Crime & Federalism

Have you ever wondered what someone would say right before his execution?  Well, here's your answer.

I was worried for a time that the FBI just might find the remains of Jimmy Hoffa tucked away on a horse farm north of the Motor City. The world would seem less enchanted were that so. 

When Hoffa disappeared in July 1975 few harbored doubt that the Teamsters' boss had been rubbed out by organized crime. His missing body hovered over the labor movement almost like a ghost: Where's Jimmy? was both a question and something akin to a warning. Then came the jokes. Where's Jimmy? Find a construction site and speculate. My favorite location is the Meadowlands. Several years ago I attended my first and only Giants game. I wondered if I were sitting in Hoffa's lap.

So now that FBI has called off the search for Hoffa, and concluded that he is not, in fact, sleeping with the horse dung in Milford, Michigan, I can breathe a sigh of relief. Hoffa is gone. An unsolved mystery in an age where long-winded and prosaic answers exist for most of life's more interesting questions.

Ghost, goblins, demons -- vanished amid the claims of unremitting reason. Even God has become prosaic and tedious in the hands of religious fundamentalists. What a world. Organized crime alone able to yield enduring mystery in world grown stale and flat.

The Washington Post has this very interesting article about the trial lawyers involved in the Enron prosecution.  (Via Orin Kerr)

I would like to thank Mike for allowing me to post here.

On May 23, 2006, the Second Circuit Court of Appeals issued an opinion in Doe v. Gonzales. 2006 WL 1409351 (2d. Cir., May 23, 2006). This consolidated appeal issued rulings on two cases: Doe v. Ashcroft and Doe v. Gonzales. 334 F. Supp.2d 471 (S.D.N.Y. 2004);  F.Supp.2d 66 (D.Conn.2005). This case is interesting because it involves constitutional challenges to elements of the Stored Communications Act (SCA), which protects electronic data and stored messages from unauthorized access and disclosure.

§ 2709(a) of the Stored Communications Act (SCA) imposes a duty upon wire and electronic communication providers to comply with FBI requests for "subscriber information and toll billing records information, or electronic communication transactional records." As outlined in 2709(b), the subscriber requests are written requests in the form of a National Security Letter (NSL).

At the time of Ashcroft and Gonzales,  § 2709(c) of the SCA simply stated that:

“No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.”

Doe v. Ashcroft involved an internet service provider (ISP) that received a NSL requesting information on a subscriber. The plaintiff was notified of the nondisclosure requirement. The plaintiff was also told that he or she could not inform “any person” that access to the information was sought or obtained. The plaintiff challenged 2709(c) on First Amendment grounds. The District Court held that that 2709(c) violates the First Amendment because it was a content-based prior restraint on speech that was not sufficiently narrowly tailored to achieve a compelling governmental interest. 

In Doe v. Gonzales, a broadly worded NSL was sent to a library employee in charge of patron records. The plaintiff filed a complaint which argued that by prohibiting him or her from disclosing their identity as a recipient was a prohibition on constitutionally protected speech. The plaintiff asked for a preliminary injunction against enforcement of the gag order. The court granted the injunction; it found that: 1) the plaintiff showed irreparable harm (derived from suppression of speech) and 2) plaintiff's suit was likely to succeed on the merits (i.e., the statute was likely to be content-based, prior-restraint that violated plaintiff's First Amendment rights). 

Significant amendments were made to § 2709 on March 9, 2006. These changes were apparently made to address the defects identified by the Ashcroft court. 2709(c) now includes four sections. 2709(c)(1) says that under certain conditions certified by the Director of the FBI or other authorized personnel, “no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section" (emphasis added).

2709(c)(2) now requires recipients of NSLs to be notified of the nondisclosure requirement. 2709(c)(3) requires NSL recipients to notify other parties assisting in compliance, including attorneys, of the nondisclosure requirements. 2709(c)(4) requires anyone making a disclosure under 2709(c) to identify the target of the disclosure to the FBI director or other authorized personnel before the disclosure is made.

New statutes were also created and others were modified to enhance 2709(c). 18 U.S.C § 3511 now provides a mechanism for judicial review of NSLs, including requests under 2709(b). 18 USC 1510 was modified to impose penalties for disclosure in some situations. 1510(e) provides that anyone who has been notified of the nondisclosure requirements of 2709(c)(1) and "knowingly and with the intent to obstruct an investigation or judicial proceeding violates such prohibitions or requirements applicable by law to such person shall be imprisoned for not more than five years, fined under this title, or both."

These changes were significant enough for the Second Circuit Court of Appeals to vacate and remand the First Amendment portion of Ashcroft to the District Court. Gonzales was dismissed as moot. In the near future, I hope to dig deeper and examine how the District Court might view the First Amendment challenge in Ashcroft in light of the aforementioned statutory changes.

