Year of the Rat
New drug laws are creating a cadre of unreliable and unsavory witnesses.
They were the Cain and Abel of the U.S. Coast Guard, best friends driven apart in the fight to be the government's star witness. In 1988, Harlan Salmona and Robert Gosnell were indicted as members of a pot-smuggling ring in south Florida. Federal agents promised Salmona his freedom if he would cooperate; to Gosnell, they offered a reduced sentence. Salmona said no. But Gosnell agreed to testify against the other guys in the ring.
After Salmona found out Gosnell was talking, he decided to flip too. By then, the feds weren't promising freedom anymore, because they had found out what they wanted to know from Gosnell. Desperate, Salmona agreed to cooperate with the feds.
Then Salmona started wondering, like Cain, why the Lord liked Abel so much. He got a gun and shot Gosnell dead, apparently so he could be the star witness. When the agents asked Salmona what happened, he lied like Cain. Am I my brother's keeper? But when they found the gun behind his refrigerator, he confessed to the crime.
And what did the government do with Salmona? God protected Cain, didn't he? Instead of putting Salmona in the electric chair, prosecutors agreed to a life sentence, which would make him eligible for clemency in 25 years. Then the smuggler-murderer slipped again. When Salmona took the stand against a fellow Coast Guardsman, the defendant was acquitted. Salmona admitted to perjuring himself in the trial but still claims the guy was dirty.
Despite their questionable motivation and veracity, informants like Harlan Salmona are an increasingly important weapon in the drug war. The number of drug offenders who become informants has skyrocketed in recent years. "I was in the U.S. attorney's office annex in Miami today," says Ft. Lauderdale criminal defender Charles Wishna, "and the defendants were tripping all over each other. The assistants and the agents have to fight for the availability of rooms in which to debrief these guys."
U.S. Department of Justice spokesman Doug Tillett says an increase in federal drug cases during the last few years has caused a rise in the number of defendants who plead each year. Since 1987, he says, "about 80 percent of defendants charged with controlled-substance offenses have pleaded rather than gone to trial." Federal law-enforcement budgets reflect the increased use of informants. In 1989, the U.S. government paid a record $63 million to confidential informers, up from $35 million in 1987.
The informant boom can be traced to federal drug laws, a Byzantine code of penalties and rewards that gives prosecutors the leverage to coerce defendants into becoming informants. Revising these laws is the only way to end the snitch epidemic.
Ask almost anyone convicted on drug charges, and he'll tell you an informant brought him down—usually another drug offender who valued his freedom more than his codefendant's. When the heat is on, the incentive to snitch is intense: An informer-witness who testifies can shave years off his sentence, and a confidential informant who goes undercover can postpone indictment and collect a commission on every bust he sets up.
Yet not every defendant is offered the same incentives for cooperating or the same penalties for clamming up. Although Congress has attempted in recent years to reduce disparity in punishment, some federal legislation has had the opposite effect, creating a glut of jailed martyrs and spurious informants. Too often, prosecutors recommend lenient sentences for kingpins who cooperate, while throwing the book at mules and middlemen who won't talk or have nothing to tell.
Take Randy Lanier, a convicted marijuana smuggler now serving a life sentence without the possibility of parole. When Lanier was named Indy 500 Rookie of the Year in 1986, his record was clean. Two years later, he was busted for running pot into Florida. The government promised to reduce his sentence to 22 years if he gave up everyone he knew and forfeited all his assets.
Lanier admitted he was a distributor but refused to plead guilty to the kingpin charges, which carried a life sentence. "I always thought mandatory life for marijuana was an injustice," he says. But the jury convicted him, and now his children are growing up without him. Although Lanier says the option to cooperate still holds, he hasn't budged. "It comes down to selfishness and greed," he says. "Should I do it to help myself? Does it matter if I hurt 20 other people?"
