Source: Pittsburgh Post-Gazette (PA)
Copyright: 1998 PG Publishing.
Pubdate: Sun, 22 Nov 1998
Author: Bill Moushey, Post-Gazette Staff Writer
Note: Part 1 of 2 of 'Out of Control'
Note: This is the introduction and the first of a 10 part series, "Win At
All Costs" in the Post-Gazette which may be found on line at: 

Hundreds of times during the past 10 years, federal agents and prosecutors
have pursued justice by breaking the law. 

They lied, hid evidence, distorted facts, engaged in cover-ups, paid for
perjury and set up innocent people in a relentless effort to win
indictments, guilty pleas and convictions, a two-year Post-Gazette
investigation found.

Rarely were these federal officials punished for their misconduct. Rarely
did they admit their conduct was wrong.

New laws and court rulings that encourage federal law enforcement officers
to press the boundaries of their power while providing few safeguards
against abuse fueled their actions.

Victims of this misconduct sometimes lost their jobs, assets and even
families. Some remain in prison because prosecutors withheld favorable
evidence or allowed fabricated testimony. Some criminals walk free as a
reward for conspiring with the government in its effort to deny others
their rights.

This series of stories examining federal law enforcement officials’
misconduct grew from another investigative series that Post-Gazette
reporter Bill Moushey completed in 1996. 

* * * * *


Legal Rules Have Changed, Allowing Federal Agents, Prosecutors To Bypass
Basic Rights

Loren Pogue has served eight years of a 22-year federal prison sentence on
drug conspiracy and money laundering charges.

Pogue, a Missouri native, never bought drugs, never sold them, never held
them, never used them, never smuggled them, never even saw them.

But because federal prosecutors allowed a paid government informant to lie
about Pogue’s involvement in the sale of a parcel of land to supposed drug
smugglers, he was convicted. Under tough federal sentencing guidelines, a
judge had no choice but to give the Air Force veteran what might
effectively be a death sentence.

Pogue -- father of 27 children, 15 of them adopted -- is 65. He doesn’t
expect to leave prison alive, and as details later in this story will show,
he is baffled that the government he served for more than 30 years worked
so hard to betray him.

In another case, hundreds of miles away, federal agents interrogated
businessman Dale Brown for four hours at a Houston, Texas, warehouse. When
he tried to leave, they stopped him. When he asked for a lawyer, they
refused to get him one. 

After Brown finally was charged in a government sting called Operation
Lightning Strike, federal prosecutors denied that the warehouse
interrogation had even happened. They said the dozen others who reported
the same coercive tactics in the sting were making it up, too.

Federal sting operations are supposed to snare criminals, but in Operation
Lightning Strike, federal agents spent millions of dollars entrapping
innocent people who worked on the periphery of the U.S. space program.

The evidence against them was contrived. The guilty pleas were coerced.
Those who fought the charges won. 

Brown said all it cost him was his business, his savings, his family and
his health.

In Florida, prisoners call the scam "jumping on the bus," and it is as
tantalizing as it is perverse. Inmates in federal prisons barter or buy
information that only an insider to a crime could know -- often from
informants with access to confidential federal crime files.

The prisoners memorize it and get others to do the same. Then, to win
sentence reductions, they testify about crimes that might have been
committed while they were in prison, by people they’ve never met, in places
they’ve never been. The scam succeeds only because of the tacit approval of
federal law enforcement officers.

Cocaine smuggler Jose Goyriena used "jump on the bus" testimony to help
federal prosecutors put three men in prison for life, and he was set to do
it again for prosecutors who promised to cut his 27 year sentence by 10
years or more.

Prosecutors knew Goyriena had bragged about his lies to cellmates, but the
prosecutors didn’t reveal what they’d heard to any of the men Goyriena had
helped condemn -- violating one of the fundamental tenets of American
justice. It was defense attorneys who finally caught Goyriena in the scam.

In this nation’s war on crime, something has gone terribly wrong.

A two-year investigation by the Post-Gazette found that powerful new
federal laws designed to snare terrorists, drug smugglers and pornographers
are being aimed at business owners, engineers and petty criminals.

Whether suspects are guilty has come to matter less than making sure they
are indicted or convicted or, more likely, coerced into pleading guilty.

Promises of lenient sentences and huge government checks encourage
criminals to lie on the witness stand. Prosecutors routinely withhold
evidence that might help prove a defendant innocent. Some federal agents
work so closely with their undercover informants that they become
lawbreakers themselves.

Those who practice this misconduct are almost never penalized or
disciplined. "It’s a result-oriented process today, fairness be damned,"
said Robert Merkle, whom President Ronald Reagan appointed U.S. Attorney
for the Middle District of Florida, serving from 1982 to 1988.

