Three Felonies a Day

by Harvey Silverglate

  Michael Schneider, skillful criminal defense advocate and long-time colleague, who spent considerable time helping me explain the complex details of the extraordinary saga of his client Walter Lachman.

  Daniel Shuchman, money manager and warrior for liberty and decency, who spent endless hours reading drafts and giving me his sage advice on how to direct this book to the audience where it would do the most good for the nation.

  Isaac Dorfman Silverglate, my talented son, whose skill as a creative writer for an innovative advertising agency helped me in crucial ways to focus this book and refine the concept.

  Harry Skoyles, energetic research assistant one summer.

  Kyle Smeallie, who picked up the baton late in the game and, with consummate skill, great devotion to the enterprise, and utterly essential resolve, helped me see this project through to the end.

  G. Richard Strafer, who worked for me decades ago while a student and who now is an extraordinary and persistent criminal defense lawyer, whose help was essential in my writing about the saga of his client Raul Martinez.

  Kathleen Sullivan, who worked with Nancy Gertner and me in the very early stages of all of our careers, and who went on to become a law teacher and law school dean of uncommon skill before returning, more recently, to the practice of appellate law.

  John Swomley, trial lawyer of exceptional talent and grit, who has listened to my rants for years and whose feedback was always direct and helpful.

  Carl Takei, research assistant in the early days of this project, now a civil liberties lawyer, whose work was foundational.

  Peter Tannenwald, law school classmate and communications lawyer, for his advice in his field.

  Stuart Taylor, Jr., lawyer turned writer, whose extraordinary ability to straddle the worlds of law and journalism was so generously shared with me.

  James F. Tierney, research assistant toward the crucial conclusion of this project, whose insights into law much belied the fact that he had not yet commenced going to law school.

  Cathy Tumber, editor extraordinaire, whose remarkable skill as my editor for years at The Boston Phoenix caused me to have the good judgment and equally good luck to retain her services to help me revise and rearrange the manuscript so as to turn it into a book that intelligent and engaged laymen, not only lawyers, could appreciate.

  Martin Weinberg, criminal defense lawyer of remarkable skill and persistence, who was generous with his time and insights.

  Craig R. Whitney, journalist and editor of rare skill, whom I met when he was writing his extraordinary book about the adventures of Wolfgang Vogel, the “spy trader” of considerable Cold War fame, and of my client Alfred Zehe, and whose willingness to spend time discussing the Zehe case with me and sharing insights is much appreciated.

  Jan N. Wolfe, my research assistant for the final two years of the writing of the manuscript, was one of those people whose contributions to the completion of this project, and whose loyalty, devotion, skill and insights, were essential. The nation is fortunate that he is now supplementing his extraordinary literary and reportorial judgment by attending law school.

  Robert L. Wyatt was generous in sharing with me details of his physician clients who were indicted.

  Norman S. Zalkind, close friend of forty years, first law partner, jury trial lawyer extraordinaire, insightful student of the evolution of the criminal justice system, who generously shared his insights with me and who reviewed certain portions of the manuscript.

  Susan Zalkind, who did skillful research and editing during one crucial summer.

  And thanks and a salute to my many clients who went through the torments of hell because of the problems discussed in this book.

  ENDNOTES

  Preface to the Paperback Edition:

  1 The full account of Dr. Hurwitz’s entanglement with federal drug warriors is recounted in Chapter Two.

  2 Adam Liptak, “Outspoken Activist’s Case Becomes Tangled in Secrets,” The New York Times, November 1, 2010, available at http://www.nytimes.com/2010/11/02/us/02bar. html.

  3 Radley Balko, “The Worst Kind of Ham Sandwich: The vindictive grand jury investigation of pain-relief advocate Siobhan Reynolds,” Slate, December 21, 2010, available at http://www.slate.com/id/2278244/.

  4 Petition for Writ of Certiorari in the United States Supreme Court, In re Grand Jury Proceedings (Siobhan Reynolds and Pain Relief Network, Inc.), September 17, 2010, available at http://reason.com/assets/db/1288288059364.pdf.

