Pretrial Detention

I mentioned the other day that certain individuals had been arrested in Denver for allegedly making false statements to investigators.  According to Agence France-Presse, two of the men have been ordered to be detained pending further review, while a third has been released on bond.

Pretrial detention hearings are a crucial part of the federal criminal process, occurring at the time of the individual’s initial appearance.  During the hearing, the magistrate judge makes a determination of two things: whether the individual is a flight risk, and whether the individual poses a danger to the community.  See 18 U.S.C. § 3142(b) (“The judicial officer shall order the pretrial release of the person … unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.”)

In making this determination, the magistrate judge has certain statutory considerations he must take into account, including the nature and circumstances surrounding the charge, specifically, “whether the offense is a crime of violence, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device.”  Id. § 3142(g)(1).  And here’s where things get a little sticky, because as far as I’ve seen, the only charges levied at this point are false statements, albeit false statements involving terrorism.  So, facially, one wonders whether false statements involving terrorism is a “Federal crime of terrorism.”  It may become a moot point, as it appears from most news accounts that the individuals were arrested on a criminal complaint in the anticipation that an indictment would issue shortly, which indictment might even get superseded with even more charges.

It also is important to note that the standard Rules of Evidence that apply to trials do not apply to detention hearings.  Magistrate judges may hear hearsay evidence, and can hear evidence about activities which don’t necessarily apply to the specific charges.

False Statements and Terrorism

Well, it looks like three people in Denver were arrested for giving false statements in what is being called a terrorism investigation.  (Source.)

False Statements is one of those federal criminal laws that gets used a lot, and it’s fairly simple: under 18 U.S.C. § 1001, it is a crime for a person to knowingly and willfully make any materially false, fictitious or fraudulent statement or representation during a matter which is under the purview of the executive, judicial, or legislative branches.  (There are a few other components to section 1001, but this is the part that trips most people up.)

Now, “materially” means that it has the tendency to influence the course of the investigation, and it’s really, really, really important to note that the threshold is pretty steep.  There’s not even an “exculpatory no” doctrine to account for nervousness.

So, we’ll see what happens with this case.

IEEPA, Ireland, and Iran

The United States Department of Justice has announced that an Irish firm has been charged in a 25-count indictment for providing “sensitive technology” to Iran.  (Link.)  The charges are broken down like this:  there are two counts of conspiracy, nineteen counts of violating the International Emergency Economic Powers (IEEPA) Act, four counts of false statements, and forfeiture allegations.

The defendants in the case are: Mac Aviation Group; Thomas McGuinn; Sean McGuinn; and Sean Byrne.  All entities and people are located in Ireland, it appears. How then, does the United States find its extraterritorial jurisdiction, which expanded greatly under the Bush Administration?

According to the DOJ presser, it is alleged that helicopter engines and other aircraft components were purchased from U.S. firms and then transshipped to Iran using companies in Malaysia and the United Arab Emirates.  The engines were manufactured by Rolls Royce in Indiana, and the “other aircraft components” include 50 “‘5th stage vanes'” and 32 bolts.  Yeah, bolts.

IEEPA is a tough little statute.  1977 Congress passed the legislation and, while it sought to clarify the President’s powers, it nonetheless gives the President an enormous amount of power.  One of these powers is to issue regulations relating to trade, including foreign entities which transship American products, and if a person violates those regulations, he can be punished with up to 20 years in prison.  See 50 U.S.C. § 1705(b).

One other thing: an AP story, which I think has been expanded in the Irishtimes.com, states that the United States is seeking the arrest and deportation of the individuals.  It would be awfully surprising if Ireland “deported” its own citizens to the United States for trial.  What is likely meant is “extradition,” which is a vastly different process.  And it’s worth noting, too, that Ireland has a reputation as a troublesome extradition partner of late, though that may be changing.

Senator Stevens Convicted

The New York Times, and at least 1,400 other news sources, are reporting that Senator Ted Stevens of Alaskan (and Bridge-to-Nowhere and “The Internet is a series of tubes”) fame, has been convicted on all charges of making false statements on his disclosure forms.  Though conventional wisdom may have assumed that Senator Stevens (who does not automatically lose his seat due to the conviction) would be convicted, it was actually pretty dicey for the government, as the judge scolded the AUSAs trying the case a number of times.  Additionally, there will probably be a lot of second-guessing about whether Senator Stevens should have rushed to trial as he did.  The Speedy Trial Act states that an individual has the right to be put to trial within 70 days of his initial appearance before a federal magistrate judge.  He could have “waived” that deadline, however, and tried to push the case off for a number of months in order to have more time to prepare.

In any event, Senator Stevens will no doubt file a motion for a new trial, or other post-conviction relief.  In the meantime, however, a presentence investigation report will be compiled by a United States Probation Officer, and sentencing will probably be set for at least three months from now.  After that point, the final judgment will be issued, and Senator Stevens will have ten days from that day to file his notice of appeal with the Ninth Circuit Court of Appeals, which may prove to be useful for him.  As everyone knows, the Ninth Circuit is CRRRRRRRRAAAAAAAAAZZZZZZZZZZYYYYYYY.

Sen. Stevens Indicted

Lawyers sometimes have somewhat bizarre reactions to the world around them.  For example, I can’t watch action movies without wondering who’s going to pay for all the damages caused in car chases or fight sequences.  And I normally can’t read the news without having the compulsion to make a correction.  Take today’s Washington Post article, entitled “Sen. Stevens Indicted on 7 Corruption Counts,” for example. (Link)

The headline is irritating because Sen. Stevens wasn’t indicted on corruption charges.  Instead, he was charged with seven counts of making false statements under 18 U.S.C. § 1001.  Serious charges, to be sure, but each count carries a maximum penalty of “only” five years in prison while corruption charges (18 U.S.C. §§ 201 et seq.) can carry up to 15 years of imprisonment.  My frustration with the WaPo’s headline is the same frustration I felt when drug traffickers were (and maybe still are) called “narco-terrorists”; it’s misleading and unfairly taints the discourse.