Prosecutorial Abuse

While nominally about the Gibson Guitar raid, this article is actually a great primer on abusive prosecutorial tactics businesses are increasingly facing

Prosecutors who are looking for an easy “win” know that businesses roll over. A public raid on its offices, or an indictment of its officers, can destroy a business’s reputation and viability. That makes the owners easy to intimidate into a plea bargain.

If they choose to fight, they face the full wrath and fury of the feds. In the Gibson raids, the SWAT teams were deployed even though Gibson had offered its full cooperation to investigators. Such raids are increasingly used to intimidate citizens under suspicion. The orchid importer, a 65-year-old with Parkinson’s, was shoved against a wall by armed officers in flak jackets, frisked, and forced into a chair without explanation while his home was searched

The government also attempts to get low-level employees to “finger” their bosses. For example, the feds threatened Gibson employees with long prison sentences. This is not a search for truth, but an immoral attempt at extortion to win convictions. Investigators examine the lives of “little fish” and use minor, unrelated violations (smoking a joint, or exaggerating income on a loan application) to pressure them to back the government’s case against their employers. Mobsters have experience with threats like this, but a secretary or an accountant is scared to death by the threat of prosecution.

A favorite ploy of prosecutors in these cases is to charge defendants with false statements based on their answers to the investigators. The sentence for this can be five years in prison. No recording is made of the interviews — in fact, the feds prohibit taping the interviews — and the agents are not stenographers. They cannot possibly recall the exact wording of the questions and the answers. Yet after the interview, they will produce a “transcript” replete with quotes throughout. And if a witness says he did not actually say what the agent put in quotes, it is the witness’s word against a fine, upstanding federal agent’s. Staring at a five-year sentence will get most people to say whatever the government wants them to.

The feds also pile up charges. According to Juszkiewicz, the Justice Department warned Gibson that each instance of shipping a guitar from its facility would bring an added charge of obstruction of justice. Prosecutors routinely add extra counts to stack potential prison sentences higher. For instance, faxing invoices for the wood would be charged as wire fraud. Depositing the check for the sale of the guitars would be money laundering. The CEO’s telling the press he is innocent would bring charges of fraud or stock manipulation. The intent is to threaten such long sentences that the targets plead guilty rather than risk decades in prison.

Prosecutors further tighten the screws by seizing the assets of the company, a tactic once used against pirates and drug lords but now routinely used to prosecute white-collar crimes. The federal agents seized six guitars and several pallets of ebony during their initial 2009 raid against Gibson. Federal law allows assets to be seized not just from convicted criminals, but also from those never charged. Owners must prove that the forfeited property was obtained legally; otherwise, the government can keep it. That gives the government incredible leverage, because without the seized inventory and bank accounts, the business will most likely go under. How can Gibson make guitars if the wood is being held by the government? How can it service customers when the government took its computers as evidence? How can it pay lawyers when its bank accounts were seized? Asset forfeitures bring to mind a similar twist on the law uttered by the Queen of Hearts in Alice in Wonderland: “Sentence first, verdict afterwards.”

  • http://tjic.com TJIC

    Gov "law enforcement" does more damage to American citizens than foreign enemies ever have.

    The government is composed of thug-like bullies who are all too eager to use force on any pretext, to enforce "laws" that they themselves violate routinely.

    The government is our enemy.

  • DrTorch

    "thug-like". Why the metaphor?

  • Mark

    "The government is our enemy."

    Not really. The government is us. We get what we pay for. Almost everyone of those positions are either directly elected (like most DA's) or are appointed by an elected official.

    We get the government we ask for. If you ask most Americans if they like "pork spending" or other wasteful projects, they will of course say no, they oppose it. But would they vote for a legislative representative (at any level) that did not promise to bring home the bacon? My line is "what do you call the candidate that campaigns on a promise not to deliver money to the home district?" Answer: the candidate that is making the concession call on election night.

    Further, the libertarian solutions to this issue is just insane. If the law is abused, eliminate the law. That is just plain stupid. AS citizens we need to take a more active role in government to prevent these types of abuses. That means voting in the off year elections. Voting for school boards and lower offices. Participation and education. But, the fact remains that Americans are too lazy to do this, and would rather believe myths (i.e. teachers are underpaid and overworked) than create solutions.

