Robert P. Johnson thought he had a shot at being best man at the wedding of his friend and workout buddy, Christopher J. Billings.
Instead, he was indicted federally three weeks before the wedding for conspiring to sell cocaine, based on the account of a confidential informant.
When prosecutors provided a glimpse of the evidence against him -- text messages replete with inside jokes -- Johnson knew who his accuser was: Billings. The bride, Johnson learned later, was an ex-girlfriend of the Drug Enforcement Administration boss who initially supervised the investigation.
“I guess at the time [Billings] was my best friend,” said Johnson last month, four years after he was found not guilty. “I didn’t understand how someone who I was friends with could do this to me.”
Most of the area’s federal drug cases rest, in part, on the accounts of confidential informants who help law enforcement in return for leniency or money, or occasionally out of altruism. Many probes start with an informant and then proceed to surveillance, wiretaps and searches.
Sometimes informants’ backgrounds, credibility and connections don’t fit comfortably within guidelines set in Washington. The Post-Gazette has uncovered instances in which informants used to build federal cases were convicted murderers, liars or double agents working with both law enforcement and the targets. One informant with a violent past, used in a DEA case that ended in acquittal, wasn’t put through the federal review process.
The results have included the indictment and incarceration of people whose lives were turned upside-down prior to their exonerations. Only nine people have been fully acquitted in federal court cases brought in Pittsburgh since 2009, but four of those not guilty verdicts involved shaky informants. Two of those exonerated defendants first spent years behind bars.
U.S. Attorney David Hickton, whose office has prosecuted about 3,000 people since 2009, said cooperators, including informants, “are essential to obtaining convictions in nearly all significant cases.”
He declined to discuss specific cases but added that “the naked information supplied by a cooperator forms only a part of the evidence which we obtained through many means, through hundreds or sometimes thousands of hours of very hard investigative work.”
Judge Stephen S. Trott, of the 9th U.S. Circuit Court of Appeals, an authority on informants since he served as associate attorney general in the 1980s, said they are necessary but shouldn’t be the centerpieces of a prosecution.
“These informants are very good at fooling the [prosecutors] and everybody else,” Judge Trott said. “They’re basically sociopaths. … There are too many cases when informants blow up in people’s faces because they don’t know how to use them.”
The Case of the Confidential Informant
To tell the truth
An informant system combining criminality, human frailty and strict secrecy has come under fire following two cases closed in Massachusetts last year.
Mobster James “Whitey” Bulger, 85, was sentenced to two life sentences for involvement in 11 murders and other crimes, some committed while he was an FBI informant. Mob boss Mark Rossetti, 55, was sentenced to 12 years on charges including crimes of violence committed while he was reporting to the FBI.
“Right now you’ve got law enforcement making all of these decisions. No one is looking over their shoulder,” said U.S. Rep. Stephen Lynch, a Boston Democrat who has proposed congressional oversight of federal use of informants. The public only sees “when a case blows up.”
The Post-Gazette reviewed 1,329 affidavits -- sworn statements written by law enforcement professionals and filed in U.S. District Court in Pittsburgh from 2009 through 2014. Most of the affidavits were submitted in pursuit of judges’ approval of warrants to search or seize property, get data on the use or location of a phone, place a tracking device on a vehicle or in a package, or to support a criminal complaint.
The Post-Gazette identified 384 cases, many with multiple defendants, that stemmed from the affidavits. Of those cases, 148 were built in part on the work of confidential informants. Nearly two-thirds of the cases investigated by the Drug Enforcement Administration involved informants.
The informants’ identities typically aren’t revealed to judges or the defense. Their names emerge only in those rare instances in which the defendant goes to trial and the secret source must be called as a witness. Even then, background on the informant is often kept under wraps until days before he or she testifies.
The affidavits reveal an informant mill in which suspects became informants and helped agents to bust others, who then in turn became informants aimed at other targets.
In late 2008, the DEA approached Liam S. Doherty, now 35, a mortgage broker then living in Penn Hills, and asked him if he was selling cocaine. Mr. Doherty handed over about two ounces of cocaine and two bottles of pills, according to his testimony at Johnson’s trial. He named Billings as his cocaine source.
Mr. Doherty told agents that he owed Billings money for cocaine he’d received earlier. Over two months, the DEA gave Mr. Doherty $18,400 in government funds, which he paid to Billings to cover the debts and buy cocaine, as much as nine ounces at a time.
Why use government funds to pay a drug debt?
The informant’s debt to his drug source creates an opportunity to start a case, said Steve Kaufman, chief of the Criminal Division of Mr. Hickton’s office. ”It’s not like at that point [the informant is] just going to pay off the debt and walk away.”
In March 2009, agents searched Billings’ house, and found steroids and creatine, an amino acid ingested by bodybuilders and sometimes used to dilute cocaine.
