Steven Levin was an Assistant U.S. Attorney in Maryland and North Carolina for 10 years before forming a law firm Levin & Curlett. He had previously served on active duty for seven years in the United States Army as a defense counsel, an appellate attorney and a trial attorney. He is the co-author of a blog on white collar crime called Fraud With Peril.
In 2004, the then-US Attorney for the District of Maryland famously wrote in a leaked email that he wanted three front-page indictments by November of that year. Though open to interpretation, the impression left by the poorly-drafted missive is that prosecutors should seek headlines rather than justice.
Let’s give credit to the prosecutors involved in the Petraeus/ Broadwell affair, er, matter for their exercise of sound discretion.
Assuming the accuracy of the news reports, Paula Broadwell potentially subjected herself to indictment for any number of federal crimes. In his paper entitled Computer and Internet Crime, G. Patrick Black, a federal defender in Texas, analyzes a number of cyberstalking statutes. As Black writes:
Under 18 U.S.C. 875(c), it is a federal crime to transmit any communication in interstate or foreign commerce containing a threat to injure the person of another. Section 875(c) applies to any communication actually transmitted in interstate or foreign commerce – thus it includes threats transmitted in interstate or foreign commerce via the telephone, e-mail, beepers, or the Internet. Title 18 U.S.C. 875 is not an all-purpose anti-cyberstalking statute.
First, it applies only to communications of actual threats. Thus, it would not apply in a situation where a cyberstalker engaged in a pattern of conduct intended to harass or annoy another (absent some threat). Also, it is not clear that it would apply to situations where a person harasses or terrorizes another by posting messages on a bulletin board or in a chat room encouraging others to harass or annoy another person.
Next, as Black continues, certain forms of cyberstalking also may be prosecuted under 47 U.S.C. 223. One provision of this statute makes it a federal crime, punishable by up to two years in prison, to use a telephone or telecommunications device to annoy, abuse, harass, or threaten any person at the called number.
The statute also requires that the perpetrator not reveal his or her name. See 47 U.S.C. 223(a)(1)(c). Although this statute is broader than 18 U.S.C. 875– in that it covers both threats and harassment –Section 223 applies only to direct communications between the perpetrator and the victim. Thus, it would not reach a cyberstalking situation where a person harasses or terrorizes another person by posting messages on a bulletin board or in a chat room encouraging others to harass or annoy another person. Moreover, Section 223 is only a misdemeanor, punishable by not more than two years in prison.
The most likely statute under which charges may have been brought against Broadwell is 18 U.S.C. 2261A, also known as the Interstate Stalking Act. The ISA makes it a crime for any person to travel across state lines with the intent to injure or harass another person and, in the course thereof, places that person or a member of that person’s family in reasonable fear of death or serious bodily injury causes substantial emotional distress to that person [or a member of their family.]” This assumes, of course, that Broadwell traveled across state lines with such an intent. Assuming she did and assuming prosecutors could establish such an intent, it is both surprising and refreshing that prosecutors apparently decided not to bring criminal charges.
As I have written before, some public figures, such as government employees, are justifiably subject to a higher standard of conduct. However, it might be difficult for an agent or a prosecutor to resist a viable federal charge against a celebrity that would be an easy declination if the target were an average citizen.
See, for example, United States v. John Edwards, one of many recent cases that suggest that prosecutorial discretion is not working. Given the success of her book, the ironically-named “All In,” and her various television appearances, Paula Broadwell was by some measure a celebrity. Given the recent news coverage, she most certainly has attained that status at this point. Even with the best of intentions, a prosecutor may have been seduced at the notion of a publicity-generating case against such a high-profile target.
By its very nature, prosecutorial discretion depends on decisions made by individual prosecutors. And there are marked differences in individual prosecutors. A busy federal prosecutor in a major city may be less inclined to take a marginal case than a federal prosecutor in a slower jurisdiction. A new federal prosecutor trying to make a name for him/herself might be more inclined to investigate a high-profile target aggressively than a seasoned veteran who has already seen his or her share of big cases.
