Operation Pure Luck, announced on June 27, 2013, was never anything other than a public relations opportunity for a handful of unscrupulous bureaucrats to brag about how they had taken on the outlaw biker menace in Las Vegas and triumphed.
The chicken hawks at the news conference were United States Attorney for the District of Nevada Daniel Bogden, Clark County District Attorney Steve Wolfson and Joseph Riehl who is the Special Agent in Charge of the Bureau of Alcohol, Tobacco, Firearms and Explosives field office in San Francisco. All three of them should probably be stripped and hung in steel cages suspended an easy stone’s throw over the Vegas Strip.
Responsible news outlets put on their miniskirts and strolled for Pure Luck. KSNV in Vegas used the headline tease, “Federal, state and local law enforcement indict more than 30 bikers in a sting they say targeted some of the most violent motorcycle gang members in the nation.” Then after calling Bogden, Wolfson, Reihl and a handful of local cops Daddy, KSNV stopped covering the case.
Nobody covered the case because there never really was a case and great pains were taken to conceal what there was. Pure Luck might have been just the one public relations opportunity but it became a score of overlapping federal and state criminal cases and this week it all began to fall apart.
All there ever was, was a four-year-long undercover investigation that never really went anywhere because the principal undercover investigator, a Los Angeles County Sheriff’s Deputy named Agostino Brancato, who moonlights as a Tactical Field Officer for the Bureau of Alcohol, Tobacco, Firearms and Explosives, could never really convince the Vagos, Mongols, Bandidos and others he met to actually commit crimes much more serious than speeding. So Brancato made stuff up.
The ATF always makes stuff up. ATF undercovers act out preplanned dramas for video cameras. The dramas are carefully contrived to portray the Bureau’s chosen victims in the worst possible light. The Bureau, in cooperation with the oxymoronic Department of Justice, alters and hides evidence in order to convict innocent, or almost innocent, men. The ATF Reports of Investigation are the worst. They are frequently, literally, manufactured evidence.
Virtually all recent ATF entrapments of motorcycle club members and virtually all the subsequent prosecutions epitomize what Andrew Carlon, writing in the Virginia Law Review, called the “sadistic state.”
Carlon describes an investigative and legal process that has “short circuited…a state run amok. It is a state that has decided that, since its unique function is the power to punish, it must pursue punishment as an intrinsic good, independent of desert (or, indeed, of the other, more consequentialist aims of punishment), transforming itself into a ‘punishment machine.’ But as we have seen, punishment without desert reduces to sadism. We get the ‘sadistic state,’ which wields power, most fully realized through the infliction of pain, as an end in itself, the human beings in its power merely means to that awful end.”
“The sadistic state raises the specter of totalitarianism. As Professor Hannah Arendt writes, the totalitarian criminal justice system is marked by, among other things, the ‘replacement of the suspected offense by the possible crime.’“
Operation Pure Luck should become a case study for political science students interested in a state run amok. Bogden, Wolfson, Reihl and their fellow villains knew the case was dirty and mostly baseless from the start. That’s partly why the case was divided into many parts – to frustrate public scrutiny of what was really going on. Pure Luck was eerily similar to the equally dirty Operation Black Rain that culminated in the arrest of seventy-nine Mongols and the persecution by civil forfeiture of hundreds more.
Déjà Vu All Over Again
TFO Tino Brancato has a history. He was a bad actor in Black Rain in Vegas. His accomplices were a professional criminal and snitch who was born Steve Veltus but who was most recently rechristened Steven Maschari by the United States Marshals’ Witness Protection Program. Veltus/Maschari is still breaking the same laws other men are sent to prison for breaking and still defrauding people. He escaped justice and two law suits late last year in Wisconsin when the DOJ convinced a local judge that it was vital to law and order that Veltus not be punished for his crimes.
Brancato’s mentor in that investigation was a despicable ATF agent named John Carr who was also Veltus’ handler and, according to William Queen, was an OG in John Ciccone’s original anti-biker “gang.” Carr, who specializes in drug entrapments and who has won numerous awards for that, including a Federal Bar Association Medal of Valor Award, was recently rebuked by idiosyncratic Federal District Judge Manuel L. Real for an entrapment Carr created out of thin air.
