Entrapment claim by Oaks a ‘big bet,’ legal observers say

State Sen. Nat Oaks. (The Daily Record / Maximilian Franz)

State Sen. Nathaniel T. Oaks is asking a federal judge to include a jury instruction on entrapment in his bribery and fraud case, arguing federal investigators launched a “targeted campaign” to induce him to commit a crime he was not predisposed to commit.

In a motion filed in U.S. District Court on Friday, Oaks’ attorneys reference investigation materials they obtained from the government which discuss a confidential source they believe was pressured into providing the FBI with names of officials that may be susceptible to bribery, including Oaks.

The materials also reveal, according to the defense, the FBI tactics used in the investigation “went beyond mere solicitation, and crossed over into inducement” as part of a multi-year effort to persuade Oaks to commit the alleged offense.

But using an affirmative defense like entrapment is risky, according to defense attorneys not involved in the case, and can be difficult to prove.

“It’s a big bet,” said Gerard P. Martin, of Rosenberg Martin Greenberg LLP in Baltimore. “You’re laying it all out there because you’re admitting you committed the crime.”

Martin, who also has worked as a federal prosecutor, called the entrapment defense “a last resort.” But the federal public defenders representing Oaks, Lucius T. Outlaw III and Rebecca S. Talbott, are skilled attorneys, he added, and likely find the defense to be Oaks’ best hope for an acquittal.

Steven H. Levin saw the entrapment defense used during his time as a federal prosecutor and said the timing of Oaks’ motion raising the defense could be a way of introducing the idea to constituents and fellow legislators that the Baltimore Democrat was set up.

“Sen. Oaks is a representative and working with his colleagues and he may have wanted to send a message to his colleagues,” said Levin, of Levin & Curlett LLC in Baltimore.

Oaks was first charged in April with wire fraud and accepting illegal payments and indicted on additional charges in May, including accepting bribes in exchange for using his position to influence business matters for another individual.

In the new filing, Oaks’ attorneys allege in early July 2014, a former senior aide to an unidentified county executive named then-delegate Oaks as someone who may take a bribe but articulated no reason for that belief. That source was working undercover and secretly recording conversations with legislators, members of the Baltimore City Council and lobbyists.

The federal investigation first focused on a now-former council member who connected the source to Oaks at the Maryland Association of Counties conference in Ocean City in August 2014, where the source told Oaks they were affiliated with a minority-owned business interested in Baltimore development.

Oaks did not commit to follow-up meetings, but the source reached out to a “politically connected and prominent Maryland businessman and real-estate developer” who allegedly made comments suggesting he had a history of bribing public officials, according to the motion.

‘Opening the floodgates’?

The defense describes the “nearly incessant pressure from FBI sources and their contacts” to set up meetings between Oaks and the developer which resulted, in few in-person meetings and nothing incriminating. Investigators then “heightened the pressure” by contacting Bruce Crockett, a friend of Oaks and local businessman who has since died.

The source contacted Oaks directly and through Crockett to set up a meeting with “Mike Henley,” the FBI confidential source who would eventually record the interactions with Oaks that led to charges being brought, according to the motion. Nearly two years after Oaks became the target of the investigation, Henley brought up the topic of compensating Oaks for his help but it was another two months before an alleged bribe was paid.

Oaks claims his defense will be harmed if he raises entrapment as a defense without the guarantee the jury will be instructed on it because the government will be permitted to introduce evidence that he was predisposed to commit the crime once the defense is raised.

“Permitting the government to prove ‘predisposition’ opens the floodgates to evidence that would normally be properly excluded from trial,” the motion argues.

Martin said proving Oaks was predisposed to commit the offense will be the hardest part for prosecutors, and it was likely a calculated decision by the defense that the government would struggle with it.

“I don’t know what the government has to talk about the predisposition so that might be an issue,” he said.

Raising the defense before trial, according to Levin, also gets the information in front of U.S. District Judge Richard D. Bennett, who may be convinced to consider the circumstances of the alleged bribery in sentencing should Oaks be convicted.

“If he’s alerted to the fact that this may have been entrapment, even if that entrapment defense fails, it may be a factor the judge will consider,” he said.

The case is U.S. v. Nathaniel Thomas Oaks, 1:17-cr-00288.