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.
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.