Federal Undercover Operations & Sting Defense

Federal sting operations are presented as sophisticated police work that catches criminals in the act. The narrative is simple: undercover agents create an opportunity, and criminals reveal themselves by seizing it. What the narrative doesn't mention is that judges have called these operations "outrageous government conduct," that the Second Circuit Court of Appeals declared "the real lead conspirator was the United States," or that the entrapment defense - the legal protection supposedly available when government goes too far - succeeds less than 1% of the time in federal court.

The mathematics of sting operations reveal what the press releases conceal. Between 2006 and 2010, only 22 defendants nationwide successfully claimed entrapment out of thousands of federal prosecutions. That's a success rate so low it's essentially zero. Meanwhile, of 94 defendants targeted by ATF fake stash house stings in Chicago from 2006 to 2013, 92% were Black or Hispanic - a disparity an expert statistician concluded had a "zero percent likelihood" of happening by chance. These aren't sting operations catching existing criminals. These are manufactured crimes targeting vulnerable populations, with the government providing the plan, the resources, the fake drugs, the fake weapons, and sometimes the motivation.

Spodek Law Group has represented clients contacted by undercover agents and confidential informants across hundreds of federal cases. Todd Spodek knows that sting cases present impossible strategic choices: raise entrapment and you must admit guilt, go to trial, and face an enhanced sentence when the defense fails. Don't raise entrapment and you're convicted of a crime the government manufactured from scratch. Our mission is to help you understand what prosecutors and agents won't explain - that the entrapment defense is designed to fail, that confidential informants are permitted to use more aggressive tactics than sworn agents, and that "predisposition" can be proven with social media posts from five years ago or jokes you made with friends. Before you engage with anyone offering criminal opportunities that seem too easy, before you respond to that person who keeps pushing you toward illegal conduct, call 212-300-5196. Because the moment you agree, the sting is complete - and the entrapment defense probably won't save you.

When the Government Creates the Crime From Scratch

The ATF stash house sting operation worked like this: a paid confidential informant would approach someone "down on their luck" and tell them about a house supposedly filled with kilos of cocaine, guarded by only one or two people. The informant would explain they could rob this stash house and make hundreds of thousands of dollars in a single day. Everything about the crime was fake - the house didn't exist, the cocaine didn't exist, the guards didn't exist. The only real part was the defendant who agreed to rob the nonexistent house, and the 15-year mandatory minimum sentence that followed.

Between 2011 and 2014, the ATF ran these operations systematically. Out of 94 people selected by the ATF to commit this manufactured offense in the Chicago area from 2006 to 2013, approximately 92% were Black or Hispanic. An expert hired by the University of Chicago Law School Federal Criminal Justice Clinic analyzed the data and concluded there was a "zero percent likelihood" this racial disparity happened by chance. Of those 94 defendants, 74 were Black, 12 were Hispanic, and only 8 were white. The ATF had internal criteria for selecting targets, but litigation revealed that when targeting people of color, they frequently ignored their own criteria. When targeting white individuals, they followed there criteria closely.

Federal judges eviscerated these operations. Judge Otis Wright in California dismissed one case as "outrageous" government conduct that was "unconstitutional," stating it had neither prevented nor detected crime - it had manufactured crime. Judge Rubén Castillo determined lawyers had made "a strong showing of potential bias." The operations were described by multiple judges as "tawdry" schemes that recruited "unsophisticated, and perhaps desperate" people - usually poor people of color - for crimes that would never have existed without government creation. Eventually, the ATF abandoned the tactic after widespread judicial criticism. But not before those 94 defendants faced mandatory minimums of 15 to 25 years.

The FBI terrorism sting operations followed a similar pattern, but with even higher stakes. The Newburgh Four case from 2009 is the paradigm. A federal judge declared that "the real lead conspirator was the United States." The Second Circuit Court of Appeals noted that an FBI informant, not the defendants, "inspired the crime, provoked it, planned it, financed it, equipped it, and furnished the time and targets." The informant was Shahed Hussain, a paid FBI asset who earned nearly $100,000 for his work on this single plot.

Hussain met James Cromitie in 2008 in the parking lot of a mosque in Newburgh, New York - a town with high poverty and a large Muslim community. Cromitie was broke. Hussain offered extravagant enticements, eventually promising Cromitie $250,000 to participate in a fake bomb plot. After initially scoping out a target, Cromitie avoided Hussain for almost two months. Then Cromitie lost his job. Desperate for money, he reinitiated contact. The FBI considered Cromitie "unlikely to commit an act without the support of the FBI source." Yet they proceeded anyway, providing fake bombs packed with inert explosives, planning the targets, financing the operation, and then arresting Cromitie and three others when they planted the fake devices.

