You Probably Committed A Felony Today

[Kathianne]

and don't know it. Well worth reading:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2203713


Ham Sandwich Nation: Due Process When Everything is a Crime
<center>
Glenn Harlan Reynolds (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=45302)
University of Tennessee College of Law

January 20, 2013

</center>
Abstract:
Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process -- the decision whether to charge a defendant, and with what -- is almost entirely discretionary. Given the plethora of criminal laws and regulations in today's society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.

[tailfins]

I had a feeling today was a nice day to commit a felony. Why stop with one? Any suggestions regarding what additional felonies to commit?

[Kathianne]

I had a feeling today was a nice day to commit a felony. Why stop with one? Any suggestions regarding what additional felonies to commit?

You may have committed multiple. Did you read the article?

[tailfins]

I want to make sure my sons affirm their Brazilian citizenship when they turn 18 as an "escape hatch" for just this kind of crap. Do you see a tipping point where this is worse than letting criminals run loose? A Ronnie Biggs style way out is a nice option if needed.

http://en.wikipedia.org/wiki/Ronnie_Biggs

Biggs even starred in a popular music video


http://www.youtube.com/watch?v=oZcYRFUmAtM

[fj1200]

I had a feeling today was a nice day to commit a felony. Why stop with one? Any suggestions regarding what additional felonies to commit?

One with plausible deniability?


I want to make sure my sons affirm their Brazilian citizenship when they turn 18 as an "escape hatch" for just this kind of crap.

My friend is thinking his son should have his Indian option as well... not for that kind of "crap" but economically speaking.

[revelarts]

here's a few books on the subject

Published by the Heritage fondation on the same subject
One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty

http://www.amazon.com/One-Nation-Und...ref=pd_sim_b_2 (http://www.amazon.com/One-Nation-Under-Arrest-Prosecutors/dp/0891951342/ref=pd_sim_b_2)

Product Description
America is in the throes of overcriminalization: We are making and enforcing far too many criminal laws that create traps for the innocent but unwary and threaten to make criminals out of those who are doing their best to be respectable, law-abiding citizens. Key developments in criminal law and practice over the past few decades have raised troubling questions about the fairness of our criminal justice system as it affects the average American. It is time to confront these questions, analyze them, and subject them to serious, vigorous debate. One Nation Under Arrest highlights a major effort to return the criminal law to its traditional and proper role in society: to ensure public safety and protect the innocent. With first-hand stories from victims of overcriminalization, One Nation Under Arrest sheds light on an insidious problem that few recognize or care about but which is vital to the fundamental values of the Republic and our concept of justice. Overcriminalization should concern everyone in America, both as citizens and as potential accused. Much is at stake for our freedoms and the freedoms of future generations. Taking the steps necessary to ensure that American criminal law once again routinely exemplifies the right principles and purposes will require much work, but the alternative is to squander the great treasure that is the American criminal justice system.


You could be a criminal! Literally thousands of laws exist that most people don t know about and which penalize conduct that few would even imagine was criminal. This book tells the story of ordinary Americans who were prosecuted and even jailed for everyday activities that ran afoul of the multitude of statutes and regulations that can be used by governments to trap the unwary.
One Nation Under Arrest shines a spotlight on the problem of overcriminalization the skyrocketing trend at both the state and federal levels of criminalizing conduct that could be regulated through civil law or administrative action, or shouldn t even be regulated at all. It is a must-read for anyone concerned with modern attacks on our most basic liberties.
Mark Levin, host of The Mark Levin Show and author of Liberty and Tyranny: A Conservative Manifesto --Mark Levin





Three Felonies a Day: How the Feds Target the Innocent
http://www.amazon.com/exec/obidos/AS...ryptogoncom-20 (http://www.amazon.com/exec/obidos/ASIN/1594032556/ref=nosim/cryptogoncom-20)

The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets. The dangers spelled out in Three Felonies a Day do not apply solely to “white collar criminals,” state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance.
--This text refers to the Paperback edition.


