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Out of control (cont.)

Government stings


	Dale Brown walks outside a Houston warehouse where he was interrogated by federal agents. Brown was caught in a sting designed to catch criminal activity around the U.S. space program. Charges against him were eventually dismissed. But he lost everything. (Darrell Sapp/Post-Gazette)

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


William Moore, with his wife, Chelen, saw his business go bankrupt as he fought federal bribery charges that he insisted were false. After the government presented its case, the judge threw the charges out before Moore even began his defense. The couple is holding an invitation to an acquittal party thrown by friends. (Darrell Sapp/Post-Gazette)

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.