Still, Lanier gets flustered when he remembers what the Federal Bureau of Investigation did for the informants who testified against him. "They was taking them to hotels, getting them rooms, letting them have sex with their [the informants'] wives!" he claims. "This one guy, my accountant, was flying up lobsters and stone crabs and eating them with his wife in the hotel room, the week before my trial started. Do they appease them or what?" (The FBI declined to comment on Lanier's account.)
Under the current system, many cannabis smugglers who refuse to cooperate are serving sentences ranging from 25 years to life. Their reluctance to snitch is a rare impediment in a milieu where drug dealers routinely inform and go free.
For example, when Chinatown gangster Phillip Han got picked up on a heroin charge in 1987, he flipped within an hour of his arrest. Three years later, Han had helped reel in more than 30 arrests and $3 million in seized assets. In return, Han's case was dismissed, and he collected $300,000 in commissions, plus $100,000 for information and expenses—a windfall the Drug Enforcement Administration in New York called "high, but not unusual." After all, some informants become millionaires.
The perpetrators of today's snitch culture can be found on Capitol Hill, pursuing their vision of a drug-free America. In the 1980s, Congress passed a dragnet of laws that have channeled record numbers of drug offenders into federal jails. In addition to the Anti-Drug Abuse acts of 1986 and 1988, these included a 1984 amendment to the Asset Forfeiture Act, the New Federal Sentencing Guidelines of 1987, and a steady hail of mandatory minimum sentences for drug offenses.
In the early 1980s, DEA officials complained that they were short on PE/PI ("pee-pie")—money with which to Purchase Evidence and Pay for Information. In response, Congress amended the forfeiture laws so the DEA could sell off seized assets, then use the proceeds for PE/PI. Today, confidential informants like Phillip Han collect a commission on each bust, and the feds are employing them in record numbers. Informants translate into convictions—the body count of the drug war.
Convictions have soared under the new sentencing guidelines and mandatory minimum sentences. Between 1988 and 1991, the number of drug offenders serving time in federal prisons more than doubled, from 16,385 to 32,614. By 1995, the number is expected to rise to about 68,000, or 70 percent of the federal prison population. With the new laws, the feds can work miracles along the lines of Jesus feeding a crowd with five loaves and two fish. The trick is to take a single conviction and, after debriefing the defendant, turn it into a flow of indictments, seized assets, and trial publicity.
Here's how it works. Traditionally, a defendant had two choices: either plead guilty, bargaining for a shorter sentence, or go to trial, risking the maximum if convicted. In 1987, the new sentencing guidelines changed the terms of a simple plea bargain to the more elaborate "plead-and-roll" routine. Now, the defendant is told he can't plead guilty unless he cooperates.
Mandatory minimums are used to scare drug offenders. Under these laws, prosecutors assign sentences in 5-, 10-, and 20-year increments, according to a rigid formula based on the weight of the drug plus any substance mixed with it or medium containing it. Once assigned, the sentence is intractable. The judge can't reduce it, and parole is out of the question. For thousands of drug offenders facing jail every year, cooperation is the only way out.
The conspiracy laws also help spawn informants. Labeling a drug operation a conspiracy makes it easy for prosecutors to indict a grand sweep of codefendants. Scant proof is required to bring an indictment, often no more than hearsay. But the government doesn't intend to try every co-conspirator it indicts; the goal is to get them talking.
Given a pool of defendants, a few are guaranteed to testify, whether it's the underlings or the bosses who roll over. The downside comes when a minor defendant doesn't know enough to be useful and is left open to a harsh sentence. "Sometimes the government doesn't need the little people to get the big people," says Miami defense attorney Fred Schwartz, "because they already have them cold."
The law says you can't punish silence, but little people who are ignorant of the scope of the conspiracy often land in jail, while the big shots go free. A 1989 case in Alexandria, Virginia, highlights the imbalance. Tracy Fells, a high school football star, was indicted as the head of a crack ring. Fells wouldn't talk, and he caught 20 years. But Fells's top lieutenant cooperated right away, and his mandatory 10 years came down to four. Meanwhile, three minor players who said nothing were sentenced to 12½ years apiece.