Billings wouldn’t name his cocaine source until his fiancee, Leanne Balistrieri, showed up.
“Well, I, I, I took her in the room, Leanne Balistrieri, ‘What should I do?’” Billings testified. He said he knew she’d dated a DEA man but didn’t know if he was involved in the bust.
“She asked me and it was, like I said, I like whispered, ‘Bob.’ And she kind of screams, ‘Who?’” At that point, Billings testified, he said to her: “Bobby Johnson.”
“It was pretty much right there when I decided to cooperate.”
Ms. Balistrieri, who did not testify and has divorced Billings, said in September that she told him only: “You have to tell the truth.”
Consider the source
“You must provide truthful information to the [investigating agency] at all times.” That’s the first thing an agent is supposed to tell a newly recruited secret source, according to the Department of Justice Guidelines Regarding the Use of Confidential Informants, issued in 2001.
The guidelines are nearly 10,000 words of Department of Justice recommendations to its internal investigators, plus agents of the DEA and U.S. Marshals Service. The FBI has its own guidelines, released in 2006.
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“One of the things that [the department’s] rules and guidelines attempt to preserve, and attempt to ensure, is the reliability of the informant and their suitability as a witness,” said Alexandra Natapoff, a professor at Loyola Law School in Los Angeles who researches informant policy.
The 2001 guidelines tell agents to review a prospective informant’s criminal history and substance abuse, and whether the person is “reasonably believed to pose a danger to the public.” The FBI’s guidelines also call for a review of criminal history. Nothing in that history, though, bars the person from becoming a registered informant.
To build a case against 14 people accused of selling heroin and methamphetamine -- and possessing guns while doing it -- in Allegheny County’s western suburbs, the FBI used informants with backgrounds including violence and dishonesty.
Informants in the case against the crew allegedly led by Neil Thomas, 30, of North Fayette, made drug buys that led to a wiretap and searches. Thomas has pleaded not guilty.
One of the three informants “has prior felony convictions for drug crimes, criminal homicide, retail theft, and false reports to law enforcement, among other crimes,” according to an FBI agent’s affidavit. Another had prior theft, drug and resisting arrest convictions, was charged but not convicted of forgery theft by deception and false identification to law enforcement, and was cooperating for “judicial consideration” on new theft, marijuana and gun charges.
U.S. Rep. Lynch said he can understand law enforcement using, as an informant, someone with an assault conviction. “But certainly homicide is probably a non-starter, right? We can probably agree on that.”
Though federal prosecutors said it’s rare to use someone with a homicide conviction as an informant, they argued against a blanket ban.
“There might be a person who has a homicide conviction for shooting someone and there might be a person who has a homicide conviction for vehicular homicide,” said Mr. Hickton. Either way, he said, “The person by law has paid their debt to society by serving their sentence.” Though that person may face “tough questions” if called to testify at trial, law enforcement shouldn’t automatically reject their help, he said.
“The question is not what the guy’s background is,” said Judge Trott, “but can [the information] be corroborated.”
Often an informant’s work is corroborated through other investigative tools. It’s not always easy.
In their takedown of the Manchester OGs street gang, blamed for heroin dealing and dozens of North Side shootings, the FBI used an informant who had to be reined in. Through a wiretap, agents learned that while the informant was working with them, he or she was making unauthorized calls to the leader of the gang. The source, according to the affidavit, “was admonished to refrain from engaging in any criminal activity and was once again advised that his cooperation must be truthful.”
All 19 defendants were convicted. Two were sentenced to two decades in prison.
Nail in the coffin
In Billings, 38, of Lawrenceville, the DEA had an informant with prior guilty pleas to drug delivery, drug possession, receiving stolen property, recklessly endangering another person, use or possession of drug paraphernalia, fleeing or eluding police and damaging an unattended vehicle. At Johnson’s trial, Billings said he dealt heroin in the past.
By comparison, Johnson, 34, of Shaler, had two run-ins with the law, for fights in 2001 that led to guilty pleas to aggravated assault and simple assault.
“I don’t do no drugs, whatsoever,” said Johnson. He said that during periods when Billings was also avoiding drugs, the two “went camping. He went to all of my softball games with me. We were going to the gym. … I helped him remove a tree stump from his front yard.”
DEA surveillance led the agents to believe that Billings was meeting with Johnson, perhaps exchanging money, and that the two friends met, separately, with two other people suspected of selling drugs. After Billings accused Johnson of supplying him, the agents asked him to set up a drug buy that they would monitor.
Billings tried but failed. “Because I could never meet up with him,” Billings testified. “And it got out that I was arrested” following the search of his home.
DEA agents then surrounded Johnson in a parking lot and hustled him into a van, he recounted. “They said, you know, you’re getting indicted for 500 grams” of cocaine, he said.
