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Craig Mastantuono and Leah Thomas March 22, 2013

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) is under scrutiny for egregious conduct in a Milwaukee-based operation aimed at buying drugs and illegal guns on the streets. A Milwaukee Journal Sentinel investigation uncovered mistakes and failures in an ATF undercover sting in Milwaukee’s Riverwest neighborhood: stolen guns, sensitive documents lost, wrong people charged and a burglary of the sting storefront. The operation raises concerns about ATF decision-making at the top, including locating the operation in a residential Milwaukee neighborhood, failing to install a security system in the building, poor investigation leading to erroneous criminal charges, and lax behavior leading to the theft of firearms from ATF agents. Following national scrutiny of the ATF for the bungled Fast and Furious operation, the Milwaukee operation is the latest round of criticism for the federal agency. However, the troubling investigation practices are not limited to just these two instances in the media, nor is it likely limited to ATF alone. Undercover investigations are carried out by individual agents, and how these agents approach their work, and whether they act professionally effects the results of those investigations and, ultimately, the interests of justice.

Mastantuono Law came across this issue in one of our own cases, during the federal prosecution of “Milwaukee Jack” Rosga, the national president of the American Outlaws Association Motorcycle Club in 2010 for alleged criminal violations of the RICO Act[1]. In that case, two ATF agents went undercover and joined the Outlaws MC, eventually starting up a fake Outlaw Chapter in Petersburg, VA. Like the operation in Milwaukee, this too was in a residential neighborhood, with agents engaging in criminal activity, albeit in an undercover law enforcement role. During the approximately two-year investigation, the government paid rent for the clubhouse, and for numerous motorcycles for the agents/Outlaws, and even a snitch. Also during this time, one of the ATF agents posing as an Outlaw MC member was arrested by local police for drunk driving, and was cited for moving violations on two other occasions. On each of these occasions, the agent provided his fake or undercover name to the police officer. During the drunk driving incident, the agent was not even authorized to be in his undercover capacity at that time, and was apparently conducting personal business with a female passenger in the car. Upon his arrest for drunk driving, he left his firearm in the car with the female, who was a person prohibited from possessing a firearm; he apparently recovered his gun the following day. Each time, criminal/traffic charges were not pursued against him by local authorities, apparently after his identity as an agent was disclosed. Another agent had a prior instance of lying to his supervisor regarding the circumstances of being stopped for reckless driving, which occurred prior to the Outlaw MC investigation.

The government was required by rules of discovery to provide this information about  agent misconduct to the defense team in Mr. Rosga’s case. Since the testimony of these agents and their credibility before the jury while recalling what Outlaw members did, said, and meant during their undercover investigation was critical to the jury’s determination of guilt or innocence, the defense team sought leave of the Court to cross-examine the agents regarding their own misconduct. In short, if they misbehaved and lied about it while they were supposed to be doing their jobs, it should be fair for the jury to consider when listening to the rest of their testimony and deciding whether they were telling the truth.

Despite extensive motions filed by Mastantuono Law prior to the jury trials in this case, the Judge denied our requests to cross-examine the agents about this behavior during trial. In a motion, we argued:

The undercover agents and their credibility as witnesses in the present case are central to the prosecution. Their conduct – misrepresentations by affirmation [agent 1] and omission [agent 2] in response to investigations concerning misconduct during the course of duty – is highly relevant to the witnesses’ truthfulness. The inquiries sought, cross-examination into these specific instances of conduct, would not be lengthy or confusing, and the defense would be limited to the witnesses’ answers to the inquiry – no extrinsic evidence could be introduced. Also, “the Federal Rules of Evidence generally favor admission of evidence, such that, ‘[i]f there is doubt about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, it is generally better practice to admit the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonitions in the charge.’” United States v. Nelson, 365 F.Supp. 2d 381, 387 (S.D.N.Y. 2005) (citing Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 403.02(2)(c) (2d ed.1997)).

The Judge disagreed, and refused to allow inquiry into the matters. Following denial of the defense motion, the case proceeded to trial, and the jury never learned about the agent misconduct or misrepresentations. The first trial resulted in a hung jury after approximately five days of deliberation, and a mistrial. The defense renewed its motion prior to a second trial, which was again denied, and Mr. Rosga was ultimately convicted, again following several days of deliberation. This was obviously a close case for both juries. We believe the information about agent misconduct and their resulting lack of credibility would have made a difference. Mr. Rosga received a 20-year federal prison sentence for his leadership role in the Outlaws MC, despite never committing a single act of the violence that was alleged to be part of the conspiracy. Prior to this conviction, he maintained his own trucking business, raised a family, and had never been convicted of a crime.

Overall, Mastantuono Law’s experience in ATF investigations by undercover agents leads us to surmise that there is more to this Milwaukee investigation and agents conduct. When an agent comes to trial with unclean hands to make criminal accusations, the jury should know why. This cuts to the heart of what is ‘just’ in the course of a law enforcement investigation and resulting prosecution.

[1] The “RICO Act” refers to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68. RICO was enacted in response to public fears about organized crime’s infiltration into commercial activity, which heightened after testimony before a Congressional Committee regarding activity of La Cosa Nostra, also known as the mafia. See Raskoff & Goldstein, RICO: Civil and Criminal Law and Strategy §1.01, 3-4 (Law Journal Press 2010).