Three Felonies a Day Page 5
Garber, a lay person, argued that her body was a “capital asset” under the Internal Revenue Code, and that when she sold a portion of that asset, the sale was a non-taxable exchange because the tax cost basis of the asset with which she parted, i.e., her blood plasma, was precisely equal to the funds she received. The funds merely replaced the plasma she gave to the laboratory and therefore were neither proceeds of a business nor payment for services, either of which would render the proceeds taxable as “earned income.”
The United States Court of Appeals for the Fifth Circuit saw the issue as “a unique legal question,”14 noting that Garber testified “that she thought, after speaking with other blood donors, that because she was selling a part of her body, the money received was not taxable.” The trial judge had told the jury that monetary proceeds of such plasma donations were taxable and refused to allow Garber’s defense counsel to present expert witnesses who would say otherwise.
In reversing her conviction, the Court of Appeals decided not only that she had a right to present her capital exchange theory supported by expert testimony, but that “no court has yet determined whether payments received by a donor of blood or blood components are taxable as income.” If Garber performed a service, it was taxable; if, on the other hand, “blood plasma, like a chicken’s eggs, a sheep’s wool, or any salable part of the human body,” is tangible property, then her revenues were not taxable. Most importantly, the court declared that, because the law was vague and unsettled, “a criminal proceeding…is an inappropriate vehicle for pioneering interpretations of tax law.”15 In other words, the government should have brought a civil action against Garber to seek collection of the tax owed, not a criminal one to punish her.
Today, the Justice Department encourages federal prosecutors to do exactly what the Garber court condemned. In particular, federal prosecutors’ novel use of long-standing but utterly formless “anti-fraud” laws, which cover increasingly vast areas of American life, threaten honest (and apparently law-abiding) business executives and other professionals, as well as other ordinary citizens. In 2003, Michael Chertoff, then-second-in-command of the Justice Department’s Criminal Division, even went so far as to boldly declare that federal prosecutors should exploit anti-fraud provisions to indict business executives because “criminal prosecution is a spur for institutional reform.”16
The federal government’s preference for criminal prosecutions (over either civil prosecution or “institutional reform” via the legislative branch) to expand the reach of the law is not limited to vague “anti-fraud” statutes and regulations. The same can be said for other now commonly used statutes—conspiracy, bribery, and extortion, among others. Even the most intelligent and informed citizen (including lawyers and judges, for that matter) cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.
The trend of ambitious prosecutors exploiting vague federal laws and pursuing criminal charges instead of oftentimes more appropriate civil actions, something that they could not readily get away with in many state courts, has been alarming enough, but it’s not the whole story. Indeed, the threat posed by federal prosecutors has become a veritable perfect storm lately, due to the convergence of this trend with the commonplace legal tactics that these prosecutors wield in order to get convictions in the vast majority of cases. Prosecutors are able to structure plea bargains in ways that make it nearly impossible for normal, rational, self-interest calculating people to risk going to trial. The pressure on innocent defendants to plead guilty and “cooperate” by testifying against others in exchange for a reduced sentence is enormous—so enormous that such cooperating witnesses often fail to tell the truth, saying instead what prosecutors want to hear. As Harvard Law School Professor Alan Dershowitz has colorfully put it, such cooperating defendant-witnesses “are taught not only to sing, but also to compose.”17
There has been precious little legislative and judicial analysis of the expanded use of destructive coercive practices for “turning” prosecution witnesses, which may involve immunity for loved ones, cash stipends, new identities not encumbered by a criminal record, and other powerful inducements in exchange for “composing” to nail former associates. Although in theory the law requires that the government disclose to defense counsel all inducements given to cooperating witnesses,18 jurors typically accept prosecutors’ claims that such inducements are essential to infiltrate hidden criminal conspiracies. Moreover, as any criminal defense practitioner knows, in practice, many types of inducements and threats often are implied, the subject of a knowing wink of the eye by the prosecutor to the prospective witness’s lawyer.
The “cooperation” framework is insidious. Prosecutors long have had the ability to offer witnesses valuable benefits, including money, in exchange for testimony that incriminates associates. Today, federal sentencing guidelines (once mandatory; still strongly suggestive and widely followed by judges) reward defendants who plead guilty and then give the government the testimony it seeks to prosecute others. Vague statutes exacerbate this problem by making it quite easy for one associate to testify that a former collaborator is indeed a crook.
The myriad ways in which federal prosecutors can craft or compose important witness testimony makes the prospect of the reduced sentence affiliated with a plea bargain much more palatable to defendants than the risk of a much higher sentence should they be found guilty at trial. The risk-reward ratio that innocent defendants weigh when deciding whether to challenge an indictment by insisting on a trial has tilted decidedly toward risk reduction via a guilty plea and cooperation against others.
