Three Felonies a Day Read online

  Table of Contents

  Praise

  Title Page

  Dedication

  Preface

  Foreword

  Introduction

  Three Felonies a Day

  CHAPTER ONE - Reeling in the Great White, and Other Tales of Fishing for State ...

  CHAPTER TWO - Giving Doctors Orders

  CHAPTER THREE - The Unhealthy Pursuit of Medical Device and Drug Companies

  CHAPTER FOUR - Following (or Harassing?) the Money

  CHAPTER FIVE - Accounting for the Perils Facing Business Support Services: The ...

  CHAPTER SIX - Lawyers: Government Offense Against the Best Defense

  CHAPTER SEVEN - Doing Their Duty (or Committing Espionage?) and Other Media ...

  CHAPTER EIGHT - National Security: Protecting the Nation from Merchants, ...

  CONCLUSION

  Acknowledgements

  ENDNOTES

  INDEX

  Copyright Page

  Praise for Three Felonies a Day

  “Now comes veteran defense lawyer and civil libertarian Harvey A. Silverglate with riveting case studies exposing in technicolor a pattern of serious abuses and convictions of innocent people in some of the most famous (as well as obscure) federal cases of recent decades. Abetted by compliant courts and easily gulled media, the feds brand as criminals good people who intended no crime.”

  —Stuart Taylor, Jr., National Journal columnist and

  Newsweek contributing editor

  “In Three Felonies a Day, Harvey A. Silverglate has written a work peerless in revelations about the mad expansion of federal statutes whose result is to define, as criminal, practices no rational citizen could have viewed as illegal. The book is chilling in its detail of the investigations and ruin that have befallen people ground up in this prosecution mill. Whether in the book’s scathing chronicle of the destruction of Arthur Andersen, largest accounting firm in the nation, an obscure attorney, or the bizarre government case mounted against a Boston politician—to name a few—Harvey A. Silverglate brings home, unforgettably, the truth that everyone is vulnerable to the terrors wrought by out of control prosecutors.

  No one reading this can fail to be gripped by these cases, by the hard bright light he shines on every step of these prosecutions, and the mindset that created them. It’s a bombshell that was worth waiting for.”

  —Dorothy Rabinowitz, Wall Street Journal editorialist and

  a winner of the Pulitzer Prize

  “Gilbert & Sullivan wrote about how the punishment fits the crime. Three Felonies a Day shows how federal prosecutors have conceived of something truly frightening—punishment without crime. Harvey A. Silverglate, one of the truly hard-working and uncompromising defenders of our civil liberties, has written the ultimate horror-story of prosecutorial abuse. We, the public, should pay attention.”

  —Errol Morris, documentary film-maker, winner of the

  Academy Award for The Fog of War, producer and director

  of the legendary documentary The Thin Blue Line

  “This brilliant book lays out the terrifying threat to human rights posed by vindictive federal prosecutions, often sold as moralistic crusades to a gullible press and public. Anyone who cares about American democracy should read this gripping and vitally important expose.”

  —Steven Pinker, Johnstone Family Professor, Harvard

  University, and author of The Stuff of Thought

  “Harvey A. Silverglate masterfully chronicles federal prosecutors’ vindictive enlistment of opaque criminal prohibitions to snare the unwary and to stunt civil society. A bloated criminal code that fails to warn before it strikes is tyranny’s first cousin.”

  —Bruce Fein, former associate deputy attorney general

  under President Reagan, and chairman of the American

  Freedom Agenda

  “Three Felonies a Day is one of the most important books to be written about law in a generation. It should be read by anyone who cares about the rule of law.… Law-abiding citizens beware: Prosecutors wield Godlike power as they decide how to interpret vague and open-ended statutes that can turn the stuff of everyday life into a federal case. Individual freedom and the rule of law hang in the balance. Three Felonies a Day is more than a brilliant collection of great stories about law, although it is sure that: it is a manifesto from one of America’s staunchest defenders of civil liberties demanding that all of us join in the fight for true freedom and the rule of law.”

  —Susan R. Estrich, Robert Kingsley Professor of Law and

  Political Science, University of Southern California

  “In Three Felonies a Day, Harvey A. Silverglate zeroes in on governmental misconduct—the brazen abuse by certain federal prosecutors of immense government power for purposes other than justice. The book is a clarion call—to prosecutors, reminding them what their true role is in a democracy—and to the public, reminding everyone of our collective responsibility firmly to oppose, discipline and prohibit such unacceptable abuses in order to protect the Constitution and the rights it guarantees. The book is a compelling read.”

  —Michael S. Greco, former president of the American

  Bar Association

  “To many readers, the book will read like a highlight reel of the most prominent and challenging cases to be brought in recent years…. Silverglate deftly combines the legal sophistication of a criminal defense expert with the plain speech and driving narrative of a journalist.”

  —Matthew W. Hutchins, The Harvard Law Record

  “[Three Felonies a Day] argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.”

