Vote Buying

"American Cash" by Revised by Reworked - Own work. Licensed under Public Domain via Commons.
American Cash” by Revised by ReworkedOwn work. Licensed under Public Domain via Commons.

T-Mobile’s CEO John Legere is a prolific tweeter, and he is one of the few CEO Twitter follows that provides entertainment. Whether he’s in Central Park running a race, handing out free phones to people who approach him, or engaging in a misguided back-and-forth with a person critical of T-Mobile’s signal strength, his Twitter account is legitimately fun to watch. ¬†(As far as CEO accounts are fun.)

But he may have gone a step too far.

Vote-buying is a federal criminal violation, pursuant to 52 U.S.C. ¬ß 10307: “Whoever knowingly or willfully …. pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both.” ¬†(Emphasis added.)

Is it a Violation?

Assuming arguendo that the tweet is authentic (i.e., that there was an actual exchange of money for a promise not to vote for a particular candidate, and not that this was simply a piece of puffery), this would be a problematic admission. Certainly, had the tweet said “…I paid someone $100 to vote for Ben Carson in the primary election for President,” this would¬†satisfy the bare elements of the statute: that this involved a primary election, that the election was for President, and that one person knowingly or willfully paid for voting.

Legere’s situation is slightly more complicated, however. ¬†This involves an exchange of money to¬†not vote for a particular person (I think an AUSA would make a compelling argument that “for voting” should be construed broadly since U.S. Sentencing Guidelines Manual ¬ß 2H2.1(a)(3) sets a base offense level of 6 for a defendant who “solicited, demanded, accepted, or agreed to accept anything of value to vote, refrain from voting, [or] vote for or against a particular candidate…” (emphasis added)), ¬†and though it feels ticky-tack, was this in the context of a primary, special, or general election, or was it for something else?

Sentencing Considerations

Despite the large statutory maximum sentence of five years, the base offense level for vote-buying is relatively low by federal standards: 12, pursuant to 2H2.1(a)(2) (“if the obstruction occurred by forgery, fraud, theft, bribery, deceit, or other means”) (emphasis added). ¬†An offense level of 12 translates to 10-16 months.

Financial Considerations

And, to be perfectly cheeky, what if all potential voters took Legere up on his offer of accepting $100 to¬†not¬†vote for Trump? According to the U.S. Census Bureau, as of November 2014, there were¬†roughly 220¬†million¬†citizens over the age of 18, of which 142 million are actually registered to vote. ¬†First,¬†if each person accepted that $100, that would constitute 142 million potential criminals. ¬†Second, that would result in¬†about $14.2 billion worth of bought votes. That’s a lot of money. I hope he’s got deep pockets.

Ted Stevens’ Case to be Dismissed?

According to the NY Times (and others) there is a hearing scheduled today on the government’s motion to have the charges against Ted Stevens thrown out.¬† When Eric Holder announced last week (link) that the USDOJ would move to dismiss the charges based on prosecutorial misconduct, I was stunned.¬† It signals a departure from the old ways of doing business, and it signals a reaffirmation that the government has the burden of proving guilt beyond a reasonable doubt.¬† And that burden cannot be sidestepped whenever the case is going poorly.

It was a good decision, even if, as I’m sure many people think, Ted Stevens probably did the things he was accused of.¬† But “probably” isn’t the standard in a criminal case.¬† “Probably” is the standard for issuing an indictment.¬† And it’s similar to the standard present in a civil case.¬† But “probably” doesn’t cut it when a person’s liberty is at stake.¬† And so, if the prosecution cannot prove its case beyond a reasonable doubt, a conviction should not be imposed on a person.¬† Throwing a person in jail should be the hardest thing for the government to do, and yet, America has the highest prison population in the world, both in terms of per capita representation (Link:¬† King’s College, London) and sheer numbers (Link:¬† King’s College, London).¬† (Yes, I understand that China’s prison population may be vastly understated.¬† Link:¬† Straight Dope, via Wikipedia.)¬† So one less person in prison is a step in the right direction.

