I've got a new post with some of my favorite advice — now in e-edition! — over at Fault Lines.
Ken, you need to explain the Ninth Circuit's decision about the interaction between Section 512(f) of the DMCA and fair use law, particularly in the context of surviving motions to dismiss or summary judgment.
You can't make me.
Fine. God. You're such a child. Will you write about SOMETHING please?
. . . . maybe.
The multi-faced troll the feds just arrested? The one everyone wants to pin on "the other side" of whatever argument they're having?
Seems kind of a cop-out to me. But fine. What's he charged with, and how?
The feds — more specifically, the U.S. Attorney's Office for the Middle District of Florida — have filed a criminal complaint charging Goldberg with one count of distributing information about explosives and destructive devices.
Only one count?
It's only a complaint. See, in the federal system, prosecutors can seek a complaint — an accusation approved by a U.S. Magistrate Judge, based on the probable cause demonstrated in a written and sworn affidavit by a federal law enforcement officer — or get an indictment, which is an accusation issued by a grand jury.
But unless they plead immediately, all federal defendants charged with felonies are entitled to be charged by grand jury indictment. So if you're looking to arrest someone based on a complaint, you don't necessarily have to throw all of the charges in there — you'll have the chance to throw more in when you draft an indictment and go to the grand jury.
So he could get charged with more later?
Sure, if they've got the evidence.
Right now he's charged with one count of distributing information about things that go boom under Title 18, United States Code, Section 842(p).
What's that when it's at home?
It's a statute making it illegal to teach people how to make bombs so they can use them in a crime, basically:
(2)Prohibition.—It shall be unlawful for any person—
(A) to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence; or
(B) to teach or demonstrate to any person the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, knowing that such person intends to use the teaching, demonstration, or information for, or in furtherance of, an activity that constitutes a Federal crime of violence.
Hmm. So it criminalizes teaching about things? Could that be a First Amendment violation?
Some will say so, but I don't think it's a very strong argument. Notice that the crime requires that the defendant intend that the information be used in a federal crime of violence. A federal court in San Diego considered a First Amendment attack on the statute and rejected it on that basis:
The specific focus of the statute is not on mere teaching, demonstrating, or disseminating information on how to construct a destructive device, but upon teaching, demonstrating, or disseminating information with the specific intent that the knowledge be used to commit a federal crime of violence.
Courts have upheld similar statutes so long as they require that the defendant intended to further an illegal act.
How are they going to prove what Goldberg intended? He's a troll. The whole point of his existence is saying things he doesn't mean.
Well, their case got a hell of a boost when Goldberg effectively confessed to the elements of the crime.
The complaint and supporting affidavit are here. The feds say that Goldberg provided bombmaking information to be used in a terrorist attack on a Kansas City September 11 memorial. The feds have a confidential informant posing as a potential domestic terrorist, referred to as "CHS" in the complaint. They monitored communications in which Goldberg encouraged CHS to engage in a terrorist attack using bombs at the Kansas City memorial, and sent him links to pages with instructions for making bombs, and suggested what sort of shrapnel to use in the bombs.
Now, Goldberg could have engaged in the troll's typical defense — that he knew that CHS wasn't a real terrorist and was stringing him along. I wouldn't want to go to a jury with that, but it's colorable. But Goldberg blew that defense by talking to the FBI when they raided his house:
JOSHUA GOLDBERG admitted that he provided that individual with information on how to manufacture bombs. JOSHUA GOLDBERG further admitted that he believed the information would create a genuine bomb. Specifically, JOSHUA GOLDBERG stated that he provided the individual with instructions on how to create a pressure cooker bomb. When creating the pressure cooker bomb, JOSHUA GOLDBERG admitted that he instructed the individual to include nails and to dip the nails in rat poison. JOSHUA GOLDBERG also admitted that he instructed the individual to place the bomb at an upcoming memorial in Kansas City, Missouri that was commemorating the September 11,2001 attacks. JOSHUA GOLDBERG stated that he believed that the individual did intend to create functioning bombs and would actually attempt to use them to kill and injure persons. During the course of the interview, however, JOSHUA GOLDBERG made varying statements in an attempt to explain his actions in providing bomb making information to the individual. In general, JOSHUA GOLDBERG claimed that he intended for the individual to either kill himself creating the bomb or, if not, that he intended to alert law enforcement just prior to the individual detonating the bomb, resulting in JOSHUA GOLDBERG to receive credit for stopping the attack.