Admittedly, white collar laws have to be drawn broadly in order to permit federal prosecutors to combat the increasingly creative, technologically complex efforts of enterprising criminals. At least one downside of such broadness is that a large number of people may find themselves under federal investigation for conduct that can better be addressed in a different forum, or no forum at all. Most prosecutors, do, in fact, make rational decisions based upon the best possible expenditure of resources, the assessment of the jury appeal of a particular case, and the desire to maintain a good reputation with the bench and the bar.
However, prosecutors and investigators too often fail to recognize that they may view a case against a high-profile target differently than a case against an average citizen and should consider, in making charging decisions, whether the identity of the target is a valid consideration or not. The decision not to pursue criminal charges against Broadwell is perhaps a signal that discretion might be working after all.
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Attorney General Holder’s approval rating dropped about as quickly as the Dow Jones did last Thursday when he told Congress in March of this year that he predicted that “we will be reading Miranda rights to the corpse of Osama bin Laden.”
Perhaps recognizing that his inartful comment only served to confuse his supporters and outrage his detractors, he tried again in April when he told Congress that the evidence against Bin Laden was “sufficient” enough that, assuming he were captured, any additional statements by him would not be necessary. I may be among the minority of Americans (whether a supporter or a detractor) who believes AG Holder’s initial statement was better than his clarification.
When Miranda v. Arizona was argued before the Supreme Court in 1966, the government warned the Court that the required use of procedural safeguards “effective to secure the privilege against self-incrimination” would more or less result in the end of successful interrogations.
In other words, once an accused were informed that he had, say, the right to remain silent and the right to have counsel present during interrogations, the accused would naturally invoke those rights and a confession would rarely, if ever, follow.
Most people involved in the criminal justice system would disagree with this dire forecast and confirm that it is extremely common for an accused to waive his rights. (Of course, there are exceptions: Miranda himself was eventually killed in a knife fight in 1976 by a suspect who, ironically, invoked his Miranda rights.)
While acknowledging that the image of a soldier reading a captured terrorist his rights seems both unnecessary and burdensome (it’s also a little far-fetched: more likely, it would be an FBI agent administering those warnings), we have to ask the obvious question: what’s the harm in advising a terrorist of his rights? Whether a terrorist is tried in a military commission or the criminal justice system, a statement—if it is going to become evidence—has to be admissible.
In order to be admissible in a civilian court, it must be voluntary and, if made during a custodial interrogation, must be made after the knowing, intelligent, and voluntary waiver of the Miranda warnings.
In order to be admissible under the Military Commissions Act of 2006, the military judge must find by a preponderance of the evidence, depending on the date of the statement, that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment. A simple waiver of the Miranda warnings would seemingly contribute to the analysis under all three prongs.
Critics argue that if a terrorist invokes his rights, the government would lose valuable intelligence and present a weaker case in court than it would have otherwise. This is nonsense.
First, a terrorist who invokes his rights is not likely someone who was going to willingly provide intelligence in the first place. Second, an invocation by an alleged terrorist of his Miranda warnings would not necessarily result in the suppression of a statement, assuming one is eventually obtained. More to the point, which would by my third, even if a suspected terrorist invokes his rights, there seems to be nothing that would prevent intelligence officers from taking necessary steps to obtain information from the suspect. The only downside would be that such statements may not be admissible in court.
So far, this policy of reading an accused his rights has worked. On Christmas Day in 2009, Umar Farouk Abdulmutallab allegedly attempted to detonate explosives in his underwear on a Northwest flight en route from Amsterdam to Michigan.
His plot failed, he was arrested and was read his Miranda warnings. He waived those rights and is reportedly cooperating with law enforcement officials. More recently, Faisal Shahzad was arrested for his alleged involvement in the Times Square car bomb scheme. He too waived his rights and is apparently cooperating with authorities.
