THE “SOFT ENTRAPMENT” ARGUMENT
It is hard enough to satisfy most federal courts that your facts will warrant an entrapment instruction, but it is usually even more difficult to get a jury to believe that the government made your client engage in conduct that most jurors want their fellow jurors to think they find abhorrent. In defending fellow lawyer “Buck” Wood in the “Brilab” case I argued that the recorded language used by FBI agents in their “sting” operation, aimed at the speaker of the Texas House of Representatives, were such as to make a knowledgeable attorney like my client (both FBI agents were forced to admit they had failed their respective states’ bar exams) believe they were trying to make a “political contribution,” rather than pay an illegal bribe.
These folks from California, Mr. Wacks and Mr. Hauser, never even bothered to read the bribery statute. The statute that’s the foundation for many of these charges. They never even bothered to read that statute.
“Yet every single time they speak to my clients, every time they utter the term that has anything to do with the moving force in this whole transaction, what words do they use? The magic word from that statute, “political contribution.” Political contribution. Perhaps they were about as careful in reading the law in this case as they were in reading the law for the bar exams.
But there was one person – there was one person who read that statute. Agent Ligarde from Austin, Texas. Had those folks been as careful as he was – too bad he came very late in the proceeding – had they been as careful as he was, they would have understood that by definition a political contribution that is made and reported in accordance with law cannot be bribery by definition in Texas.
The court will instruct you that political contributions made and reported in accordance with law are not bribes under Texas law. Every time they spoke to my clients about this, they called it a political contribution. Every time they asked my clients a question with regard to it, he responded, ‘he will report. The speak will report it.’ A reasonable assumption based upon that magic word ‘political contribution’ that he will report it.
The Court will instruct you, I believe, that if you were convinced that someone had no previous intent to violate the law but they were induced into a course of conduct that the Government claims is illegal but which they reasonably believe that was legal, that under that kind of situation where the Government claims the conduct was illegal and the defendant claims that his activity was lawful, that public policy forbids a conviction. It’s entrapment.
Agent Ligarde did read the statute after his interview. He said he felt it was his duty to read the statute. Agent Ligarde asked my client some questions. But he never asked my client a specific question as to whether or not my client knew of a political contribution.
When I talked to Agent Ligarde after that, in the following question, I asked him if he had ever asked Buck Wood and if Buck Wood knew about a political contribution, and if that’s the only word that those individuals ever used with my client. That is, a political contribution, that might be an important distinction. That if every time the people talked to my clients they used the word political contribution, it might have been an important distinction to have asked him about it. And Agent Ligarde said in response to that question, ‘you’re correct.’
Lastly, I discussed with Agent Ligarde what the significance of that was. Agent Ligarde acknowledged what the significance of that was. Agent Ligarde acknowledged that there was a big difference if my client had said that it was a political contribution that he believed would be reported. And if the agent had used political contribution on each occasion when they talked to my client, that would make a big difference. Why? Because under the penal code that would make the difference. That word that they used, that word of art, makes a significant difference.
The prosecution brought in their own expert. Remember Chip Holt? It’s a shame they didn’t talk to Chip Holt before they put him on the witness stand. We might not be here today. What Chip Holt told the Government was – and I think it very clear even with respect to Buck Wood, who held a job very similar to Chip Holt’s in the Secretary of State’s Office, was that in response to Mr. Woods’ question a donor, which would have been L.G. or Mr. Hauser or the union or fidelity financial. You couldn’t tell from the manner in which they spoke of it. The donor has no obligation to report it. More important, Buck Wood, who is the advisor to the donor, a third party, has no obligation to see that it is reported any more than a donor would have. And most important, that if the third party believed it was a political contribution, was told it was a political contribution, said it would be reported in accordance with the law, he has no obligation to report it. He has no obligation to see that it is reported. And anyone, and that would be in accordance with law, he would be complying with the law, he wouldn’t be violating the law. And someone in Buck Wood’s position, who had held the position he had, would be aware of that.
From Buck Wood’s position, from his eyes, looking through his eyes, they had made it look like a political contribution. That’s what they called it. That’s what they told him it would be. That’s the word they used every time they uttered anything even close to those circumstances.”