Fruit of the Poisonous Tree – How the FBI manufactured a drug lord
When law enforcement crosses the line from catching criminals to creating them, the consequences reach far beyond a single verdict.
In October of 1982, John DeLorean—former General Motors vice-president, creator of the gull-winged sports car that would achieve immortality only later, as a time machine in “Back to the Future”—was arrested in a Los Angeles hotel room with a suitcase full of cocaine. The footage of his arrest, in which DeLorean raises a champagne flute and declares the contents of the suitcase “better than gold,” saturated American television. The case seemed open and shut. And yet, two years later, a jury acquitted him on all eight counts. How did that happen?
The story of DeLorean’s fall and resurrection is, at its core, a story about boundaries—the ones that law enforcement cannot cross, even in pursuit of criminals. It is also a story with striking parallels in Poland, where an undercover operative known as “Agent Tomek” employed remarkably similar tactics, with consequences that continue to shape European jurisprudence on entrapment.
The DeLorean Motor Company rolled out its first vehicle in January of 1981. The DMC-12, with its stainless-steel body and signature gull-wing doors, was supposed to conquer the world. But the world, just then, was sliding into recession. Interest rates in the United States had climbed past twenty per cent; the automotive market had frozen solid. By October of 1982, the company had managed to produce just nine thousand cars—against a break-even threshold of eleven thousand per year. Losses exceeded a hundred and seventy-five million dollars. Margaret Thatcher’s government declined to continue financing the Northern Ireland factory. The company needed seventeen million dollars simply to survive another month.
It was precisely then—June 28, 1982—that a neighbor called.
James Timothy Hoffman presented himself as a financial intermediary capable of securing fifteen million dollars from “foreign investors.” What DeLorean didn’t know was that Hoffman was a convicted drug smuggler who had just negotiated immunity from the F.B.I. in exchange for his coöperation. Nor did DeLorean know that every minute of their conversation was, in effect, being subsidized by American taxpayers—Hoffman ultimately received a hundred and eleven thousand six hundred and forty-three dollars and forty-three cents from the government.
Over the following months, Hoffman and a team of undercover federal agents guided DeLorean through an elaborately choreographed production. At meetings in Washington, San Carlos, and Los Angeles, they gradually introduced increasingly explicit references to “Colombian investors” and cocaine smuggling. On September 28, 1982, at the Bonaventure Hotel in Los Angeles, one of the agents mentioned narcotics directly. DeLorean didn’t walk out.
On October 19, 1982, the F.B.I. concluded its operation. Agent Benedict Tisa showed DeLorean a suitcase containing two hundred and twenty pounds of cocaine valued at twenty-four million dollars, then arrested him. The video of that moment—DeLorean with his champagne glass, smiling, murmuring “better than gold”—appeared to constitute irrefutable evidence of guilt.
But at trial, something far more interesting emerged.
The F.B.I. had recorded all of its meetings with DeLorean. All of them—with one exception. A crucial recording was missing forty-seven minutes. The defense argued that this was precisely the segment in which DeLorean had unequivocally rejected any involvement in illegal activity. The prosecution could not explain what had happened to that portion of the tape.
This was not the government’s only problem. Agent Tisa admitted under examination that he had destroyed his personal notes from the investigation. He also admitted something even more startling: the F.B.I. had decided to arrest DeLorean on October 19, 1982, regardless of how he behaved—unless he called the police or physically fled the hotel room. In other words, the arrest was predetermined before DeLorean ever laid eyes on the cocaine.
Moreover, Tisa conceded that DeLorean had no financial stake in the purported drug transaction—the agent himself had loaned him the 1.8-million-dollar “commission,” which was to be repaid through shares in a fictitious company. The entire financial architecture was illusory.
But the most devastating testimony came from an unexpected source.
Gerald Scotti was a D.E.A. agent—that is, an agent of the Drug Enforcement Administration. At trial, he appeared as a witness for the defense and said something that altered the trajectory of the case. He testified that, during the ongoing investigation, Hoffman had told him directly: “I’m framing an innocent man.”
Scotti also testified that Hoffman had boasted to him: “You didn’t believe me, but I told you I was going to do it. I’m going to deliver John DeLorean to you guys.” For the F.B.I., DeLorean wasn’t a suspect—he was a trophy. A celebrity whose arrest would land on front pages. Testifying with visible agitation, Scotti told the court: “I knew a long time ago the government was going to go to any length to prosecute Mr. DeLorean. But I thought there was a limit to it—a bottom to it. Now I’m not sure anymore.”
Equally significant was the establishment of a simple fact: Hoffman had called DeLorean first, not the other way around. The informant planted by law enforcement had initiated the crime into which the defendant was deliberately drawn. That was enough. On August 16, 1984, the jury acquitted DeLorean on all eight counts. The jurors concluded that the businessman had been the victim of a government vendetta and a trap laid by the authorities.
Before the verdict, however, Judge Robert Takasugi of the United States District Court for the Central District of California had to contend with an unprecedented problem. In October of 1983, the footage of DeLorean’s arrest had leaked to the media—Larry Flynt, the publisher of Hustler, passed it to CBS, which broadcast the material on “60 Minutes” before an audience of millions.
