It's good for blogs to fact-check the established media — especially when the media blunders into a blogger's area of expertise and displays subject matter ignorance. We like to call out media ignorance and idiocy, and we like it when others do so.
But if we're to approach this hobby honestly, we need to be willing to fact-check our friends and neighbors on Blog Country as well — even when those bloggers are ideological fellow-travelers and online friends.
This brings me to the subject of George Norris, orchid importer, held up by some small- and large-L libertarians as a victim of uncontrolled federal criminalization of innocent conduct.
Norris has gotten a lot of attention in the past week as a result of this Washington Times article, which used his story to support the proposition that our liberty is dramatically and alarmingly constrained because Congress has criminalized a bewildering array of innocent failings and innocuous acts, like failure to fill out paperwork properly. Here's how the Washington Times reporter, Brian W. Walsh, described Norris' case:
Mr. Norris ended up spending almost two years in prison because he didn't have the proper paperwork for some of the many orchids he imported. The orchids were all legal – but Mr. Norris and the overseas shippers who had packaged the flowers had failed to properly navigate the many, often irrational, paperwork requirements the U.S. imposed when it implemented an arcane international treaty's new restrictions on trade in flowers and other flora.
Any number of bloggers and commentators of a libertarian bent — including ones we like and respect — quoted that passage rather uncritically. But it made my antennae twitch — both as a former prosecutor and current criminal defense attorney.
So I did what I respectfully submit that Brian W. Walsh should have done, and what perhaps the bloggers quoting him should have done — I went to the documents.
Specifically, I used PACER to pull down the indictment against Norris, the minutes of his guilty plea and sentencing, his sentencing briefs, and the government's responses to them, and the judgment and commitment order. I also pulled the Eleventh Circuit case affirming his sentence, thanks to Google. This process took me about ten minutes, and cost me roughly the price of a more-than-four-words-to-order Starbucks drink.
Here's what I gleaned from these documents available over the internet:
1. The Washington Times piece would have you believe that Norris was prosecuted for bewilderment at bureaucratic red tape — because he "didn't have the proper paperwork" and "failed to properly navigate the many, often irrational, paperwork requirements." The indictment shows that Norris was charged with conspiracy to violate federal law in violation of 18 USC 371 and with smuggling in violation of 18 USC 545, and with making false statements to the government in violation of 18 USC 1001. The Times story is correct to this extent — all of that was in connection with the importation of orchids.
2. George Norris was not convicted at trial. He didn't even accept a plea deal from the government. He pled straight up to the indictment — that is to say, he entered a guilty plea to all seven counts of the indictment against him without any plea agreement with the government. I couldn't find a transcript of Norris' guilty plea online. However, under Rule 11 of the Federal Rules of Criminal Procedure, Norris would necessarily have had to be informed of, and admit, each element of each of the charges against him. As to the conspiracy count, that means he had to admit that he entered into an agreement to violate the laws of the United States. As to smuggling, that means he had to admit that he fraudulently or knowingly imported items into the United States in violation of the law. As to the false statement count, that means he had to admit that he made a false statement to the government knowingly and willfully. These admissions are not consistent with the notion that George Norris innocently failed to comply with unreasonable government paperwork. Moreover, for the court to accept his plea, Norris had to acknowledge facts supporting those elements. The government's sentencing papers indicate that Norris accepted, without objection, the government's proffered factual basis for the charges at the time of his plea. That factual basis is not online either. However, in my experience, the government does not craft bases narrowly in favor of defendants.
Here, incidentally, is how Norris himself characterized his conviction in his sentencing papers:
Mr. Norris pled guilty to counts one through seven of an Indictment charging violations of the Endangered Species Act by conspiring to smuggle certain plants listed in Appendix I and II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES") by actually smuggling such plants into the United States. and by falsifying documents in preparation for one of the shipments, all in violation of 18 U.S.c. §§ 371,545, and 1001(a), respectively. As this Court is aware, Mr. Norris has publicly proclaimed his guilt and is now prepared to accept his sentence.
3. The government argued vociferously that Norris should not get sentencing credit for acceptance of responsibility, and in fact should have a sentencing enhancement for obstruction of justice. Unfortunately the sentencing transcript is not (as far as I could tell in ten minutes) available online, so I cannot suss out (at least in the short time I have spent with the documents) whether or not the court accepted those arguments and applied the credit or enhancement. I note, however, that in his sentencing brief Norris seems to argue that the post-offense statements cited by the government could not have obstructed justice because they were made after the government had substantially progressed in its investigation — which is not the same as saying that they were not made, or that they were not false.
