Patrick Cannon faces difficult defense in corruption case

mgordon@charlotteobserver.comApril 26, 2014 

Thirty days after Patrick Cannon’s arrest shook the city, the former mayor’s corruption case has become a public waiting game, with either an indictment or a plea agreement possible in the coming month.

Cannon and his attorney James Ferguson have said little about the case. For now, Ferguson is believed to be sifting through the FBI’s evidence against his client gathered during a three-year undercover operation.

If the case goes to trial, legal experts say, Ferguson likely will argue that his client is the victim of government entrapment. Then he would have to prove it. That, say lawyers and legal scholars, is difficult under any circumstances.

Cannon was arrested March 26, accused of taking $48,000 in cash bribes along with other gifts in return for using his office to help FBI agents posing as real estate investors. If convicted on all charges, he faces up to 50 years in prison and $1.5 million in fines.

To prove entrapment, Ferguson would need to convince a jury that the former mayor was not “predisposed” to accepting illegal payoffs and other inducements. The FBI claims that Cannon took five bribes in little more than a year.

Making Ferguson’s job even more difficult is the care public corruption cases now receive. As an operation targeting an elected official, the Cannon case required approval from top FBI officials in Washington, D.C. It also involved periodic reviews of its progress and the techniques used by its undercover agents.

The FBI’s 42-page affidavit, which it released with news of Cannon’s arrest, appears crafted to meet the major requirements of public corruption cases. Experts say it also reflects FBI training on what undercover agents can say and do to avoid any appearance of entrapment.

To be sure, the affidavit tells merely one side of the case. But that’s the only side the public has heard up to now.

Charlotte attorney Jim Cooney says the affidavit leaves Cannon and Ferguson some room to maneuver: Cannon made promises, but he did very little in return for the money.

“The law requires a quid pro quo,” Cooney said.

Ferguson declined to answer questions from the Observer for this story. Among them: Was his client entrapped? Has he begun negotiating a plea agreement with prosecutors? Ferguson said Friday he could not respond “at this time.”

He did tell the Observer earlier in the week that he doesn’t expect movement until May, when a federal grand jury could take up Cannon’s case.

Difficult defense

Entrapment generally involves claims that otherwise law-abiding citizens were coerced or persuaded by government agents to commit crimes they normally wouldn’t commit.

Juries don’t like it if “they feel the government is creating a criminal act,” said James Wyatt, a prominent Charlotte criminal defense attorney. In the Cannon case, he says, any claims of entrapment are countered by the FBI’s affidavit, which portrays Cannon as a willing participant in a series of crimes.

Duke law professor James Coleman, a Charlotte native who heads the school’s Wrongful Conviction Clinic, says outright that the Cannon case “doesn’t sound like entrapment to me.”

While a lawyer in Washington, D.C., Coleman gave legal help to then-Mayor Marion Berry, who initially claimed government entrapment after being videotaped snorting crack cocaine in a hotel room. Coleman doesn’t believe Berry was unlawfully coerced.

“When the word gets on the street that these guys are likely crooked, that’s when the cops set them up. They can smell it,” said Coleman, who is African American. “There used to be this belief that black mayors were targeted. But I don’t think the cops go after people who they don’t think are inclined to go into dirty stuff.”

In the FBI affidavit, for example, Special Agent Eric Davis said Cannon became a target after a local law enforcement officer passed along a tip that Cannon might be involved in criminal activity. The FBI says it found evidence in 2011 supporting the allegation.

More potential evidence of “predisposition” appears in the affidavit when Davis writes about a Jan. 17, 2013, meeting between Cannon and an undercover agent. Cannon “alluded to a prior instance wherein he assisted and intervened in a major project – using his official position – on behalf of a prominent businessman.”

The resulting FBI investigation “corroborates Cannon’s assertion ... and reaffirms the predication for the instant investigation,” Davis said in the affidavit.

That investigation remains open. Both the city of Charlotte and Mecklenburg County government have been served with sweeping subpoenas connected to the probe.

FBI oversight

The success rate of entrapment as a defense is not high, says Richard Myers, a former federal prosecutor and now associate dean of the UNC School of Law.

“Many more people claim entrapment than were entrapped, partly because people don’t know what it means,” he said. “Offering temptation to someone who is open to being tempted is not entrapment.”

The government’s role in undercover corruption cases recently played before a worldwide audience. The film “American Hustle” presents Hollywood’s version of the notorious “Abscam” scandal of the late 1970s.

It led to bribery convictions against seven members of Congress along with other officials. But Abscam also was criticized for the FBI’s tactics. In response, federal rules regulating undercover stings of elected officials became far more strict.

Chris Swecker, a Charlotte consultant and attorney, signed off on dozens of public corruption stings as head of the FBI’s criminal division. He says investigations such as Cannon’s receive top-level oversight.

Agents must get prior approval from an FBI review committee and the agency’s director or his designate, according to the U.S. Attorneys Manual. The agents’ strategy and behavior are critiqued, then regularly reviewed after the operation is underway. For instance, any bribes involved can’t be so big that resistance is unlikely.

Swecker says agents must prove the criminal “predisposition” of their target before their investigation can start.

With a public figure involved, he says, that standard “takes a good deal of corroboration. It just can’t be ‘Someone said it.’ 

To prove a bribe, prosecutors often must present a direct link between a payoff and a specific promise or action by the official who took the money.

In his affidavit, the FBI’s Davis describes a “quid pro quo” relationship between Cannon and the undercover agents.

Throughout, Cannon is portrayed as making multiple promises to intercede with zoning, planning or liquor license applications for the agents’ fictitious projects.

Last summer, the FBI says Cannon and his wife received a free trip to Las Vegas, a hotel room and $6,000 in cash after Cannon agreed to use his official position to recruit a group of foreign investors. Back in Charlotte, he received another $10,000 after one of those investors signed on, the affidavit says.

The circumstances of Cannon’s first payment remain somewhat ambiguous. In December 2012, Cannon asked an undercover agent for what he described as “an investment” in his new business. Cannon wanted $40,000, according to the affidavit. The agent offered $12,500, making it clear to Cannon what he expected in return.

“Make sure I don’t run into any problems (with the nightclub),” he said.

“I’ll definitely help you out,” Cannon responded.

The money changed hands that January, the affidavit says. The next day Cannon expressed misgivings about how the payment might appear and raised the possibility of giving the money back. He never did, the affidavit says.

If that were the only example of an alleged bribe, Cannon’s potential claims of entrapment might find traction with a jury, experts say. But according to the affidavit, Cannon took four more payments over the next 12 months, including $20,000 delivered to him at the mayor’s office two months ago. During that meeting, according the the affidavit, Cannon solicited $1.25 million more.

According to former prosecutor Myers, proving a pattern of criminal activity helps clear up any jury confusion over the motives behind a payment.

“You might say there are multiple ways for a jury to give a defendant a benefit of the doubt,” he said. “Eventually you reach a pattern of practice where you remove all doubt.”

Cooney, though, says the defense may be able to keep questions in the jury’s mind.

“I think that you say that (Cannon) was just talking big, that he was never asked to actually do anything for the money, and that as a part-time mayor he is entitled also to have business interests,” Cooney said.

“The law requires a ‘quid pro quo,’ and while the government contends there was an understanding, there was no act.”

Gordon: 704-358-5095

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