Go Directly to Jail: The Criminalization of Almost Everything
http://www.amazon.com/Go-Directly-Ja...ref=pd_sim_b_1 (http://www.amazon.com/Go-Directly-Jail-Criminalization-Everything/dp/1930865635/ref=pd_sim_b_1)
a commentor

5.0 out of 5 stars Every Honest Person Should Read this Book, January 4, 2005
By
Crime & Federalism "Crime & Federalism" (California) - See all my reviews
This review is from: Go Directly to Jail: The Criminalization of Almost Everything (Hardcover)
You're an honest businessperson with a strong moral compass. You don't cheat on your taxes, or your spouse. You regularly consult with your attorney to ensure that you're complying with the myriad regulations governing your business. You even go the extra mile, talking with children at "Junior Achievement" programs about how to achieve success. The possibility of a criminal prosecution is the last thing on your mind. "The government only goes after real criminals," you think to yourself.

The latest offering from the Cato Institute says: Think again.

In Go Directly to Jail: The Criminalization of Almost Everything, six essays catalog decent people caught in the indecent web of over 4,000 federal criminal laws.

In "Overextending the Criminal Law," Professor Eric Luna introduces us to the expanding federal criminal code, which now includes, to the extent that scholars can even count them, over 4,000 crimes. Worse, these crimes have come loose from the common law moorings that punished the evil, and acquitted the good. By eliminating the traditional requirement that a person is guilty only of he commits a guilty act motivated guilty mind, "legislators" are turning traditional "criminal sanctions" into "another tool in their regulatory toolkit." As the book jacket explains, "an unholy alliance of tough-on-crime conservatives and anti-big-business liberals has utterly transformed the criminal law" into a trap for the unwary.

In "The New 'Criminal' Classes: Legal Sanctions and Business Managers" James DeLong discusses the general principles of criminal law that affect all cases, especially the lack of a "guilty mind" requirement in most modern criminal laws. Thus, someone who acts in good faith (even consulting with a lawyer before acting) can end up in prison. Which is what happened to David McNab.

McNab was a seafood importer who shipped undersized lobsters and lobster tails in opaque plastic bags instead of paper bags. These were trivial violations of a Honduran regulation - equivalent to a civil infraction, or at most, a misdemeanor. However, using creative lawyering, a government prosecutor used this misdemeanor offense as the basis for the violation of the Lacey Act, which is a felony. The prosecutor then used the Lacey Act charge as a basis to stack on smuggling and money laundering counts. You got that?

McNab was guilty of smuggling since he shipped lobster tails in bags that you can see through, instead of shipping them through bags that would frustrate visual inspection. He was guilty of money laundering since he paid a crew on his ship to "smuggle the tails." Although it turned out that the Honduran regulation was improperly enacted and thus unenforceable, the government did not relent. A honest businessman lost his property and his freedom: McNab is serving 8-years in prison.

You might be thinking that my summary of the McNab case is fishy. Surely I'm keeping something from you, since no judge would really sentence an honest businessperson so severely. But as Professor Luna details in "Misguided Guidelines: A Critique of Federal Sentencing," prosecutors, not judges, set the terms of sentencing. A judge's hands are tied by the Guidelines. The judge in the McNab case could not weigh McNab's success as a businessperson, his age and family ties and responsibilities, or his lack of any criminal intent. Although McNab was a criminal by accident, not design, the Guidelines required the judge to treat him as a member of La Costra Nostra. Professor Luna ably demonstrates that the Guidelines are not only unconstitutional as a matter of separation of powers, but also as a matter of due process, and more generally, the Guidelines violate any sense of decency.

In "Polluting Our Principles: Environment Prosecutions and the Bill of Rights," Timothy Lynch (Director of the Cato Institute's Criminal Justice Project) talks about the world of environmental enforcement that even Joseph Heller could not have constructed. Lynch shows the irrational world facing a manager whose employee violates an environmental regulation. If an employee violates a law, the manager is liable, his ability to have prevented the illegal act notwithstanding. Yet if the manager does not report the employee (thus subjecting himself to criminal liability), the manager is guilty of a crime. Heads you lose. Tails you lose.

