We’re all bad boys now; Silverglate tells how feds target innocent

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A great addition to a bookshelf of favorites is “Three Felonies a Day” by Harvey Silverglate, a longtime defense lawyer.

By David Tulis

I’ve spent a long time reading a book by a constitutional lawyer and defense advocate whose thesis in a 2011 book is that federal law has become so widely spread out, and so hazy, that it is reasonable to suppose an average person commits three felonies a day.

That, in fact, is the title of Harvey Silverglate’s book. When I requested a review copy of Three Felonies a Day[;] How the Feds Target the Innocent from Encounter Books in New York, I intended to read it carefully and mark the margins, as I do any important work. I finished it yesterday.

[This review I originally published in September 2012. — DJT]

The Gibson Guitar case settlement unveiled this week is an example of the sort of miscreancy the U.S. Congress has become known for in the past 30 years. What is a matter of administration between regulator and regulated becomes instead a criminal case. A potentially brutal case was weakened by iffy U.S. claims about India’s laws. Mr. Silverglate suggests the problem of terrifying and mystifying prosecutions of innocents will multiply as federal laws become increasingly murky and the government ever more jealous of its prerogatives and friendly PR.

The Wall Street Journal last year noted in several Page 1 stories aspects of this insoluble problem, including the rise in the number of innocent people who lose their property to forfeiture proceedings (“Federal Asset Seizures Rise, Netting Innocent with Guilty” WSJ, Aug. 22, 2011), and the soaring numbers of armed, uniformed enforcers in U.S. civilian agencies (“Federal Police Ranks Swell to Enforce a Widening Array of Criminal Laws,” WSJ, Dec. 17, 2011).

I say the problem is insoluble. Politics created the problem — and Congress is expected to fix it? Hardly. Reformation of lousy laws and the reigning in of “creative” runaway prosecutors is beyond the power of any actor or group of actors. As we have argued, such scourges are providential. They come from our shifting identity as Americans; they are premised upon what men truly believe about God and ultimate causes, and providence is letting us have what we want.

What happens when ‘guilty mind’ not required for a crime

One important development in U.S. law is the slow disappearance of criminal intent in an alleged violation of law. Laws keep appearing in which mens rea — or guilty mind — is not required for conviction. A recent study of criminal statute bills before Congress indicates that more than half lack a requirement of criminal intent. Intent is part of common law and a biblical worldview. Crimes lacking knowledge or intent come from a statutory and positive law framework that reflect a mechanical and material view of the world absent a moral framework of right and wrong.

The requirement of mens rea in the operation of law means that laws need to be clear, explicit and a fair warning about which deeds are illegal. Noted lawyer Alan Dershowitz says in his forward that law needs to be so explicit that it avoids become an ex post facto law. Ex post facto is when a law goes backward into time and makes an act illegal prior to its enactment. If laws are clearly written, they avoid the danger that Mr. Silverglate explores. They avoid being reinterpretable by U.S. prosecutors who are out to “get” someone such as Julian Assange, the WikiLeaks publisher. The book explores how ambitious and crafty federal legal department people abuse statutes such as “honest services” law that was overturned for vagueness or the silly-putty “material assistance” rules that supposedly suppress terrorist backers in the U.S.

The vagueness problem is largely federal. It began in the 1970s with the Garber tax evasion case. Dorothy Garber’s body produced an extraordinary antibody used to make blood-typing serum. She sold blood plasma but did not report most of the money as income on grounds that she was selling a capital asset. She was convicted of tax fraud but was rescued in the court of appeals that declared selling part of her body was not taxable. The court said that because her situation was unusual, “a criminal proceeding *** is an inappropriate vehicle for pioneering interpretations of tax law.” The feds should have sued civilly, instead, the court said. The U.S. routinely violates the Gerber standard.

The routine of luring defendants into plea bargains supports the system of mischievous statutes. U.S. law prohibiting bribery excludes federal prosecutors, who are able to give something of value to witnesses in exchange for damning testimony against an accused and avoid prosecution themselves. That means evil prosecutions don’t go to trial and cannot be overturned at the appellate level in judicial review. “The federal justice system has become a crude conviction machine instead an engine of truth and justice,” Mr. Silverglate says.

Is lifestyle maven Stewart a bad person?

Three Felonies a Day traces the lives of numerous defendants, some of whom you will recognize.

➤ Martha Stewart, the lifestyle maven, is frequently said to have been convicted of insider trading. More accurately, she was convicted for misleading investigators about the circumstances of her selling shares in ImClone, whose CEO, Samuel Waksal, was being investigated for insider trading. Mrs. Stewart sold her shares on a tip from her broker, who violated company rules in giving her a call about Waksal’s sale of shares. That she was convicted for lying to investigators tells of the danger the federal government per se creates for citizens. It is a crime to lie under oath before a federal official, and a crime to lie to a federal official when not under oath, or to somehow materially mislead him. Even though her actions were very possibly not thought to have been criminal, her “story” about her trades was a crime.

