Leland Yee, Shrimp Boy, and Entrapment

Many San Franciscans have been following, with some measure of titillation, the brewing prosecution against Senator Leland Yee, his political consultant Keith Jackson, and dozens of other defendants, including the elusive Shrimp Boy. I've been providing occasional TV coverage, so I know a bit about the case, which is why I wasn't surprised to see this in the San Jose Mercury News:

Jackson's lawyers argue that the agent's misconduct must be fully disclosed because it may be central to efforts to discredit the government's sprawling investigation.

The agent's financial misconduct is unclear, but court papers say he was key to ensnaring Jackson and later Yee in an investigation that began as a probe into reputed Asian organized crime figure Raymond "Shrimp Boy" Chow.

The agent, court papers say, paid Jackson $37,000 in consulting fees over 16 months as part of the undercover operation, arranged $20,000 in donations to an identified political figure, explored setting up a $200,000 fundraiser for a "senior federal elected official" and set up a meeting with a "prominent former professional athlete" to discuss a hotel project. Lawyers in the case say the probe crossed paths with former San Francisco 49ers quarterback Joe Montana, who has backed a proposed hotel and retail project near Levi's Stadium but has never been linked to any wrongdoing.

Among other legal arguments, Jackson's lawyers say the government failed to disclose that one of its lead agents was being investigated by his bosses when they sought approval from federal judges for wiretaps against Yee, Jackson and other targets. James Brosnahan, Jackson's attorney, has asked U.S. District Judge Charles Breyer to order the government to turn over internal documents detailing why the agent was reprimanded by the FBI.

When I heard the defendants pled not guilty, I immediately thought that they would try and argue entrapment. The case is wholly based on a wire recording of conversations between the agent, who purported to be a businessman, Yee, and Jackson, whom he contacted to ask for favors in exchange for campaign donations (Yee was running for Secretary of State). The recordings are fairly elaborate and damning, but they are, of course, selective; to consider entrapment seriously, other conversations would have had to take place, during which the agent put pressure on Yee and Jackson to do business with him.

A bit of lay information about entrapment: it is a criminal defense, and the defendant needs to prove that, but for the intervention of government agents, s/he would not have been predisposed to commit the crime. Different courts emphasize different aspects of the defense - the predisposition of the defendant versus the egregiousness of police behavior. It gets brought up in the context of drugs, mostly, but there have been cases in which government agents, anxious to uncover a child porn ring, pushed people to buy materials in which they would have had no interest but for the repeated pressure.

A couple of weeks ago, the court approved extensive discovery about the agent to the defense, but there was a ruling prohibiting the defense to share the information with the media. This is a problem for the defense, because one of the best ways to prove entrapment is to probe into the history of the agent/informant and figure out whether he has a history of entrapment or "strong persuasion" to commit crime. I have only to assume that the information leaked out in a different way. Let's keep following this trial, because it's a great window into the workings of an anticorruption undercover investigation.