DOJ Claims Judge Who Trashed 'Made Up Plot' Should Be Removed For Being 'Hostile' To The Gov't

by Mike Masnick
Jul. 17, 2014

The self-assured nature of federal prosecutors can be quite insane. We've talked many times in the past about how the criminal justice system is completely rigged against anything remotely looking like fairness. From grand juries to plea bargains to sentencing guidelines, the entire system is designed to make anyone who enters it presumed guilty until their spirit is crushed and destroyed. In the last few years we've noted an even more disturbing trend: law enforcement creating their own plots, in which they lure (often gullible or marginalized) individuals into a convoluted criminal "plot" in which nearly all of the other players are fellow law enforcement folks (or informants). They then build up this big plot... wait until it's about to go off (knowing it'll never actually happen) and then arrest those they lured into it. It has happened over and over and over and over and over and over and over and over and over and over and over and over again. Courts have found that this is technically not "entrapment," even though it sure appears to come close to it.

That's why we were quite happy to see a federal judge finally call out one of these questionable plots. Earlier this year, we wrote about Judge Otis Wright (whose name you may recall from the beatdown he gave Team Prenda) calling out one of the ATF's homegrown criminal plots for "outrageous government conduct" in creating a "made up crime." Wright detailed how the government picked details of the entirely fictional plot at levels to guarantee felony charges, and also accused it of "trawling... poverty-ridden areas" in a "fishing expedition" dangling huge riches on people who have no money. He further noted that nearly all of the elements of "the crime" were done by the ATF:
But for the undercover agent's imagination in this case there would be no crime. The undercover agent invented his drug-courier persona, the stash house, the 20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals supposedly guarding the stash, the need to use weapons, and the idea of robbing the stash house. He even provided the putative safe house and getaway van. Dunlap brought little to the table besides his sheer presence and perhaps the hope of being able to obtain some quick cash.

[....], the undercover agent provided a getaway van, putative safe house, and--most important of all--the entire scheme and its fictitious components. He also alleviated Defendants' logistical and safety concerns when he "proposed that he would be inside the stash house at the time of the robbery . . . ." ...
So, how did the DOJ respond to this setback? Well, via Brad Heath, we see that the DOJ has gone to the appeals court to demand a new judge, accusing Judge Wright of being biased. Seriously.
Reassignment is warranted "to ensure not only the existence, but the appearance, of impartiality," such as when "the district judge . . . may be viewed as having assumed the role of advocate." ... Here, as Dunlap himself has suggested..., the district court's tone and actions have created the appearance of hostility to the government.

As set forth earlier, the court's tone has not been one of impartiality. To be sure, a holding of "outrageous" conduct necessarily entails strong language--condemnation is built into the very standard. But even so, the court's comments are extreme: accusing the government of "lead[ing] us into temptation"; of "stoop[ing] to the same level as the defendants it seeks to prosecute" and "creating crime"; of targeting people simply for being poor or for having bad thoughts; and of being "cold-blooded and heartless." Similar is the court's refrain that the crimes of conviction were "fake," "trumped up," "cut from whole cloth," or "made up"--after all, it was Hudson who initiated contact, the defendants showed up with guns, one of which Whitfield boasted could cut a man in half.... Similar, too, is the court's repeated criticism of the investigation as a "trawling" expedition where bait was "dangled" "irresistibl[y]" before poor, ignorant defendants.

It is not just that the substance of the court's accusations is wrong: merely erring is not grounds for reassignment. It is that the tone creates the appearance of hostility toward a government "oppressor." ... And that tone is not limited to the court's description of historical facts: it has been also dismissive to government counsel during hearings.
In short: because the judge called out the ATF and the DOJ for its outrageous behavior, that proves that the judge is biased and therefore unfit to hear the case. Only judges that accept our outrageous behavior are reasonable and should be allowed to hear our cases.

This is the attitude of federal prosecutors. The entire system is already rigged to support us, so if a judge somehow actually pushes back on something we did, then clearly he's the problem, rather than our outrageous behavior.

Read the appeal (PDF)

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