Some defendants volunteer to be informants, but more often than not, the government has ways of making them talk—all variations on the carrot-and-stick approach. The best time to flip a suspect is before he's indicted, when the case agent or prosecutor can make a deal without a lawyer present. At that point, the promise and threat are obvious: 1) We'll drop the indictment if you cooperate, or 2) we'll indict you if you don't.
After an indictment comes down, the options increase. If the feds have ample evidence, they can 1) stick to a single indictment if you cooperate, or 2) indict you on more cases if you don't. If there's property involved, 1) you keep the assets if you cooperate, or 2) forfeit them if you don't. The government's ace card is the sentence itself: 1) We'll let you out sooner if you cooperate, or 2) we'll throw away the key if you don't.
When Richard Stratton was busted for running a hash-smuggling ring in 1982, the DEA was hoping that he would link novelist Norman Mailer to the operation. (Mailer has denied any involvement.) The DEA was so hot to indict Mailer, Stratton recalls, that "if I cooperated, they offered to let me keep my ranch in Texas, which they thought was worth 3½ million."
Stratton refused to cooperate. At sentencing, the judge gave him 25 years and indicated that the harsh sentence was to spite him for silence. But enhancing a sentence to punish silence is technically forbidden, and thanks to the judge's impropriety, Stratton is now a free man.
Even under pressure, most informants tell the truth; moreover, most prosecutors conscientiously review informants' evidence before presenting it in court. But all too often, informants simply can't be trusted. When prosecutors lay out the spectrum of rewards and punishments, the temptation to lie is too great. It's not unusual for informants to be bullshit artists, encouraged by prosecutors who are eager to make the case.
The case of Leslie White is a classic example of what an informer can get away with when prosecutors like his story. For years, White was just another snitch in L.A. When he wasn't in jail, he would be testifying at a murder trial, recounting a suspect's confession. He'd testify, get out, commit a crime, go back in, testify, get out, and so on.
That was the drill until 1988, when White confessed he'd been making it up all along. His confession exposed a huge snitch operation in the Los Angeles County Jail. Every time the snitches heard about a new crime, they scrambled to be the star witness. Like birds assembling a nest, jailhouse snitches fashion a story out of any available material: news clippings, police tips, legal documents ripped off from other prisoners.
White was a master of the fabricated confession. His usual technique was to ask a newcomer, "What are you in for?" When one inmate told him, "They're trying to say I shot one of my homeboys," White informed the district attorney, "He told me, 'I killed my homeboy.'"
White's other trick was to assume a false identity. He'd call local authorities on the phone, identifying himself as a sergeant or a deputy D.A. In no time, he could report a murder case down to the last detail—then turn around and pin it on the government's suspect.
Almost invariably, the people White fingered would be convicted. After White confessed to perjuring himself in 12 separate cases, the Los Angeles district attorney's office launched a review of 10 years of murder convictions involving informants. In 1989, California passed a law requiring that juries be warned to view testimony from a jailhouse snitch "with caution and close scrutiny."
Last February, former L.A. County Jail inmate Sidney Storch was indicted on perjury charges. Storch had testified as a prosecution witness in eight cases during the 1980s. In one case, he helped put an accused murderer in jail for life by reporting incriminating comments the man supposedly made in jail. In return for his testimony, Storch, who had been facing five forgery cases involving $44,000, served less than eight months. After Storch's indictment, White told the Los Angeles Times he expected to be indicted for perjury as well.
The so-called professionals among snitches are confidential informers, suspects who avoid indictment by ratting on fellow criminals. The C.I. leads a double life, buying and selling drugs while reporting frequently to a control agent. As long as a C.I.'s information is good, the controller shields him from prosecution. If the C.I. gets picked up by another law-enforcement agency, he has only to call his controller, and he's free.
While agencies like the DEA, the U.S. Customs Service, and the FBI have traditionally employed informers, the PE/PI budget is growing swiftly. The amount of money spent on informers by the federal government nearly doubled between 1987 and 1989. Asset seizures accounted for more than a third of the spending, and the rest of it came from taxpayers. For every bust, the law allows DEA agents to pay the informer a commission of up to 25 percent of seized assets, with a ceiling of $250,000.