  • aeronathan

    "A favorite ploy of prosecutors in these cases is to charge defendants with false statements based on their answers to the investigators."

    Don't ever talk to the police, under any circumstances, period. Anything you say can hurt you and nothing can help you so it is not in your best interest.

  • http://www.chariotofreaction.blogspot.com Jehu

    One partial answer to this problem is for much of the populace to simply adopt who...whom in the jury room. I know that in any case that is in the slightest way offensive to my sensibilities that the federal government is going to fail to get the verdict that it wants if I'm on the jury, even when the black letter of the law is on their side. I encourage others to do the same.

  • Don Lloyd

    @Jehu,

    A good thought, but jury trials have already become the next thing to a myth. If you don't accept a plea bargain, your risk of a couple of years in jail becomes a risk of life imprisonment as the prosecutor trumps up the charges even further.

    The intermixing of the justice/legal system with politics, among many other things, starts to make the US a country that doesn't deserve to exist.

    Regards, Don

  • http://www.chariotofreaction.blogspot.com Jehu

    Don,
    A jury can also use nullification against something like, say, a murder trial for someone accused of killing or otherwise assaulting an abusive prosecutor. It is a profoundly escalative strategy.

  • steve

    We have a simple choice. We can vote for Democratic politicians who love the police because they belong to unions and reliably vote democrat.

    Or, we can vote for Republican politicians who love the police because they stand for law and order.

    There are slight differences concerning which excuses are used to expand police power. Democrats favor expanded power to reduce rape or corporate abuses for example while Republicans prefer increased police powers to reduce drug abuse in turn.

    Regardless of the excuse, the new powers are used widely and not just for the cases they were justified on. For example, the asset seizures described in this article were intended to target the profits of drug dealers. Now they are being used routinely.

    If only the populace would wise up and vote the current party out of power at all levels of government that would send a message to our politicians to clean up abuses of power by the police.

    ... Well except of course for those cases concerning rapists or drug dealers. The police obviously need more power to deal with them because such cases still occur. After the clear message we give them in the next election, I am sure they won't abuse these new powers.

  • btf

    @tjic

    Speaking of thug like bullies, what's up with the blog? coming back anytime soon?
    I'm getting tired of "403 Forbidden"

  • Jim

    Ron Paul 2012 - Government 0

  • Molson

    While I agree that many federal prosecutors are out of control, using Gibson is a deliberate misdirect. Gibson isn't facing charges yet. Worse, Nolan's article is dead wrong about the Gibson raid. In fact, Fish & Wildlife did NOT "claim that, because the wood was not finished by Indian workers, it broke Indian law" and India did NOT approve the export of the rough sawn boards. Rather, it was Gibson who got export approval by certifying to the Indian government that they were exporting finished goods (which would be legal). Then at the US end, Gibson certified that it was importing veneer, which would be legal, instead of rough sawn boards, which are not because India placed a five year moratorium on them in 2009. What's more, Gibson seems to have gone to great lengths to keep its name off any of the paperwork by going through middlemen, until it got caught. Once the investigation started, Fish & Wildlife found eleven more shipments like this within a year. Those other shipments are probably the reason they were raided instead of just subpoenaed.

    Juszkiewicz claims this is all a simple paperwork error. That's hard to believe. He also claims Fish & Wildlife is misinterpreting Indian law, and that it's legal to import the rough boards. If that's true, why all the subterfuge? Also, he's lying when he said there were SWAT teams. There weren't, just agents who carry arms in the course of their job. He's also not a big Republican donor, he's a small-time contributor to about as many Democrats as Republicans.

    The Lacey Act had broad bipartisan support. If you don't like it, work to repeal it, but don't believe anything Henry Juszkiewicz says without investigating.

  • Vitaeus

    http://www.youtube.com/watch?v=6wXkI4t7nuc

    video recorded by a law professor and a policeman for a law class

  • Not Sure

    "That means voting in the off year elections. Voting for school boards and lower offices."

    Yeah, that'll work. Because you can depend on politicians, once in office, doing what they say they will do while campaigning. And there are stiff penalties for not following through on those promises.

    Right?

