Are You a Federal Criminal?

Are we relying on the rule of law or the judgment of men to protect our liberty?

November 3 2009 by JP Donlon


It’s remarkable that folks as far apart politically as Alan Dershowitz, Harvey Silverglate and Edwin Meese would find common ground. So why would a civil liberty advocate, a Harvard law professor/ACLU member and the former Attorney General of the U.S push for changes in the federal law to protect you, the CEO?   What brings these odd bedfellows together is a phenomenon outlined in professor Silverglate’s book “Three Felonies a Day.”

Would it surprise you to learn that the ordinary professional who wakes up each morning eats breakfast and goes to work  likely has committed several federal crimes in the course of the day without ever knowing what he or she did?  How is this possible?  As the above mentioned legal eminences would tell you, this flows from the very nature of how federal law has come to be enacted and enforced.  Both the number and vagueness of federal statutes have become dangerously disconnected from the English common law tradition in America where intent to commit a crime has been key. 

Adding to Silverglate’s warning is Edwin  Meese, currently the chairman of the Center for Legal & Judicial Studies at the Heritage Foundation. Together with Brian Walsh, himself an attorney and senior legal research fellow at the center, they are collaborating on a book whose title says it all, “One Nation Under Arrest,” which is due to be published next year.  Cases of prosecutorial abuse where ambitious figures such as former New York attorney general Eliot Spitzer use their legal authority to target high profile business executives  as a stepping stone for higher office are admittedly few but the problem is not confined solely to pariah target groups such as Wall Street professionals.

Consider the case of Krister Evertson who is serving time in a federal penitentiary for an  “environmental crime “ where no harm came to the environment.

An inventor, who was described as a science whiz in high school by the Washington Examiner’s Quin Hillyer, Krister Evertson was intrigued by hydrogen fuel cells.  In fact, he wanted to find a way to use fuel cells to generate power without polluting the air. In his efforts to make this work he ran short of money. Up against hard times he  tried to sell some of his materials on eBay which was entirely lawful. He even shipped the material via USPS using  ground service only, which is what was required. This is where his problems began.  As Meese describes the case in a discussion he and  Walsh had  with The Manhattan Institute recently,  Evertson thought no more about it until one day he was driven off the road by a dark Chevrolet Suburban.  A number of SWAT-gear uniformed men emerged from the Suburban and  hauled Evertson out of his car, held him face down on the ground and told him he was under arrest.  Looking up the terrified Evertson saw  one of the SWAT team figures and spotted the large FBI letters  on the back of the man’s jacket.  Plaintively he asked “What did I do? What did I do?”

The agent told him that he didn’t put the right sticker on the package.

At his trial Evertson testified that when he went to the post office to mail the package he was never asked by the postal clerk whether the materials in his package were hazardous (They weren’t). The clerk, however, testified that she had asked him that question. But Evertson’s lawyers cleverly had Evertson’s mother go to the same post office mailing a package of the same shape and size. It transpired the same clerk didn’t ask her the relevant question either. Upon acquittal the EPA  was very unhappy with the result and charged him again, this time for “abandoning” his materials, apparently  a statutory crime for which criminal intent does not have to be proved.   This time the Feds got a conviction and Evertson  spent close to two years in federal prison in Sheridan, Oregon. 

It is estimated that there are well over  4,000 federal  crimes in the federal code today versus fewer than fifty 80 years ago. This doesn’t include  violations of the various regulatory agencies that have proliferated in the last 40 years.  No one has collected in one place, all the violations , which by definition are federal offenses, that exist from each agency, but the best estimates run from  10,000 to 100,000 regulatory violations.  Bill Webster former director of the FBI and later with the CIA was asked by Congress to find out how many regulatory agencies had independent authority to arrest people in violation of that agency’s regulations.  Webster had a hard time  determining this. There were so many statutes that no one in government actually knew. There are 46   distinct federal uniformed police agencies  in the District of Columbia alone.  He also uncovered a  pattern in the life cycle of these agencies. First, an agency seeks  arrest authority for its agents. Then  it wants authority to use firearms, and have distintinctive badges  and handcuffs. Then it wants red lights on their vehicles. “Finally, adds Meese, “they want a law enforcement retirement program with all the generous benefits that accompany it.”