According to court records, that's how confidential informer "David S." has earned more than $1.2 million since 1987, when he was picked up for importing marijuana. "I have to fly tens of thousands of miles every year," he told Atlanta Constitution reporter Mark Curriden, "developing friends, making business deals, and networking." His job is to sell marijuana to unsuspecting buyers, and it's a good living: At last count, David owned four homes and a fleet of luxury cars.
Another conspicuously wealthy snitch is J.J. White. When White got out of prison in 1984, he testified that he was broke. Within a few years, the busy informer owned a ranch in Florida (no mortgage), a new mobile home, two airplanes, a Jaguar XKE he paid for in cash, and a $10,000 Rolex so diamond-studded that almost no one could read the time on it. In 1988, White and his wife testified that they earned $35,000 a year from informing—but bank records indicated he was worth several million. An assistant U.S. attorney in Miami told Curriden, "As far as we know, he may have inherited the money." (Not long ago, White admitted to using cocaine on the job, and Florida agents dropped him.)
When a C.I. such as White fingers someone on a drug charge, it's almost impossible to prove entrapment. Prosecutors need only establish that 1) the snitch was not a paid agent or 2) the defendant was "predisposed" to commit the crime. The following state cases illustrate how easily those conditions can be met.
In 1988, Michael Wright, a DEA informant in Atlanta, turned in Alan Strohbert and William Threatt. According to them, he pulled a gun, corralled them into his apartment, and told them to set up a speed lab, using chemicals he had on hand. Then Wright contacted the police and gave them permission to search his apartment, whereupon all three men were arrested. Threatt pleaded guilty, and Strohbert was convicted.
Strohbert appealed on grounds of entrapment. But despite Threatt's having corroborated his account, Strohbert lost the appeal. According to the DEA, the agency had dropped Wright three weeks before the bust, because he was still dealing drugs. The agents hadn't told Wright the bad news yet, but their story persuaded the appeals judge to rule out entrapment. (Wright hanged himself in jail.)
A 1989 case in Indiana shows how slippery "predisposition" can be. At a friend's house, William Gilley Jr. met an undercover agent who was looking to score LSD. Gilley volunteered that he knew where to find methamphetamine, and the narc placed an order. Three times over the next week, Gilley relayed several grams from his source to the narc, in the presence of a confidential informant.
After the jury labeled Gilley a dealer and sent him to jail, he claimed entrapment because he had no record of dealing drugs. But the Indiana Supreme Court ruled that Gilley was predisposed because, when the narc approached him, he had a source, he was willing to act as a middleman, and he "spoke the language" of dealers.
Prosecutors will tell you they need informants to build drug cases, and they're right. It's in the nature of victimless crimes that complainants do not come forward and witnesses rarely volunteer. But short of ending the drug war, reforms are available that would help correct the overzealous and unscrupulous use of informants.
In its August 1991 report to Congress, the U.S. Sentencing Commission concluded that mandatory minimum sentences are racially discriminatory, that they create unwarranted sentencing disparity, and that the new sentencing guidelines alone could ensure fairness. The first response to the snitch epidemic should be to repeal mandatory minimums.
Second, asset seizures are a source of both pressure on suspects and rewards for informants. Congress should make it harder for law-enforcement officials to take property by eliminating pretrial seizures and raising the burden of proof for forfeiture. Third, Congress should require that federal jurors be educated about entrapment and explicitly informed of the rewards a snitch stands to gain for his testimony.
Fourth, Congress should scrutinize asset-forfeiture budgets and reduce C.I. commissions. Finally, top managers should be appointed in U.S. attorney's offices and police departments to oversee the people who handle informants. Without these reforms, prosecutors will continue to undermine justice with a carrot and stick.
Cynthia Cotts is a New York-based writer specializing in drug policy.