How can the average American commit three arguable felonies in the course of a given day? Consider these hypothetical examples—along with their real-life parallels—in which vague and broad federal laws have made honest citizens into federal felons.
► Violation of Foreign Law (The Lacey) Act
► Federal Wilderness Act
► Honest Services Fraud
► Espionage Act
► Obstruction of Justice
► Computer Fraud and Abuse Act
► Wire Fraud
► Providing Material Support for Terrorists
► False Statements to a Federal Official
Image courtsey of the Boston Phoenix
• Violation of Foreign Law (The Lacey Act)
Hypothetical: You are a small business proprietor who supplies restaurants with fish and produce. One shipment of lobsters comes in unusual packaging—usually sent in cardboard boxes, these lobsters arrived in clear packaging. By purchasing this shipment, you have arguably committed a federal felony. The imported lobsters originated in a country that bans the shipping of lobsters in clear plastic bags, and the U.S. Lacey Act makes criminal an importer who violates “any foreign law”—regardless of whether you knew of the foreign regulations.
Real-life example: American businesswoman Diane Huang was convicted under this far-reaching provision, despite her unawareness of the supposed Honduran law banning the shipment of lobsters in clear plastic bags. Lack of criminal intent, the Washington Legal Foundation argued on behalf of Huang and her co-defendants, should make the government’s criminal charges inappropriate. To make matters worse, the Honduran law governing such shipments was not valid at the time of Huang’s arrest—a fact that the Honduran government pointed out to the 11th Circuit Court of Appeals. Nonetheless, the federal court found Huang guilty in March 2003 and imposed a two-year prison sentence.
• Federal Wilderness Act
Hypothetical: You are an avid outdoorsman, and you’ve decided that your next thrill-ride is a snowmobiling trip in Colorado. You set out on a sunny day, but you soon find foreboding clouds above. Before you can turn back, a blizzard has set in. Lost from your original path, and with your snowmobile out of gas, you abandon it and walk to seek rescue. Luckily, a park ranger eventually finds you. After authorities retrieve your vehicle, however, you come to find that you have arguably committed a federal felony. When you strayed from your path, you ended up snowmobiling in federally-protected wilderness area, thus violating the Federal Wilderness Act.
Real-life example: Well-known automobile racer Bobby Unser found himself in this position in 1997. He spent two nights in blizzard conditions; when he was finally rescued by Forest Service rangers, they charged him with a provision of the Wildness Act that prevented motor vehicles in protected areas. His presumed accident—he claimed he never meant to end up on that territory—did not spare him from the subsequent charges.
• Honest Services Fraud
Hypothetical: You are a salaried employee at an insurance company. You work hard and have earned the respect of your peers. One day, your cousin calls and tells you that he has an extra ticket to tomorrow’s game—a sold-out matchup with your hometown team’s rival. You contemplate calling in “sick” in order to attend the game. Though you recognize that it is slightly off-color to deceive your superiors and that you could possibly be reprimanded by the company, you nonetheless realize that everyone does it occasionally and it is deemed a perk of the job. So you decide to take a sick day. You have arguably just committed a federal felony. Your conduct could have been seen as a “scheme” to defraud the company of its “intangible right” to your “Honest Services.”
Real-life example: This hypothetical has yet to come to our attention (although it wouldn’t be shocking if such a case actually exists), but that doesn’t mean the conduct isn’t covered by the infamously vague federal law. In fact, after the Supreme Court declined to hear an “honest services” case in February 2009, Justice Antonin Scalia wrote a rare dissent to his colleagues’ refusal to review the conviction. In this dissent, Scalia wrote that the law has been used to criminalize a “staggeringly broad swath of behavior,” and if the 28-word statute “is taken seriously and carried to its logical conclusion, presumably the statute also renders criminal…a salaried employee’s phoning in sick to go to a ball game.” This admonition has led the high court to accept three cases that challenge the scope of the “honest services” statute in the current term.
• Espionage Act
Hypothetical: You are an investigate journalist working in Washington, D.C. In the course of writing a lengthy expose, a government employee offers sensitive information related to national security. The published version of your article contains a quote from this anonymous source. You have just committed an arguable federal felony. Enterprising federal prosecutors have used provisions from the federal Espionage Act to criminalize the receiving and distribution of confidential national security information by private individuals under circumstances where the statute appears to cover only governmental officials.
Real-life example: A recent federal case—involving not journalists, but lobbyists—showed that this scenario is a distinct possibility. After all, prosecutors attempted to apply this nearly century-old statute to lobbyists for the American Israel Public Affairs Committee (AIPAC), and at least one federal judge agreed that the charges had merit, despite the fact that lobbyists don’t have the same confidentiality obligations as government employees. Such a stretching of this provision undoubtedly leaves the press and investigative reporters—in exercising what they deem to be their constitutional rights—vulnerable to federal prosecution.