Many specific  acts are those no one would ordinarily think of as a crime. For example, it is a federal crime to give a false weather report.  It is also a federal crime to misuse the 4H logo. No one seems to know why. Considering the vagueness of many such laws it’s easy to see how easy it is to get at anyone. This , of course,  adds to the potential for unfairness.

Consider the case of George Norris, a 67 year old retired construction worker who having cultivated flowers in his backyard for years developed an affinity for orchids and created a home-based business selling them to supplement his income with his wife Kathy.  One day four SWAT  gear clad men bearing  sidearms burst into the Norris’s  Texas  home and ransacked the place refusing to answer any question as to what they were looking for or why they were there.  They were agents of the Fish and Wildlife service who suspected Norris of selling illegal orchids (he wasn’t). He had  sold a few orchids to an undercover buyer without including corresponding copies of the Convention on International Trade In Endangered Species (CITES) permit. Over the five months following the raid the federal authorities never communicated with Norris. But in March 2004 he was  indicted on seven counts: one count of conspiracy to violate the Endangered Species Act (ESA), five counts of violating CITES requirements and the ESA, and one count of making false statements to a government official for mislabeling the orchids.  After voluntarily surrendering he was shackled and detained in cells with suspected murderers and drug dealers.  He ended up at the age of 69 going to federal prison for two years. He was diabetic with coronary complications with the onset of Parkinsons. He emerged  a broken man when he was released. This is what happens when prosecutors use very broad laws that do not require criminal intent to  find a defendant quilty.

From opposite corners of the law both Silverglate and Meese have arrived at the conclusion that the federalization of everything has resulted in unmooring the justice system  from American legal tradition of  intent. The duplication of laws at the federal and state level also creates confusion while creating double jeopardy for defendants.  If the government isn’t happy with a judicial outcome at the state level it can come after you at the federal level.  An if you think you are law abiding and can’t be touched, think again. Not long ago an article on Slate.com  highlighted a private game played by assistant US attorneys and their junior member in the southern district of N.Y.  to amuse themselves over beer and pretzels. The senior attorneys would select a personality such as Mother Theresa or Jay Leno  and the juniors had to come up with infractions these people could be prosecuted with consistent  with their reported everyday actions or  behavioral lifestyles. It turned out that coming up with federal crimes one could likely pin on anyone wasn’t very difficult.  Any junior who couldn’t come up with enough purported crimes to put someone away for several years wasn’t thought to be trying very hard.

Surely there must be a way of using principled means of getting at real lawbreakers without criminalizing all manner of activities most of which are not intrinsically illegal. Such developments can only result in a growing disrespect for all laws just and unjust.

 There are some lawmakers that are trying to do something about this. Last July, Rep. Robert C. “Bobby” Scott (D-Va.), chairman of the House Subcommittee on Crime, Terrorism and Homeland Security, convened a hearing on overcriminalization of conduct and over-federalization of the criminal law. In convening the hearing, he posed a number of key questions: “Do we need to enact more laws at the federal level on a particular subject? That is, is there a valid purpose that is served by creating the crime on the federal level, particularly if it duplicates crimes at the state level? Or would it be better to just provide resources to the states to enforce their own laws?”

In supporting Congressman Scott’s efforts Meese and Walsh also recommend that the initial penalty for white collar crime should be civil, not criminal. “The way to alert people is to first fine them to let them know they operated outside the bounds, “ Walsh adds. In addition, however defective the laws themselves may be what’s worse is that federal regulators love to use vaguely written statutes to enhance their visibility and gain notoriety.  “This requires an enforcement of a  high ethical dimension to prosecutorial behavior,” says Meese.  “The criminal system cannot remedy everything. The regulatory agency should not be in a position to enact its own edicts that call for criminal penalties. If something is serious enough to call for putting someone in prison it is serious enough for Congress to consider, debate and assert  that directly with a legislative vote and not leave it to the discretion of agencies that want to build fiefdoms in their respective domains.”