4. On appeal, Norris argued that the district court had miscalculated the orchids' market value for sentencing purposes. This is how the Eleventh Circuit described the facts established by the record below:
In this case, Norris and Arias conspired to illegally smuggle CITES-protected orchids into the United States by strategically packaging undocumented orchids alongside correctly documented orchids ("the legal orchids"). The letters that were exchanged between Norris and Arias in furtherance of the conspiracy establish that they tried to avoid customs' detection of the undocumented orchids by (1) shipping small quantities of undocumented orchids amongst large quantities of documented orchids; (2) placing undocumented orchids at the bottom of shipments and legal orchids at the top of shipments so that inspectors, upon inspecting the top of the shipments, would be fooled into thinking that the entire shipment was legal; and (3) using false and misleading customs documentation, in violation of 7 C.F.R. § 355.20(a), to smuggle the undocumented orchids into the country. In this way, the legally imported orchids were an integral part of the conspiracy to import undocumented CITES-protected orchids in the country.
There's much, much more detail in the PACER documents I've linked above.
So what? Well, here are my thoughts:
1. The lede of the Washington Times article emphasizes that that armed government agents in SWAT gear ransacked Norris' house in executing a search warrant. I firmly support the proposition that prosecutors and law enforcement should consider, in executing search warrants, (1) the actual risk presented by the location and people searched, (2) the nature of the crime, and (3) alternative, less-intrusive methods, and adjust their tactics accordingly. I also think that it's appalling that government agents routinely see search warrants as free license to trash a house gratuitously. But that's true no matter what the charge is, not only when the charge is something like orchid smuggling.
2. One can make the argument that the government restricts imports too much, or requires too much paperwork for importation or other business activities. There are even cases that support the proposition that the government criminalizes innocent and merely negligent mistakes in paperwork. But even my quick and dirty investigation using publicly accessible documents shows this is not such a case. Norris copped to conspiring to smuggle, to deliberate smuggling, and to making knowingly false statements in the course of that conduct. Should the government never have enacted the regulatory scheme that presented him with the occasion to do so? Is it ridiculous, and unduly restrictive of liberty, to erect red-tape barriers that orchid fanciers must scale? Perhaps. But the record shows that it is extremely deceptive (or sloppy) to describe him as "not having proper paperwork" or "failing to navigate" bureaucratic requirements. The record shows that Norris conspired deliberate to violate, deliberately violated, and lied about those bureaucratic requirements. It's one thing to say that bureaucratic requirements are ridiculous and burdensome; it's quite another to say that someone is an innocent victim of circumstance when they knowingly and deliberately violate them. George Norris is a piss-poor hero for the over-criminalization movement. He's only being shoved into the spotlight because a his case is susceptible, if you buy his advocates' shallow spin of it, to an "OMG WTF jailed for orchids!!!!" reading.
3. It's important to exercise skepticism when the media trumpets an individual legal proceeding as emblematic of a larger social problem. That skepticism should extend to (1) whether the media has adequately investigated what happened in the legal proceeding; (2) whether the media understands what it discovered; (3) whether the media is presenting the case honestly, or is spinning it in service of its "trend" story; (4) whether the trend the media describes actually exists, or just consists of several cases the media has heard about from its friends at cocktail parties; and (5) if the trend exists, whether the case is connected to the trend. God knows I've cited outrageous or funny stories in the news about civil and criminal cases without engaging in that level of analysis. But when we do that, we reduce our grasp of the legal world and the way it words to the common denominator of the media. And, as I've said many times before, the media is (which some shining exceptions) largely legally illiterate.
Note that the Washington Times story cites another case as an example of over-criminalization. Perhaps some enterprising blogger can analyze that one next.
Despite all of this, I don't disagree with the central point of the article — Congress has overly federalized criminal law. That process has many ill effects: it dramatically grows the power of the central government, it hinders local experimentation and progress of liberty (as in the case of medical marijuana or right-to-die laws), and it makes it more difficult and more expensive to comply with the law in the course of commerce and life in general. Unfortunately, members of Congress hardly ever get booted out for saying "I am fighting problem X by introducing a new bill making Y a federal crime."
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016