Lawyers say cases are unique and are looking into the possibility of an entrapment defense.
The five men met at a South Austin hotel last month with someone they thought was a disgruntled member of a local drug-trafficking organization.
They brought pistols, rifles, gloves, duct tape, zip ties , bulletproof vests and extra boxes of ammunition for what they thought would be a robbery that would net them as much as 30 kilograms (about 66 pounds) of cocaine from a local drug stash house, according to a federal court affidavit.
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But the person who set up the robbery was an undercover agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the men accused of being prepared to carry it out were arrested.
The Aug. 18 bust was the second in about a month made by the ATF in Austin under similar circumstances, according to arrest affidavits: An undercover agent tells a suspect that he knows of a drug stash house and asks the suspect if he wants to rob it. That suspect recruits others, and when they are about to carry out the robbery, they are all arrested.
Each of the 13 men charged in the two cases were arrested on charges of possession of a firearm in furtherance of a drug-trafficking crime. Some of them are also charged with conspiracy to possess cocaine.
Defense lawyers say this is the first time they have seen such stings in the Austin area, and they are looking closely at the role of confidential informants in each case and the possibility of an entrapment defense. Entrapment is a legal defense in which a person accused of a crime argues that he or she had no prior intent to violate the law but was induced or persuaded to do so by law enforcement officers or their agents.
"It just smells funny," said defense lawyer Russ Hunt Jr., who is representing James Maes, 39, who has been charged in the more recent case. "There is no dope dealer. There is no dope.
"It seems kind of unfair, but the fact is that everybody showed up to do some kind of crime," Hunt said.
Federal magistrate judges have allowed the charges to go forward and ordered all the defendants to be held without bail.
Prosecutor Mark Lane declined to comment, and Michael Reyes, resident agent in charge of the Austin ATF field office, would only say, "In general terms, we are always looking for ways to approach gun-related crime."
Opportunity to opt out
The first case targeted Gustavo Reyes, 47, of Austin, according to an arrest affidavit. In May, authorities received information that Reyes and his associates were involved in crimes including armed robbery, the affidavit said.
An undercover ATF agent met with Reyes on May 27 and told Reyes that he regularly picks up 10 kilograms of cocaine from a drug stash house, the affidavit said.
The undercover agent told Reyes he heard that Reyes robbed drug houses and asked if he was interested in robbing the stash house where the undercover agent usually picks up the cocaine, the affidavit said.
"Reyes stated that he had done these types of robberies before and that it was not a problem for him and his associates," the affidavit said.
The agent told Reyes that he would be in the stash house during the robbery and said that Reyes would have to make it look like the agent had nothing to do with the robbery, the affidavit said. Reyes said "he would tie everyone up in the house with duct tape," the affidavit said.
They agreed to split the proceeds of the robbery, and on July 8, Reyes and the undercover agent met again, the affidavit said. Four other men were at that meeting, and they all said that they would bring their own guns and that they had done this kind of robbery before, the affidavit said.
On July 21, according to lawyers in the case, Reyes and a group of his associates gathered at a Holiday Inn near Highland Mall and then drove to a an industrial park on Burnet Road near U.S. 183.
The men agreed they would split the proceeds, and the ATF agent gave them the opportunity to withdraw from the robbery, but they declined, the affidavit said.
The men were arrested, and authorities seized from them four pistols, an SKS semi-automatic rifle, a homemade silencer, gloves, a ski mask and duct tape, the affidavit said.
Inducement by informant?
Defense lawyer Stephen Toland, who is representing defendant Rafael Nieto Jaimes, 30, of Elgin, said Jaimes thought he would be repossessing cars for a used-car lot.
Toland said Jaimes was recruited by a confidential informant who was not mentioned in the affidavit. Toland said the informant was intricately involved in setting up the case and at one point gave Jaimes and the others ID cards that showed they were his employees.
Toland also said Facebook updates posted by the informant, whom he did not identify, appear to show that he profited from his cooperation. One update near the time of the arrests said, "Crime is up. Crime pays," Toland said.
Assistant Federal Public Defender Jose Gonzalez-Falla, who is representing defendants in both cases, including Reyes, said that the work of the informant will be scrutinized to determine whether he committed entrapment.
"If we can show that the confidential informant entrapped my client," Gonzalez-Falla said, "that's as good as if the government agent did it."
Real guns, fictitious drugs
The second investigation targeted Luis Chapa, 38, who a confidential informant told authorities was interested in robbing a drug stash house, a probable-cause affidavit in that case said.
An undercover ATF agent met with Chapa on Aug. 1 and told him that he was a courier for a family-run drug trafficking organization, adding that he took an ice chest containing 10 kilograms of cocaine to Chicago once a month for that family, the affidavit said.
The agent told Chapa that there were other ice chests at the house when he made his pickups and that he wanted to steal the cocaine because he was no longer being paid, the affidavit said.
Chapa told the agent he had robbed drug dealers before and he would do it for at least half of the cocaine, the affidavit said.
At a meeting with the undercover agent Aug. 9, at which Chapa brought two additional suspects with him, it was determined that Chapa and his associates would tie the agent up to make it look as though he had not set up the robbery, the affidavit said.
On Aug. 18, Hunt said, Chapa and four suspects met with the agent at the La Quinta Inn on Oltorf Street and Interstate 35 before the group went to a storage facility on Burnet Road, where the men were arrested.
The four guns that were seized were fully loaded, the affidavit said
The men arrested in the first bust are from the Austin area; the men arrested in the more recent busts are all from either San Antonio or Benavides, in South Texas.
Among them is James Matthew Thomas, 38, who is being represented by defense lawyer Dan Dworin, who said he would look closely at what his client agreed to do.
"I haven't seen a case quite like this before," Dworin said.
By Steven Kreytak
Sept. 4, 2010
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Undercover operation nets men accused of agreeing to rob drug houses