"The philosophy of the past 10 to 15 years [is] that whatever works is
what’s right." 

The Justice Department did not respond to questions the newspaper posed in
writing about concerns raised in this series. Nor would it return phone
calls requesting comment.

The Rules Have Changed

When this investigation began, the term prosecutorial misconduct would have
elicited mostly blank stares. Only a few of the misconduct cases the
newspaper was tracking in its nationwide research had generated more than a
few lines in the back pages of local newspapers.

Independent Counsel Kenneth Starr changed that. His investigation of
President Clinton has generated intense public debate about federal
prosecutors and their tactics. Many of the issues Starr’s probe has raised
parallel concerns found in this investigation -- from the huge pools of
money available for federal investigations to the lack of safeguards and
oversight to the use and abuse of grand juries.

One key component of how federal law enforcement is supposed to work has
received only passing notice. In rulings reiterated over and over during
the past 50 years, the Supreme Court has made clear that federal agents and
prosecutors have a broader duty than simply investigating, capturing and
prosecuting criminals. They also are entrusted to ensure that the
constitutional rights of suspects and defendants are not abused.

"The function of the prosecutor under the federal Constitution is not to
tack as many skins of victims as possible against the wall," said the late
Supreme Court Justice William O. Douglas. "His function is to vindicate the
rights of the people as expressed in the laws and give those accused of
crime a fair trial."

There is every reason to believe that most federal agents and prosecutors
respect Douglas’s edict, but this investigation found a significant
minority do not, and their numbers seem to be on the rise.

"The problem is at the margins -- but the margins are growing," said an
article titled "Curbing Prosecutorial Excess," which Arnold I. Burns
co-wrote in the July 1998 issue of The Champion, a publication of the
National Association of Criminal Defense Lawyers.

Burns is no left-wing zealot. A lifelong Republican, he was appointed
deputy attorney general by Reagan, resigning that office in the wake of
accusations about the conduct of Burns’ boss, Attorney General Edwin Meese.

There is a fragile balance between the rights of a defendant and the power
of the government, Burns said in a recent interview. That balance has
shifted, resulting in misconduct in every phase of federal criminal cases
- -- from the investigation, to the grand jury, to the arrest, to the trial,
to the sentencing, he said.

Despite Douglas’s eloquent admonition to the contrary, federal law
enforcement officers charged with enforcing the law too often decide
they’re above it.

The Powerful Prosecutor

Some would argue that’s nothing new.

Federal law enforcement officers, after all, have always wielded great
power. U.S. courthouses attract the politically ambitious, who can trade on
a U.S. prosecutor’s crime-fighting stature to pursue higher office.

"The [federal] prosecutor has more control over life, liberty and
reputation than any other person in America," said former Attorney General
and Supreme Court Justice Robert H. Jackson. And that was in 1940.

But Jackson would have found the array of crime-fighting tools available to
federal agents and prosecutors today staggering -- from racketeering to
money laundering to conspiracy laws.

At the same time, Congress has eliminated many of the checks and balances
aimed at preventing the abuse of this power, from trimming protections
against illegal searches and seizures to punishing people who plead
innocent rather than guilty in federal court. A person who fights a federal
charge must, by law, receive more prison time than someone who pleads
guilty to the same crime.

Presidents Reagan, Bush and Clinton have signed on to this new
crime-fighting order, and a more conservative Supreme Court has upheld
these new laws at almost every turn.

The Justice Department -- the cabinet agency that is supposed to ensure
that these new powers are administrated fairly -- has downplayed that role
to the point that few complaints about abuse are even investigated.

These changes didn’t happen in a vacuum. In the past 20 years, voters have
made it clear that they love get-tough-on-crime politicians. A campaign
promise to toss drug dealers in prison will trump concerns about fair
trials or individual rights every time.

Congress, the Justice Department, the electorate and the courts have
combined to give this nation’s most aggressive law enforcement agents and
prosecutors far more power than they’ve ever had before and few reasons to
worry about the consequences of abusing that power.

Add political ambition to the mix, and the results are predictable and
frightening, Merkle said.

A federal prosecutor "is a political animal," he said. "His boss is
politically ambitious. He is being pressured for budgetary purposes to get
statistics, and that causes them to prosecute absolutely [bogus] cases to
get those statistics."

Other former federal prosecutors agree.

"I like to think that most prosecutors are honest and most agents are
honest, but there are unfortunately enough examples of dishonesty cropping
up that it is troubling to anybody in this business," said Plato Cacheris,
who was born and raised in Oakland and worked eight years as a federal
prosecutor before becoming one of Washington, D.C.’s, top criminal defense
lawyers. He currently represents Monica Lewinsky.