“The government created the fictitious crime from whole cloth,” Real wrote. “Agent Carr was the only integral part of the conspiracy to rob his fictitious stash house from the beginning. Agent Carr invented the amount of cocaine present, making his planned robbery worth approximately $600,000. He invented the two old men guarding the fictitious stash house, that they were armed, and thus the need for the defendants to bring guns. Although Agent Carr may never have said the phrase ‘make sure you bring guns,’ he told the defendants that the two men guarding the stash house were armed and that he could not get the guns. When the defendants brought guns to the warehouse, they merely did so as part of Agent Carr’s plan. Agent Carr was to provide the getaway car and be at the fictitious stash house to let his coconspirators through the door. Despite the government’s argument that the defendants planned the crime, Agent Carr controlled all the details, communicating that the defendants would need to bring guns, detailing how they would enter the fictitious stash house, and how they would get away. Agent Carr insisted that he would be at the fictitious stash house during the robbery and that he would open the door for the defendants. When Agent Carr said he wanted to meet everyone at the warehouse to plan the robbery, Roberts said that there was no need and he would just show the others Agent Carr’s photograph, but Agent Carr insisted that he meet everyone to go exactly over the plan. Once at the warehouse, Agent Carr insisted on running through a script to ensure there was a conspiracy. Moreover, none of the defendants even knew of the location of the fictitious stash house. Without Agent Carr there could have been no agreement at all. The government’s crime is a lie and a falsehood. Agent Carr was lying to the defendants the whole time. Everything Agent Carr said was part of his fraud on the defendants. If Agent Carr was not acting on behalf of the government, he could be charged for fraud for his scheme. Agent Carr for all purposes planned the robbery and the conspiracy from beginning to end. The government argues he did not tell the defendants how to do their part, but their part was only agreeing to go along with Agent Carr. Agent Carr told them the details of the targeted fictitious stash house, that he would let them in, provide the vehicle, and told them of the obstacles they would encounter. The only thing Agent Carr did not provide them with was guns. However, Agent Carr and the ATF needed to have the arrests for guns, and it was not the defendants who asked about the need of guns. But the crime that the defendants were indicted for was conspiracy, which Agent Carr was most definitively an active conspirator, the ring leader, and orchestrator of the whole agreement. But despite Agent Carr’s integral part as the mastermind of the conspiracy who was in charge of all the details, the government did not indict him. Agent Carr encouraged all the defendants to agree to his fictitious plot; at the warehouse, Agent Carr’s carefully orchestrated script ensured he would get the defendants to agree. Thus the government’s role in creating, encouraging, and participating in this conspiracy was pervasive from beginning to end. Moreover, had the defendants actually robbed a real stash house, regardless of their aspirations, and there was only one kilogram of cocaine at the real stash house, they could only be charged with possession of that one kilogram of cocaine. That Agent Carr was able to lie about all the details of the crime – the 20–25 kilograms of cocaine, the necessity to bring guns – then use those fictitious details so that the government can indict the defendants for a crime with a much greater mandatory minimum sentence, is outrageous. It would be unconscionable for this court to condone and sanction the government’s fraud in this case.”
Melanie A. Hill
These sorts of entrapments are rarely exposed or even opposed by defense lawyers. As a rule, defense lawyers get paid to encourage their clients to plead guilty. Following Operation Black Rain, for example, one public defender told his provably innocent client, “Look. You’re in the Mongols motorcycle gang. What do you expect?”
The difference between Operation Black Rain and Operation Pure Luck was that one of the defendants was Jeremy “Maniak” Halgat and his lawyer was Melanie A. Hill. Hill has actually spent the last 13 months trying to prove Halgat innocent instead of trying to convince him to take the deal.
Halgat was a target because he was the Vagos Motorcycle Club’s Vegas Valley Vice President and the club’s Southern Nevada Regional Sergeant at Arms. Brancato patched into the Vagos, did his thing, and Halgat was subsequently indicted in two, separate federal cases called USA v. Halgat et al, and USA v. Wickham et al. Both cases allege basically the same things and both are built on Brancato’s accusations.
Two years into Operation Pure Luck Brancato became the “Vagos Clark County Sergeant at Arms and initiated a series illegal drug and guns sales” including an alleged purchase of anabolic steroids. Despite numerous enticements, Halgat refused to deal drugs with Brancato. Brancato went to extraordinary ends to entice Halgat to do something illegal, even offering to tip Halgat $50 for introducing Brancato to a Mongols Motorcycle Club hang around who apparently did sell Brancato drugs. Halgat refused the $50, telling his club brother, “Don’t worry about it, you paid for my dinner and you can just get me on the back end.”
Later that evening, Brancato discussed with his ATF supervisors how he could implicate Halgat by lying.
“You know what,” Brancato thought out loud. “I may do this is what I’m thinking. Like as far as I’m concerned fucking Maniak sold me this fucking ounce, bro. I mean, really. Yeah. Well, that’s what I’m thinking. Well, this is what I’m thinking, bro is that on the QP, we do it the same way. Let Maniak…I give Maniac the money, he goes in there, brings it back to me,da, da, da. And then on the next one, I’m like hey, bro, can I just go to him direct and I’ll still give you the money and now I have a sale of QP with him. You know what I’m saying? With Udell, without him, so now, he owns one and then this guy and Maniak owns one. Well, alright, so we may need a little bit more. We maybe have to do a little bit more. That’s…which is perfect. Yup.”