• Obstruction of Justice
Hypothetical: You are the parent of a teenage son. You discover illegal drugs hidden in his bedroom. Instead of contacting the police, you decide to destroy the narcotics and punish his transgressions on your own. Unbeknownst to you, the police had launched an investigation just days before. Because you have destroyed evidence in an ongoing investigation, you have just committed an arguable federal felony:
Obstruction of Justice.
Real-life example: Philip Russell, a lawyer from Greenwich, Connecticut, was indicted in 2007 for obstruction of justice. A church had contacted this well-respected attorney when it found images of child pornography on an employee’s computer. Russell knew that child porn is illegal even to possess (“contraband”) and that holding, rather than destroying it, arguably would be criminal. He decided to destroy the images in the best interest of his client. He didn’t know that the government had launched an investigation of the church employee just days before. For this, he was charged with obstruction of justice, and eventually pleaded to a lesser crime in an agreement with prosecutors. With this same logic, prosecutors could indict parents that choose to destroy—rather than report to officials—narcotics that they find in the possession of their son or daughter.
• Computer Fraud and Abuse Act
Hypothetical: You are a software engineer working for a company that provides e-mail services to customers. Your expertise with the program leads you to discover a flaw in the system that could jeopardize email security. You immediately notify your employer, but your employer decides it is not an urgent matter and declines to fix the problem. A few months pass and you—frustrated with your employer’s lack of concern—decide to quit. You then take it upon yourself to email some of the patrons about the software insecurity. You have just committed an arguable federal felony. The federal Computer Fraud and Abuse Act outlaws anyone from sending information, with the intent to cause damage, to a protected computer. The law’s definition of damage includes “impairment to integrity” of a system or data—a phrase so ambiguous that could turn a well-intentioned whistle blower into a convicted felon.
Real-life example: In 2003, Bret McDanel became a convicted felon after prosecutors pursued his altruistic whistle-blowing using this vague federal law.
• Wire Fraud
Hypothetical: You decide, as a prank, to create a fake username on the popular social-networking site, Facebook. Your digital identity is that of a famous athlete. You tell your friends they are inferior to your other-wordly skills. You have just committed an arguable federal felony. Federal Wire Fraud provisions have proven so elastic that this seemingly innocuous conduct could be defined as a federal crime.
• Providing Material Support for Terrorists
Hypothetical: You are a website-designer, and you’ve been commissioned to develop the web presence of a charity. The charity focuses on teaching traditional religious customs and practices. On the website, you link to other organizations that share some, but not all, of your charity’s views. You have just committed an arguable federal felony. Because information on the websites to which you link contained advocacy of religious extremism, you have broken the federal Patriot Act provision of Providing Material Support to Terrorists.
Real-life example: Sami Omar al-Hussayen, a Saudi graduate student in Idaho, was reportedly the first person to be indicted under the USA Patriot Act, which expanded the notion of “material support” for terrorism to include those who render “expert advice or assistance” to the terrorists and their cause. The feds alleged that al-Hussayen, in his role as Webmaster for a Muslim charity website, was providing such assistance. The charity sites focused on normal religious training, but the indictment asserted that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. Such was the elasticity provided by Patriot Act provisions. A properly instructed jury acquitted, but the set of anti-terrorism laws leave little reason to believe that prosecutors will not infringe on important civil liberties in their pursuit of terrorist suspects, as indeed they have in various parts of the nation. In fact, an upcoming Supreme Court case—Holder v. Humanitarian Law Project –challenges the vagueness of this federal statute.
• False Statements to a Federal Official
Hypothetical: You and your family are spending the day in a national park. After a few miles of hiking, you decide it’s time for a lunch break. You eat, finish, and throw away your trash. Your son, however, isn’t so careful – he leaves behind a few leftover items from his meal. As you leave your picnic area, a park ranger asks if you or your family has left trash in the area. You tell him that you’ve cleaned up after yourself. You have just committed an arguable federal felony: False Statements to a Federal Official. Any false statement made to a government official – even when it is made in conversation and not under oath nor in writing – can leave a citizen vulnerable to a “false statement” charge.
Real-life example: Consider the case of Emadeddin Muntasser, a Massachusetts man (and one-time client of Harvey Silverglate) whom the feds suspected of having terrorist ties. When a federal judge tossed out charges claiming that Muntasser’s charity organization was linked to terrorist activity, the government was left with only a “false statements” charge. This was based on a single FBI interview in which Muntasser supposedly lied about his travel activity. A close examination of the transcript revealed that, when he voluntarily agreed to be questioned by two FBI agents, he had initially denied travelling to Afghanistan, but then immediately “requested to consult with an attorney” and asked interrogators to “not pursue the issue of travel to Afghanistan.” To any reasonable person, this would signify that Muntasser was not purposefully trying to deceive interrogators, but rather had doubts about his original answer and felt he needed advice from legal counsel. Nonetheless, he was convicted on this single count of “false statements,” which he has appealed. The text of the statute makes a false statement to any federal official—whether it is a park ranger or FBI interrogator—a federal crime. And the definition of “false” is often very strained and contrary to common sense, as in the Muntasser case.