The push for more plea bargains also has an effect on how thoroughly—and indeed whether at all—the prosecutions are tested in federal appeals courts to determine whether prosecutors are relying on cockamamie interpretations of federal statutes. When you can scare enough defendants to plead guilty in exchange for less prison time, the government wins by default since there is no real chance that an appeals court will say that the prosecution was wholly phony.
Increases in the number of plea bargains also have the functional result of hiding these prosecutions from the public and avoiding scrutiny by the press, because cases in which defendants take plea bargains receive much less attention than those that go to trial. On the other hand, as the circle widens to ensnare ever more “conspirators,” prosecutors trumpet their willingness to “go wherever the evidence leads,” and the news media are, far more often than not, prepared to report such news without an ounce of insight or skepticism.
Thus, more and more innocent conduct gets swept into the category of crime—not by legislatures, and only secondarily by judges and juries, but primarily by these dangerous and altogether too common prosecutorial practices. The problem is exacerbated by a white collar criminal defense bar composed largely of former federal prosecutors turned defenders who, by virtue of their experience in the federal government, well understand the risks of going to trial and therefore stress to their clients the benefits of cooperation over confrontation and the increasingly less likely prospect of vindication. While some former prosecutors turn into vigorous and skeptical defense lawyers (a few are among the most talented and principled in the nation, some of whom even left their prosecutorial jobs out of revulsion at the modern practices of the Department of Justice), a culture of assumed guilt, plea-bargaining, and deal-making has developed in defense circles which, more and more, are populated by capitulation-prone former prosecutors, especially at the higher echelons of the profession. The name of the game is to confess and cooperate, thus pleasing prosecutors who, in the not-too-distant past, were the comrades-in-arms of the newlyminted defenders. Through this flawed process, ordinary conduct is increasingly deemed criminal without the benefit of critical examination, much less an adversarial testing of the DOJ’s often pioneering interpretations of federal law.
In turn, this prosecutorial strategy affects news c
overage of high-profile cases that resemble public hangings in the Old West, often with the press decrying the latest “crime wave” and cheering the doubledigit sentences imposed, with little or no critical media analysis and understanding. The criminal justice system and the news media (which in theory is supposed to be a check on government excess) feed one another instead.
Since the late-1980s, the federal bench, too, has been undergoing a transformation that has seriously eroded the extent to which judges can be relied upon to rein in bogus federal prosecutions. Judges, many of whom are former prosecutors, not only buy into the amorphous definitions of federal crimes favored by prosecutors, but they knowingly enable the tactics that allow prosecutors to present witnesses who bolster dubious prosecutions, thereby giving such cases the patina of substance. In a 1998 case, which served as a roadsign in the degradation of the federal justice system, lawyers for a Kansas woman named Sonya Singleton challenged the practice of offering leniency and even monetary rewards to cooperating government witnesses in exchange for their testimony. Prosecutors alleged that Singleton assisted her drugdealing husband by wiring money for him in her name to a kingpin in California. Ms. Singleton and other co-conspirators were charged with multiple counts of money laundering and conspiracy to distribute cocaine. Before trial, she moved to suppress the testimony of Napoleon Douglas, a co-conspirator who had entered into a plea agreement with the government. The basis for her motion was that the government had impermissibly promised Mr. Douglas something of value, in violation of both federal law and the Kansas Rule of Professional Conduct. Specifically, Douglas had been promised that 1) he would not be prosecuted for any violations of the Drug Abuse Prevention and Control Act, stemming from his activities, other than perjury or related offenses, and 2) prosecutors would advise the sentencing court and parole board of the nature and extent of the cooperation provided.
Singleton’s challenge was a shot across the justice system’s bow, aiming directly at its increasingly corrupt “business as usual” culture, and she lost.
Not surprisingly, a federal statute makes it a crime to bribe witnesses; it is a felony to give or promise a witness “anything of value” in exchange for testimony.19 The defendant’s theory in Singleton was, if it is a felony (and it is) for any defense lawyer to promise a benefit to a witness, should it not similarly be a crime for prosecutors, by threats, money or other inducements, to coerce or bribe the vulnerable to “cooperate”? Shouldn’t all untoward pressures and inducements be removed from witnesses, so that truth, and not just naked self-interest, governs their testimony? The statute, on its face, makes no exception whatsoever for government use of bribery.
A three-judge panel of the Tenth Circuit Court of Appeals20 followed the seemingly (one might even say unusually) clear wording of the witness-bribery statute and found no exception for prosecutors who threaten and then reward government witnesses for their testimony. The court drew the obvious conclusion that doing so is bribery. A panicked Department of Justice promptly sought and obtained further review by the full membership of the court, insisting the statute not be interpreted to mean what it says, lest the whole edifice of bought and coerced prosecution testimony collapse.