  —Adam Liptak, The New York Times

  “Technology exacerbates the problem of laws so open and vague that they are hard to abide by, to the point that we have all become potential criminals. Boston civil-liberties lawyer Harvey Silverglate calls his new book ‘Three Felonies a Day,’ referring to the number of crimes he estimates the average American now unwittingly commits because of vague laws.”

  —L. Gordon Crovitz, The Wall Street Journal

  “After studying dozens of prosecutions dating back 25 years, among them cases he worked on and several that were tried in Massachusetts federal court, Silverglate concludes that federal criminal laws have run amok, enabling overzealous prosecutors to pin flimsy, headline-grabbing crimes on any one of us—even for well-intended behavior that does not appear to violate any law.”

  —Tom Mashberg, The Boston Herald

  “In a work that is sure to stir sharp public debate, veteran defense-attorney-turned-author Harvey A. Silverglate examines the legally and politically charged issues surrounding recent federal criminal prosecutions.”

  —Robert A. Cornetta, presiding justice of the Salem

  District Court

  To wife and partner Elsa Dorfman and son

  Isaac Dorfman Silverglate, who have lived with

  the often inconvenient consequences of my obsession

  with liberty during decades of a tumultuous career

  that continues unabated, and who have added

  enormously to my insights;

  —and—

  Alan Dershowitz, who first nurtured my interest in

  the criminal law and civil liberties when we arrived at

  Harvard Law School in 1964 (he as professor and

  I as student), and who has continued to nurture and

  support that interest over the decades;

  —and—

  Dorothy Rabinowitz, who has insisted that I have an

  obligation to write, in non-legalese English, about the

  lessons learned
and still being learned from that career,

  and who pushed me relentlessly to complete this book.

  PREFACE TO THE PAPERBACK EDITION

  Three Felonies a Day is the story of how citizens from all walks of life—doctors, accountants, businessmen, political activists, and others—have found themselves the targets of federal prosecutions, despite sensibly believing that they did nothing wrong, broke no laws, and harmed not a single person. In these wheels of injustice, vague laws are the lynchpin, functioning in very much the opposite way than originally intended: they obscure, rather than clarify, the law’s demands.

  Since the hardcover version of this book was published, there has been considerable tumult in the arena of vague federal legislation used as a tyrannical trap for the unwary innocent. While some raised consciousness has become visible on civil society’s horizon, grave damage continues to be inflicted by out-of-control federal prosecutors.

  Siobhan Reynolds knows firsthand how this phenomenon affects the medical profession. Her late husband, Sean Greenwood, suffered from a connective tissue disorder that caused chronic, debilitating pain. In 2002, after a decade-long search for a doctor willing to provide adequate relief, he finally found Dr. William Hurwitz, a nationally recognized pain specialist. Within months, however, Hurwitz was indicted under the Controlled Substances Act.1 Unable to find another specialist, Greenwood died in 2006—a result hastened, Reynolds believes, by the federal government’s crackdown.

  Drawing on this personal experience, Reynolds founded the Pain Relief Network (PRN), a non-profit aimed at raising awareness of and pushing back against the ill-defined laws that restrict physicians from administering adequate pain medicine. The fact that her advocacy was met with resistance from federal drug warriors is perhaps no surprise. But what’s shocking is the lengths to which one prosecutor went to silence this activist.

  The case of Dr. Stephen Schneider and his wife, Linda, was much like others that attracted the PRN’s support. The Kansas-based doctor and nurse were accused of over-prescribing pain medication—or, in the prosecutorial parlance, running a “pill mill.” Reynolds assisted the Schneiders by helping them find legal counsel and expert witnesses for their defense, as well as publicly advocating for their innocence. Even though she had no formal role in the case, the government sought in April 2008 to gag Reynolds from making “extrajudicial statements” about the Schneider prosecution, a plainly unconstitutional request, which the district court wisely denied.

  But the prosecutor was undeterred. In March 2009, Tanya J. Treadway, assistant U.S. attorney, issued a grand jury subpoena to Reynolds demanding a wide array of documents, financial records, and communications, including information about a billboard supporting the Schneiders, and a PRN-produced documentary film, aptly titled The Chilling Effect. The document demand was suggestive of a fishing expedition for evidence that Reynolds somehow attempted to obstruct the prosecution of the Schneiders.

  Because much of this is clearly protected First Amendment activity, Reynolds was confident that the subpoena would be quashed. But the district court did not abide. When Reynolds refused to comply with the court order, she was fined $200 each day. Almost $40,000 later, she had no choice but to turn over to the government the thousands of documents it demanded.2

  Still, Reynolds continued to fight, and with the assistance of Robert Corn-Revere, a renowned First Amendment lawyer, she appealed to the Supreme Court. Her petition seeking high court review emphasized the misuse of grand jury secrecy rules. Intended to protect the reputations of innocent persons appearing before the grand jury, the rules were here being turned on their head to effectively silence an activist and then hide those repressive actions.3 Even Reynolds’s publicly available petition for a Supreme Court hearing was ominously pocked with blacked-out passages.4

  Much to Reynolds’s and Corn-Revere’s dismay, the high court refused to intervene. As a result of the lower court’s imposition of Draconian fines, and the continuing threats to prosecute her and the PRN, Reynolds decided in late December 2010 to disband the organization. “Pressure from the US Department of Justice has made it impossible for us to function,” she told PRN supporters.5