So. By failing to shut up — which one should always do when confronted with federal agents, at least until one gets legal advice — Joshua Goldberg has made the government's case dramatically stronger.
Is this going to be another case where there was never going to be any terrorist attack because the defendant was dealing with a government agent all the time?
Sure looks that way.
So, how much time could he do?
The statutory maximum for the charged crime is 20 years. But, as Popehat readers know, his sentence will be calculated using the recommendations of the U.S. Sentencing Guidelines; the statutory maximum is only a ceiling and usually has little to do with the actual sentence. Plus, the feds will probably load more charges on when they indict.
We have very little information, and we don't know the final charges yet. But it appears to me that under the applicable guideline, taking into account only what's in the complaint, his recommended sentence will be very substantially less than 20 years. As currently charged, it's more like a couple of years if he pleads guilty. Of course, a judge can go above the guidelines, and may well do so in a case this vivid.
So. What's next for him?
He appeared in court and his Public Defenders agreed that he would stay in custody pending a bail hearing. That's often, though not always, a sign that the defense thinks they have a tough argument to get him out on bail. He's entitled to bail unless the government can show that's he's a danger to the community or flight risk in ways that amount and conditions of bail cannot address.
Normally, the next step would be for the feds to indict him, and for him to enter a not guilty plea on the indictment. But today apparently he got new lawyers and the U.S. Magistrate Judge ordered him to be evaluated for competency to stand trial.
What? He's trying an insanity defense?
Not necessarily. Competency is different than insanity. The insanity defense goes to whether the defendant can be held responsible for his actions. A competency exam assesses whether the defendant is even competent to stand trial — that is, whether as a result of mental illness he's "unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense."
So if he's incompetent, he walks without even going to trial?
Oh no. First he gets evaluated at a federal psychiatric facility for up to 30 days. There's one in Springfield, Missouri, for instance. Then, if the judge finds by a preponderance of the evidence that he's competent, he stands trial. If the judge finds him not competent, he gets sent back to the federal psychiatric facility for up to four months to see if they can make him competent using drugs and therapy. Then he gets sent back for another assessment, and maybe more therapy and drugs, and so forth. He's in custody the whole time. Eventually, if it looks impossible to make him competent but he's still adjudged dangerous, he can be committed long-term.
The process of being shipped to a place like Springfield, and "treated" there, and returned, is notoriously unpleasant. I think I might prefer to get tried and sentenced. I mean, assuming I helped people make bombs or something.
What do you anticipate happening next?
He'll be back in 30 days, or longer if the parties agree to a longer time. The judge will make a determination of his competency, which the parties may or may not contest. Then, anything can happen. Remand to treatment if he's not competent, a guilty plea to minimize exposure, trial, and everything in between.
By the way, if his competency is in question, if I were his lawyer, I'd be thinking about whether I could get his confession thrown out. It's not a Fifth Amendment violation to take a confession from someone who is incompetent; a defendant still has to show police coercion. But a defendant's lack of competence can be one factor in determining whether law enforcement coerced a confession. It's worth a look for his defense.
Is that all?
Now do the DMCA case!
This week, federal prosecutors indicted former Speaker of the House Dennis Hastert.
Hastert is charged with two federal crimes: structuring financial transactions to evade IRS reporting requirements in violation of 31 U.S.C. section 5324(a)(3) and lying to the FBI in violation of the notorious 18 U.S.C. section 1001. Both charges reflect the breadth of federal prosecutorial power.
The indictment has mostly inspired chatter about what it doesn't say. Hastert is charged with structuring withdrawals of less than $10,000 (so that they would not be reported to the IRS) so that he could pay off an unidentified person for Hastert's unidentified past misconduct. What past misconduct, or threatened accusation of misconduct, could lead Hastert to pay $3.5 million? The indictment doesn't say, but it has been drafted to imply that the allegation of past misconduct relates to Hastert's job as a teacher and coach in Yorkville, Illinois. Hastert isn't charged with doing anything to the accuser, and the accuser isn't charged with extortion.