Of 508 defendants prosecuted in federal terrorism-related cases in the decade after 9/11, 243 were involved with an FBI informant. In 158 cases, defendants were targets of sting operations were informants didnt just observe criminal activity - they led it. In 49 cases, an informant or undercover operative actually led defendants in there terrorism plots. As multiple studies found, nearly 50% of federal counterterrorism convictions resulted from informant-based cases, and almost 30% were sting operations were the informant played an active role in the underlying plot.

These aren't isolated examples. Sami Osmakac was 25 years old in 2012, broke and struggling with mental illness. His family wanted to get him help. The FBI wanted him to plot a terrorist attack. Internal FBI files showed how agents leveraged there relationship with a paid informant and plotted for months to turn Osmakac into a terrorist, despite knowing he was mentally ill. In the Rezwan Ferdaus case, an FBI agent told Ferdaus' father his son "obviously" had mental health problems. The FBI sent an informant into Ferdaus' mosque anyway. Together, the FBI informant and Ferdaus devised a plan to attack the Pentagon and U.S. Capitol, with the FBI providing fake weaponry and funding Ferdaus' travel.

The pattern is consistent: find someone vulnerable - financially desperate, mentally ill, socially isolated. Pay an informant substantial sums (often $100,000 or more, plus "performance incentives" for successful convictions). Have the informant develop a detailed attack plan or criminal scheme. Provide the resources - fake drugs, fake weapons, fake money. Overcome resistance through repeated contact, cash offers, or appeals to desperation. Then arrest the target and claim you've disrupted a dangerous criminal or terrorist. But you didnt disrupt anything. You created it.

The Entrapment Defense That Succeeds Less Than 1% of the Time

The entrapment defense exists specifically for these situations - when the government implants criminal design in the mind of an unwary innocent. The legal standard comes from the Supreme Court: "Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." That's exactly what happened in the Newburgh Four case, in the ATF stash house stings, in dozens of FBI terrorism plots. So why didn't the entrapment defense work?

Because it almost never works. The entrapment defense has a less than 1% success rate in federal court. A national empirical study found that entrapment arose in just 0.08% of cases - less than one-tenth of one percent - and usually "to little avail." Between 2006 and 2010, only 22 defendants nationwide successfully claimed entrapment. Twenty-two, out of thousands of federal prosecutions involving undercover operations.

The Supreme Court case that defendants always cite is Jacobson v. United States, decided in 1992. The government repeatedly contacted Jacobson over two years, eventually inducing him to buy child pornography. The Supreme Court ruled the government had failed to prove Jacobson was predisposed to commit the crime before there involvement. Jacobson is basically the only Supreme Court entrapment case defendants ever win. And lower courts have spent the last 30+ years distinguishing Jacobson, finding predisposition in almost every case that's followed.

Research analyzing terrorism prosecutions found that entrapment was successfully argued in a terrorism case only once - and it was notable specifically because it was the first time entrapment had succeeded in a terrorism case after three previous attempts had failed. Despite evidence that FBI informants inspired, planned, financed, and equipped the plots, despite judges calling the operations "outrageous," the entrapment defense fails. Why?

Because juries are skeptical of entrapment defenses and more likely to side with law enforcement than defendants claiming they were entrapped. Because raising entrapment requires admitting you committed the crime, which poisons any alternate defense. Because the legal test for entrapment has two parts - government inducement AND lack of predisposition - and prosecutors have become expert at proving predisposition even in cases were the government manufactured everything.

The predisposition element is were entrapment defenses go to die. Even if you can show the government induced you, provided the plan, supplied the resources, and overcame your resistance, prosecutors will prove you were "predisposed" to commit the crime. And predisposition can be proven with almost anything.

How "Predisposition" Destroys the Defense

Predisposition means you were "ready and willing" to commit the offense, merely awaiting a suitable opportunity. It doesn't require prior criminal convictions. It doesn't require you ever attempted the crime before. The "ready commission of the criminal act" - like promptly accepting an undercover agent's offer - can itself establish predisposition. You can have the requisite criminal intent and still be entrapped, but if prosecutors prove predisposition, your entrapment defense is dead regardless of how outrageous the government's conduct was.

Prosecutors don't just look at what you did after the agent or informant contacted you. They go back years. Social media posts from five years ago were you joked about doing something illegal? Evidence of predisposition. Google searches from three years ago on topics related to the crime? Predisposition. Conversations with friends were you discussed hypothetical criminal conduct? Predisposition. Prior arrests, even if charges were dismissed or you were acquitted? Admissible to prove your "criminal nature and predisposition." Employment history showing financial desperation? Motive, which prosecutors argue demonstrates you were ready and willing.