The manager also may not rely on governmental interpretations of the laws as a defense. An environmental enforcement official told one citizen that he could build him home on undeveloped land. One year into the project, the citizen was told that he was breaking the law. You can't rely on those enforcing the law to know the law.

Worst of all is that coming on the wrong side of the flip of an environmental enforcer's whim does not mean you lose a wager. It means you lose your freedom, and your dignity. Environmental laws put people who will be unlikely to defend themselves into prison with the hawks. And even doctors are not immune.

In "HIPAA and the Criminalization of American Medicine," Grace-Marie Turner reports how doctors may find themselves guilty of fraud when their secretaries do nothing more than enter in the wrong billing code out of the tens of thousands of codes to enter. The hundreds of thousands of pages or regulations are literally unknowable, thus subjecting doctors to potential prison sentences. Patients are also hurt, as small-town doctors join larger conglomerates for the additional legal and financial protection. If HIPAA's criminal penalties go unabated, there will be no more Doc. Bakers.

And federal power is growing, as Gene Healy details in "There Goes the Neighborhood: The Bush-Ashcroft Plan to 'Help' Localities Fight Gun Crime." Ignoring principles of federalism and enumerated powers, federal prosecutors, spurned by welcome guests at the Federalist Society Annual Convention, are turning even trivial violations of local gun laws into a federal case.

Go Directly to Jail is a must-read for anyone interested in criminal law, as well as doctors and other small business owners, who until recently were more likely to be crime victims rather than criminals. And you don't have to take my word for it. Miguel Estrada (who was filibustered for being too "conservative") endorses the book, writing that "ordinary businesspeople risk being jailed for run-of-the-mill commercial dealings that traditionally have been handled by contract and tort law." Mr. Estrada should know: He represented David McNab.

[Tyr-Ziu Saxnot]

Just wait until obama gives himself drone strike capability and authority within our borders. He can then start to also drone strike these unknowing fools for their anti-government diatribes . Should stir economy a lot building drone strike proof houses , eh?;)

[Kathianne]

Sort of ass backward, but doesn't negate the truth.

http://www.guardian.co.uk/technology/2013/feb/19/aaron-swartz-fbi-tracked-classified-documents


Aaron Swartz files reveal how FBI tracked internet activist

Firedoglake blogger Daniel Wright publishes once-classified FBI documents that show extent of agency's investigation into Swartz




guardian.co.uk (http://www.guardian.co.uk/), <time itemprop="datePublished" datetime="2013-02-19T17:42EST" pubdate="">Tuesday 19 February 2013 17.42 EST</time>

A blogger has published once-classified FBI files that show how the agency tracked and collected information on internet (http://www.guardian.co.uk/technology/internet) activist Aaron Swartz.


Swartz, who killed himself in January aged 26, had previously requested his files and posted them on his blog (http://www.aaronsw.com/weblog/fbifile), but some new documents and redactions are included in the files published by Firedoglake blogger Daniel Wright (http://news.firedoglake.com/2013/02/19/aaron-swartzs-fbi-file/).


Wright was given 21 of 23 declassified documents, thanks to a rule that declassifies FBI files on the deceased. Wright said that he was told the other two pages of documents were not provided because of freedom of information subsections concerning privacy, "sources and methods," and that can "put someone's life in danger."


The FBI's files concern Swartz's involvement in accessing the Public Access to Court Electronic Records (Pacer) documents. In pursuit of their investigation, the FBI had collected his personal information and was surveilling an Illinois address where he had his IP address registered.



...

[Kathianne]

http://pjmedia.com/instapundit/163785/


February 20, 2013

“ANOTHER SLEAZY DEAL” involving U.S. Attorney Carmen Ortiz. (http://bostonherald.com/news_opinion/columnists/margery_eagan/2013/02/eagan_another_sleazy_move_by_us_attorney_fed_court )


I’ve lost my faith in Boston’s federal court and U.S. Attorney Carmen Ortiz.
Yesterday, former Chelsea Housing Authority Director Michael McLaughlin pleaded guilty to shafting both taxpayers and Chelsea’s poor by knowingly lying about his salary, which ballooned from $77,000 in 2000 to $366,000 in 2011.


