)
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. A jury determined automaker John DeLorean wouldn’t have committed a crime had he not been enticed by federal agents — a violation of the guidelines set down for federal stings. 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.
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. Former lobbyist Ron Cobb was the government’s star witness in a bribery sting that led to the arrest of five South Carolina legislators. Cobb later admitted he lied about the crimes, something a judge said prosecutors knew before the cases came to trial. (Lou Krasky/Associated Press) 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."
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.
A sting gone awry (cont.)
Burdens on the psyche James Milton Verlander Jr., 57, of League City, Texas, worked as a research scientist when he was arrested on bribery charges in Operation Lightning Strike. He was threatened with up to 30 years in prison. For pleading guilty, he got probation. After suffering a nervous breakdown, he got a job as a medical technician. He is now exploring the possibility of trying to have his guilty plea rescinded so he can fight the charges in court on the basis of entrapment. 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 For being in a hotel room when federal agents discussed drugs, Loren Pogue was arrested. He was found guilty of drug conspiracy charges and sentenced to 22 years in a federal prison. 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.
Fighting to prove innocence led 3 to stiffer sentences (cont.)
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.
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