More troubling to me, however, is the district judge’s behavior during the trial.¬† District Judge Sullivan cited the AUSAs handling the case with contempt of court and harshly criticized them throughout the trial. (Link: LA Times)¬† But he didn’t stop the proceedings, nor did he grant a mistrial, or anything like that.¬† Far too often, judges, whether they are appointed or elected, tend to side with the prosecution.¬† And that can make for a very bitter brand of justice.

I therefore hope that Attorney General Holder’s actions might lead to a reconsideration of what justice means, and that it signals a new direction for this country.¬† And I hope that, amid all the hoopla, someone takes a look at how judges behave during trial.

Fishers of Men Update

Earlier today I mentioned that three individuals had been indicted on student loan fraud and FEMA fraud, but that the US Attorney’s Office hadn’t put a press release up.¬† It has now.¬† According to the press release, the charges involve nine counts of bank fraud, one count of conspiracy to commit bank fraud, each of which carries a maximum of 30 years imprisonment, a fine of up to one million dollars, or both, per count, and one count of conspiracy to defraud the United States.

(And just so there’s no confusion, I know the press release says that bank fraud carries a fine of up to $250,000 for bank fraud, but the statute says $1,000,000, and, as I mentioned earlier, the ultimate sentence, if the allegations are proven beyond a reasonable doubt or if there’s a plea, will be determined by the district judge based on guidance from the sentencing guidelines.)

Student Loan Fraud (and a Little FEMA Fraud, too…)

According to the Houston Press, three heads of a local religious organization, Fishers of Men, have been indicted on fraud charges.¬† The details are a little sketchy, (and the USAO here in town hasn’t put the announcement on its press releases page), but it appears that the heads of the ministry allegedly sought student loans on behalf of its members, and the money went instead to building the church.¬† There also seems to be, allegedly, some FEMA fraud in there.

The article states that the individuals face a ton of time because there are a number of charges, and since fraud charges typically carry up to 20 years of imprisonment (depending on the variety), yeah, that’s technically true.¬† If you’re indicted on 50 mail fraud counts, yes, it’s technically true that you face up to 1000 years in prison.¬† However, the likelihood of a district judge (who, it must be noted, is in complete control of sentencing, based on guidance from the sentencing guidelines) stacking the sentences is pretty low.

Counterfeit Goods Indictments

When I think of when I was in Italy seven years ago or so, there are a few things that stick out in my mind.¬† (Apart from just being in Italy, that is.)¬† One is the ad for a multi-line phone, which was dubbed “Il telefono del futuro.”¬† Another thing was the guy in Rome near the Trevi Fountain who tried to sell me his pocket lint.¬† And yet another was the group of men in Verona who set up “shop” on a street corner.¬† Spread out on a blanket were purses, wallets, satchels, and sunglasses, all purporting to be Prada or Gucci or choose-your-own-luxury-brand, and all at incredible discounts.¬† Now, when a roaming band of Carabinieri happened to stroll by, the merchants would simply yank the ends of the blankets together, tie a big knot at the top, and take off running in the other direction.¬† That probably tells you everything you need to know about the provenance of the goods.

Trafficking in counterfeit goods is illegal in the United States, too, and from time to time, the federal government indicts people who do a lot of it.¬† For example ten people in the eastern district of california have been indicted for trafficking in counterfeit goods, and one has been indicted for structuring.¬† According to the USAO out there, “the defendants sold a volume of the defendants sold a volume of counterfeited merchandise, including counterfeited bags, wallets, jewelry, watches, clothing, as well as trademarked emblems, labels, and badges, and also UL power strips at the Galt Flea Market.”¬† (Link.)¬† The¬† bags and jewelry are to be expected, but the power strips are kinda surprising.

In any event, trafficking in counterfeit goods is a pretty serious federal crime, prosecuted under 18 U.S.C. § 2320.  First offenses can be punished by up to ten years in prison, a two million dollar fine, or both.  Subsequent convictions can be punished by up to twenty years in prison, a fifteen million dollar fine or both.  Of course, the sentencing guidelines control just what sentence a defendant will receive after conviction.