In the Newburgh Four case, despite a judge saying "the real lead conspirator was the United States," despite the informant providing $250,000 in enticements to a broke defendant who avoided him for two months, despite FBI agents believing Cromitie was "unlikely to commit an act without FBI support," the entrapment defense failed. Why? Prosecutors presented evidence that Cromitie had made anti-American statements, had expressed anger about U.S. foreign policy, had discussed wanting to do "something" to fight back. That was enough. The fact that he had no plan, no resources, no co-conspirators, and no ability to carry out any attack without the FBI creating it for him didnt matter. He had predisposition.

The legal standard is so broad that even initially refusing the government's offer doesn't prove lack of predisposition. Courts have held that reluctance or initial refusal doesn't demonstrate lack of predisposition - it just shows the government had to work a little harder to overcome natural caution. In Jacobson, the Supreme Court emphasized that the government contacted Jacobson repeatedly over two years before he finally agreed. But in most cases, courts distinguish Jacobson by finding that any agreement - even after months of pressure, even after repeated refusals, even when finally given in due to financial desperation - demonstrates predisposition.

Your criminal record is admissible. Your statements are admissible. Your Google searches are admissible. Your social media history is admissible. Prosecutors will build a predisposition case using every piece of evidence showing you ever thought about, joked about, researched, or discussed anything related to the crime - even if those thoughts or statements were years before any government contact, even if they were clearly hypothetical or not serious.

And the burden is on the government to prove predisposition beyond a reasonable doubt - but only after you've first proven government inducement. Once you show inducement, the burden shifts. But "inducement" requires more than opportunity. It requires persuasion, threats, fraudulent representations, or appeals to sympathy that overcome your reluctance. Merely presenting an opportunity isn't inducement. Using artifice, stratagem, pretense, or deceit isn't inducement. The government can lie to you about nearly everything - who they are, what there offering, what the risks are - and it's not inducement unless it rises to the level of overcoming the will of someone not predisposed.

So you have to prove the government overcame your reluctance through extraordinary tactics. Then the government proves you were predisposed anyway using evidence from years before the sting. The defense is designed to fail. Judges know it. Defense attorneys know it. Prosecutors know it. But defendants don't know it until its too late.

Why Raising Entrapment Can Make Your Sentence Worse

Heres the strategic trap: to raise entrapment as a defense, you must admit you committed the crime. Entrapment isn't an "I didn't do it" defense. Its an "I did it, but only because the government made me do it" defense. The moment you raise entrapment, you're conceding guilt on the underlying conduct. You're just arguing it shouldn't be punishable because of government overreach.

That means if the jury rejects your entrapment defense - which they will 99% of the time - you've been convicted based partly on your own admission. You can't then appeal and argue "I didn't do it" or "the evidence was insufficient" because you already admitted you did it. The entrapment defense waives your right to challenge whether the government proved the crime beyond a reasonable doubt. You've stipulated to the facts. You're just arguing about whether those facts constitute a crime given government involvement.

Raising entrapment also means you cant resolve the case with a plea bargain while preserving the entrapment issue. You can't plea guilty and then argue on appeal that you were entrapped. If you want to raise entrapment, you have to go to trial. That means rejecting any plea offer the government extends, proceeding to trial, and facing the consequences if you lose.

And those consequences are significant. Federal sentencing guidelines provide for a "trial penalty" - though its not officially called that, defendants who go to trial and lose receive longer sentences than defendants who plead guilty, because pleading guilty earns a reduction for "acceptance of responsibility." By going to trial on an entrapment defense, your waiving that reduction. If you lose - which you probably will, given the <1% success rate - you'll face a sentence that's 20-30% higher than if you'd pled guilty.

So the calculation becomes: plead guilty to a crime the government manufactured, or go to trial on an entrapment defense that succeeds less than 1% of the time, admit guilt in the process, and face a longer sentence when you lose. Neither option is good. But the second option is objectively worse for 99% of defendants.

This is why defense attorneys rated entrapment as arising in only 0.08% of cases. Not because sting operations are rare - there the basis for hundreds of federal prosecutions annually. But because the strategic cost of raising entrapment is so high that most defendants cant afford to pursue it. You're trading a long-shot defense (less than 1% success) for certain enhanced punishment when it fails. The mathematics don't work.

And prosecutors know this. They know that even when government conduct is outrageous, even when judges criticize the operation, even when the sting targeted someone mentally ill or financially desperate, defendants will plead guilty rather than risk trial on an entrapment defense. The <1% success rate isn't a bug in the system. Its a feature. It ensures sting operations produce convictions regardless of how manufactured the crime was.

The Confidential Informant Loophole

Heres something defendants don't discover until its too late: confidential informants are permitted to use more aggressive tactics than sworn federal agents. DOJ internal guidelines explicitly allow CIs to engage in "more persuasive tactics" that would be problematic if used by actual agents. This creates a loophole were the more aggressive and problematic the government's conduct was, the harder your entrapment defense becomes - because the conduct was carried out by a CI who had more latitude.

