SHARE Click to enlarge Backfire

A Journal Sentinel investigation uncovered mistakes and failures in an undercover sting in Milwaukee's Riverwest neighborhood by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives – stolen guns, sensitive documents lost, wrong people charged and a burglary of the sting storefront. Go to section.

By of the

From running an undercover gun-buying operation near a school to ensnaring people with mental disabilities, afederal storefront sting run in Florida bore a strong resemblance to other flawed ATF operations nationwide.

But one of those cases turned out very differently.

In the wake of Milwaukee Journal Sentinel reports exposing the agency's use of people with disabilities in such operations, the attorney for one defendant went to trial and made the difficult-to-prove argument that her client was entrapped by agents.

The jury agreed. Alexis Davis — who has an IQ of 59 and reads at a second-grade level — was found not guilty following a trial in July.

His acquittal is the latest blow to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives' undercover stings, already under investigation by Congress and the U.S. Department of Justice. Attorney General Eric Holder has called the tactics "ridiculous" and vowed accountability. The ATF said it has stopped the stings until it can get them right.

Davis' attorney, Sharon Samek, conceded in the trial that her client was a felon who couldn't have a gun because of previous drug convictions. But she argued to the jury the ATF agents working in the Lakeland storefront persuaded Davis to get them guns.

"He never would have possessed the guns if they hadn't come up with that store," she said. "The agents just kept pressing."

Records show Davis came to the store to buy tire rims and later came looking for a loan on his truck.

Each time, the agents encouraged him to find them guns, but he didn't bring any. Later, Davis waited outside while another man sold guns inside the storefront, but the agents said it was Davis who was behind the deals.

Davis' disabilities were apparent at times on the ATF video. At one point, Davis picks up a Magic Eight Ball on the store counter and asks how it works.

ATF Special Agent Yannick DesLauriers says, "You ask it a question."

Davis says, "I got to whisper to it?"

Davis' attorney says the encounter demonstrates her client's limitations.

"When this 33-year-old man picks up a Magic Eight Ball and asks how it works, and should he whisper to it, the conversation is no longer just a comical aside, but a poignant reflection of Davis' intellectual limitations," Samek wrote in a court document.

Michael Lehman, a member of the jury that acquitted Davis, said it was clear based on the agents' actions and Davis' limitations that it was a case of entrapment.

"To me, this was not about fighting crime. There is a lot of crime going on in the world, you don't need to manipulate the circumstances in order to encourage people to do bad things, that they might or might not otherwise do," said Lehman, of St. Pete Beach, who owns a public art construction company.

"This was a guy with a very low IQ who was highly suggestible and how they kept redirecting him and pressuring him to get them guns....It seems like a very misguided way to use public funds to deal with real problems."

Agency under review

The ongoing Journal Sentinel investigation has uncovered deep flaws in ATF stings across the country — agents using people with mental disabilities to promote operations and then arresting them; allowing armed felons to leave their fake stores; attracting juveniles with free video games and alcohol; openly buying stolen goods, spurring burglaries in surrounding neighborhoods; and paying inflated prices for guns, prompting people to buy new guns and quickly sell them to agents for a profit.

Last week, the American Civil Liberties Union issued a statement saying it is "deeply troubled" that ATF agents used people with diminished capacity in such operations.

"This practice is an appalling abuse of authority," said Emma Andersson, attorney for the ACLU's Criminal Law Reform Project. "We are carefully reviewing several Bureau of Alcohol, Tobacco, Firearms and Explosives cases in which agents have used people with mental disabilities so that we can evaluate the conduct of the agents, the culpability of the agency, and determine what legal actions may be appropriate to combat this practice."

ATF Director B. Todd Jones told Congress earlier this year that the agency had halted the widely used storefront stings and said they won't resume unless they can be done properly. He vowed there would be closer oversight of such operations and created a handbook for how to run them.

The agency also has agreed to training for its agents in recognizing people with low IQs. The first such session occurred in Miami in early July, according to Leigh Ann Davis of The Arc, a disability rights group.

She said people with low IQs can mask their disability for a time but the more childlike tendencies become obvious when spending time with them.

The Arc wants to help the agency develop a protocol to help identify people with disabilities, such as asking them questions about their living situation, if they are on disability payments or if they were in special education.

"I mean, especially IQs around 60, that should just not even be happening," she said. "You just can't use people with low IQs."

Stings near schools

In Lakeland, the ATF launched Operation Smoke-N-Guns in 2012 after receiving a request from the Lakeland Police Department to address gun violence in the wake of the murder of a police officer.

The storefront, known as Eight Ball Trade, appeared to be a thrift store or pawn shop selling car rims, tools, household items and computers. Agents made it clear they wanted to buy guns and drugs.

As in other stings uncovered by the Journal Sentinel, the ATF storefront was located near a school. This enabled authorities to charge at least three people caught in the sting with selling drugs within 1,000 feet of a school.

However, during Davis' trial in federal court, prosecutors showed the jury an aerial photo of the storefront location that was cropped so closely they could not see Rochelle School of the Arts. Samek showed the jury another aerial photo that included the nearby school.