  • Mark

    "Because you can depend on politicians, once in office, doing what they say they will do while campaigning"

    Well, we have never tried. We elect a certain breed of (criminals) politicians in this country. The electorate barely votes in off year elections or school board elections. School board elections are dominated by the teachers and educational establishment, and compounded by the belief by the non-educational voters that whatever the NEA endorses is actually good for education. Therefore, we get a school board dominated by the NEA endorsed candidates who give the entire shop away. It aint rocket science.

  • Don Lloyd

    @Jehu,

    "A jury can also use nullification against something like, say, a murder trial for someone accused of killing or otherwise assaulting an abusive prosecutor. It is a profoundly escalative strategy."

    A jury can't do anything if there is no jury trial. If I'm not mistaken, only a small number of cases make it to a jury trial through plea bargains and judge-decided cases.

    Regards, Don

  • John Moore

    For those commenters who didn't pay attention, this article is in the premier Conservative Republican journal.

  • perlhaqr

    Further, the libertarian solutions to this issue is just insane. If the law is abused, eliminate the law. That is just plain stupid.

    Ok, Mark, in your infinite wisdom then, explain to me just what circumstances dictate us ever needing a law making it a US offence to violate the laws of another country with regard to the sale of "natural materials"? Because that's what this case is. The law they supposedly broke was an Indian law that says Indian Ebony can't be exported unless it's finished by Indian laborers.

    Just like the lady who was sent to jail for violating a (repealed!) South American law regarding the requirement that lobsters be packed in paper bags, and then accepted a package of lobsters that had, horror of horrors, been packed in plastic bags instead. It's not against US law to pack lobsters in plastic bags.

    So, yes, apparently I'm just going to have to be stupid enough to say that this law should be struck, because it's fucking retarded.

  • https://sites.google.com/site/taxresistance/ Lyn

    I understand & share your distrust of the American police state. One proper response to police questions is to say loudly and firmly "I don't answer your questions I want a defense attorney." Anything else an officer or agent says should be immediately countered with something like "I also don't want to hear any of your crap don't talk to me." There may be consequences for this you may get roughed up. It happens.

    In a way Americans have accepted this. It's part of our popular culture. TV shows portray the police physically abusing suspects. "Law & Order SVU" constantly has innocent people harassed and manhandled during the beginning of the show. "Cops" often shows people beaten, tasered, etc. while handcuffed. Those horrible reality shows about jails & prisons show worse stuff I've seen one where a man is strapped down in a wheelchair but is yelling. An officer calmly walks over and puts his thumb and finger around the man's windpipe and chokes him.

    Stand up for yourself. And if you're going to resist your best chance is to do it before they put the cuffs on you.

  • Mark

    "us ever needing a law making it a US offence to violate the laws of another country with regard to the sale of “natural materials”"

    If you don't like the law, work to change it.

    Regardless, such reciprocity in international law works in the favor of the United States. We expect India and South American countries to respect our copyright and other laws on an international basis, so it is generally accepted that we respect their laws with respect to international trade. Clearly, I do not favor the enforcement of laws designed to restrict trade, but again, the United States expects the same of other nations. That is how international trade works. To do otherwise is to cripple world trade which is a major driver in economic growth.

    Your comments just reinforces my statement about libertarians and their fellow travelers. You see the world in very simplistic terms and believe that anything that you do not support has no rationale.

  • http://www.chariotofreaction.blogspot.com Jehu

    Don,
    If people think there's a reasonable chance they'll be acquitted, regardless of evidence, they'll be less likely to bargain or plea. And if they do bargain, they'll at least be in a better negotiating position.

  • steve

    "You see the world in very simplistic terms and believe that anything that you do not support has no rationale."

    Who is being simplistic here. Most libertarian talking points are targeted at specific "rationalizations" used to justify things we don't support. Its hard to craft an argument against a specific rational if you don't even recognize it exists.

    "If you do not like the law, work to change it."

    Um... forgive me for being simplistic, but isn't critizing a law in a public forum in the hopes of convincing more people of your viewpoint a necessary step in changing a law. Sure, pestering your congress criters can help, but generally it takes large numbers of either votes or money to make any difference hence the public forum thing.

    I suppose you could also say we won't convince many people here since this is a pretty decidedly pro-libertarian forum, and I agree. But, it helps to martial ones arguments with some productive criticism before heading off into "your just a troll" land.

    Finally, "I do not favor the enforcement of laws designed to restrict trade, but again, the United States expects the same of other nations. That is how international trade works. To do otherwise is to cripple world trade which is a major driver in economic growth."

