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.
November 15, 2012
BP Settlement & Individuals Charged
According to a DOJ press release - BP agreed "to pay a record $4 billion in criminal fines and penalties." BP had an Information filed against it for "seaman's manslaughter," and violations of the "clean water act, migratory bird treaty act, and obstruction of congress."
The guilty plea entered by BP provides that the "Department agrees that, if requested to do so, it will advise any appropriate suspension or debarment authority that, in the Department's view, the defendant has accepted criminal responsibility for its conduct relating to the Deepwater Horizon blowout, explosion, oil spill and response by virture of this guilty plea and that BP is obligated pursuant to this agreement to cooperate in any ongoing criminal investigation by the Department relating to the Deepwater Horizon blowout, explosion, oil spill and response." But it does state that "[n]othing in this agreement limits the rights and authority of the United States of America to take further civil or administrative action against the defendant including but not limited to any listing and debarment proceedings to restrict rights and opportunities of the defendant to contract with or receive assistance, loans and benefits from United States government agencies."
The agreement includes an attachment for monitors. It also provides that the North American Wetlands Conservation Fund will receive $100 million. As a part of the probation, special conditions are included in an Order which includes $350 million to the National Academy of Sciences and $2.394 billion to the National Fish and Wildlife Foundation.
While at the same time that we see the company pleading guilty, we see that individuals are indicted - two "BP supervisors onboard the Deepwater Horizon on April 20, 2010 – are alleged to have engaged in negligent and grossly negligent conduct in a 23-count indictment charging violations of the federal involuntary manslaughter and seaman’s manslaughter statutes and the Clean Water Act." Another is "charged with obstruction of Congress and making false statement to law enforcement officials."
November 12, 2012
Happy Veteran's Day
With many thanks to those who served our country.