Thomas Dillard, who spent 14 years as an assistant U.S. attorney in
Knoxville, Tenn., then four years as U.S. attorney for the Northern
District of Florida, said a lack of real world experience among prosecutors
also has hurt. "You’ve seen an increase in career prosecutors that you
didn’t have 15 years ago, people who never practiced in the private
sector," he said. "They sit in this lofty tower with a rather skewed vision
of the world. They are on a divine mission, and everything that gets in
their way is evil. The ends justify the means."

Huge budgets exacerbate the problem. "The war on crime has gotten to the
point that all these [prosecutors’] offices are stuffed to the gills with
resources," Dillard said. "They have to justify their existence. They go
out and make things crimes that weren’t even crimes 10 years ago.

"For it to get to the point where prosecutors honestly believe they are
immune from state ethical standards, they honestly believe purchasing
witness testimony at any cost is OK, and they honestly believe a grand jury
is their own little forum, all of that is . . . bizarre."

Media attention on crime -- federal crime in particular -- has become huge.
A stream of cable television talk shows has put federal crimefighters in
the limelight every night on prime time. 

Playing to the camera becomes another pressure on law enforcement officers
to win at any cost. "The media is always looking for the big crime story,
and society in general is always looking for someone to one-up its array of
crime," Merkle said.

The person seldom heard in all of this is the victim, Merkle said. "People
don’t know how they’re being suckered."

Nor do federal courts help to prevent misconduct as much as they once did.
"The courts used to more consistently monitor both prosecutorial and law
enforcement power in general, [but] over the past 10-15 years, the courts
have contracted that power to the point of a total nullity," said Bennett
Gershman, a former New York State prosecutor who teaches law at Pace
University of New York. His law textbook, "Prosecutorial Misconduct," was
published last year.

"The courts used to be a buffer between prosecutors and the rights of
defendants," he said. "They are now simply a rubber stamp."

Federal law enforcement officers know that in the pursuit of convictions,
they have a key advantage: Their actions will do them no harm. No matter
what the misconduct, it is almost impossible for a criminal defendant to
sue a federal officer or prosecutor for damages. No matter what the
misconduct, the Justice Department rarely disciplines agents or prosecutors
who cross the line into unethical or illegal behavior.

Government Stings

Pogue and Brown were the victims of a government sting operation, a
crime-fighting tool that Congress approved in 1974. The law allows federal
agents to set up an illegal enterprise with the goal of luring in criminals
and then arresting them.

Used properly, it can be effective, but there have been dozens of cases
over the past decade in which government stings trapped the innocent or
exaggerated the misconduct of suspects. Time after time, former criminals,
con artists, dope smugglers, perjurers and killers were employed to help
catch suspects in exchange for reduced sentences or even six-figure
payoffs. With straight faces, prosecutors insist in court that none of
these witnesses have an incentive to lie.

In 1990, Mitchell Henderson was a disgraced former police officer deeply in
debt because of alcohol, marijuana and other drug abuse. Even so, the Drug
Enforcement Administration promised him as much as $250,000 to set up a
sting operation to try to snare Latin American drug dealers. 

Henderson mostly failed -- he helped the DEA trap one low-level Colombian
drug smuggler after more than six months of work. That’s when he set his
sights on Pogue, whom he’d once worked for in Costa Rica, where Pogue lived
and operated a real estate development business.

Henderson told Pogue he’d found businessmen who wanted to buy a piece of
property in Costa Rica. Pogue agreed to close the land deal. For a little
more than two hours, he listened as federal agents, disguised as Colombian
drug smugglers, talked about the illegal drugs they would ship through the
landing strip they would build on the land they were about to buy.

Pogue admits he should have left the room when the conversation turned to
drugs. Instead, on May 30, 1990, he was arrested.

At Pogue’s trial, Henderson told two key lies: first, that a Colombian drug
dealer had approved the purchase of the land Pogue would close on, and
second, that Pogue had been aware of a drug connection to the land sale
from the start.

There never was a deal for any drug smuggler to buy the land, according to
DEA and court documents that Pogue obtained after his conviction. Henderson
made that up. The documents confirm that Henderson, at another trial,
testified that Pogue knew nothing of the drug connection to the land until
he arrived to close the deal.

Pogue’s attorneys say this evidence would have destroyed the prosecution’s
key argument: that Pogue had been a willing participant in the drug
conspiracy long before he walked into a motel room to close the deal.
Despite this clear evidence to the contrary, federal prosecutors to this
day insist that everything Henderson said was true.

