Not a Nice Day (or Save the Whales, I mean the Lawyers)

From today’s Wall Street Journal:

“Nancy Black, a marine biologist and operator of whale-watching boats, recently became ensnared by 1001. When one of her boat captains whistled at a humpback whale that approached the boat a few years ago, regulators investigated whether the incident constituted harassment of a whale, which is illegal.

“This past January, Ms. Black was charged in the case—not with whale harassment, but with lying about the incident. She also faces a charge of illegally altering a video of the whale encounter, as well as unrelated allegations involving whale blubber. Together, the charges carry up to 20 years in prison.

 “She denies all wrongdoing, including lying. “I wasn’t charged with anything about the dealings with the humpback,” says Ms. Black, 49 years old. “So why would they charge me with lying about it? It makes no sense.”

“A Justice Department spokesman declined to comment. [Of course].

* * *

 “As the U.S. federal criminal code has grown increasingly large and complicated, critics from the left and right alike argue it is becoming too easy for Americans to unwittingly commit crimes.

“Nobody argues that telling a falsehood to Uncle Sam is either wise or admirable, but some say 1001 is overly broad. “There is no statute out there that’s more pernicious,” says Stephen Saltzburg, a former senior Justice Department official and now a law professor at George Washington University.

“The law against lying, officially Title 18, section 1001 of the United States Code, is “a bread-and-butter” statute for Justice Department prosecutors, says Thomas O’Brien, the former U.S. Attorney in Los Angeles. The law’s breadth makes it useful for nabbing wrongdoers, particularly in cases where suspected crimes are complex and tough to prove, he says.”

* * *

“While 1001 helps nab guilty parties, it can also be a trap “for innocent people to fall into,” said Rep. Louie Gohmert (R., Texas), in an interview. Rep. Gohmert, a critic of the federal justice system’s expansion, said he hopes to put new limits on the statute in a criminal-reform bill pending in the House.

“Statute 1001’s precursor, the False Claims Act of 1863, had a relatively narrow focus: It was intended to punish contractors and suppliers who were defrauding the government during the Civil War.

“Over the next 135 years, Congress significantly increased the reach of federal law regarding falsehoods. By 1998, courts around the country carved out an exception—known as the “exculpatory no”—aimed at blocking prosecution of a person who denied (falsely) being involved in wrongdoing. The exception was at least partly inspired by the Constitution’s protection against self-incrimination.

“But in 1998, the Supreme Court threw out the exculpatory no, saying the law as written by Congress didn’t allow for an exception. While some false-statement prosecutions might seem ‘harsh,’ Justice Antonin Scalia wrote, ‘courts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so.’ [There was no Constitutional challenge to the law, as I recall.]”

* * *

“Ms. Black’s attorney, Lawrence Biegel, says prosecutors threatened that if his client didn’t plead guilty to one or more misdeeds, she would face a range of charges. The indictment, filed in January, contains four criminal counts including illegal alteration of records resulting from editing the video. The false-statements charge comes from allegedly lying about the video’s completeness.

“The indictment includes a paragraph referencing a 12-count indictment, which the Justice Department spokesman said was mistakenly pasted in from a document unrelated to Ms. Black’s case.

“Ms. Black says she was never asked about the completeness of the video and if she had known the officials wanted an unedited copy, she would have provided one.”

 For the complete article, see here.

The lesson to be learned is that when speaking with a federal law enforcement officer, the only appropriate things to say are: (1) please give me your business card, (2) my lawyer will be in touch with your, and (3) have a nice day. Regarding the third item, don’t say that it IS a nice day, if it rains you might get a 1001.

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