  5 Email message to the Pain Relief Network Community from Siobhan Reynolds, December 29, 2010.

  6 For an analysis of the Gleason prosecution, see Chapter Two.

  7 For an expanded discussion, see Chapter Seven.

  8 U.S. v. Aleynikov (S.D.N.Y., Sept. 3, 2010, quoting In re Vericker, 446 F.2d 244, 248 (2d Cir. 1971)).

  9 Glenn Greenwald, “Government-created climate of fear,” Salon, January 10, 2011, available at http://www.salon.com/news/opinion/glenn_greenwald/2011/01/10/fear/index.html.

  10 Lyle Denniston, “Analysis: Anti-terrorism case not an easy one,” SCOTUSblog, February 23, 2010, available at http://www.scotusblog.com/2010/02/analysis-anti-terrorism-case-not-an-easy-one/.

  11 Adam Liptak, “Before Justices, First Amendment and Aid to Terrorists,” The New York Times, February 24, 2010, available at http://www.nytimes.com/2010/02/24/us/24scotus.html.

  12 Wendy Kaminer, “‘Material Support’ Bans and the Criminalization of Political Advocacy,” The Atlantic, June 21, 2010, available at http://www.theatlantic.com/national/archive/2010/06/material-support-bans-and-the-criminalization-of-politicaladvocacy/58469/.

  13 Holder v. Humanitarian Law Project, 561 U.S. __ (2010) at 2720.

  14 David Cole, “Chewing Gum for Terrorists,” The New York Times, January 2, 2011, available at http://www.nytimes.com/2011/01/03/opinion/03cole.html.

  15 “Honest services” fraud, in particular Justice Antonin Scalia’s critique thereof, is discussed in the Conclusion of this book.

  16 Skilling v. United States, 561 U.S. __ (2010) at 2935 (Scalia, J., concurring in part).

  17 See Harvey A. Silverglate and Monica R. Shah, “The Degradation of the ‘Void for Vagueness’ Doctrine: Reversing Convictions while Saving the Unfathomable ‘Honest Services Fraud’ Statute,” Cato Supreme Court Review 2009–2010, available at http://www.cato.org/pubs/scr/issue.php?year=2010.

  18 Jonathan Saltzman, “Wilkerson receives 3½ years in prison,” The Boston Globe, January 7, 2011, available at http://www.boston.com/yourtown/boston/roxbury/articles/2011/01/07/wilkerson_receives_3_years_in_prison/.

  19 Michael Grunwald, “‘Only the speaker and God know the total truth’; No quid pro quos tied to Flaherty, but what of subtle choreography?” The Boston Globe, March 30, 1996. Former U.S. attorney William Weld, who led the prosecution against longtime Boston mayor Kevin White (discussed in Chapter One), was skeptical of the charges against Flaherty, telling The Boston Globe in 1995 that “he does not believe there is enough evidence to charge House Speaker Charles F. Flaherty with accepting illegal gratuities.” Weld went on to say that “he, too, has accepted hospitality from friends, and joked that he could end up in a federal penitentiary.” Shelley Murphy, “Weld doubts Flaherty indictment,” The Boston Globe, November 17, 1995.

  20 Skilling v. United States, 561 U.S. __ (2010).

  21 Peter Burrows, “He’s Making Hay as CEOs Squirm,” Bloomberg Businessweek, January 15, 2007, available at http://www.businessweek.com/magazine/content/07_03/b4017075.htm.

  22 An investigative series in The Wall Street Journal on options backdating was awarded the 2007 Pulitzer Prize for Public Service. See http://www.pulitzer.org/citation/2007-Public-Service.

  23 Peter Lattman, “Prosecutions in Backdating Scandal Bring Mixed Results,” The New York Times, November 12, 2010.

  24 Id.

  25 Holman W. Jenkins, Jr., “The Backdating Embarrassment,” The Wall Street Journal, November 17, 2010.

  26 18 U.S.C. § 1001 (making fal
se statements to a federal official); Lattman, “Prosecutions in Backdating Scandal Bring Mixed Results.”

  27 Stuart Pfeifer and E. Scott Reckard, “Judge dismisses charge against Broadcom cofounder,” The Los Angeles Times, December 10, 2009, available at http://articles.latimes. com/2009/dec/10/business/la-fi-samueli10-2009dec10.

  28 Amanda Bronstad, “Judge Says Government ‘Distorted the Truth-Finding Process’ in Broadcom Case,” The National Law Journal, December 16, 2009, available at http://www.law.com/jsp/article.jsp?id=1202436371130.

