For Feds, "Lying" Is a Handy Charge - For Liberalism Run Amuck

[Leroy N. Soetoro]

http://online.wsj.com/article/SB10001424052702303299604577328102223038294.
html

MONTEREY, Calif.—When federal prosecutors can't muster enough evidence to
bring charges against a person suspected of a crime, they can still use a
controversial law to get a conviction anyway: They charge the person with
lying.

The law against lying—known in legal circles simply as "1001"—makes it a
crime to knowingly make a material false statement in matters of federal
jurisdiction. Critics across the political spectrum argue that 1001, a
widely used statute in the federal criminal code, is open to abuse. It is
charged hundreds of times a year, according to court records and
interviews with lawyers and legal scholars.

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.

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.

For instance, supporters of 1001 say, the law can be useful in financial
or accounting-fraud cases where catching a suspect in a lie that could
carry a prison sentence can be a powerful tool for enlisting that person's
cooperation in unraveling the broader crime.

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.

He says the law is so vague that harmless misstatements can be turned into
federal felonies. A person can be charged even if the lie didn't really
fool anyone, or if the person didn't know the criminal consequences of
fibbing, some critics point out.

By contrast, Mr. O'Brien says that in his experience local authorities
rarely prosecute someone for lying, and when they do it is generally
treated as a misdemeanor

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."

Justice Ruth Bader Ginsburg, in a separate opinion, worried about "the
extraordinary authority Congress, perhaps unwittingly, has conferred on
prosecutors to manufacture crimes" out of false statements.

In February, the Washington Legal Foundation, a pro-business group, asked
the Supreme Court to take a new look at statute 1001 in the case of an
Idaho farmer, Cory King, who was convicted federally of lying to a state
livestock inspector about where a valve on the property sent some water.
Mr. King allegedly said the valve routed the water to the sprinkler system
when in fact it sent water to a well, where it was later used for
irrigation. The state didn't pursue criminal charges, opting for a fine.

At issue: Since Mr. King's statement was made to a state official—someone
with no connection to the federal government, the WLF says in a court
filing—should the federal law against lying apply? Letting the conviction
stand "would strip the statute of virtually all jurisdictional
limitations," the brief says.

A Justice Department spokesman declined to comment. Justice Department
court filings argue that lying to the state inspector interfered with
enforcement of federal drinking-water laws. The false statement "need not
be made directly" to the federal government, said one Justice Department
court filing.

In an interview, Mr. King maintained he didn't give a false statement. He
is finished with his probation.

Ms. Black, the marine biologist, says she has been caught for more than
five years in "a nightmare" that began with the whistling incident
involving her whale-watching boats.

An animal lover, she lives with two cats, three lizards, four parakeets
and four dogs, including a 13-year-old retriever named Andy who is a
constant companion. Ms. Black estimates Andy has "seen more killer whales
than any dog on the planet."

Since her childhood, she says, killer whales held a particular
fascination. She obtained a master's degree in marine sciences and has
been researching killer whales in this seaside community since the mid-
1980s.

Monterey Bay is on the annual migratory and feeding paths for blue,
humpback and gray whales, making it "one of the best places in the world
to watch whales," she says. It is also a magnet for killer whales, which
feed on the calves of gray whales accompanying their mothers from their
birthplace off the coast of Mexico to feeding grounds off Alaska.

Ms. Black has co-authored scientific papers and helped catalog the
identities of hundreds of killer whales based on their skin markings.
"Nancy is the guru of killer whales in Monterey Bay," says Ken Balcomb,
executive director of the nonprofit Center for Whale Research in Friday
Harbor, Wash. To finance her work, she operates two whale-watching boats
for tourists.

The trouble began in October 2005. During a whale-watching trip, a
humpback whale approached one of her boats. The captain began whistling,
hoping the noise might keep the creature from leaving, according to Ms.
Black. A crewman on her other boat, which Ms. Black was captaining nearby,
also urged passengers to make noise, she says. (Neither the captain nor
the crewman faces charges.)

The Marine Mammal Protection Act of 1972 outlaws "harassment" of whales
that could disrupt their behavioral patterns or injure them. Ms. Black
says she doesn't believe the whistling, or the ships' closeness to the
whales, violated the rules, particularly since the creature had approached
on its own.

