Monday, March 08, 2004

Ted Turner is an MCP

Just ask the little woman:

Fonda, 66, said she had had to take a back seat in each of her three marriages.

"Behind the closed doors of my marriage, I would give up all my power. I would silence my own voice to be accepted," she said.

"My whole life was about pleasing my man."

Fonda's last marriage was to Ted Turner, the billionaire media mogul who set up satellite TV service CNN. They married in 1991 but divorced 10 years later.

What Martha Should Teach You

Poor Martha! She didn't know that Title 18 USC 1001 makes it a crime to lie to "Federal Investigators". But her sad experience has a great deal to teach the rest of us:

1) Don't lie to federal investigators. Sure they can (and in many cases are professionally required to) lie to you but since they are your social superiors, you can't return the favor. You are not even allowed to merely say you didn't do it. In Brogan v. US, the defendant falsely answered "no" when federal agents asked him whether he had received any cash or gifts from a company whose employees were represented by the union in which he was an officer. He was indicted on federal bribery charges and for making a false statement within the jurisdiction of a federal agency in violation of 18 U.S.C. Sec. 1001. A jury in the District Court found him guilty. The Second Circuit affirmed categorically rejecting his request to adopt the so-called "exculpatory no" doctrine, which excludes from Sec. 1001's scope false statements that consist of the mere denial of wrongdoing. The Supremes upheld his conviction. So one simple no is enough to send you to the Big House.

By the way, even if you didn't lie but the jury thinks you did, you can go down so keep the next point in mind:

2) Don't talk to federal investigators. Since one word can hang you, you shouldn't have any words with federal investigators. And this advice applies whether you're the target of an investigation or just a witness. As Martha now knows, innocence of the offense you're lying about is not enough to get you off on charges of lying to federal investigators. So if you happen to go to your newsstand tomorrow and buy a paper from the new owner who you recognize as Osama, don't tell the Fibbies. You're not required to and any communication with them opens you up to 1001 liability.

Unfortunately, federal investigators have been known to make errors in their questioning of witnesses and targets so:

3) Don't be alone with federal investigators. Most interrogations are not recorded and investigator's notes can contain errors. So you should try and avoid spending any time alone (or much time at all) in the presence of federal investigators. Just say "I have nothing to say" (oops, that may be a lie!) and leave.

But it's not just federal investigators:

4) Don't talk to or spend time with any federal employee. Any lie to a federal employee can be punished under Sec 1001:

Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title or imprisoned not more than 5 years, or both.

And as we all know, any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, covers a multitude of sins these days. So it's safer not to communicate with or be in the presence of any federal employee. Rough if you happen to be married to one.

The advice may seem extreme but broad criminal statutes often lead to perverse results. See for example Prof. Volokh's article Duties to Rescue and the Anticooperative Effects of Law discussing the effect of laws mandating the rescue of victims and the reporting of crimes on people's willingness to help others. He writes, When a law turns people into outlaws, even only modestly punishable ones, it naturally makes them less likely to cooperate with the legal system that is threatening to prosecute them, especially when their cooperation can alert the legal system to their misdeeds. This is an inevitable cost of using the threat of force to coerce people's conduct; while it may often have to be paid, it ought not be ignored, and for some laws, such as duty-to-rescue/report laws, it may be dispositive.

Martha's Jurors -- Were they paying attention? Yin spots a problem

One of the jurors in the Martha Stewart trial told reporters that the panel felt Stewart's background as a stockbroker played a part in the verdict and decided early on the second day of deliberations that she was guilty. "She should have known her moves were illegal," he said.

And yet another. At 0800 hours this morning the ABC Radio news carried a juror's comment along the lines of: it was obvious that she was guilty of perjury.

Now the difference between perjury (lying under oath) and a Title 18 USC 1001 violation may seem merely rhetorical but it's another example of jurors not paying attention to their instructions. Andrew Sullivan made (and corrected) the same mistake over the weekend. Likewise, the word perjury was repeated by a guest on the Bob Brinker "Money Talk" radio show hosted by Larry Kudlow. The guest (whose name escapes me) works for the Chicago tribune.

One major difference between perjury (one of Clinton's sins) and a 1001 violation is that the speaker has fair warning that she should tell the truth. The other difference is that oath breakers sin against God and can suffer the fires of eternal damnation for it. Slightly beyond the federal sentencing guidelines.

Now non-believers may not worry about such punishments but oath breaking was also considered the most serious crime that a man could commit under many traditional legal systems (a lot worse than mere murder). It's important to maintain the distinction.

Why do jurors (and commentators) have problems with details?