They did not indicate -- then or later -- that they found any drugs, according to Johnson. At trial, his attorney, Lee Rothman, noted that only the witnesses, and not the defendant, were caught with drugs.
Johnson said the agents told him they had a tracking device on one of his vehicles, and quizzed him on his travels. They asked him if he had ties to Robert Korbe, now 45, who was, at the time, one of federal law enforcement’s main targets.
Korbe had pleaded not guilty to conspiring to sell cocaine. His wife, Christina Korbe, 45, was charged in the 2008 killing of FBI agent Samuel Hicks. Both later pleaded guilty and are imprisoned.
Johnson said he told the agents that Robert Korbe was his neighborhood nemesis. “Me and him fought 100 times, man,” Johnson said.
Court filings based on a DEA agent’s recollection suggest that Johnson was testy, saying, "I can't cooperate, I don't do that," and finally. "I'll just do the time … Just another nail in the coffin."
Although federal prosecutors interpreted that as a refusal to cooperate, and sought to use that as evidence, Johnson said he refused to provide information because he wasn’t involved in the drug business.
“They wanted him to become the next [confidential informant,]” said Mr. Rothman. “That was their complete motivation.”
The agents let Johnson leave. A federal grand jury later indicted him. He then made the decision -- unusual in the federal system -- to go to trial.
From 2009 through 2013, 19 out of every 20 federal court defendants in Western Pennsylvania pleaded guilty. Only 4.5 percent of criminal cases went to completed trials, and 0.6 percent of defendants were found not guilty.
“People who are in the crosshairs on federal cases usually face a lot of time and don’t have a lot of options,” said Marketa Sims, an assistant federal public defender in Pittsburgh for 17 years before leaving the area in July. People who plead guilty get shorter sentences, she noted.
Another factor that encourages guilty pleas: The prosecution’s ability to keep secret the identities of informants. “In deciding whether to advise a client whether to go to trial or plead guilty, the fundamental factor is the strength of the case,” Ms. Sims said. “[I]n many cases the confidential informant’s credibility is key to how strong the government’s case is.”
Because of the draconian penalties on one hand and the imperfect information on the other, federal prosecutors can file “weak cases, but they plead out anyway.”
Mr. Hickton said it might be “a leap” to suggest that an informant’s testimony drove a given verdict. He noted, though, that they can be problematic witnesses.
“Confidential witnesses may be susceptible to cross-examination because of their background,” he said. “They also may be susceptible to intimidation.”
Mr. Hickton -- who took office five months after Johnson’s trial -- said he hasn’t changed the way the office prosecutes cases involving informants.
Tainted information
Johnson started paying attorneys, and told his kids, then ages 5 and 10, that he was innocent but could face prison.
The prosecution witnesses were five law enforcement representatives, Mr. Doherty -- who testified that he never met Johnson, nor heard his name during his time as a dealer -- and Billings.
Billings testified that Ms. Balistrieri had previously dated the DEA supervisor on the case.
“So let me get this straight,” Mr. Rothman asked Billings at trial. “The man who is in charge of the officers who are arresting you and pressuring you used to date your fiancee. Is that correct?”
“Correct, yes, sir,” said Billings.
In an interview, Mr. Rothman said that relationship was a key point in securing Johnson’s acquittal. “It’s relevant because [Billings] was grasping at straws” under pressure from both the DEA agents and his fiancee, who had ties to their supervisor, Mr. Rothman said. Billings’ identification of Johnson, the attorney said, “is tainted information.”
Ms. Balistrieri said that the DEA supervisor never involved her in the case, and didn’t push her to pressure Billings.
DEA Special Agent in Charge Gary Davis said that the supervisor told him about the prior relationship.
“When we find out that in the past there’s some connection there, the course of action would be to have that individual recuse themselves from that investigation,” Mr. Davis said. “In the matter you’re referring to, that is exactly what transpired.”
The prosecution should have foreseen the damage that testimony regarding the past relationship could do, said Bruce Antkowiak, a former assistant U.S. attorney and now a law professor at Saint Vincent College in Latrobe. “Anything in the case that would make the jury think that this informant is closer to the government than just an asset would be, is a very dangerous thing,” he said.
Billings declined to comment, as did his attorney.
Johnson said that after the post-acquittal euphoria faded, he “was depressed for a while” over Billings’ actions, but bounced back and is remodeling properties.
Mr. Doherty was never charged. Billings was sentenced to 18 months in prison for conspiracy to sell cocaine -- a break from the 10-year mandatory minimum he faced had he not cooperated.
“This guy was selling cocaine, and he got 18 months because he became a friend of law enforcement,” said Mr. Rothman. Billings and Mr. Doherty “came to the witness stand and got out of jail, because they went to testify against an individual about whom they had not a scintilla of evidence.”
Rich Lord: rlord@post-gazette.com or 412-263-1542. Twitter @richelord
First Published: October 19, 2014, 4:00 a.m.
