November 16, 2012
A Victory for Discretion
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, it is possible that overzealous prosecutors might have tried to apply one of several cybercrime statutes in a prosecution against Broadwell just to make headlines.
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.” This is seemingly inapplicable to the alleged Broadwell conduct because there appears to be no evidence of actual threats.
Likewise, there is 47 U.S.C. 223, a misdemeanor that might have been considered for this alleged conduct. Black writes that “47 U.S.C. 223,” makes it unlawful 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.”
Finally, there is 18 U.S.C. 2261A, also known as the Interstate Stalking Act. The ISA makes it unlawful 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.
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 for any alleged possible conduct is perhaps a signal that discretion might be working after all.
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