The Enron verdict comes as no surprise. What surprises is the press reaction to it. A sub-headline in this morning's New York Times reads: "Case Became a Symbol of Corporate Excess in the 1990s."  Must we always seek to define and redefine ourselves around such hum-drum axes?

That Kenneth Lay and Jeffrey Skilling were found guilty of feeding at the corporate trough is hardly front-page news. Corporate fraud seems to be routine; there are so many recipes for cooking corporate books one almost expects to see them dished up on a cable television show. What will be newsworthy is sentencing, auspiciously set for 9/11.

Both men face potential lengthy sentences. But in white collar world there is a secret maxim known to boardroom bucaneers: Do the crime 'cause you don't face much time. Meanwhile, some ghetto dweller with an eight-ball of crack faces a decade or more in routine drug cases.

United States District Court Judge Simeon T. Lake of Houston will have his hands full at the sentencing hearing. I can already hear the cries for leniency. Experts at federal Sentencing Guideline manipulations are no doubt already busy at work, churning up big fees.

Is Enron the corporate crime of the century? Beats me? I look at Skilling and Lay and see only larger versions of the strutt and puff world of the corporate bully. But if the crime is such a big deal, the sentence that follows ought to be more than a slap on the wrist.

Do you ever get the late-night urge to learn more about a constitutional provision?  Of course you do, which is why you need to bookmark the "Annotated Constitution." 

The content of the CRS Annotated Constitution was prepared by the Congressional Research Service (CRS) at the Library of Congress, and published electronically in plaintext and PDF by the Government Printing Office. Dating back to 1964, the initial online annotations were published in 1992, and supplements were released in 1994, 1996, 1998, and 2000. This edition is a hypertext interpretation of the CRS text. It links to Supreme Court opinions, the U.S. Code, and the Code of Federal Regulations, as well as enhancing navigation through linked footnotes and tables of contents.

It would be wonderful if Cornell's version of the Annotated Constitution were made into a wiki.  This would allow the Constitution to be annotated in real-time, and would keep it current in light of recent Supreme Court opinions.  Is there already some sort of plan to do this?  If not, why not?

Investment guru, Harvard Law School graduate, and former investment banker at Goldman Sachs Jim Cramer has an incredibly interesting take on Enron in the first couple of minutes of this podcast.

As you likely know, a Nebraska judge reportedly refused to sentence a short man to prison, reasoning that the short man would be especially vulnerable to prison abuse.  As someone who is both "tough on crime" when it comes to child-molestation prison sentences, and yet thinks prison rape is one of the greatest injustices of our time, I'm not sure what to think. 

Putting aside issues of fairness, the judge must be pretty ignorant of prison life.  Even someone incredibly strong would be in trouble if five guys climbed on top of him in a confined space.  (Consider the gang-rape scene from "American History X.")  So a taller man is not that much better off than the short fellow.  No matter how big and strong you are, prison rape is a reality of life child molesters will deal with. So I don't think the judge's reasoning is sound.  Channeling Bushwick Bill, when it comes to prison, size ain't sh*t.

UPDATE: KipEsquire has some thoughts here.

I get at least a couple of really kooky e-mails a week.  Each time, it's some person writing to tell me that his case is the next Constitutional Right Case of the Twentieth Century.  It never is.

In any event, today I receieved what I thought would be yet another kooky e-mail, with the sender writing: "Please get involved, the time is right and there needs to be someone brave enough to join me. Rosa Parks was a lightning rod, I feel the same way."  Self-comparisons to civil rights heroes is almost dispositive evidence that the sender is a kook.  But this time I'm not so sure...

The sender of the most-recent e-mail attached a proposed plea agreement that was purpodedly drafted by Hawaii prosecutor Marc E. Guyot.  I took a look.  The attached document was, as they say, very, very interesting. 

In the plea agreement, the prosecutor agrees to dismiss all charges against the defendant if the defendant will, among other things, take down his website (which is critical of local police) and move out of town.  No community service, no probation.  Shut up and move out of town and prosecutors will kick the case.

Has anyone heard of such a proposed deal?  It seems pretty bizarre to me, and does have the smell of some home cooking.  Thoughts?

(The proposed plea agreement is here; the defendant's website is here.)

UPDATE: I'm slammed with work right now, but I do intend to blog more about the case.  The defendant seems to be getting a raw deal.  My tentative conclusion is that the police and prosecutors, tired of his being a gadfly, have charged him under very questionable circumstances.  His site is well worth checking out. 

Just as the separation of powers doctrine requires the courts to refuse to review the President's conduct, so too does this doctrine prevent FBI agents from searching a Congressperson's office.