Shut Up, He Repeated Incessantly

I've got a new post up at Fault Lines about the latest case of "oops I didn't get convicted of what the FBI was investigating but I got convicted of lying to them about it."

Last 5 posts by Ken White

Comments

  1. ellomdian says

    Why the fuck isn't this statute more closely governed by the context of the ongoing investigation/charges?

    This is legitimately 'you can end up in jail because some fuckwad Fed decided they didn't like you today' territory. The statute appears frightening.

  2. dan says

    @ellomdian

    Because power corrupts, but even if not quite absolute, the power to be able to throw anyone in jail is really kinda awesome.

  3. Wyrm says

    That reminds me of one of the few good scenes in the latest Luke Cage series. One of the villains gets caught and is interrogated by a cop. His only answer to everything is "lawyer". His. Only. Answer.
    Needless to say, it annoyed the cop to no end. I think that would be quite close to reality in 1- what anyone arrested by cops (or feds) should do and 2- exactly how cops would react to it.

    Remember guys, when a cop arrests you, he is not your friend. Don't try to make it easy for him because the only thing he wants is to convict you of something, so making it easy for him is definitely not in your interest.

  4. Encinal says

    Ken, I think more clarity is warranted on the "honest mistake" issue. Do you means that honest mistake instant a valid defense? That it's hard to get a jury to believe it? That they might believe it, but there's still a significant chance they won't believe it? That even if they do believe it, you still the trial to deal with? What sort of evidentiary standards are there with respect to elements that deal entirely with the defendant's beliefs?

  5. En Passant says

    Knock knock.

    "Who's there?"

    "FBI. Can we talk to you a moment?"

    "No, not without my lawyer present. Go away."

    "You're under arrest for lying to a federal investigator. We just talked to to for a moment without your lawyer present."

  6. Richard says

    So, Ken, my takeaway from this is that I should argue with the cops for hours, in an attempt to prove my innocence, before calling my lawyer.

    That's what you've been going for with this series of posts, right?

  7. IForgetMyName says

    The breadth of 1001 is pretty terrifying. I vaguely recall a case where a guy under federal investigation lied to his wife about where he'd be (not to evade the investigation, but to cover up an affair. You know, innocent Bill Clinton stuff.) The wife was questioned about the husband's whereabouts, she passed on the false information, and the feds wasted an embarrassing amount of resources looking for him in the wrong place. He was charged and convicted under the statute. Unfortunately, I don't think I ever found out what happened on the appeal, and I'm too lazy (and a bit too afraid to find out the answer) to look for this case.

    Even if the conviction was overturned, the fact that the government had the balls to levy the charge (and convinced a jury to convict) just goes to show you how broad the "or causes a false statement to be made to the feds" part can be.

  8. Daniel Weber says

    What needs to be proven for a 1001 conviction? If I'm talking to someone who hasn't identified themselves as a Fed but they are, am I in danger?

  9. Anon says

    To be clear, Ken, are you saying someone should never talk to investigators under any circumstance? For example, say you're in line at the bank when a guy runs, throws a brick at the glass, and runs out when bounces off. Agent on-scene asks you what the guy looked like. Same advice?

  10. Noscitur a sociis says

    What needs to be proven for a 1001 conviction? If I'm talking to someone who hasn't identified themselves as a Fed but they are, am I in danger?

    The Fifth Circuit pattern instruction is:

    For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
    First: That the defendant made a false statement to _______ [name department or agency of United States government] regarding a matter within its jurisdiction;
    Second: That the defendant made the statement intentionally, knowing that it was false;
    Third: That the statement was material; and
    Fourth: That the defendant made the false statement for the purpose of misleading the _______ [name department or agency].
    A statement is material if it has a natural tendency to influence, or is capable of influencing, a decision of [name department or agency].

    It is not necessary to show that the _______ [name department or agency] was in fact misled.

  11. Morrowind542 says

    How in the bloody hell is this not covered by the 1st or 5th amendment? Didn't the supreme court rule that lies were protected by the 1st amendment in US v. Alvarez?

    Assuming this law has been challenged, could someone give me the name of the case or a link to the opinion?

  12. Anon Y. Mous says

    Ken White is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles.

    What do lawyers have against commas?

  13. Richard Smart says

    Ken's "Fault Lines" post said: "Martha Stewart was convicted not of insider trading, but of lying to the feds during their insider trading investigation."

    Which is true enough. At the time, a curmudgeonly psychologist and SF author somewhere to the right of Ghengis Khan (Jerry Pournelle) observed:

    "They seem to have charged her with lying when she said she did not do something they then did not charge her with doing. Cooperating with those people is clearly dangerous, and a silly thing to do. She wasn't even under oath. They have redefined perjury: it's maiestas with a different name. Contempt of government. But we were born free."