As Radley Balko has pointed out, structuring (or "smurfing") charges are extremely flexible. They demonstrate the reality of how Americans targeted by the Department of Justice can be charged. We imagine law enforcement operating like we see on TV: someone commits a crime, everyone knows what the crime is, law enforcement reacts by charging them with that crime. But that's not how federal prosecution always works. Particularly with high-profile targets, federal prosecution is often an exercise in searching for a theory to prosecute someone that the feds would like to prosecute. There is an element of creativity: what federal statute can we find to prosecute this person?
We'll learn more about the reasons for Hastert's payments in the course of the case (or through Department of Justice leaks calculated to harm him). I suspect we'll find that the investigation happened like this: the feds heard that Hastert was paying someone off based on an accusation of old misconduct, determined that the misconduct was too old (or out of their jurisdiction) to prosecute, and started subpoenaing records and interviewing witnesses until they found some element of what he was doing that was a federal crime. In other words, they targeted the man, and then looked for the crime.
The problem with this scenario is that federal criminal law is extremely broad. Practically speaking, it gives federal prosecutors vast discretion to determine who among us faces criminal charges. If you think that you're safe because you've never committed a crime, you may learn to your surprise that you're wrong.
The rational response to this situation is clear: don't trust the feds, don't talk to the feds. But Dennis Hastert, like many accomplished people, believed he could talk his way out of the situation. When the FBI came to interview him, he didn't refuse to answer and call his lawyer. According to the indictment, he confirmed in response to an FBI agent's question that he was withdrawing cash in order to store it because he didn't feel the banking system was safe. For that, he's been charged with lying to federal agents.
This is another aspect of the federal government's vast prosecutorial discretion. Hastert's alleged false statement happened in December 2014. When agents interviewed him, I guarantee you that the feds had already made their case. They had already put witnesses before the grand jury, they had already used grand jury subpoenas to get Hastert's bank records, they already knew exactly how they would charge and prove up the structuring charge. When they went to interview Hastert, there were only three possible outcomes: he would refuse to talk, he would confess, or he would lie in a way they could easily disprove. They were looking either for the confession, which would make their case easier, or the lie, that would give them a new theory on which to charge him with a crime. Under Section 1001 a lie must be material to be criminal. But the materiality element is weak. It only requires the government to show that the lie is the sort of statement that could conceivably influence the FBI. It doesn't require the government to show that the lie actually had any impact whatsoever. Thus the FBI can show up with its case ready to indict, fish for a lie that they know is a lie, and pile that charge on top of whatever the substantive charge is. That's why I bring up Section 1001 so often and explain why it means you must shut up. You can be prosecuted for as little as saying "no, I didn't" in response to a already-documented accusation.
The criminal justice system needs to be able to prosecute perjury — lies under oath before a tribunal. And I can see why it needs to be able to punish false statements to the federal government that represent an attempt to commit fraud (say, false statements to get a passport) or that impact an investigation (say, a false accusation that triggers an inquiry).
But ask yourself: what is the legitimate basis for giving the feds the power to prosecute people for exculpatory lies that have no impact whatsoever on their operation?
From the federal government's perspective, the basis is clear: it's a tool to help them charge people they want to charge.
From the citizen's perspective, this situation points to one obvious conclusion: shut up. Never answer a federal agent's questions without a thorough debriefing with a qualified lawyer first.
It's my best piece of advice — and the advice most consistently ignored. If you're dealing with the government, and you are in any doubt, why won't you just shut up?
Yesterday at Ars Technica, Nate Anderson had a great piece about the FBI's capture of a couple of meatheads who were extorting a professional poker player with nude pictures hacked from his email account. Some people may walk away with the lesson, "you're a fool to keep your naked pictures online." Some may walk away with a Coen Brothers type of lesson that some criminals are stupid and doomed to failure. I walk away with the same lesson as always: shut your damnfool mouth and stop trying to convince law enforcement of anything.
Nate's article tells about two defendants — Keith Hudson and Tyler Schrier. The FBI confronted them both in a manner well-calculated to scare the living shit out of them, rousting Hudson at gunpoint at his home and yanking Schrier out of his dorm room in his underwear. Most people have a hard time thinking straight under those circumstances. They forget things, they misread signals, they judge poorly, and they let their desperation to control the situation overcome whatever minimal good sense they have. The only good approach is to shut up. Hudson and Schrier didn't. They both talked, and both started with a series of stupid and easily countered lies, before blundering around towards the truth.