The informants in these stings aren't undercover agents. There civilians - often criminals themselves - who are paid by the government to develop cases. In the Newburgh Four case, the informant earned nearly $100,000. In the Liberty City Seven case, an informant recieved $85,000 plus "performance incentives" for a successful conviction. These informants have financial motivation to secure convictions. They get paid more for better results. And there permitted to use tactics agents cant use.

Repeated contact after you've refused? Permitted for CIs. Appeals to financial desperation? Permitted. Offering large sums of money to overcome reluctance? Permitted. Developing personal relationships and using friendship to pressure you? Permitted. The same conduct that might constitute "inducement" if done by a sworn agent is often deemed acceptable when done by a CI, because CIs are expected to be more aggressive in developing cases.

This means if you were approached by a confidential informant rather than an undercover agent, your entrapment defense is exponentially harder. The CI can engage in more pressure, more persuasion, more appeals to desperation - and courts will find that conduct permissible. You might think the government's tactics were outrageous, but if those tactics were carried out by a paid informant rather than an agent, the legal standard for "inducement" is higher.

And you won't know the person approaching you is a CI. They'll present as a criminal associate, a friend of a friend, someone in your community. The FBI and ATF specifically select informants who can blend into target communities - mosques for terrorism stings, poor Black and Hispanic neighborhoods for drug stings. The informant will seem like someone you know, someone you can trust. That's the point. By the time you discover they were a paid government asset, your already arrested.

The Newburgh Four informant went to the same mosque as the defendants. The ATF stash house informants approached people in there own neighborhoods, people they knew were struggling financially. These informants are selected specifically because they have access to the communities being targeted. And there paid enough - often $100,000 or more - to make the work worth the moral compromise.

If your contacted by someone offering criminal opportunities, you need to assume there either law enforcement or working for law enforcement. Real criminals don't approach strangers with detailed plans and offers to provide all the resources. Real criminal opportunities don't come gift-wrapped with someone else handling the planning, the financing, and the equipment. If it seems too easy, if the person is pushing too hard, if there offering resources you didn't ask for, its likely a sting.

If You're Contacted by an Undercover Agent or Informant

The moment someone approaches you with what seems like a criminal opportunity - whether its a drug deal, a robbery plan, a terrorism plot, or any scheme were someone else is providing the plan and resources - you need to understand your in a potential sting operation. Don't engage. Don't agree. Don't discuss possibilities. And absolutely don't accept anything or participate in any planning.

Real criminal enterprises don't work this way. Criminals don't approach random people with detailed plans. They don't offer to provide all the resources and financing. They don't push you when you express reluctance. If someone is doing all of that, there either law enforcement or working for law enforcement. And the moment you agree to participate, the sting is complete.

The entrapment defense wont save you. It succeeds less than 1% of the time. Even if the government's conduct seems outrageous, even if your clearly not the kind of person who would commit this crime without government involvement, even if the person approaching you offered money you desperately needed, prosecutors will prove "predisposition" using your social media posts, your Google searches, your conversations with friends, your prior arrests. Judges will defer to the government. Juries will side with law enforcement. And you'll be convicted of a crime that wouldn't have existed without government creation.

If you've already been contacted, if someone has approached you with an opportunity and your considering it, call an attorney immediately. Do not have another conversation with that person without legal advice. Do not agree to anything. Do not accept money or resources. Every interaction your having is likely being recorded. Every statement your making is building the government's case. The person pushing you toward criminal conduct is probably being paid to do exactly that.

Document everything. Write down when you were approached, what was said, what was offered. Note if you refused or expressed reluctance. Note if the person persisted after you said no. Note if they offered money or resources you didn't request. This documentation might be the only evidence you have that the government manufactured the crime rather than detected it. Though even with that evidence, the entrapment defense probably won't succeed - at least it gives your attorney something to work with.

Spodek Law Group has represented clients contacted by undercover agents and confidential informants in federal investigations ranging from drug conspiracies to terrorism cases. Todd Spodek understands that sting operations create impossible choices - engage and face prosecution for a manufactured crime, or raise an entrapment defense that succeeds less than 1% of the time. We help clients navigate these situations before they become federal cases, advising on how to respond to suspicious contacts, how to document potential sting operations, and when to cease all communication.

If someone is pushing you toward criminal conduct, offering resources you didnt ask for, or presenting opportunities that seem too easy, call 212-300-5196 before you respond. Because the moment you agree, your facing a federal prosecution for a crime the government created. And the entrapment defense - the legal protection that's supposed to exist for exactly this situation - will almost certainly fail when you need it most. The system is designed to manufacture convictions, not to protect unwary innocents. Understand that before you engage with anyone offering criminal opportunities that didn't exist until they created them.