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.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (A.T.F.) has always had to fight to distinguish itself from the F.B.I.   Specialized in enforcing only the matters in its title, it made headlines in the 1970s for its big drug busts.  Its history is said to derive from Alexander Hamilton’s Treasury operations during the Whiskey Rebellion, and claims to include the famous Eliot Ness, fighter of bootleggers, moonshiner, cigarette smugglers, and Chicago mobsters.

Housed in the Justice Department, the bureau has a budget of about $1billion and fields 2,500 agents.  From the time of its creation, there has been debate if it deserved to be a free-standing agency.

Now some in Washington say it is time to merge the A.T.F. into the F.B.I.  The latest problem is a scandal over Operation Fast and Furious.  Some agents who were investigating a gun-running operation across the Mexican border deliberately allowed some weapons to go through.  The explanation given was that they wanted to stand back and follow the evidence trail higher up the purchasing tree.  The problem is that  hundreds of guns disappeared into Mexico, and two of the guns were found at the scene of a shootout where American Border Patrol agent Brian Terry was killed.  Some agents who thought the agency did the wrong thing in allowing the guns to go through told Congress about.

President Obama has promised to take “appropriate action” when the investigation is complete.   The head of the agency, Kenneth Melson, may lose his job.  Noteworthily, Melson is only the acting head of the agency.   The A.T.F. has not had a director since the last time the bureau had a scandal.   And that was when the Senate demanded the power to confirm the agency director.  Carl Truscott was the last permanent director of the agency in 2006.  When he was investigated for his spending habits, the Senate demanded confirmation power at the urging from the National Rifle Association, who has no love for the A.T.F.

Some blame the National Rifle Association for the problems at the A.T.F., saying the Association has weakened the agency.  The Association denies it, but it clearly has every possible motive to weaken the agency, as it views the A.T.F. as existing to threaten gun owners’ rights.     When the Senate obtained the power to confirm the agency director, some predicted no one would ever be confirmed again.  And no one has.  President George W. Bush’s nominee, Michael Sullivan, never won Senate confirmation and ran the agency as acting director.  Since President Obama last November nominated Andrew Traver, who is opposed by the National Rifle Association, the Senate Judiciary Committee has yet to hold a hearing on his appointment.

Guns now draw the headlines for the bureau, as they do for Oklahoma criminal defense attorneys in federal court. but the alcohol and tobacco have made their name in other states.  The bureau still conducts investigations of illegal tobacco sales by or with Indian tribes in Oklahoma as well.

It is legal to own a machine gun in this country, but the A.T.F. may conduct surprise visits to ensure the whereabouts of every weapon and ammunition.  The Firearms Owners Protection Act of 1986 prohibited the A.T.F. from conducting more than one unannounced inspection of a gun dealer.  The Act also made it harder to revoke the license of dealers whom the agency accuses of breaking the law.

Advocates of the bureau like the way it goes after gun running in Mexico and monitors gun transactions in this country.  Gun dealers who sell in bulk like 50 or 100 guns in one transaction draw especial attention.    Some even want to strengthen the bureau, among other reasons because they say 70% of the guns recovered from the drugs wars in  Mexico originated from the United States.  But Congress has refused to allow the agency to assemble a centralized computer database of gun transactions.  The utility of such a tool is obvious for tracking.

Critics of the bureau fear it will get too much control over the gun rights of citizens.  To them, a centralized data base is anathema.  They view locating all the gun owners in the country as only the first step toward confiscating those guns, maybe not now, but later on down the road.

Reporting multiple sales of handguns was already required of dealers in all 50 states.  A new regulation issued by the Justice Department requires dealers to report anyone buying two or more semi-automatic rifles within 5 days.   The regulation applies only to sales in states that border Mexico: Texas, New Mexico, Arizona and California.  It is designed to catch sales to straw buyers, buyers who purchase weapons for the Mexican drug cartels.  The rule also provides that a report will be destroyed after two years if it produces no criminal cases.  Not surprisingly, the National Rifle Association claims the new regulation is unconstitutional, as an infringement upon the Second Amendment right to bear arms, and is threatening to challenge it in court.