"The FBI does not fly us out here and we don't break into your door to talk to you if we don't have a substantial amount of evidence against you," said one of the FBI agents to Hudson. Actually, the FBI goes off on a wild tear based on lousy evidence all the time. But this much is true: when the FBI shows up to interrogate you, there is an excellent chance they already know the answers to their questions (or think they do) and already have evidence lined up to back their beliefs. When you run your fool mouth, you are probably doing one of three things: (1) incriminating yourself by admitting to parts of their case, (2) telling stupid and easily disproved lies, which make you look guilty, thus making you easier to convict, and (3) telling stupid and easily disproved lies that the government will use to pile additional charges onto you.
Indeed, in this case, when the feds indicted Hudson and Schrier, they added a charge under 18 U.S.C. section 1001 against Schrier for lying to the FBI during his interrogation. They did that even though the FBI agents knew it was a lie at the time and had the evidence they needed to disprove it and it didn't slow or deter the investigation by a hair. Now, that extra charge probably didn't have much impact on Schrier's sentence — it's really chickenshit rubble-bouncing — but it's an additional federal felony that makes his case more complicated, needlessly.
Some people are sociopaths and would try to fast-talk God Almighty. Some people talk compulsively under any pressure. And some people have somehow picked up a foolish notion that if they don't talk, if they don't cooperate, if they don't show the cops that they're good citizens, they'll be hustled off to a cell even if they've done nothing, or that they will lose a chance to divert the cops from the something they have done. Here's the truth: maybe, possibly, there could be a scenario where your long-term interests will be hurt if you refuse to talk to law enforcement. Maybe, possibly, in some extremely unlikely scenario, you could do actual harm to your fortunes by asking to talk to a lawyer before you talk to the cops. But those remote and hypothetical scenarios are vastly outweighed by the strong likelihood that you will make your situation much worse by talking. The "I better talk to the cops right now or things might get worse" approach is like deciding to jump off a bridge because you might get struck by lightening if you keep standing on it.
Shut up. For the love of all that is holy just shut up.
There's a reason for this. The reason lies at the heart of law enforcement methodology in general and federal law enforcement abuse of Title 18, United States Code, Section 1001 in particular.
Imagine this scenario, based on an actual situation:
A business associate calls you and says, "my dear business associate, the shit has hit the fan; Federal Agency X is investigating Project Y we did together. Two Agency X agents are interviewing people."
"Oh coitus," says you, or words to that effect, and terminate the conversation.
Later that day, two well-dressed and polite agents of Agency X visit you. Because you despise me and want me to weep and gnash my teeth, you consent to be interviewed. At some point, they ask you "have you talked about this investigation with anyone?"
"No," you say.
At the end of the interview, it occurs to you to ask, "Hey, am I in trouble? Do I need a lawyer?"
The agents smirk. "No," they say. "I mean, unless you lied about talking to anyone about this investigation."
See, you've fallen into a false statement trap, which I've talked about before. The feds know that you've talked to somebody about their investigation. They were probably standing next to your friend when he made that call this morning. And now you've talked your way into a felony.
Here's how it works. The feds identify some fact that they can prove. It need not be inherently incriminating; it might be whether you were at a particular meeting, or whether you talked to someone about the existence of the investigation. They determine that they have irrefutable proof of this fact. Then, when they interview you, they ask you a question about the fact, hoping that you will lie. Often they employ professional questioning tactics to make it more likely you will lie — for instance, by phrasing the question or employing a tone of voice to make the fact sound sinister. You — having already been foolhardy enough to talk to them without a lawyer — obligingly lie about this fact. Then, even though there was never any question about the fact, even though your lie did not deter the federal government for a microsecond, they have you nailed for a false statement to a government agent in violation of 18 USC 1001. To be a crime under Section 1001, a statement must be material — but the federal courts have generally supported the government's position that the question is not whether a false statement actually did influence the government, but whether it was the sort of false statement that could have influenced the government.
Hence, the government's chickenshit false statement trap works — even though the government agents set it up from the start. Now, however weak or strong their evidence is of the issue they are investigating, they've got you on a Section 1001 charge — a federal felony. In effect, they are manufacturing felonies in the course of investigations.