Yesterday, the Attorney General told David Gregory on “Meet the Press” that law enforcement officials, prior to reading Shahzad his rights, relied on the “public safety exception” to obtain information from Shahzad. It was also used in Abdulmutallab’s case. This exception allows officials to forgo the requirement that Miranda warnings be given before questioning if there are exigent circumstances which require protection of the public. Curiously, Holder then said that “we have to think about– perhaps modifying– the rules that– interrogators have.
And somehow coming up with something that is flexible and is more consistent with the threat that we now face.” The fact that the exception has been successfully relied upon in these two most recent cases seems to be strong evidence that the current exception is indeed flexible. In other words, there is no need for Congressional action to add something for which the law already provides.
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Finally, there is hope that the Obama Administration will get it right. In overruling the Attorney General’s short-sighted and misguided decision to send Khalid Sheikh Mohammed (KSM) to a civilian court in New York City, the White House will have acknowledged at least two things that those of us with military and federal government experience have long known.
First, the US Armed Forces has a proven history of fairly and effectively conducting military commissions. Second, the federal courts are not the optimal venue for trying alien enemy combatants who are captured while committing acts of war against our country.
By now, many of us are familiar with the long tradition of military commissions, which dates back to the 1780 trial of Major John Andre, who conspired with Benedict Arnold during the Revolutionary War.
Interestingly, the Army’s Judge Advocate General commissioned artist Don Stivers to memorialize this event, then known as a Board of Inquiry or Board of Officers, in his 1998 Limited Edition Print, entitled, “You Sir, Are A Spy.” Both my copy of the print and Major Andre were promptly hanged.
Though he might still be executed today, MAJ Andre would have considerably more protections afforded him by the Military Commissions Act (MCA).
Notwithstanding the constant claims by various organizations that the MCA provides few procedural protections, the reality is just the opposite.
The accused has a host of rights, which include the right to counsel, the right to be informed of the charges sufficiently in advance of trial to prepare a defense, the right to be presumed innocent until determined to be guilty beyond a reasonable doubt, the right not to testify at trial unless he so chooses, and the opportunity to present evidence and cross-examine witnesses for the prosecution, just to name a few. There are also several rights relating to sentencing, review, and appeal.
Proponents of federal criminal trials for terrorists, and only federal criminal trials for terrorists, point to the terrorism-related conviction rates for support of their position. By doing so, they miss the point.
The issue is not whether an Assistant U.S. Attorney can win a case in court; the issue is whether the federal government will lose more than it will gain. That is, will a federal court be required to turn over sensitive information to an alleged terrorist that a military commission might not, even though it may have no bearing on a terrorist’s guilt?
By doing so, will national security be threatened? Those are at least two of the questions that need to be asked, and if the trial is to be in a civilian courtroom, the answer to both had better be “no.”
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By Steven Levin
As a recovering federal prosecutor, I see an occasional injustice that I might not have seen when I was with the U.S. Attorney’s Office in the District of Maryland. A businessman, for instance, is wrongfully targeted and subsequently suffers from the toll such an investigation takes on both his personal and professional life.
I also see the occasional injustice in which those who should be targeted and should be indicted avoid either one or both. Enter Rep. Charles Rangel (D-NY). So far, with him, the system has failed us. The question begs to be asked: Why has he not been indicted?
If Representative Rangel were (merely) Mr. Rangel, how long do you think it would take a prosecutor to seek an indictment for tax evasion based on, as reported by The New York Times, his alleged failure to report rental income earned from a villa he owns in the Dominican Republic, or his alleged receipt of gifts related to his rental of four rent-controlled apartments for less than market value? The answer in part would simply be before the statute of limitations runs.
But all is not lost. At least the system seems to be working in North Carolina, where Ex-Sen. (Now “Mr” ) John Edwards appears to remain the target of a federal grand jury for his alleged improper use of campaign funds.
Only time will tell if Mr. Edwards goes from the target of an investigation to a defendant in an indictment. If so, I suspect that few would see an injustice in that.
Levin can be reached at email@example.com.
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