Extradition from Canada

International extradition is one of those processes that always generates a lot of interest.¬† Part of this, I suspect, is the word “international,” but it can’t be denied that there’s something awful (using the old sense of the word, here) about the power of a government to seek out and retrieve an individual from another country.¬† Of course, going through legal processes is far preferable to the alternatives the United States has used in the past, namely, simply kidnapping or tricking the individual.¬† See Alvarez-Machain and Yunis, for example.

According to KY3.com, a Springfield, Missouri man has been located in Winnipeg, Canada, having allegedly fled the country after being indicted by a federal grand jury for allegedly attempting to use a minor to engage in sexual conduct and for allegedly receiving child pornography.¬† The article suggests that the individual will attempt to seek asylum in Canada, but assuming that he won’t receive it, extradition will be conducted under the direction of the 1974 bilateral extradition treaty (entering into force on March 22, 1976, and amended on January 11, 1988 and again on January 12, 2001) between the United States and Canada.¬† This treaty provides for extradition on a dual-criminality basis, which means that the charges for which extradition is sought must be crimes in both countries.

Theft of Trade Secrets and Wire Fraud

Patents always seem to get the bulk of attention when it comes to intellectual property law, which is pretty interesting to me, considering the protections available to copyrights and trademarks endure longer.¬† But even less visible, are trade secrets.¬† From time to time, such as when Joya Wilson and Dirk Dimson (PDF) tried to sell Coca-Cola’s trade secrets to Pepsi, individuals who try to steal trade secrets get prosecuted.

Now a former Intel employee is facing four new wire fraud charges in addition to having already been charged with theft of trade secrets in August.¬† According to CNet, and others, Biswahoman Pani allegedly had “more than 100 pages of sensitive Intel documents, including 13 “top secret” files with designs for future processor chips” in his home.¬† Mr. Pani apparently left Intel to work for AMD, but is no longer employed by AMD.

Theft of trade secrets is prosecuted under 18 U.S.C. ¬ß 1832, and the AUSA trying the case (or trial attorney if its deemed that important) in the District of Massachusetts will have to prove a number of elements beyond a reasonable doubt, such as: there was intent to convert a trade secret; that it relates to a product placed in interstate or international commerce; that there’s an economic benefit to anyone but the proper owner; that there was intent to, or knowledge that it would, injure any owner of that trade secret; and any of a whole slew of other acts such as steal, copy, or possess the information.

Wire fraud is quite a bit different, and the CNet article is silent as to what the theory behind the four superseding charges are.¬† The US Attorney’s Office in Massachusetts has not posted a press release on its website setting out some details about how its wire fraud theory operates.¬† Generally speaking, wire fraud involves devising a scheme or artifice to defraud, and then carrying out the scheme using telecommunications.

“Mishandling” Classified Information

According to the New York Times, the Washington Post, and others, former (thankfully) Attorney General Alberto Gonzales “kept classified material at his home and in an office safe.” ¬†Inspector General Glenn A. Fine (who typically does a pretty “fine” (forgive me!) job investigating the messes created under Ashcroft and Gonzales) apparently referred the matter to the “Justice Department‚Äôs national security division for possible criminal action, but officials there declined to prosecute Mr. Gonzales.” ¬†Not too surprising, that.

You might recall that Sandy Berger, former National Security Adviser to President Clinton, recently got in hot water for taking materials from the National Archives, to the tune of $50,000.00 (Of course, he was naff enough to also destroy some of them.)  And a few years ago, Larry Franklin pleaded guilty to giving classified date to a foreign official.

“Mishandling” classified information, is actually a pretty severe federal crime, punishable by up to ten years imprisonment. ¬†The statute in play would be 18 U.S.C. ¬ß 793(f), which states:

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,

(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or

(2)¬†having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer‚ÄĒ

Shall be fined under this title or imprisoned not more than ten years, or both.

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. ¬ß 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. ¬ß¬ß 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.