Ms. Black says she considered the whistling "unprofessional" and told her
employees not to do it again. She says the then-wife of her boat captain
then went to the government to find out if there was anything wrong with
whistling on the boat. The now former captain declined to comment. His ex-
wife couldn't be reached for comment.

Several days later, Ms. Black says, a federal official from the National
Oceanic and Atmospheric Administration—a Commerce Department agency with
duties ranging from weather forecasting to fisheries management—made an
informal request (as opposed to a subpoena) for her to provide video of
the whistling incident. She provided a video edited to show the captain's
whistling, she says, because that is what she thought the investigator
wanted to see. She didn't include video of the other crew member allegedly
egging on passengers to make noise.

The indictment alleges Ms. Black altered the video "with the intent to
impede" investigation of the whale incident and then falsely told
authorities the video was "the original recording, when that recording had
in fact been altered." She acknowledges editing the video and denies that
it was altered to impede the probe. In interviews, she denied lying about
the video and has pleaded not guilty to the charges.

She says she gave the edited video to two officials, including a NOAA
investigator, and went through the video with them. A NOAA spokesman
declined to comment on Ms. Black's case.

About a year later, on a morning in November 2006, more than a dozen
federal agents, led by a NOAA inspector, entered her house with a search
warrant and took away her files, photos and computers, she says. "It was
the most traumatic thing that ever happened to me."

In unrelated cases, NOAA has been criticized for some of its investigative
tactics in recent years. A 2010 report by the Commerce Department's
inspector general recommended that NOAA "reassess" the staffing of its
investigative branch, where some 90% of agents were criminal investigators
although most of the agency's work involved civil regulatory matters.

The inspector general's report said it examined complaints from dozens of
fishermen. Some complaints said that NOAA investigators used "overly
aggressive and inappropriate techniques" that made them "feel as though
they are being treated like criminals for noncriminal issues," the report
said.

A NOAA spokeswoman said the agency has modified its investigative
practices and staffing. Among other things, the agency has put a freeze on
hiring criminal investigators and has instituted higher-level reviews of
charging decisions.

Over the five-year period since the raid on Ms. Black's home, federal
investigators have questioned friends and colleagues, she and her friends
say, and many of them became reluctant to deal with her. She says the raid
was so traumatic to her that she sometimes gets fearful when a stranger's
car parks in front of her house. She says she has paid more than $100,000
in legal fees so far.

"I'm just a normal person, doing the thing I love," says Ms. Black. "How
could this happen to me?"

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.

Her lawyer, Mr. Biegel, says authorities eventually obtained the entire
video from him after Ms. Black informed officials that, even after
removing records from her home, they didn't have the complete video. He
notes that despite years of investigation, the government didn't find
evidence to charge Ms. Black with wrongdoing during that 2005 whale-
watching trip.

The two other counts in the indictment involve allegations that Ms. Black
illegally fed or attempted to feed killer whales in the wild, once in
April 2004 and once in April 2005. Each of those counts carries a
potential one-year sentence.

The government court filings don't provide details of the alleged
wrongdoing in any of the counts.

Ms. Black says those incidents involved using an underwater camera to
record killer whales feeding on a gray whale they had just killed. Pieces
of blubber from the dead whale were floating on the water, she says, so to
better record the event, she cut a hole through one piece of blubber in
the water and put a rope through the hole to stabilize the blubber while
the killer whales ate. Since the whales themselves had killed the animal
they were eating, Ms. Black says she believes her actions don't qualify as
feeding them.

Her attorney Mr. Biegel says that in one of the two alleged incidents, no
killer whale bit the blubber.

--

Obama's black racist USAG appointee.
Eric Holder, racist black United States Attorney General drops voter
intimidation charges against the Black Panthers, "You are about to be
ruled by the black man, cracker!"

Eric Holder, prejudiced black United States Attorney General settles the
hate crime debate, "Whites Not Protected by Hate Crime Laws."

Nancy Pelosi, Democrat criminal, accessory before and after the fact, to
former House Ways and Means Committee Chairman Charles B. Rangel of New
York's million dollar tax evasion.

Barack Obama and Eric Holder, committed treason by knowingly and
deliberately arming enemies of the United States of America through
Operation Fast and Furious. Complicit in the murder of Federal employees
during the execution of their duties.



--- Posted via news://freenews.netfront.net/ - Complaints to ne...@netfront.net ---