You think this is an improbable scenario? You think I'm talking about rare and extreme cases to color the entirety of federal law enforcement? To the contrary, as a federal defense attorney, I'm encountering this more and more often. Not to sound like an old fart, but we never indulged in such bullshit when I was a federal prosecutor (cue the scoffing from many defense attorneys). But in the last 12 years, I've seen it in a dozen cases, and heard about it from colleagues across the country. It's now routine for federal agents to close out an investigation with a false-statement-trap interview of a target in an effort to add a Section 1001 cherry to the top of the cake.
The lesson — other than that criminal justice often has little to do with actual justice — is this: for God's sake shut up. Law enforcement agents seeking to interview you are not your friends. You cannot count on "just clearing this one thing up." Demand to talk to a lawyer before talking to the cops. Every time.
Just before leaving the office last night I got a call from Greg, of Greg's Quality Plumbing. Greg does seem, on the phone anyway, to be a quality plumber: a nice guy running a six employee shop for new construction and homeowners. Unfortunately one of Greg's employees made a mistake, overtightening a compression nut on the toilet water supply line in a very expensive house insured by BigState Casualty Insurance Company. The nut eventually fractured,over Christmas vacation with the family out of town, and the water flowed for days. BigState paid hundreds of thousands of dollars to rehabilitate the waterlogged house, and wants its money back. From Greg's Quality Plumbing.
And so Greg got my letter, and Greg picked up the phone to sort this all out, and to set me straight. As I said, I have no doubt Greg is a quality plumber but Greg is an absolute amateur when it comes to dealing with sharks in the water. He made a number of serious mistakes, feeding me information about his business, the employee who did the work, the general contractor who built the house and will be cross-claiming against Greg in the coming lawsuit, and Greg's business assets. All while trying to set me straight.
In the end, Greg did not set me straight. What he accomplished was to give me information I will use against him at his deposition and at trial. He kneecapped the defense attorney his insurance company will retain, an attorney who won't even hear about the dispute between BigState and Greg's Quality Plumbing for several months. I almost feel sorry for Greg, who came into the conversation with high hopes that he would frighten me off or convince me that I have no case against him. All that he did was convince me to write this post, as friendly advice to small businessmen on what to do when they get "the letter".
- When you get a letter from a lawyer, read it. Read it immediately. Read it more than once. Then take a short break, and read it again. When Greg called me, he told me he "wanted to find out what all of this was about." If Greg had bothered to read my letter, which detailed exactly what we think the problem was, what we want from Greg, and how to give us what we want, he wouldn't have needed to call me. And he wouldn't have answered a bunch of my questions as I pretended to search my files and databases to get to the bottom of the problem in BigState v. Greg's Quality Plumbing.
- Don't be an ostrich. Don't ignore the problem: It won't go away. I've spent most of my career defending clients for insurance companies, so I've ceased being amazed at how people hide their heads in the sand when they get bad news. But they do. They even get a "letter", by certified mail, that says CIVIL SUMMONS with another "letter" titled COMPLAINT attached, and file it away, meaning to get around to responding to it. They violate rule #1, failing to read the Summons which clearly states that they have 30 days to respond, in writing filed with the clerk of court, or something bad will happen to them. After you've read the letter, you need to frame a response. And that response should not come from you.
- Don't be an internet hero. You read a lot of things on the internet: you read about the day-to-day life of lesbians in Syria. You read about cute women who are just dying to meet lonely men in New York. And you read stories about laypeople who've beaten lawyers at their own game, with nothing but their wits and the righteousness of their cause. Those sure are nice stories, but are they true? All I can judge from is my own experience: I've never "lost" a case, for the plaintiff or the defendant, in which I faced a layperson on the other side. ("Losing" is a relative term: every time I litigate against laypeople, I feel like a loser because it's like beating up a twelve year old.) I've beaten a neurosurgeon who could have afforded counsel but didn't feel the need because it was a small case, he was right, and doggone it he was smart. I've beaten a hyperlitigious crank who's filed so many pro se lawsuits she's been featured in the Wall Street Journal and Forbes. And I've beaten everyone in between. Because while I'm not all that smart, I'm old. And I've been doing this for a long time. You haven't. Which leads to:
- Shut up. Wise advice, that applies to civil matters as much as criminal cases. Don't call the lawyer who sent you "the letter" to "set him straight". You won't solve the problem on the phone. But you might hang yourself.