Newspapers speculated about DeLorean’s alleged ties to the Irish Republican Army. The identity of the government informant was revealed. Judge Takasugi faced a dilemma: how to reconcile the constitutional freedom of the press with the defendant’s right to a fair trial?
On March 22, 1983, he issued a precedent-setting ruling (United States v. DeLorean, 561 F. Supp. 797), ordering that all documents in the case be filed under seal and subjected to preliminary judicial review. As he explained:
“Documents frequently contain highly prejudicial statements and materials which ultimately may be held to be inadmissible. Public access to such documents will not only mislead the public, but may well compromise the integrity of the criminal proceeding itself.”
DeLorean’s attorney, Howard Weitzman, adopted a risky strategy. Rather than challenge the authenticity of the recording or deny that his client had been in the hotel room, he put the F.B.I. itself on trial. He called the footage “produced, directed, and choreographed” by the authorities. He compared the federal agents to sharks that had smelled blood.
Curiously, Weitzman did not call DeLorean to testify. The decision seems paradoxical—who better to explain his intentions than the defendant himself? But Weitzman understood that, during cross-examination, the prosecution would force DeLorean to comment in detail on the recording. It was better to focus the jury’s attention on the government’s conduct than on the defendant’s words.
Harvard Law professor Alan Dershowitz later observed: “No court or judge in the nation would have acquitted DeLorean based on the evidence alone. DeLorean’s guilt or innocence was beside the point. All attention was directed at the government, portraying him as a victim.”
Three decades later, on the other side of the Atlantic, the Court of Appeal in Warsaw was examining a case with striking similarities to the DeLorean affair. In its judgment of April 26, 2013 (case no. II AKa 70/13), the court acquitted a member of Parliament, identified as B.S., and a mayor, identified as M.W., of corruption charges, finding that the actions of the Central Anticorruption Bureau—Poland’s equivalent of an anti-graft agency—had been unlawful.
The facts were as follows. In January of 2007, a Bureau officer operating under a fictitious identity and posing as a businessman was assigned to a training course in commercial law attended by four members of Parliament. Officially, he was carrying out a different “cover assignment.” In practice, for more than four months—from February 3 to June 16, 2007—he conducted secret surveillance of the parliamentarian B.S.: compiling reports, making covert recordings, maintaining the acquaintance.
The problem was that before June 16th, the Bureau had no grounds whatsoever to suspect B.S. of anything. No information about criminal intent, no evidence of corruption. The surveillance was, as the Court of Appeal put it, “testing citizens’ honesty”—a practice characteristic of a totalitarian state, not a democratic one.
Moreover, when the head of the Bureau issued an order on June 27, 2007, authorizing the delivery of a bribe, the order named only the mayor, M.W.—no order was issued regarding B.S. And yet the officers delivered a bribe to her as well.
In M.W.’s case, the deficiency was different but equally serious. The law governing the Bureau requires that, before authorizing the delivery of a bribe, the agency head verify the credibility of information about the alleged crime. But the only “information” available was what the officer had been told by B.S.—that M.W. had demanded a bribe. M.W. himself later maintained it had been a joke. The Bureau conducted no verification.
The manner of the “bribe delivery” was equally bizarre. The officer simply left a briefcase full of cash by the table and walked out. M.W. was arrested by other officers—though he had never even touched the money.
The Warsaw Court of Appeal articulated a principle that ought to be chiseled in stone above the entrance to every intelligence agency:
“A democratic state, by its very nature, precludes testing citizens’ honesty or conducting random, haphazard checks of that honesty through secret and deceitful methods. Such conduct is characteristic of, and practiced by, a totalitarian state.”
The court adopted the doctrine of the “fruit of the poisonous tree”—a concept originating in American constitutional law. Its essence is simple: if the tree itself is poisoned, all its fruit is poisoned as well. Illegal operational activities “taint” not only the evidence directly obtained but all derivative evidence, too.
This means that even if the Bureau’s subsequent actions were formally proper, the fact that they were based on information obtained unlawfully disqualifies all of the evidentiary material.
The court invoked the Polish Constitution—Article 2 (the principle of a democratic state governed by the rule of law), Article 7 (the requirement that public authorities act on the basis and within the limits of the law), Article 51(4) (the prohibition on using information gathered in violation of statute)—as well as Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial.
The European Court of Human Rights in Strasbourg has developed a precise test for determining when operational activities cross the boundary into impermissible entrapment.
In the landmark case of Ramanauskas v. Lithuania (2008), the Grand Chamber formulated a definition that has become the reference point for all subsequent rulings: “Police incitement occurs where the officers involved—whether members of the security forces or persons acting on their instructions—do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed.”
In Veselov and Others v. Russia (2012), the Court went further, delivering a systemic critique of the lack of judicial oversight over “test purchase” operations. Comparing practices across twenty-two member states of the Council of Europe, the Court found that the Russian system—in which test purchases fall entirely within the competence of operational agencies, without independent supervision—was “out of line with the practice adopted by most member states.”