Lehman, the juror, said the proximity of the school to the operation was a concern to some on the panel. Among the first questions from the jury during deliberations was whether it was legal for the ATF to open such an operation so close to a school.

He said it was disingenuous for the prosecutor not to show the school in the photo. That eroded the jury's trust in the government, he said.

"It was reckless," Lehman said of the decision to put the storefront near a school. "There was one guy on the jury, that was his biggest issue, putting children at risk with that type of activity. That was a big issue."

ATF spokeswoman Ginger Colbrun said there is "no perfect place" for an undercover sting operation.

"This particular location was chosen based upon an assessment of the buildings in the area located on a major thoroughfare, in a high-crime area," she said. Colbrun would not say if the agents knew the school was there when they picked the site for the storefront.

In Portland, Ore., ATF agents opened up a storefront across the street from a middle school. Agents later said they were not aware a school was there.

Aftermath of operations

The Lakeland storefront was operated over the same time as Operation Fearless, which was in Milwaukee's Riverwest neighborhood.

The Milwaukee storefront was burglarized, four of the wrong people were arrested and an agent's machine gun was stolen and has not been recovered.

Four ATF agents received light punishments for their roles in the botched operation, according to a letter to Congress obtained last week.

Following the Milwaukee operation, no public mention was made of the sting's results. In Lakeland, officials held a news conference, announcing that about two dozen people had been arrested and another 20 were being sought. About 100 guns were recovered in the operation.

As in other storefront cases around the country, most of the defendants in the Lakeland sting pleaded guilty.

Horace Pollard, a 49-year-old man with an IQ of 63, was convicted of being a felon in possession of guns. Pollard, who had a forgery conviction, acted as a lookout for others who were selling guns to the agents, records show.

The operation also brought in firearms that did not fit the goal of taking crime guns off the street.

Alton Faison, 52, worked at the Eight Ball storefront, cutting grass, picking up trash and washing and waxing the agents' cars, according to court documents.

Faison, who had a felony drug conviction from 1992, sold guns to the agents — a rifle belonging to his uncle from World War II or the Korean War and a six-shot revolver. Contacted last week, Faison declined to discuss his case.

Entrapment defense

Among those Lakeland cases, only Davis went to trial.

In his first trial, Davis was convicted by a jury but a judge took the unusual step of setting aside that conviction and ordering a new trial "in the interest of justice," after prosecutors failed to hand over a store flier the agents used to promote the operation. Also, Davis' IQ was not disclosed.

Magistrate Judge Thomas McCoun was critical of prosecutors for not handing over the flier, writing he was "troubled" by the failure to produce the document, adding that it "clearly should have been disclosed and made available to the defense." The fliers, which were handed out around town, stated that the store bought guns, "no ID required." Davis' attorney argued such a flier could be used to prove entrapment.

Samek, Davis' attorney, tried to get the case dismissed, claiming "outrageous government conduct." U.S. District Judge Steven Merryday said the agents' actions fell "distinctly and comfortably" short of outrageous conduct, but he still ordered a new trial.

In that trial last month, juror Lehman said he had doubts about the credibility of the ATF agents who took the stand. For instance, an agent testified he knew nothing about the congressional inquiry into the ATF's storefront stings, even though emails had been sent from headquarters to him and other agents in his office.

Lehman also questioned why it was that the surveillance video that helped the government's case had good audio but jurors couldn't hear what was happening in other videos.

"They really cherry-picked what we saw," he said. "It just all piled up. They didn't have a lot of credibility."

Samek used an entrapment defense — where an attorney must show that law enforcement persuaded someone to commit a crime that he had no intent to commit. It rarely succeeds.

Jurors didn't all agree Davis was entrapped, Lehman said, but there was enough doubt about the circumstances that they found him not guilty on two counts. They hung on a third count, which the prosecutor chose to dismiss.

William Daniels, a spokesman for the U.S. attorney's office in Tampa, said prosecutors argued there was no entrapment. He declined further comment.

Colbrun, the ATF spokeswoman, said agents target "criminal conduct not individuals." She said the agency will continue to have training for agents on how to spot people with low IQs.

Peter Berns, CEO of The Arc, who was sharply critical of the ATF stings, welcomed the recent training of ATF agents and looked forward to more.

"The end goal is to customize training that can lead to informed ATF policies on how to identify disability, ensuring that the rights of individuals with intellectual disabilities are protected," Berns said.

Leigh Ann Davis, who did the training for The Arc, said some of the agents were open to the training; others seemed skeptical, which is typical in such trainings.

Davis said part of the challenge is that people with mental disabilities can sometimes cover for it by acting street smart. She said such people end up in the criminal justice system, in part because they may be used by criminals.

Davis said the concerning part of the ATF stings is realizing such people have been used by law enforcement.

"You think it is only happening by other criminals," she said. "Knowing this is happening by people who are paid to protect other people, that was surprising to me."

Facebook fb.com/john.diedrich.79

Twitter twitter.com/john_diedrich