- Get help. Obviously the person or company on the other side thought the dispute between you was important enough to retain counsel. That's a hint. If you have a business, you probably know a lawyer. Even if you don't, your customers and friends do. Ask around, discreetly (i.e. not blabbing all over town that you're getting sued), for the name of a good lawyer or two. And call the lawyer. Today. If the lawyer doesn't call you back with reasonable promptness (meaning if you call me at 11pm on a Saturday, don't expect a return call before midnight), call another.
- Get professional help. Bob who pleads out speeding tickets for $250 a pop at the courthouse may be a good negotiator, but he's probably not the best choice to address your bank's demand for you to cover that Nigerian "certified check" that turned out to be fraudulent. The best source of legal referrals is other lawyers. By all means ask the lawyer whether the problem facing you is in one that's in his field. You'd be happy to have an ophthalmogist stop to help you as you lie bleeding on the side of the road, but once you get to the emergency room you'd want a trauma surgeon. If as Robert Heinlein said, specialization is for insects, that explains why lawyers give many people the creeps.
- Don't be penny-wise but pound-foolish. If you're getting a letter from an attorney because you owe sixty dollars at the video store, just pay the bill. If you're getting a million dollar demand because old Ms. Shuffler broke her neck when she slipped in the banana aisle of your store, get out your checkbook. You're going to need a quality defense. Which leads to:
- Are you in good hands? Any claim that could conceivably be covered by your business's insurance policy (you are insured, right?) should be reported to your insurance company. In writing. Immediately. If you don't report a problem to your insurance company because you don't want your rates to increase or you're afraid they'll cancel your policy (as clients have told me when I was asked to get their default judgments set aside), YOU'RE DOING IT WRONG! What do you think you're writing the premium check every month for? If a loss is even arguably covered, your insurer will take over negotiation of the claim, speak for you through an adjuster who's not terrified of lawyers, and hire a lawyer to defend you at its own expense. Don't be Greg of Greg's Quality Plumbing, who should have turned this over to his insurer (in fact that's what I told him to do) and then could have rested easy.
- Keep your files. It should go without saying, but when you get a notice from an attorney, or for that matter the government, the first thing you should do is not to throw away all records relating to whatever the problem is. Covering up may turn a humdrum civil case into a criminal case. Instead, turn the file over to your lawyer. Let him worry about what to do with it. And lastly,
- Don't get depressed. And don't panic. The sonofabitch who sent you that obnoxious letter may not love you, but plenty of other people do.
Lawyers should feel free to criticize or supplement this list in comments. Our lay readers are encouraged to tell us stories of how they fought City Hall and The Man on their own, and won.
It's a dark and gloomy six in the morning. You've just gotten out of bed. You are fuzzy-headed, bleary-eyed, badly in need of coffee. You haven't showered or dressed. You're in your underwear, or pajamas.
Suddenly there's a thunderous pounding on the door, and loud men are shouting something at you. Your heart lurches and the adrenaline jolts you. You open the door, and there is a team of FBI agents, guns prominently displayed in holsters, raid jackets open. They are large and aggressive and unfriendly. They tell you they have a search warrant for your home and push past you. Two of them grab you, bodily turn you around, and handcuff you. They'll say later they had to do that to secure the scene and assure agent safety, and that you totally weren't in custody or anything.
Two agents take you outside to your driveway in your pajamas or underwear. At this point your neighbors are beginning to peek curiously out of their windows. The agents push you into the back seat of a G-ride — a late-model American made sedan that smells of air freshener and despair. The two agents sit on either side of you in the back seat; a third agent climbs into the front seat. You shift uncomfortably, trying to avoid sitting on your handcuffed hands. But there's no way to get comfortable sitting in your underwear in the back of a G-ride with your hands cuffed behind you.
The agents begin to question you about your business dealings. They don't read you your rights first — they'll say later they didn't have to, because you totally weren't in custody, despite being handcuffed in the back of a G-ride in your underwear surrounded by FBI agents in raid jackets. The agents tag-team you, switch topics rapidly, play good-cop-bad-cop, and use every law enforcement rhetorical trick to intimidate you. We have some really serious questions here, they say. But if you just cooperate, maybe we can clear all of this up.
They start to ask questions about a meeting that took place two years ago. Were you at that meeting with Mr. Smith and Mr. Jones? You say no, no I wasn't. Maybe you say it without thinking, agitated and confused and muddle-headed from the circumstances. Maybe you don't have a clear memory of what happened two years ago. Maybe you panic and lie. The agents move on in their questioning.