The Court also identified a crucial distinction between a complaint from a private individual and information originating from a police collaborator or informant. The latter “carries a significant risk of the role extending to that of an agent provocateur”—an informant who participates in an operation as a buyer has a powerful incentive to create crimes, not merely detect them.
Finally, the Court unequivocally settled the question of the burden of proof: it is the prosecution that must demonstrate the absence of entrapment—provided the defendant’s allegations are not “wholly improbable.”
The DeLorean case and the Polish “Agent Tomek” case are separated by three decades and an ocean. Yet the parallels are striking:
Exploitation of vulnerability. DeLorean was financially desperate—his company needed seventeen million dollars to survive. The F.B.I. exploited that desperation, offering an “investment” that turned out to be a drug trap. In the Polish case, the Bureau officer spent months building a relationship with B.S. before any suggestion of corruption arose.
Initiative on the side of the authorities. It was Hoffman who called DeLorean first. It was the Bureau officer who began surveilling B.S. before he had any basis for suspicion.
Destruction of documentation. Agent Tisa admitted he had destroyed his notes from the investigation. In the Polish case, Bureau officials testified in court that the surveillance of B.S. before June 16th had never occurred—documents from that period were disclosed only at the court’s express demand.
Predetermination of outcomes. The F.B.I. decided to arrest DeLorean regardless of his behavior. The head of the Bureau issued an order to deliver a bribe to M.W. without verifying the credibility of the information—assuming, in advance, that he was guilty.
There is, however, an important systemic difference. In American law, entrapment constitutes a substantive defense—a defendant may be acquitted if he demonstrates that he was entrapped. In the European system, entrapment is primarily a procedural violation—it means that the evidence is inadmissible and the trial is unfair within the meaning of Article 6 of the Convention.
Police provocation is meant to detect crimes, not create them. This seemingly simple principle marks the boundary between the rule of law and a police state.
In a democratic state governed by the rule of law, intelligence services may—under strictly defined conditions—assume the role of ostensible participants in criminal activity. They may purchase drugs from dealers, accept bribes from corrupt officials, infiltrate organized-crime groups. But there is one thing they may not do: manufacture crimes that would not exist without their involvement.
As the Warsaw Court of Appeal put it: a democratic state permits operational methods “only against criminals—to prove crimes already committed, or against persons whose conduct gives reason to suspect that they may commit a crime.” Random testing of citizens’ honesty is a totalitarian practice.
DeLorean had no history of involvement with drugs. No contacts in the smuggling world. His only “fault” was financial desperation and the naïveté that led him to believe in miraculous investors. The F.B.I. exploited that weakness to create a crime—and a criminal—from scratch.
Similarly, B.S. and M.W. were not suspected of corruption until the Bureau decided to suspect them. The officer cultivated a relationship for months, waiting for an opportunity to catch his target red-handed. When he finally heard something that could be construed as a corrupt proposal, he didn’t verify whether it was true. He simply set a trap.
What does all this mean for those who may find themselves targets of police provocation?
First: evidence gathered during operational activities must be verifiable. Under Polish law, materials from a provocation are submitted to the prosecutor and then read out at trial. The defendant has the right to examine, challenge, and contest them.
Second: the crucial question is—who initiated the crime? If the initiative came from the authorities or their informants rather than from the defendant, there is a strong presumption of impermissible entrapment.
Third: operational documentation must be scrutinized. Did the authorities have grounds for suspicion before they began their activities? Did they verify the credibility of their information? Are there gaps in the recordings, destroyed notes, inexplicable omissions?
Fourth: the informant’s motivation matters. Did he act disinterestedly? Was he compensated? Did he have his own criminal cases in which coöperation could help him?
Hoffman received more than a hundred and eleven thousand dollars from the F.B.I. and immunity from prosecution. Gerald Scotti testified that Hoffman had boasted about “delivering” DeLorean. Under such circumstances, an informant has a powerful incentive to create crimes, not merely to uncover them.
John DeLorean won his case, but he paid an enormous price. His company collapsed during the trial. His name, which was supposed to be synonymous with innovation and the American Dream, was forever tainted by suspicion. Even acquittal did not restore his former standing. He died in 2005, in relative obscurity.
The DMC-12—the car that was supposed to conquer the world—survived mainly thanks to “Back to the Future,” where it served as a time machine. Paradoxically, it was fiction that preserved the memory of the real DeLorean.
In Poland, the judgments in the “Agent Tomek” cases—including the Warsaw Court of Appeal ruling discussed here—constitute an important precedent. They demonstrate that even intelligence services acting under the guise of fighting corruption must respect the boundaries of the law. That evidence obtained in violation of procedures cannot form the basis for a conviction.
“In a democratic state governed by the rule of law, conducting an operational provocation without observing fundamental statutory requirements is an unlawful, illegal act incapable of producing any legal effects in the evidentiary sphere,” the Warsaw Court of Appeal ruled.
The line between detecting crimes and creating them is thin. That is precisely why it must be scrupulously observed.
Robert Nogacki is the managing partner of Kancelaria Prawna Skarbiec, a law firm in Warsaw.
Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.