The full court reversed the upstart panel that had temporarily rocked the prosecutorial boat.21 It ruled that “in light of the longstanding practice of leniency for testimony,” it must be “presumed” that, had Congress intended to “overturn this ingrained aspect of American legal culture, it would have done so in clear, unmistakable, and unarguable language.” Of course, that is precisely what Singleton argued and the three-judge panel found that Congress had done—spoken clearly against bribery of witnesses. The full court, however, pretending to know, without any clear evidence, what was on Congress’s mind when it enacted a seemingly all-inclusive prohibition against interfering with the testimony of a witness, found that Congress intended an exception for prosecutors—a double standard if ever there was one.
It was hard for the defense bar to avoid profound disillusionment. The Singleton experience demonstrated that, even where Congress seems to have spoken clearly on the definition of witness bribery, the institutional imperative to obtain convictions at any cost prevailed.
Cynicism about the unlevel playing field granted to prosecutors by Singleton was amplified by a 1970 Supreme Court decision, North Carolina v. Alford. In that case, the defendant was charged with firstdegree murder (with a potential death sentence attached to it) but decided to take a plea bargain in which he would accept a sentence for second-degree murder instead. However, unlike most defendants who take these deals, “Alford took the stand and testified that he had not committed the murder, but that he was pleading guilty because he faced the threat of the death penalty if he did not do so.”22 After his trial, Alford appealed and claimed that his guilty plea was the product of force or coercion because he had been facing the death penalty. The Supreme Court decided that his plea was not coerced and that it was lawful for the judge to accept Alford’s guilty plea even though he maintained his factual and legal innocence. Instead of risking execution, Alford decided to throw in the towel and take a thirty-year sentence. In today’s world of federal criminal law, many defendants will find themselves weighing reasons similar to Alford’s that might lead them to take a plea bargain, including the recognition that innocence is all too often not an adequate and effective defense to a federal prosecution.
The Court’s decision in Alford is a double-edged sword for defendants. In the short run, defendants situated similarly to Alford might benefit by being able to plead guilty and exchange the certainty of a lower sentence for the risky uncertainty of a much more onerous sentence. In the long run, however, Alford is bad news for federal defendants and the federal criminal justice system in particular, because it means those prosecutions will never go to trial and that, in turn, those prosecutions will never be challenged in appeals courts. In the longest view, federal prosecutors who exploit vague statutes are the biggest beneficiaries of the Court’s decision in Alford precisely because they can structure deals that 1) defendants cannot refuse and that 2) mean that the prosecutors’ creative interpretations of the laws are unlikely to be challenged or overturned through judicial review. The combination of Alford and Singleton, in the context of a system of federal laws that so often simply cannot be understood, has paved the way to an inescapable conclusion that the federal criminal justice system has become a crude conviction machine instead of an engine of truth and justice.
This phenomenon, the synergy between vague statutes and coercive prosecutorial tactics, explains the anecdote told by Tim Wu in a 2007 article titled “American Lawbreaking,” published in the online magazine Slate:At the federal prosecutor’s office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon. It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The result, however, was inevitable: “prison time,” as one former prosecutor told me.23
This is precisely the expansion of the criminal code that Justice Jackson warned of more than half a century ago. But there is an added danger that Jackson did not foresee: as the criminal code became broader, it also became more and more vague, or at least it has been interpreted so by prosecutors and often by courts as well. Because of this vagueness, the federal criminal law has become too often a trap for the unwary honest citizen instea
d of a legitimate tool for protecting society. There are too many people behind bars today who honestly believed, for good and sufficient reasons, that they acted in conformity with the law. Justice Jackson perceived the very early stages of the transformation (some would say perversion) of federal criminal law into such a trap. He decried the failure to limit federal prosecutions and convictions to people who knowingly and intentionally violated reasonably knowable legal duties, as is the ancient common law tradition.
Let’s be clear. All segments of civil society and a wide variety of seemingly innocuous behaviors are at risk of being criminalized by an overzealous Justice Department (“civil society” being defined roughly as the private sector, even if one’s work is government-regulated to some degree). The increasing power the federal government exerts over every element of the private sector, as demonstrated by the power to investigate, prosecute, and even convict defendants who have not committed a clearly defined crime, is a threat to the nation as a whole. Quite simply, it undermines a critical tension, an essential balance of power, between the government and the governed.
Consider some of the cases that will be discussed in more detail further on in this book:
Philip Russell, a lawyer from Greenwich, Connecticut, was indicted in 2007 for obstruction of justice because he destroyed child pornography, despite the fact that child porn is illegal even to possess (“contraband”) and therefore holding, rather than destroying it, arguably would be criminal.