The Dark Horses of Criminal Prosecution

What do Martha Stewart, Rod Blagojevich and Al Capone have in common?  Besides each apparently having unusual relationships with Chicago barbers, they were all indicted on what are known as “pretextual” charges.  Sometimes when prosecuting attorneys suspect someone of serious crime, they end up having to settle for an indictment on a lesser, often unrelated ground.

For example, when Martha Stewart was suspected of insider trading, federal authorities began to investigate.  Early in the investigation, it became clear that the issue of whether Stewart was acting on secret information or simply executing a pre-planned investment strategy would turn on a very subjective judgment of her private intentions.  Prosecutors understandably did not want to leave such an important case almost entirely up to the jury, and so they sought an alternate route.  What they settled on was Stewart making an admittedly false statement to federal agents who were conducting the investigation.  This formed the substance of charges for Conspiracy, False Statement and Obstruction of Justice, of which she was ultimately convicted.

The controversy with pretextual charges is that federal prosecutors may fail to prove, or even charge, the conduct that prompted investigation in the first place.  This means that it’s actually the bare act of government investigation that leads people to commit these crimes.  Therefore, it’s not impossible for a person to be completely innocent of anything when the government picks up their trail, and then they go to jail because they didn’t respond correctly under pressure.  This practice has been disproportionately common with high-profile defendants.  After all, when they are already convicted under the public eye it somehow seems less wrong.   Nevertheless, possibly the most egregious cases have been largely swept aside.

Consider Brogan v. US.  Suspecting Brogan of accepting a bribe, federal investigators decided to approach him at home.  Instead of making their intentions plain, they informed him vaguely of an ongoing investigation into some organizations he had dealings with.  Then at a certain point, they asked him whether he had accepted any bribes from them.  His response was a simple “no”.  Finally, investigators stopped hiding the ball and mentioned the evidence they had gathered against Brogan, which would have been sufficient to support an indictment.  And because of this clever maneuver, Brogan’s sentence was compounded by a conviction for false statement.

What I find interesting in this particular case is the odd defense of police actions.  They argue that it’s simply common sense to be upfront with investigators.  It’s the classic, “you shouldn’t have broken the law, dummy” response to an overblown charge.  But, is it even true?  Is it really common sense to just spill the beans to police?

Well, if police in Brogan’s case had taken the obvious route, arrested him and brought him before a judge, he would have ostensibly said the same thing that he did at his home.  Under the formality of an indictment, he would be expected, even counseled by his attorney perhaps, to plead “not guilty”.  Certainly, pleading not guilty wouldn’t have been taken as a false statement intended to frustrate a government process.  It is odd that one can be convicted of a crime for saying something in the privacy of his home, but the same statement is actually a simple matter of procedure when in a courtroom.  There’s something about that situation that contradicts common sense, something the police say Brogan should’ve followed to keep himself out of trouble.

There’s also an entire textbook of law that seems to be violated by tricks like this.  First, law enforcement questioned Brogan outside the presence of an attorney.  If he had used the right to an attorney that all criminal defendants are guaranteed under the constitution, the lawyer could have told Brogan not to answer when police asked him whether he had accepted a bribe.  But, courts ruled this right to counsel wasn’t violated simply because Brogan hadn’t been arrested yet.  Second, the Fifth Amendment protects a criminal defendant from being called to the stand to testify against himself, in part because it would be unjust to charge someone with perjury for simply exercising the right to make their case and deny the charge.  This effectively happened here, but since it happened outside the magical courtroom play-land, judges thought trapping someone was perfectly fine.  Even the Supreme Court declared that it was when they had an opportunity to question this decision.

And don’t think your safe just by learning to guard your tongue (although it certainly helps when you deal with us unscrupulous lawyers).  If you decide to give answers that protect your position, and are technically truthful, investigators can charge you with obstruction of justice.  This is the standard fall-back for when a defendant or witness is being too evasive in questioning.  Also if you have any amount of money (and who doesn’t?), you can be thrown in jail for not paying taxes on cash police think you’ve illegally acquired.  Tax evasion has been upheld in these settings where the crime isn’t actually proven.  Also, if you talk with someone about doing something illegal, you can go to jail regardless of whether you end up doing it or not.  That’s the conspiracy charge, and it’s been upheld even where the police knew the crime wasn’t actually committed.

Well, what can people do to avoid committing these crimes unwittingly?  We’ve seen that following common sense doesn’t work.  To wade through all the hocus-pocus, you’ll certainly need a lawyer.