Oklahoma Criminal Defense Blog

Just unearthed is the revelation that the F.B.I. created a fake company in its endeavor to catch, or create, crime at the state capitol.   Created in Georgia, “Road Safety International, LLC” was presented in Oklahoma as a legitimate business entity.  Two agents of the F.B.I. retained a lobbyist and tried to hire a second lobbyist to represent the company.

Only later did the two lobbyists learn that the company was a fake and an F.B.I. front.  This fake company was part of the F.B.I.’s wider operation that has resulted in indictments handed up a year ago against three people, including the lobbyist whom the F.B.I. agents retained for the fake company.  Accused are the lobbyist, Andrew Skeith, former Oklahoma Senate President Pro Tem Mike Morgan and prominent and very well respected Oklahoma City attorney, Martin Stringer.  Their charges are scheduled for jury trial in Oklahoma City federal court this spring.  They are charged with public corruption and trying to bribe a public official in a 63-count indictment that alleges conspiracy, extortion, bribery and mail fraud.

While the F.B.I. agents were trying to hire the lobbyists for the fake company, they made  inquiry to the Oklahoma Ethics Commission about the ethical permissibility of a company paying a lobbyist to make a campaign contribution.  They were told that such a payment could not be earmarked for a certain campaign.  And indeed, the lobbyist that Road Safety International hired did make a campaign contribution to a legislator who was serving as chairman of the House Transportation subcommittee.  The legislator confirmed he received the contribution, but since the lobbyist represented multiple companies, the legislator did not know where the contribution came from.

Apparently the F.B.I. wanted the lobbyists or the lobbyists’ clients to commit a crime so the F.B.I. could prosecute them.  Of course, the F.B.I. would say they only wanted to witness crimes that these individuals were otherwise inclined to commit.  But sometimes the line is close.  The drift into entrapment, the inviting of a crime to be committed from someone not otherwise disposed to committing the crime, is not rare for this kind of undercover operation.

If too-ambitious agents are insufficiently supervised, they can create crime, not just observe it.  Entrapment is recognized in criminal defense law and in common parlance.  Entrapment is available to a defendant at trial as an affirmative defense to the charge.  The outcome of a trial depends, as always, on the facts presented at trial.  But those facts are very rarely “just the facts.”  The facts are usually couched in circumstance, bound up in nuance, obscured by shades, pulled by spin, and lost by memory, real and contrived.   The point is that having an affirmative defense is good, but it is rarely a magic wand because of all the evidence launched in the government’s case.

Of course those forces and degradations appear nowhere to be found by an observer watching the no-nonsense law enforcement officer testify from the witness stand as he rolls out a seamless narrative in short syllables, practiced manner and never the slightest hesitation.  Trials like these, prosecuting “public corruption” are usually based on wide-open statutes that permit very much interpretation, including a lot of innocent conduct.  I have no idea of any of the facts in this case, not the slightest knowledge of the quality of evidence, but I have seen federal prosecutions based on laws that are so frighteningly broad that they belong in a Kafka tale rather than in the courts of this country.

Sometimes wiser heads in the federal prosecution hierarchy prevail, as they did this week when they announced they would not pursue Lance Armstrong any further.  After spending $50 million in investigating the use of steroids in sports and obtaining one bare conviction against Barry Bonds (not for steroid use but for lying to the grand jury), the government has called it quits.  One baseball pitcher is still waiting trial.

Just think what they could have done with a little more money, say $100 million.  If only those 11 million people across the nation who are out of work would just donate that additional $100 million to clean up sports. That way we could keep our priorities straight.