➤ Michael Milken, the junk bond innovator, is also typical of the high-profile victim sought by the U.S.. “Had Milken not been famous and wealthy, critics might have taken a closer *** look at the fabricated case against him and the methods used to force him to plead guilty. As is so often the case with federal criminal prosecutions, the fabrication consisted, in part, of dubious testimony given by rewarded witnesses, and felony charges for conduct (admitted to by Milken) that, to informed and objective observers, did not appear to constitute crimes” (p. 97). The U.S. pressure on Mr. Milken included putting his brother Lowell into the case and having the FBI interview Milken’s grandfather, 92. The feds bribed Milken into a plea bargain by offering to drop all charges against Lowell. Mr. Milken was not required to betray and incriminate colleagues. The prosecutor agreed to seek no particular sentence. None of Mr. Milken’s deeds were in any way criminal.

➤ Even the late Enron chairman Kenneth Lay receives favorable treatment in the book as a victim of the trend. His tale runs against all those recounted in the media about the collapse of the company in December 2001. The government tried to turn a business failure and Mr. Lay’s optimistic statements to the press into crimes. The case against Mr. Lay was never clearcut. The prosecution’s argument was not based on his acts and the complex dealings of Enron, but on “the big picture” rather than “individual transactions,” according to an Enron task force leader, Leslie R. Caldwell. Lay was convicted of trying to prevent a loss of confidence in the company and thereby save it. The accounting practices for which Enron was faulted were not criminal, either, but when they were exposed by an aggressive journalist led to investors discounting the value of the company. Enron’s accounting strategy using “special purpose entities” was not criminal, just financially risky — and hidden in plain view.

Mr. Silverglate gives a fresh gloss to other cases which every well-informed person is at least somewhat familiar. The destruction of the Enron accounting firm Arthur Andersen by zealous prosecutors using iffy arguments was overturned by the high court. But exoneration did not bring back this member of the nation’s Big 5 accounting firms, which lay dead on the floor.

The government ruined scores of lives and the prosperity of accounting firm KPMG. Its tax shelters had not been adjudicated as faulty and were not criminal under the statute or current IRS interpretation. The feds tried to avoid the question of the legality of the shelters by leaning on the company as they prosecuted individuals. The “deferred prosecution agreement” let the U.S. coerce plea bargains from among the defendants.

Medical decisions fall under criminal enforcement ‘standard’

One of the most interesting chapters in the book is “Giving Doctors Orders,” how the federal congress has turned the medical field — from running pain management clinics to developing innovative devices — into a minefield. The matter is interesting to Chattanoogans as the U.S. is conducting a May 29 prosecution of Ihsaan al-Amin on a variety of charges, from health care fraud, income tax evasion and money laundering. In mid-June federal agents raided two establishments that TV stations labeled “pill mills,” arresting many common people waiting to get their pain meds.

The federal war on drugs, as it’s called, has converted the calling of physician into a federal front line against what bureaucrats determine is illicit use of medications. “What would seem to be the good faith practice of medicine to a physician can readily be deemed abusive by a narcotics agent or bureaucrat. In fact, there is no single standard for the appropriate administration of narcotics since one deals here with a physician’s therapeutic discretion, which varies from doctor to doctor and from specialty to specialty” (p. 48).

Mr. Silverglate relates tales of woe from physicians such as Dr. William Hurwitz, a nationally renowned pain management specialist who was indicted in 2003. “The regulatory language made it virtually impossible for even the most responsible pain specialist to discern when he or she crossed the line into an area the DEA would consider akin to ‘street dealing.’” It turns out that 15 of Dr. Hurwitz’s more than 500 chronic pain patients had lied to him about their pain levels and had resold drugs obtained under prescription. Rather than alerting the doctor to these patients, the feds coerced the patients into lining up as witnesses against him.

During the trial in which Dr. Hurwitz was convicted the DEA published its first guidelines about pain management, but yanked the FAQ two months later when Dr. Hurwitz sought to enter it into evidence. The case was overturned on appeal because the judge refused to tell the jury that it should acquit Dr. Hurwitz if he acted in good faith and within “accepted medical practice.” The U.S. was not satisfied and charged Dr. Hurwitz again. He was convicted. Jurors told a reporter later that they convicted because the law and standard are confusing.

What can be done?

I recommend Mr. Silverglate’s book to every lover of liberty. It examines legal cases over the past 40 years making the trend of abusive prosecution discernible. To say his book is a legal history might make you think it’s dry as dust. It’s really about the big headlines you’ve seen in the news, and gives you a perspective on these big cases hard to attain if all you read is the newspaper.

Mr. Silverglate’s recommendations about what can be done are good, as far as they go. Reforms are needed in Congress. Yes. A union was right to file a brief defending Operation Rescue as it was targeted under the vaguely worded RICO anti-racketeering law. Letters to the editor are good things.

A Christian reading this book should rightly see legal violence and injustice as inevitable, given the dechristianization of the country and its people. Tyranny is always a result of the dethroning of God and an enthroning of man. Modern men, when they enthrone human will, invariably do so through the totalitarian state. I believe the “What to do?” question is best answerable by the church, the guiding light in culture and a moral compass for the state’s proper use of force. By the faithful preaching of the doctrines of grace, the church will be used by the Holy Spirit to bring about cultural revival, new political life and improvements in the system of justice.

These matters are outside the scope Mr. Silverglate assigned to this well-documented and beautifully written book. Nevertheless, I highly recommend that you read Three Felonies a Day and consider it a one-stop legal and political education.