During the same recorded telephone conversation “stated that he would fabricate the portion of his Report of Investigation regarding the operation’s debriefing: Alright, bro. I’m just putting it in the mailbox right now. All right, and then there’s $300 and everything else in there…. Bro, I’m just going to say I’m not going to tell them how. I just did it like last time. I just transferred, yeah. I’m not going to put the whole mailbox thing bro. Fuck it. They don’t need to (know), I mean that’s irrelevant. I just gained…I met you at a disclosed fucking location and gave you the evidence during the debriefing. Fuck it. Just that would muddy the waters up so.”
Because Brancato’s entrapments were so undeniably corrupt, Tuesday a federal Magistrate Judge named Cam Ferenbach dismissed the indictment against Halgat in USA v. Wickham et al.
Hill has also moved for a dismissal of USA v. Halgat. In that motion she wrote:
“The government’s conduct in this case and Mr. Halgat’s related case was so outrageous that the indictment against Mr. Halgat must be dismissed. Rather than infiltrating an existing drug conspiracy or criminal organization engaged in ongoing criminal activity, the government created, invented, and imagined up crimes for the defendants to be induced and entrapped into committing for the purpose of charging members of the Vagos Motorcycle Club with drug and gun crimes. The government agents, Task Force Officers, and undercover Bureau of Alcohol, Tobacco, Firearms, and Explosives deputized TFO Agostino Brancato induced the defendants to participate in a fictitious crime involving drugs provided by the government flown to an airstrip, arranged by the government, in a Cessna airplane arranged for and flown by the government, when the defendants were not suspected (or even identified) of being involved in conspiring to distribute drugs and then recorded themselves discussing falsifying a Report of Investigation and thereafter falsified a ROI and property report. The same undercover agent, TFO Brancato, that recorded himself discussing what actually occurred during a recorded transaction and what he would say occurred, is the same UC that ‘engineered and directed the criminal enterprise from start to finish’ in this case with the assistance of ATF agents, TFOs, and other government agents.”
“Over the last 40 years, courts have discussed outrageous government conduct in numerous contexts, but this theme runs through all outrageous government conduct cases determining what law enforcement conduct also becomes constitutionally unacceptable: The Government cannot engineer and direct a criminal scheme from start to finish or create a new crime merely for the sake of prosecuting a defendant.”
Games Prosecutors Play
A little further into the motion, Hill describes the games federal prosecutors play.
“The Government chose to indict Mr. Halgat in two separate indictments. The Government did not set up Mr. Halgat or charge Mr. Halgat in two separate cases by happenstance. It was a concerted and calculated effort to attempt to charge Mr. Halgat with a small conspiracy to distribute cocaine case in an attempt to argue that he was predisposed to distribute cocaine to allow the Government to attempt to argue that Mr. Halgat (who had no criminal record whatsoever) is unable to assert an entrapment defense as a matter of law. It was also charged this way so that Mr. Halgat would be unable to move to sever the counts and therefore prevent the Government from using one case in the other and vice versa and instead move to use one case in the other by arguing that the cases are inextricably intertwined. This is exactly what the Government did in this case by filing a motion in limine to preclude Mr. Halgat and his co-defendants from asserting an entrapment defense and by filing a response to Mr. Halgat’s motion for 404(b) notice arguing that the cases are inextricably intertwined. The motion in limine was denied without prejudice to allow the Government to raise the motion again during trial. These tactics are routinely used in reverse sting operations to prevent an entrapment defense and the Court should not condone these tactics by allowing the Government to benefit from its strategic decision to charge the alleged drug transactions in two separate cases.”
“TFO Brancato created a fictitious criminal distribution of cocaine conspiracy, planned the entire fake crime,15 and induced Mr. Halgat with pleas based on friendship and brotherhood as well as his need for money to support himself to convince Mr. Halgat to introduce him to Mr. Wickham so that he could purchase cocaine from Mr. Wickham,” Hill continues. “TFO Brancato and the ATF set up this undercover reverse sting operation for the sole purpose of ensnaring the defendants and charging them with crimes to justify the ATF’s infiltration of the Vagos.”
“Here, the crime was fabricated entirely by the ATF and TFO Brancato to secure Mr. Halgat’s conviction and Mr. Halgat had no criminal behavior to protect the public from because he was not engaging in the trafficking of cocaine when the ATF infiltrated the Vagos until the ATF started to invent crimes a year and a half after the infiltration.”
“Mr. Halgat was under surveillance for 18 months and neither ATF nor the CI observed him committing any distribution of cocaine or gun offenses despite trying to get Mr. Halgat to engage in an illegal gun offense. Unsatisfied with this result, and to justify the large amount of money invested into the operation, TFO Brancato decided to take measures into his own hands and began soliciting Mr. Halgat to induce him to commit a crime.”
There is more. There is much more. Alone among defenders in these sorts of cases, Hill seems to comprehend the realities of the war on motorcycle clubs and the sort of strategies “Ciccone’s gang” have been using for the last 15 years. It is debatable what impact Judge Ferenbach’s ruling will have long term.
Short term it looks like the long slide of the United States of America into a sadistic state has at least been slowed. “The ramifications for the government are serious,” Hill said yesterday. Anyone who cares about justice can only hope she is right.