After a few uncomfortable hours, the agents uncuff you, pull you out of the car, and hand you an incomplete, inaccurate, and illegible receipt purporting to state what they've taken. They haul off boxes of documents, disks, disk drives, and whatever else catches their fancy. They'll see you soon, they say.
And, relatively speaking, they do. Six months later you are indicted. You're indicted not only for whatever matter the FBI was investigating. As a kicker, you're also indicted under 18 U.S.C. section 1001 for lying to the FBI. That's a felony. Your lawyer reviews the discovery, and tells you that when the FBI agents asked you whether you were at that meeting two years ago with Mr. Smith and Mr. Jones, they already knew the answer to the question. Mr. Jones recorded the meeting and is cooperating with the FBI, and they had two other witnesses who placed you there. There was no chance whatsoever that your denial — whether it was a panic-induced brain fart, or a failure of memory, or a lie — could have misled or deterred the FBI in its investigation for even a moment. But that doesn't matter. Though materiality is an element of Section 1001, it's a weak, diluted type of materiality. Statements to the government are deemed material if they are the sort of statements that have the capacity to influence it. Courts have come very close to creating a presumption of materiality by reasoning that if the information were not material the government would not have asked for it and you wouldn't have offered it. There was a time when most prosecutors thought it was chickenshit to charge someone with a felony for an exculpatory denial of wrongdoing that never fooled anyone; that time is in the past.
So. By failing to shut the fuck up, you have just handed the feds a gimme felony charge that will make your case much more difficult to defend.
When the authorities ask you questions, they are not out to "clear this thing up so we can let you go." They are not your friends. They do not want to help. They are very likely not trying to learn anything or discover anything. They are trying to make, or improve, a case against you. They are hoping that you will fall into their trap. They may be trying to make a weak case strong or turn a lesser charge into a greater one.
Is there ever a situation where, by being friendly and cooperative and answering questions, you can deflect government suspicion or satisfy their concerns without charges? Yes. Very rarely, there is. And when the government comes knocking, they count on you grasping at the hope that this is one of those times. Don't be a fool. If there's a chance that cooperation will satisfy the authorities today, there will still be a chance in a day or a week or a month after you've consulted a lawyer who understands the situation. When you answer law enforcements' questions — especially when you do it in a stressful situation like a search — you take grave risks of substantially worsening your situation. You may say, "oh, but I won't lie." Sure. But can you be sure, sitting cuffed in your underwear at six in the morning in that G-ride, that you will remember events from years ago accurately? Are you sure you won't be confused and muddled under the circumstances? Are you sure that the government won't — fueled by claims by cooperators — believe that you've lied? Do you really think that if you misremember or mix up events in your head or if your memory is different than the story of a cooperator, that the government is going to give you the benefit of the doubt?
Don't be a fool. Invoke. For God's sake, just shut up.
I frequently advise clients who are the subjects of criminal investigations. They expect to be the subjects of search warrants or arrest warrants at any time.
I give them all four key pieces of advice:
1. Shut up.
2. No, really. SHUT UP.
3. Because police may come to your house any day to arrest you or search your house, this would be a good time to send any dogs to a kennel or a friend or neighbor's house.
4. Gather all communications with me and with any other lawyer and put them in one big physical or electronic folder. Now label that folder "ATTORNEY CLIENT COMMUNICATIONS PRIVATE AND CONFIDENTIAL PRIVILEGED COMMUNICATIONS." And put that inside ANOTHER container labeled the same way.
The first three are fairly self-explanatory.
You might think that the fourth is calculated to prevent police and prosecutors from invading the attorney-client privilege by reading my communications with my client. You'd be wrong. Nothing will prevent them from doing that if they feel like it. The labels are calculated to (1) deter those principled cops and prosecutors who see them, and (2) make it marginally more likely that I can get some sort of remedy when dishonest cops and prosecutors look at the labels, shrug, and read the communications anyway.
The ugly truth is that, in my experience, cops and prosecutors routinely, deliberately, and without any apparent regret invade the attorney-client privilege and read communications that are obviously between attorney and client. My clients describe sitting in handcuffs during a search while cops pick up my letters on my letterhead and casually page through them, smirking at the client. And I will not soon forget the Deputy District Attorney who soberly informed me that the attorney-client privilege had been "burst, as a matter of law" when the police seized his papers. (Later, after losing a motion regarding the privilege against self-incrimination, this DA said that "he would have to read up on this Fifth Amendment thing." Yes, of course he's a judge now.)
