Pre-Invented Crimes

Pre-invented crimes and shaping a mentally-ill defendant’s response

Pre-invented crime is a particularly insidious and unlawful addition to the law enforcement toolkit. It involves adding details to the situation that will automatically enhance or exacerbate the crime eventually charged.

In this case, the undercover officer represented two facts to the defendant that shaped the eventual sentence. In representing that he was sexually active with his daughter, the undercover officer stated that his daughter was eleven years old and was mentally "slow".

Both of those factors, under the age of twelve years old and having mental deficiencies, are factors in aggravation of the crime and to be considered by the judge in passing sentence. The description of the child added 10 years to the sentence before Mr. Rothenberg uttered a word.

Additionally, the undercover officer “played” Rothenberg, manipulating the situation to suit Rothenberg – with an eye toward the end result being to entice Rothenberg to travel to meet Spector.  The travel was important -- it constituted a substantive step toward the commission of the crime that never happened.

There is substantial evidence that -- and it is a solid trial defense -- that the officer engaged in shaping the conduct of Rothenberg, who all expert witnesses agree is a mentally-ill individual. One of the areas Dr. David Greenfield addressed - which was NEVER before mentioned by any of the psychologists who testified at sentencing - was the issue of the undercover officer shaping Rothenberg’s behavior.  As Dr. Greenfield said, “This frequent testing and probing [by undercover officer Spector] is like setting the hook on a fish...although Mr. Rothenberg clearly played into this process–his disinhibition from his internet addiction and poor social/interpersonal (Asperger’s) judgment made him a highly susceptible subject.”  The mental illnesses addressed by Dr. Greenfield, and the shaping by the undercover officer were not raised at the sentencing hearing, and the district court determined that an evidentiary hearing would be a rehash of prior hearings in this case.

The law is well settled in the 11th circuit that if the government engages in misconduct that induces a defendant to engage in conduct which would substantially increase his sentence exposure, it is conceivable that this misconduct – sometimes referred to as sentencing manipulation–would lead the court to ignore a mandatory minimum sentence.  See United States v. Ciszkowski, 392 F. 3d 1264 1270-71 (11th Cir. 2007); United States v. Docampo, 573 F. 3d 1091, 1098 (11th Cir. 2009).

But in these kinds of cases, in 2008, the undercover officer was given free reign to overlook legal technicalities. The sole reason Rothenberg was allowed to be sentenced to the meager 2 years less than the 27 years the judge was going to impose is that Judge Graham found Rothenberg was mentally ill, and gave him a 2-year pass for his 40 years of continuous and documented and serious mental illness, during which time he was under constant psychiatric care and was hospitalized in some of the country’s premiere psychiatric institutions for treatment.

These two positions are contradictory. One one hand, the judge found that Rothenberg was mentally ill and took that into consideration as a factor in mitigation. In the next breath, the judge refused to consider that Rothenberg was mentally ill and how that enabled the undercover officer to "pre-invent" the crime and its ancillary details.