His motive, said his lawyer: money. His jail time: possibly none, according to the plea deal McLaughlin worked out with Ortiz’s office.


Yet last month, computer prodigy Aaron Swartz took his own life after prosecutors in Ortiz’s office threatened him with multiple years in jail for downloading academic journals from an MIT computer system.


His motive: to make these journals available free.


His threatened jail time: up to 50 years.
It’s called prosecutorial discretion. Some of us think it needs more accountability.

(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2203713)


Posted by Glenn Reynolds at 2:50 pm

[Kathianne]

Nothing to see here, moving along...

http://www.wired.com/threatlevel/2013/07/mit-swartz-intervene/


MIT Moves to Intervene in Release of Aaron Swartz’s Secret Service File

By Kevin Poulsen (http://www.wired.com/threatlevel/author/kevin_poulsen/)
07.18.13
6:14 PM


Lawyers representing MIT are filing a motion to intervene in my FOIA lawsuit over thousands of pages of Secret Service documents about the late activist and coder Aaron Swartz.


I am the plaintiff in this lawsuit. In February, the Secret Service denied in full my request for any files it held on Swartz, citing a FOIA exemption that covers sensitive law enforcement records that are part of an ongoing proceeding. Other requestors reported receiving the same response.


When the agency ignored my administrative appeal, I enlisted David Sobel, a top DC-based FOIA litigator, and we filed suit. Two weeks ago U.S. District Judge Colleen Kollar-Kotelly ordered the government (http://www.wired.com/threatlevel/2013/07/swartz-foia/) to “promptly” begin releasing Swartz’ records. The government told my lawyer that it would release the first batch tomorrow.

But minutes ago, Kollar-Kotelly suspended that order at MIT’s urging, to give the university time to make an argument against the release of some of the material.



Based upon an off-the-record conference call with the parties’ counsel and counsel for non-party Massachusetts Institute of Technology (“MIT”), the Court understands that MIT intends to file a motion to intervene later today, which will include a request for relief relating to the Government’s production of certain documents to Plaintiff. In view of the impending motion, the Court hereby STAYS the obligation of the Government to promptly release to Plaintiff all responsive documents that it has located on a rolling basis, see Min. Order (July 5, 2013), until further order of the Court. Once the Court has had the opportunity to review MIT’s motion to intervene, and has considered the positions of the Plaintiff and the Government as to the motion, it shall order a schedule for further proceedings.


MIT claims it’s afraid the release of Swartz’s file will identify the names of MIT people who helped the Secret Service and federal prosecutors pursue felony charges against Swartz for his bulk downloading of academic articles from MIT’s network in 2011.


MIT argues that those people might face threats and harassment if their names become public. But it’s worth noting that names of third parties are already redacted from documents produced under FOIA.

I’ll post MIT’s motion here once it’s filed.


I have never, in fifteen years of reporting, seen a non-governmental party argue for the right to interfere in a Freedom of Information Act release of government documents. My lawyer has been litigating FOIA for decades, and he’s never encountered it either. It’s saddening to see an academic institution set this precedent.

We’ll be in court to oppose MIT being granted any right to redact the documents, and to oppose any further delay in filling this seven-month-old FOIA request.


Update: MIT just filed seven documents in the case. You can read the entire collection below.





Documents can be seen at link, in pdf format.

[Robert A Whit]

Well, since I have never been charged with any state or federal crime nor been arrested, they must not be upholding the law is all I have to say.

[cadet]

In the last few days, my felony's include;

Speeding, (regularly 5-10 over)
Illegal Parking, (car died)
Working under the table, (BEST JOB EVER!)
Harming someones well being, (hurt little bro's feelings)
possible racism, (yelling at liberals who just happen to be black)
I'm sure there's more.

[aboutime]

For some other Americans who disagree with me about what is taking place in this nation under Obama.

I am a Felon for merely being alive, identified as a racist, and home-grown terrorist.

And that's exactly how I hope they continue to feel about me.