    And as Pournelle elsewhere observed,

    "My question is, given they did not charge her with the original "crime" of insider trading, how can telling people she didn't do it be a crime until it is proved that she did it?"

    It's actually worse than that. If I recall correctly, the funny thing is she had her lawyers present throughout. And when she "lied" (Feds version of what happened), she was saying what her lawyers recommended.

  14. Quiet Lurcker says

    By the feds' logic – or what passes for it – if you assert your innocence and are later convicted, you have lied to the feds.

    We all know innocent people are sometimes convicted. Innocent people who protest their innocence are telling the truth. Are they then turned in to liars when they are convicted, despite being truly innocent?

    Talk about straining at gnats and swallowing camels.

  15. andrews says

    Someone should also point out the virtues of the "shut up" approach in civil matters. If you are even remotely considering a suit as plaintiff, be assured that a smart defendant will find out everything you have said about it, including those things which suggest that you should lose.

    If you are a defendant, or you expect to be one, it is just as urgent to learn how to say "no comment". Remember those old _Miranda_ warnings? Well, in a civil matter, anything you say can and will be used against you in a court of law.

    Shutting up has the notable advantage of saving money, too. If the other side happens to request production of all your statements about the case, and you have carefully refrained from making any, then you do not have to pay your lawyer to assemble that information.

    As for making things better with your brilliant and careful statement, nope. The cover-up really is worse than the offense. This morning's Daytona _Fish Wrapper_, on the front page, reports that a candidate's statements that the polygraph statements were forged were untrue, the polygraphs were real.

    The polygraphs themselves? Twenty-some years ago, she was asked whether she had used drugs, and admitted trying cocaine as a teenager. No comment as to the reliability of polygraphs generally. But the headline is not "tried drugs, as teen a long time ago", rather it is "lying about the polygraphs, now".

  16. piperTom says

    ellomdian says "The statute appears frightening."

    Yes, and there are similar laws at the state level in many places. Here we are in an era, we never thought the USA would see: the ordinary citizen has little motive to aid authorities and plenty of reason to resist. Across the board, it's wise to never tell the cops anything. Not anything!

  17. TRX says

    > For example, say you're in line at the bank when a guy runs, throws a brick at the glass, and runs out when bounces off. Agent on-scene asks you what the guy looked like. Same advice?

    I think that would be an appropriate time to call on the Fifth Amendment.

    If anything I say can be used against me, I ain't sayin' nuthin'.

    They made their bed. They can lay in it.

  18. Docrailgun says

    Police now try to get around Miranda warnings by detaining and questioning suspects before arresting the suspect and issuing the warning. It happens in every single interaction on Cops, if you need evidence.
    I think the producers and the police involved in Cops think that the lesson they're teaching viewers is "if you cooperate and tell the truth the police will cut you a break", but if you watch the show a lot the lesson you learn is that the police will do whatever they want at even a "routine traffic stop". They WILL find a way to search you and your vehicle even if you don't authorize the search.
    Also, why is it that everyone on that show that agrees to a search has either drugs or paraphernalia in their cars? I realize that "paraphernalia" now includes plastic straws and steel wool, but if one uses drugs regularly how does one remember where all the method pipes might be? Might there be one in the car? There just might.

  19. NickM says

    Docrailgun – because the footage where the cops spent 5 minutes searching the car and found nothing they thought important makes for lousy TV, so they don't show it.

  20. Matt says

    @Docrailgun

    Also, why is it that everyone on that show that agrees to a search has either drugs or paraphernalia in their cars?

    To play Devil's Advocate, I assume that COPS doesn't show the ones where they don't find anything, it'd make for boring TV, after all.

  21. Anon says

    @TRX.
    Well, sure, I guess you could spend (at least) a couple of hundred bucks on attorney fees, no to mention the wasted time, plus possibly arose the curiosity/attention of the agents, rather than simply saying, "I think it was a white guy, about six feet."
    By the same token you are free keep silent rather than explain to the cop that it's your car you're breaking into because you locked your keys and wallet inside. Very shrewd. Good luck with that.

  22. Noscitur a sociis says

    How in the bloody hell is this not covered by the 1st or 5th amendment? Didn't the supreme court rule that lies were protected by the 1st amendment in US v. Alvarez?

    I'm not sure how you think the fifth amendment is even implicated: as the post and the comments have (I hope) made clear, you don't have to speak to the investigators at all. A fortiori, you don't have to lie to them either.

