Robert Gentile, whom the FBI has claimed has knowledge of the whereabouts of the paintings stolen from the Isabella Stewart Gardner Museum, has moved to dismiss the indictment against him on firearms possession charges.  He argues that the current investigation was manufactured solely to pressure him into cooperating with the Gardner investigation, and is unconstitutional as a result.  He faces a tall task, but he has raised a few colorable constitutional issues.

As discussed before, Gentile’s name has come up before in connection with the Gardner theft.  He has consistently denied any knowledge of or involvement in the theft or possession of the paintings.  The FBI has said that they believe that Gentile received some or all of the paintings from a man named Robert Guarente, who is now deceased.  Guarente’s widow has supposedly told the FBI that she saw her late husband give a disputed number of paintings to Gentile.  Gentile’s home was searched in 2012.  That search did not yield the paintings.  Since then, the police have leaned heavily on Gentile.  Earlier this year, Gentile was arrested again, and his attorney called out the latest charge as a set-up at the time.

Now, in a motion to dismiss the case, Gentile has raised the temperature further.  The motion argues:

It is Mr. Gentile’s position that the instant firearms prosecution was . . . engineered solely for the purpose of coercing cooperation into the art heist investigation, rather than removing an armorer-to-felons from our midst.

The basic legal point is this: police and prosecutors have considerable discretion in investigating and catching criminal behavior.  When government involvement in an investigation “shocks the conscience,” however, it may be grounds to dismiss the charges against a defendant.  The defendant bears the burden to prove that it is more like than not that an indictment or charge was procured through “outrageous government conduct.”

The conduct underlying the prosecution is what led to the current motion.  A confidential informant met with Gentile, and the subject of obtaining a firearm was allegedly discussed.  That conversation allegedly led to an interaction at Gentile’s home involving the exchange of money for a weapon.  After the government revealed its intention to prosecute the weapons charge (but before he was arrested), argues the motion, it immediately suggested that unless he cooperated with the Gardner investigation, the government would have “considerably less flexibility.”  Gentile was soon arrested and indicted.

Gentile bears a heavy burden to dismiss an indictment, procedurally.  The challenge he will face is that he may well be right about the motivations, but it may not matter to the result.  If, as alleged, Gentile possessed a weapon that was forbidden by virtue of his prior conviction, the reason for the FBI’s interest in prosecuting that will likely not dissuade the judge from allowing the prosecution to continue.  Put another way, if the FBI can plausibly argue that they instigated the conversation with the confidential informant for any legitimate reason, Gentile may be stuck defending himself.  Which, if Gentile is correct, will lead to the relatively absurd result of a manufactured prosecution to procure information he does not have.

The motion, for its part, suggests that “the Government [is] engineering and directing the criminal enterprise that it is prosecuting from start to finish.”  Tellingly, Gentile has to argue from two cases in which similar motions were denied.  Sting operations, standing alone, are hardly unusual or unconstitutional.  Gentile’s lawyer, however, does a skillful job of extrapolating the argument of psychological coercion, which has been held to be outrageous conduct under certain circumstances.

Indictments are rarely dismissed, but Gentile has clearly fired his first shot about how he intends to defend himself, and he makes a persuasive case that the entire confidential information exchange was planned only because of the Gardner case.

25 years later, the paintings seem no closer to discovery.