Why do they do it? Because they can. Because judges are indifferent or hostile to defendant rights or mere chickenshits who rarely recognize prosecutorial or police misconduct and even more rarely impose any sort of sanction when they do recognize it. Prosecutorial misconduct happens all the time with little consequence for the government.
So, naturally, it's thrilling when judges actually impose consequences.
Today A Public Defender is over the moon over a great state Supreme Court ruling. Patrick Lenarz was a karate instructor acquitted of eight counts of molestation and convicted of one. In addition to appealing on the basis that the trial court refused to let him call an expert on how bad interrogation taints the testimony of child witnesses, Lenarz complained that the trial court acknowledged that prosecutor Christopher Parakilas wrongfully read his attorney-client communications, but refused to do anything about it. In a stunner, one day after oral argument, the justices ordered Lenarz released immediately. That bodes well for Lenarz and poorly for Parakilas.
A Public Defender is right to be jazzed over this. But it's the exception that proves the rule, I'm afraid.
Patrick already noted that the Blagojevich prosecution suffered an embarrassing reversal today. His take is entirely sensible. I write further only to point out what the verdict — a mistrial on 23 counts, and a guilty verdict on one count of lying to the FBI — says about criminal defense and dealing with the government.
The jury found Blagojevich guilty on Count 24 of the indictment. That count charged him with violating 18 U.S.C. section 1001 by falsely stating to the FBI, during his interviews in the course of the investigation, that he kept a "firewall" between his political activities and his official government activities, and that he did not keep track of who donated to him.
Those assertions were, of course, bullshit. More to the point, they were utterly obvious bullshit. There is no chance whatsoever that Blagojevich's patently ludicrous and self-serving boasts about his rectitude could have delayed or deterred the FBI for a nanosecond. Regrettably, when it comes to Section 1001, that's not the point. The question, in determining whether a lie to a government investigator violated section 1001 is not whether it actually obstructed or influenced the investigation, but whether it was possible that a statement of that kind would influence the investigation. That's such a loose and easy standard that almost any statement related to the subject matter of an investigation will satisfy the element.
Hence federal investigators frequently use 1001 to strengthen otherwise weak cases. They carefully build their proof about all the issues in the case, convince some credulous target and his foolhardy lawyer to talk, and then hope that the target will lie about some detail — or at least make some claim that a jury will believe is untrue. As I've mentioned before, the feds can even use this trick to convert a misdemeanor investigation into a felony investigation, and can certainly transform a losing case into a conviction. Just ask Martha Stewart (who was never indicted on the issues for which she was investigated). Or Rod Blagojevich, who now stands convicted for stupid lies that the FBI didn't believe for a hot second.
People talk to the FBI because they hope that they will be able to convince the FBI that they've done nothing wrong. Lawyers let their clients talk to the FBI because their clients (who are terrified of being charged) want to do so, and the lawyer does not want the client to freak out and blame the lawyer if he takes the Fifth and get charged. But the FBI is not interviewing you to help you. The FBI is not interviewing you with anything approaching an open mind about whether you have committed a crime. The FBI is hoping that you will say something that will help them prove up their case, and that if you don't, you will at least tell some marginal lie that they can charge you for. Just ask the Zasi family. The FBI interview is merely a out-of-court version of a perjury trap.
Some lawyers will argue that they have to walk their client in despite all this, because being charged would be a career death penalty, and they have nothing to lose. But clients will grasp the concept of "nothing to lose" quite differently when they're looking at an actual criminal conviction. Suddenly, the prospect of being disgraced and fired or impeached, but not convicted, will not sound nearly as bad as it did compared to a felony conviction and a stretch in federal prison. Besides, to be indelicate, anyone who occupies so high a position that they have "nothing to lose" in this sense is very likely to be a narcissistic freak. Narcissistic freaks are notoriously unreliable clients and make awful, awful interview subjects. Anyone who listens to Martha Stewart or Rod Blagojevich for thirty seconds will realize that they are highly likely to shit the bed in some spectacular way or other during an interview with the government. Like the scorpion of the fable, it is their nature. Walking them anyway suggests high idiocy or low client control.
Remember Rule One: just shut up.