  The intense pressure exerted by federal prosecutors was tragically illustrated in the case of Dr. Peter Gleason. When the first edition of this book went to press, Dr. Gleason, a psychiatrist who specialized in pain and sleep-related disorders, found his resources exhausted by an indictment for recommending the drug Xyrem to other physicians for uses not officially approved by the Food and Drug Administration, a practice which the law seemingly allowed.6 Through a bizarre application of federal conspiracy law, Gleason was nonetheless charged and mercilessly hounded. When he persisted in defending himself, the government agreed to reduce the charge to a misdemeanor, thereby conceding that Gleason had not intended to defraud or deceive anyone. Gleason pleaded guilty, and in January 2010 he was sentenced to a $25 fine and one year of probation. In the civil arena, however, the government continued to pursue him. Effectively unable to practice medicine, and deprived of the total vindication for which he yearned and which he deserved, Gleason buckled under the accumulating burden. On February 7, 2011, he hanged himself. His sister, Sally Goodson, succinctly and accurately summed up his “crime” in a remembrance of her beloved brother: “Truthful speech to fellow physicians about the off-label use of an FDA-approved drug.”

  Just as federal prosecutors managed to disrupt the activism of Siobhan Reynolds and derail the medical practice of Dr. Peter Gleason, so the feds in late 2010 took up the task of finding some basis in federal law for putting Julian Assange, founder of the whistleblowing platform WikiLeaks, out of business. The international organization had made 2010 a landmark year for the exposure of government secrets. Among the groundbreaking releases: a video depicting U.S. military forces killing two Reuters journalists and nine Iraqis in 2007; Pentagon files detailing abuse of Iraqi prisoners as well as 15,000 previously unreported civilian deaths; and a steady stream of U.S. diplomatic cables dealing with subjects like Iran’s nuclear program and alleged CIA torture.

  Unnerved by this unwanted sunlight, American authorities took to combing the federal statute books, searching for a criminal law arguably violated by Assange. Legal commentators were reporting that the Department of Justice homed in on the 1917 Espionage Act, under which media organizations have only narrowly escaped prosecution in past leak cases.7 But the underappreciated reality remained that a number of other statutes could potentially have been applied to Assange’s unique breed of muckraking. These included trafficking in stolen property (which applies to both tangible and intangible property),8 conspiracy (if the U.S. government could prove that Assange collaborated from the start with the original source of the military leaks), and the ever malleable wire fraud (which, by the statute’s language, tells more about the means of the crime than its actual substance).

  The still unfolding WikiLeaks saga also provided instruction as to how the feds, in trying to pin a crime on their ultimate target, intimidate that target’s supporters. Salon’s Glenn Greenwald noted that his readers, even while believing strongly in WikiLeaks’s cause, were apprehensive about offering their financial support. They worried about being put on a government blacklist, Greenwald wrote, “or, worse, incur[ring] criminal liability for materially supporting a Terrorist organization.” 9 While Greenwald pointed out that it would be a stretch to apply this statute to WikiLeaks’s supporters, a Supreme Court ruling in June 2010 nonetheless gave well-informed, rational citizens grounds to fear punishment.

  The criminal ban against providing “material support” to organizations listed by the government as “terrorist” groups is an often-used tool in the post-9/11 “war on terror.”10 Fearful that even its peace-promoting activities might be deemed criminal, the Humanitarian Law Project, a human rights group, challenged the government’s extraordinarily broad and vague definition of the phrase “material support.”

  After wending its way through
lower courts for more than a decade—during which time the “material support” statutes were amended twice—the case finally reached the Supreme Court in its 2009–10 term. At issue in particular was whether and where pure speech might qualify as “material support.” The solicitor general (later Supreme Court justice), Elena Kagan, asserted in oral argument that it would be a crime for a lawyer to file a friend-of-the-court brief supporting a group designated “terrorist” by the government, or to assist such groups in filing petitions with international bodies.11

  The Court’s decision offered the Humanitarian Law Project little comfort and even less clarity. Explaining how the law would effectively criminalize human rights advocacy,12 a six-justice majority wrote:A person of ordinary intelligence would understand that instruction on resolving disputes through international law falls within the statute’s definition of “training” because it imparts a “specific skill,” not “general knowledge.” …Plaintiff’s activities also fall comfortably within the scope of “expert advice or assistance”: A reasonable person would recognize that teaching the PKK [Kurdistan Workers’ Party] how to petition for humanitarian relief before the United Nations involves advice derived from, as the statute puts it, “specialized knowledge.”13

  Even the three dissenters—Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor—did not deem the statute vague, but instead would have invalidated certain portions because they conflict with the First Amendment’s guarantees of free speech and association. Hence, not a single justice was prepared to declare any part of this exceptionally obtuse statute void on account of vagueness. One gets the disturbing impression that the Supreme Court fails to grasp the fundamental problem that even intelligent citizens with skilled legal counsel face when trying to deal with indecipherable prohibitions of this kind.