    I specifically would like to address the statement "to do otherwise is to cripple world trade". I would like to point out that Brittian largely adopted a free trade regime (Corn laws, etc.) at the beginning of its rise during the industrial revolution. It did this unilaterally. It did not enforce other countries restrictions and had few of its own. During this time it prospered. Around a decade later France (and some others, Netherlands, Belgium, etc.) whom had been following traditional protectionist policies followed suit. Granted this state of affairs did not last, but it wasn't due to a lack of prosperity it was due to the usual special interest pressures on government.

    So, I would argue that failure to enforce other countries trade restrictions has been empirically shown to not result in a collapse of trade. Seriously, how can allowing all comers to trade result in less trade? Look up the definition of "restriction".

    Perhaps you are thinking we need trade restrictions as bargaining chips to reduce others trade restrictions. Brittian did not do this. Furthermore, their unilateral reduction in restrictions did not put them in an untenable position, otherwise France would have been unlikely to follow Brittian's lead.

    There is theoretical support as well, many economists both saltwater and freshwater contend that trade restrictions of any kind adopted by a country benefit a few producers within the country while harming many consumers. In short, mainstream economic opinion (not just those crazy Austrians) says that every trade restriction must necessarily result in a deadweight loss for the country as a whole.

  • Ted Rado

    The laws and regulations are so numerous and complicated that I am sure EVERYBODY violates many inadvertently every day. Thus, we are all lawbreakers and the government can harass or imprison anyone they choose. I wonder if a good legal defence would be that "ignorance of the law is no excuse" is an absurdity in such a omplex environment.

    Meanwhile, we are all at the mercy of nasty DA. How wonderfull!

  • Smock Puppet, "Elementary My Dear Watson" Translator

    Asset forfeitures bring to mind a similar twist on the law uttered by the Queen of Hearts in Alice in Wonderland: “Sentence first, verdict afterwards.”

    I'm put more in mind of Brazil. Particularly the scene where Jonathan Pryce gets promoted and they hand him the "decision making" device... Laughed my ass off when that showed up. SO true.

  • Smock Puppet, "Elementary My Dear Watson" Translator

    Doh. Sorry about the "bold" above.

  • Smock Puppet, "Bah Bah Bah" : "sorry, not my language"

    >>> Further, the libertarian solutions to this issue is just insane. If the law is abused, eliminate the law.
    Dude, you confuse "libertarian" with "anarchy".

    Libertarians grasp that government is a NECESSARY evil, not a "force for good works". It is an attempt to corral the forces of destruction into a narrow body of individuals, who, ideally, are constrained by each other and by the threat of revolution.

    Another way to look at it: The people of the world consist of three types - Sheep, Wolves, and Sheepdogs (aka "Civilized Wolves").

    The sheep are helpless, the wolves their prey. But there are those wolves who have learned to be protectors and not destructors. They have become "civilized" -- They fight to keep the wolves at bay for the benefit off both the sheep and themselves... But sheepdogs make sheep nervous, because they are a constant reminder of the Reality of the World... and sheep really, really hate reality.

    Governments need to be made up of mostly sheepdogs, though a wolf that is suitably circumspect about his "wolfness" can slip in and be constrained by fear of the sheepdogs.

    The problem here is that there are now all too many sheep, and they are more and more those who are in charge of selecting the sheepdogs to be watching over them -- these sheep have forgotten that the wolves are the threat, not the sheepdogs, so they've been trying to put sheep into the positions instead.

    What's happening is the rather crafty wolves have been wearing "sheeps clothing" and gotten more and more into the positions of power, while the idiot sheep do everything possible to constrain the sheepdogs, and wearing blinkers about the threat posed by the wolves.

    This is one of the ways in which a society rots from the inside out.

  • http://thedeclarer.blogspot.com Floyd McWilliams

    Molson's comment sounds almost reasonable ... until you recall that Gibson is not accused of any actual crime. Rather, they are accused of crimes against nature, crimes against Gaia, which is to say blasphemy.

    Since wood has now been criminalized, it's fair to ask Molson if he has a proper receipt and record for each piece of furniture in his home. (Did he go through numerous middlemen?) And if not, I hope he doesn't squawk about intimidation when he's arrested. The law enforcement people just carry those arms in the course of their job.

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