  29 Reporter’s Transcript of Proceedings, United States v. William J. Ruehle, U.S. District Court, Central District of California, Southern Division, December 15, 2009, at 5201.

  30 Stuart Pfeifer, “Former KB Home CEO Bruce Karatz sentenced to five years’ probation,” The Los Angeles Times, November 11, 2010, available at http://articles.latimes. com/2010/nov/11/business/la-fi-karatz-sentence-20101111.

  31 Zachary A. Goldfarb, “Task force to take up financial fraud cases,” The Washington Post, November 18, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/11/17/AR2009111703980.html.

  32 Fairness dictates that I disclose that I played a paid advisory and strategy role in Goyal’s appeal.

  33 U.S. v. Prabhat Goyal (9th Cir., 2010) (Kozinski, C.J., concurring), at 19761–19762.

  34 See Brian W. Walsh and Tiffany Joslyn, “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,” The Heritage Foundation and National Association for Criminal Defense Lawyers, May 2010, at 13, available at http://www.nacdl.org/withoutintent.

  35 Schmidt wrote op-eds in both The New York Times and The Wall Street Journal. See Yuri Schmidt, “Khodorkovsky and the Rule of Law,” The New York Times, December 27, 2010, available at http://www.nytimes.com/2010/12/28/opinion/28iht-edschmidt28. html; Yuri Schmidt, “The Show Trial of Mikhail Khodorkovsky,” The Wall Street Journal, May 20, 2010, available at http://online.wsj.com/article/SB10001424052748703957904575252352874291616.html.

  36 See Leon Aron, “Frenemies: Putin and Medvedev are fighting behind the scenes of the Khodorkovsky trial,” The New Republic, December 3, 2010, available at http://www.tnr.com/article/world/79600/frenemies-putin-medvedev-khodorkovsky-russia; Gregory L. White, “A Tycoon Who Took On the Kremlin,” The Wall Street Journal, December 30, 2010, available at http://online.wsj.com/article/SB10001424052748703909904576051612130124394.html; Joe Nocera, “Guilty Verdict for a Tycoon, and Russia,” The New York Times, January 1, 2011, available at http://www.nytimes.com/2011/01/01/business/01nocera.html.

  37 See, for example, Harvey A. Silverglate, “Federal Criminal Law: Punishing Benign Intentions,” along with other essays published in In the Name of Justice: Leading Experts Reexamine the Classic Article “The Aims of the Criminal Law,” ed. Timothy Lynch (Cato Institute, 2009).

  Introduction:

  1 Morissette v. United States, 342 U.S. 246, 247-250 (1952); further details are available from the Court of Appeals opinion affirming Morissette’s conviction, Morissette v. United States, 187 F.2d 427 (6th Cir. 1951).

  2 See, generally, Ford W. Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand. L. Rev. 791 (1951).

  3 Justice Douglas concurred in the result without signing onto Justice Jackson’s opinion, and Justice Minton took no part in the decision of the case.

  4 Robert H. Jackson, “The Federal Prosecutor,” April 1, 1940, delivered at the second Annual Conference of United States Attorneys, in Washington, D.C., reproduced at 31 AM. INST. CRIM. L. & CRIMINOLOGY 3 (1940-1941).

  5 John S. Baker, Jr., Measuring the Explosive Growth of Federal Crime Legislation, Federalist Society for Law and Public Policy Studies White Paper, May 2004. The Federalist Society commissioned this study, the report says, “to ascertain the current number of crimes in the United States Code, and to compare that figure against the number of federal criminal provisions in years past.” The report analyzed legislation enacted between 1997 through 2003. Updated on June 16, 2008. Available at http://www.heritage.org/Research/LegalIssues/lm26.cfm.

  6 When Congress enacts a general statute, it sometimes assigns to some administrative agency the autho rity to write detailed or explanatory regulations that put flesh on the statu - tory skeleton. Thus, the federal statute that outlaws securities fraud assigns to the Securities and Exchange Commission the authority to write regulations detailing various kinds of securities fraud. Violation of a regulation thus becomes the equivalent of violation of the underlying statute.

