July 08–A bus pass and a cell phone.
Demetrius Pitts received both from a man he believed was an al-Qaeda operative less than two weeks ago. He then boarded a bus destined for downtown Cleveland and once there, court records allege, he used the phone to photograph and film landmarks.
He also filmed himself, face covered, expressing his desire to bomb the landmarks as part of an attack intended to terrorize Cleveland during the city’s Fourth of July parade.
WATCH: Man arrested after planning attack in Cleveland
But the man who gave the bus pass and cell phone to Pitts, 48, turned out to be not an al-Qaeda loyalist, but rather an undercover FBI agent.
Now Pitts is in custody awaiting trial on federal terrorism charges, with his case the latest example of investigators using either undercover agents or confidential informants to prosecute terrorism-related cases in the Toledo area and beyond.
The use of confidential informants and undercover agents and officers is an old investigative technique.
With it, government agents can provide opportunities for suspects to commit crimes. They can make committing crimes easier. They can even participate in crimes and then prosecute those responsible, experts said.
It’s also a tool that local attorneys have seen expanded since 9/11, particularly in terrorism cases. That expansion is at least partly because the practice is so effective, said Dave Klucas, a defense attorney in Toledo.
“If [suspects] are careful, conventional investigation may not get it done,” Mr. Klucas said.
But activists and civil rights groups have raised questions about these investigative techniques, including the role they played in one of the Toledo-area’s highest profile terrorism cases.
In 2006, three men in the Toledo area –Mohammad Zaki Amawi, Marwan Othman El-Hindi, and Wassim I. Mazloum — were arrested and charged with conspiring to kill or injure U.S. troops in Iraq and other countries.
An informant named Darren Griffin during their trials testified that he weaved his way into the Muslim community representing himself as a recent convert and radical, a job for which he said he was paid $56,000 a year by the FBI. The 25 days of testimony and evidence presented to the jury in the case included audio and video recordings made by Mr. Griffin over the course of two years.
Amawi, El-Hindi, and Mazloum were sentenced to lengthy prison terms, but during the trial they and their attorneys argued the three men got caught in a plot orchestrated by what they described as an overzealous informant who milked the government for money.
Charles Boss, a defense attorney based in Maumee who represented El-Hindi, at the time described the government’s use of Mr. Griffin as casting a line to see if anyone would bite.
When interviewed by The Blade this week, he echoed a similar sentiment.
“I just find it distasteful for the government to encourage someone to commit a crime,” he said.
He also questioned whether the government’s use of informants and undercover agents — if not kept in check — could do more to create crime than prevent it.
“There’s a fine line between gathering information and throwing fuel on the fire,” he said.
Proponents, however, argue the use of informants and undercover agents is monitored under rigorous standards set by the U.S. Department of Justice.
Officials don’t use informants and undercover agents as a fishing expedition, said Barbara McQuade, professor from practice at the University of Michigan Law School and former U.S. attorney for the Eastern District of Michigan. They’re not trying to trick people, but are working to thwart crime.
“This is not something the FBI takes lightly,” she said.
According to jury instructions for the U.S. Sixth Circuit Court, entrapment — the act of coercing an individual into a crime in order to secure prosecution — is defined by two components, both of which must be present: first, that the defendant was not already willing to commit a crime and second, that the government, or someone acting for the government, induced or persuaded the defendant to commit a crime.
Justin Herdman, U.S. attorney for the Northern District of Ohio, said his office is sensitive to the possibility of entrapment. Avoiding it — and even the appearance of it — is something agents are mindful of during investigations.
But while it is technically an option for attorneys in trial, Mr. Klucas said entrapment is almost never successfully used as a legal defense because its definition is so narrow. If the suspect showed any independent disposition toward committing the crime, entrapment is nearly impossible to argue in court, Mr. Klucas said.
Typically, undercover agents who provide money or weapons to suspects only do so after initial conversations with the suspect where the suspect indicates a willingness or desire to obtain these materials, Ms. McQuade said. And often, agents will give the suspect an opportunity to back out, by saying something like, “you don’t have to do this.”
There was at least one such moment, according to FBI records, between Pitts and the undercover agent in Cleveland, when the agent asked Pitts if he was “in or out.” Pitts responded, “I’m in, okay I already said my life is for Allah.”
Mr. Herdman said undercover agents or informants need to establish credibility with suspects in such investigations. Providing money, weapons, or in the Pitts case, a bus pass, can aid investigators toward that end.
Listening to the suspect talk and gathering information is also a crucial component of being undercover, Mr. Herdman said, but it can’t be the only component. Especially if a suspect is supposed to believe the undercover agent is an active member of a terrorist organization, like al Qaeda.
“They can’t just sit there like a potted plant and listen to the person,” he said.
In addition to giving Pitts a cell phone and bus pass, the undercover agent in that case also led Pitts to believe he was connected to a network of “brothers,” one of whom would be building a bomb.
In another recent case, an undercover FBI agent played a role in securing a criminal conviction against an Indian citizen with ties to Toledo. But in a bizarre twist, the agent entered the picture after former Toledo resident Yahya Farooq Mohammad already faced federal terrorism charges.
Mohammad, who was indicted with three other men for providing financial support to American-born terrorist Anwar al-Awlaki in 2009, was in Lucas County’s jail awaiting trial when he told a fellow inmate he would pay $15,000 to have U.S. District Court Judge Jack Zouhary killed. That inmate, in turn, connected him with an undercover FBI agent, who asked for a $1,000 down payment to do the job.
Mohammad eventually pleaded guilty in federal court in 2017 to trying to orchestrate the hit and terrorism related charges. He was sentenced to spend more than 27 years in prison, and ordered removed from the country after his prison term ended.
Al-Awlaki was killed by a U.S. drone strike in Yemen in 2011.
Like in the 2006 case of Amawi, El-Hindi, and Mazloum, a confidential informant helped the government secure convictions in 2011 and 2012 against a West Toledo man and wife who attempted to send money to Hezbollah, the Lebanese group the U.S. government lists as a terrorist organization and blames for numerous attacks on Israel.
The couple spoke to an FBI informant about a plan to send tens of thousands of dollars concealed in a sports utility vehicle to Hezbollah agents overseas.
Pitts is next expected to appear in federal court in Cleveland on July 9.
His Cleveland-based attorney, Charles Fleming, could not be reached for comment.
This article provided by NewsEdge.