    Alvarez held that falsity alone does not remove speech from the protection of the first amendment. It did not hold that the first amendment prohibits the government from criminalizing certain kinds of false statements.

    Assuming this law has been challenged, could someone give me the name of the case or a link to the opinion?

    The most helpful, I think, is Brogan v. U.S., 522 U.S. 398 (1998), which also explains why the fifth amendment isn't implicated.

  23. Christoph says

    His only answer to everything is "lawyer". His. Only. Answer.

    "What's your job?"
    "Lawyer."
    "Well, we know for a fact that this a lie. Add 'lying to a federal investigator' to the list."

  24. MelK says

    @Matt, @Docrailgun:

    > To play Devil's Advocate, I assume that COPS doesn't show the ones where they don't find anything, it'd make for boring TV, after all.

    I expect there's some amount of Journalistic Capture involved too: If they show things unfavorable to the police, the police will stop letting them ride along.

  25. Doctor X says

    His only answer to everything is "lawyer". His. Only. Answer.

    "What's your job?"
    "Lawyer."
    "Well, we know for a fact that this a lie. Add 'lying to a federal investigator' to the list.

    "Hodor!"

    –J.D.

  26. IForgetMyName says

    @Quiet Lurker:

    By the feds' logic – or what passes for it – if you assert your innocence and are later convicted, you have lied to the feds.

    I'm not sure this is strictly true. If your denials are basically couched in terms of a non-guilty plea–i.e., I didn't commit the crime you're accusing me of–I haven't personally seen the federal government drop the hammer, and I can see some Fifth Amendment issues being raised if that ever happened to someone with a decent lawyer.

    You mostly see this law being applied when the lies relate to facts where telling the truth isn't literally a guilty plea–lies about alibis, lies specifically implicating some non-you person in the crime, lies that undermine efforts to locate you or evidence relevant to your case.

    @Matt

    To play Devil's Advocate, I assume that COPS doesn't show the ones where they don't find anything, it'd make for boring TV, after all.

    That's generous of you. I think the real reason is that COPS requires the cooperation of police to exist, and even police are self-aware enough to realize that the kind of over the top behavior that makes for great TV when directed at people who turn out to be guilty tends to cast them in a very negative light when directed against someone who turns out to be innocent.

  27. IForgetMyName says

    @Morrowind:

    (Great name and classic game, by the way)

    How in the bloody hell is this not covered by the 1st or 5th amendment? Didn't the supreme court rule that lies were protected by the 1st amendment in US v. Alvarez?

    That's not precisely true. The Stolen Valor act was incredibly broad–it basically said that the lies alone were a criminal offense. The Supreme Court struck it down on the basis that it's unconstitutional to have an overly broad law that criminalizes lying alone, more or less. There was no majority opinion, meaning no majority of the justices actually agreed on why this law was or was not Constitutional, but a majority did agree–in two concurring opinions–on the ultimate result (law is invalid), so that's what we went with.

    What neither concurring opinion did was find generally that it was unconstitutional to include lying as an element of a crime, or that the First Amendment somehow granted blanket immunity to criminal prosecution for any crime that involves lies. That's why perjury (element 1) lying, element 2) doing so while under oath to tell the truth) and fraud (1) lying to someone 2) knowing he'll probably act in reliance on your lies 3) in a manner that injures him (and probably enriches you)) are still valid laws.

    I get the feeling that a Stolen Valor law might have been upheld if it were more narrowly crafted, if perhaps it criminalized pretending to be a veteran in order to get a free meal on Veteran's day or to get some material benefit or another.

    Edit: I just googled a bit to fact check myself and I discovered that in fact they did pass a new Stolen Valor Act that includes "receiving something of value" (based on the lie) as an element of the crime. As far as I know it hasn't been challenged in court yet, and I suspect no successful challenge will come.

  28. rmd says

    Anon Y. Mous says
    NOVEMBER 2, 2016 AT 8:03 PM

    Ken White is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles.

    What do lawyers have against commas?

    Ken White is a criminal, defense attorney, and civil litigator at Brown White & Osborn LLP in Los Angeles.

    No, I don't think that's any better.

  29. Winweasel says

    Anon Y. Mous says
    NOVEMBER 2, 2016 AT 8:03 PM

    Ken White is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles.

    What do lawyers have against commas?

    Commas improve clarity. For example: Eat shit and die may be taken as instruction to coprophagate and terminate ("Eat shit and die!"); a caution against coprophagation ("Eat shit, and die"); or a progression of actions within the experience of most living things ("Eat, shit, and die"). Reasonable doubt is diminished by the scrupulous use of commas. As the mug reads, commas save grandmas.

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