The Grand Jury

The framers of the Constitution included grand juries as a safeguard in the
Bill of Rights, providing that no person should stand trial for "a capital
or otherwise infamous crime" without grand jurors first determining that
sufficient evidence existed to press charges.

William B. Moore Jr. laughs at that one. A federal grand jury indicted him
on criminal charges that he tried to win a contract for his Texas company
by using a lobbyist to bribe the U.S. Postal Service.

At his trial in 1989, the government produced 50,000 pages of evidence and
84 witnesses. Then the judge asked the federal prosecutor: When are you
going to link Moore to the crime? The prosecutor never did. The judge
dismissed the charges before the defense even presented its case.

Moore and his company spent almost four years and $9 million defending
themselves. After the trial, he filed complaints with the Justice
Department and sued the government, saying the prosecutor manipulated the
grand jury process to indict him.

The suit describes a particularly telling incident: Prosecutors promised a
witness leniency if he would testify about the bribery scheme. Outside of
the grand jury’s presence, a prosecutor questioned the witness about
Moore’s knowledge of the scheme. Nineteen times during that intimidating
session, the witness told the prosecutor that he had no idea if Moore knew
about the bribery. The witness said he would not lie to satisfy the
prosecutor’s demands. The prosecutor tore up the government’s
non-prosecution agreement in his face.

The witness softened. His lawyer begged for another chance. So under
careful questioning by the prosecutor before the grand jurors, the witness
hedged enough to hint that Moore might be implicated in the scheme. Grand
jurors never learned about the witness’s 19 emphatic denials.

The Justice Department’s Office of Professional Responsibility found no
problem with the prosecutor’s conduct. The report of its investigation,
kept secret, exonerated him of wrongdoing in 1991.

If the government office that oversees federal officers finds no problem
with such conduct, what recourse is there against a federal prosecutor
content to manipulate a grand jury to win an indictment? Almost none, the
Post-Gazette found. The government enjoys almost absolute immunity from
civil suits based on its conduct in criminal trials. Moore’s efforts to sue
prosecutors for framing him have meandered through the courts for the past
eight years, meeting intense government opposition at every juncture.

Discovery Violations

Discovery is a cornerstone of American justice. It requires that federal
prosecutors turn over to criminal defendants any evidence that might help
prove the defendants’ innocence or that might show the biases or lack of
credibility of witnesses against them.

The reason is simple, the Supreme Court has ruled: Withholding this
information could result in an unjust verdict. Yet in its investigation,
the Post-Gazette found hundreds of cases where prosecutors intentionally
withheld discovery information.

In May 1998, James R. Sterba went on trial in Tampa, Fla., on charges of
soliciting a minor over the Internet for an unlawful sexual encounter, a
charge he vehemently denied. The key witness against him was a government
informant. Federal agents paid her $2,000 to visit Internet chat rooms to
lure men to a hotel with the promise a girl would be waiting.

When Sterba’s attorneys asked prosecutors for information that might
reflect on the credibility of this witness, they were assured there was
none. The trial was almost over when Sterba’s lawyers learned:

The witness was using a false name that hid her long criminal record.

In exchange for her help in the Internet sting, federal agents dropped an
investigation into the witness’s connection with an international
pornography ring.

Her record included a guilty plea for making a false statement and filing
false police reports that led to the arrest of an innocent man.

Prosecutors were duty-bound to turn over this information but did not. On
Aug. 13, the judge dismissed the indictment against Sterba, who had been
imprisoned for nine months awaiting trial. He finally went free.

This particular type of discovery violation is common. Frequently,
defendants aren’t told that witnesses against them have committed crimes,
including murder; or that they have lied in previous trials; or that they
have received money or reduced prison sentences in exchange for their

But a discovery violation doesn’t guarantee a new trial. The Supreme Court
has ruled that a verdict stands unless defense attorneys can show the
information not made available at trial would have changed the outcome.

In Pogue’s first appeal, judges peppered attorneys with questions about the
irregularities in the government’s conduct, but they let the verdict stand,
without even issuing an opinion as to why.

The net result is that the system encourages prosecutors to calculate just
how much evidence they can withhold without risking a reversal. They
substitute their judgment in determining what evidence is important rather
than allowing a judge and jury to decide.

It has not always been that way.

Gary Richardson, whom Reagan appointed U.S. Attorney for the Eastern
District of Oklahoma, had an "open file" discovery policy in his office
during his tenure, which ended in 1984. Defense lawyers were permitted to
come in and look at anything prosecutors had collected on a particular case.

Now, Richardson is a defense attorney and says that "open file" discovery
simply doesn’t happen any more, and he wonders why. "My attitude was that
if you can’t take the truth and win, then you weren’t supposed to win," he

(continued in part 2)
- ---
Checked-by: Richard Lake