  7 See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812) (unlike state courts, federal courts cannot exercise common law criminal jurisdiction); Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) (there is no general federal common law, even in civil matters); Whalen v. U.S., 445 U.S. 684, 698 (1980) (the power to define crimes and punishments “resides wholly with the Congress”); Dixon v. United States, 126 S.Ct. 2437, 2439 (2006) (“Federal crimes are solely creatures of statute”) (citing Liparota v. United States, 471 U.S. 419, 424 [1985]). This may have been because “[t]he Framers…recognized that the diverse development of the common law in the several States made a general federal reception impossible.” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 139-140 (1995) (Souter, J., dissenting).

  8 Dowling v. U.S. 473 U.S. 207, 213 (1985).

  9 Cox v. Louisiana, 379 U.S. 536 (1965).

  10 Edwards v. South Carolina, 372 U.S. 229 (1963).

  11 See Cox v. Louisiana, 379 U.S. 559 (1965); Raley v. Ohio, 360 U.S. 423 (1959).

  12 See Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Edwards v. South Carolina, 372 U.S. 229 (1963).

  13 Connally v. General Construction Co., 269 U.S. 385, 391 (1926).

  14 United States v. Garber, 607 F.2d 92 (5th Cir. 1979) (en banc).

  15 Id. (emphasis added).

  16 Proceedings of the 17th Annual National Institute on White Collar Crime, March 6, 2003, quoted in John Gibeaut, Junior G-Men, 89 A.B.A. J. 46, 48 (June 2003).

  17 Professor Dershowitz has used this formulation on numerous occasions in his Harvard Law School classes. See Harvey A. Silverglate, “Ashcroft’s big con: False confessions, coerced pleas, show trials—the Justice Department’s reliance on Soviet-style tactics has turned the war on terror into a Potemkin village,” The Boston Phoenix, June 25, 2004, available at http://bostonphoenix.com/boston/news_features/top/features/documents/03936976.asp . See also Paul Craig Roberts, “Fake Crimes,” Feb. 4, 2004, available at http://www.lewrockwell.com/roberts/roberts29.html.

  18 Giglio v. U.S., 405 U.S. 150 (1972).

  19 18 U.S.C. § 201(c)(2): “Whoever directly or indirectly gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceedings, before any court…or for or because of such person’s absence therefrom, shall be fined under this title or imprisoned for not more than two years, or both.”

  20 United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998, panel opinion).

  21 United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999, en banc).

  22 North Carolina v. Alford, 400 U.S. 25, 28 (1970).

  23 Tim Wu, “American Lawbreaking: Illegal Immigration,” Slate.com, October 14, 2007, available at http://www.slate.com/2175730/entry/2175733/.

  Chapter One:

  1 Carl Hiaasen, “Try Martinez Again? It’s Not Worth It,” The Miami Herald, March 28, 1996.

  2 Much of the background information about Raul Martinez’s career has been graciously and helpfully provided by one of Martinez’s attorneys, R. Richard Strafer, who years earlier had worked for me while he was attending law school in the Boston area.

  3 Alfonso Chardy, “Sources: Lehtinen rushed probe after Pepper fell ill,” The Miami Herald, February 17, 1991.

  4 Jeff Leen, “Sources: Lehtinen was a ‘ticklish’ problem; controversies, temper overbalance talent
,” The Miami Herald, January 19, 1992.

  5 Jeff Leen, “Tyrant or Target?,” Tropic, February 24, 1991.

  6 T. D. Allman, Vanity Fair, February 1991.

  7 18 U.S.C. § 1951.

  8 Testimony of Silvio Cardoso, trial transcript in United States v. Martinez, February 12, 1991, at 40.

  9 The Hobbs Act (18 U.S.C. § 1951) provides that:a. Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

  b. As used in this section—1. The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

  2. The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

  3. The term “commerce” means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.

  10 The 11th Circuit also found that jurors had improperly considered outside materials, which contributed to its decision to reverse the lower court’s verdict and grant Martinez a new trial. See United States v. Martinez, 14 F.3d 543 (11th Cir., 1994). Unfortunately, the Court of Appeals, relying upon Supreme Court opinions in the cases McCormack v. United States, 500 U.S. 257 (1991) and United States v. Evans, 504 U.S. 255 (1992), was little clearer on the definition of extortion than was Judge Kehoe. See Martinez, 14 F.3d at 552-553.