A Federal Prosecutor Explains The Statutes Relevant to the James O’Keefe Case
[Guest post by Shipwreckedcrew]
[Note from Patterico: I asked federal prosecutor Shipwreckedcrew, formerly known as WLS, to contribute a piece that analyzes the federal statutes applicable to James O’Keefe’s criminal case.
His lengthy analysis is below the fold. For those with short attention spans, here’s the takeaway: the complaint alleges only a trespass charge. If O’Keefe et al. were trying to disable the Senator’s phone system, they’re in trouble. But maybe they only meant to show something about the current state of the phone system — and intended to return later with that video to press the Senator or her staff on their claim that constituents were unable to get through to her because her phone system was not functioning properly. In that case, we’re looking at no indictment or a misdemeanor.
Thanks to Shipwreckedcrew for this analysis. Now for the full details.
— Patterico]
A federal criminal prosecution initiated in a “reactive” fashion, where the federal authorities are called to the scene in the immediate aftermath of the episode thought to be a federal crime, usually begins with the filing of a criminal complaint. This is not a “charging instrument” in the sense that the case can go forward based on the complaint alone. The complaint does, however, give the federal court jurisdiction to authorize the issuance of an arrest warrant, to arraign the defendant following his arrest, and to determine whether the defendant shall be detained pending indictment or released on bond until a preliminary hearing is conducted or an indictment returned by a grand jury.
The criminal complaint simply says that Person X is suspected of having committed a crime which is explained by reference to the language of the statute, and this is followed by a statement that the conduct is “in violation of Title 18, United States Code, XXXX” which gives notice to the defendant of what crime he is alleged to have committed.
The facts which establish probable cause for the statement that the person is suspected of having committed a crime are set forth in an affidavit of a federal agent, usually in the form of a separate document, the contents of which are incorporated by reference into the complaint, and which is submitted to the magistrate at the same time as the complaint form. The affidavit is sworn to under oath and signed under penalty of perjury in the physical presence of the magistrate, with the magistrate administering the oath. In some circumstances this can be done by telephone.
The magistrate signs the Complaint, the Affidavit (attesting that it was sworn and subscribed in his/her presence), and the Arrest Warrant which is usually prepared by the prosecutor in advance of the meeting with the magistrate. Most districts require that a prosecutor review and approve the criminal complaint and affidavit before the agent submits it to the magistrate, simply to determine legal sufficiency. Given this requirement, it is not uncommon for the prosecutor to actually draft the Affidavit based on information received from the Agent, with the Agent signing under oath that the Affidavit is true and correct.
The person arrested must be brought before the nearest available magistrate to be arraigned without undue delay. The arraignment is a simple proceeding where the defendant is told what he is charged with, he is asked if he has a lawyer and if he can afford to hire one on his own, and bail is either set or a bail hearing is scheduled.
Within 10 days a preliminary hearing must be held OR a grand jury indictment must be returned, either of which would establish probable cause that a crime has been committed and that the defendant committed the crime. At that point there is a charging instrument that is the basis for a criminal prosecution. Under some circumstances, the period for conducting a preliminary hearing can be extended to 30 days, and even beyond that with the consent of the defendant.
The affidavit from the FBI agent in this case refers to three different federal criminal statutes from Title 18 of the United States Code — Sections 1036, 1362 and 2.
Section 1036 is titled Entry by False Promise to Any Real Property of the United States.
Section 1362 is titled “Communication Lines, Stations or Systems.”
Section 2 covers “Aiding and Abetting” crimes committed by others.
The relevant portion of Section 1036 reads as follows:
(a) Whoever, by any fraud or false pretense, enters or attempts to enter–
(1) any real property belonging in whole or in part to, or leased by, the United States; …
(b) The punishment for an offense under subsection (a) of this section is–
(1) a fine under this title or imprisonment for not more than 10 years, or both, if the offense is committed with the intent to commit a felony; or
(2) a fine under this title or imprisonment for not more than 6 months, or both, in any other case.
The relevant portions of Section 1362 read as follows:
Whoever … willfully or maliciously interferes in any way with the working or use of any [radio, telegraph, telephone or cable, line, station, or system, or other means of communication, operated or controlled by the United States], or attempts or conspires to do such an act, shall be fined under this title or imprisoned not more than ten years, or both.
The relevant portion of Section 2 reads:
(a) Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is
punishable as a principal.
The Affidavit from the FBI Agent does not need to set forth every fact known by the Agent about the incident. Rather, its purpose is to set forth under oath the facts which the FBI Agent believes support a finding of probable cause that the cited statutes have been violated. In that regard, the Affidavit filed in New Orleans uses the following language:
2) On January 25, 2010, individuals entered and attempted to gain entrance to the office and telephone system of United States Senator Mary Landrieu … for the purpose of interfering with the office’s telephone system. The individuals did so by falsely and fraudulently representing that the [sic] were employees of a telephone company.”
6) Basel requested to be given access to a telephone in the office, and Witness 1 allowed him access to the main telephone at the reception desk. Witness 1 observed Basel take the handset of the phone and manipulate it. Basel also tried to call the phone with a cellular phone in his possession. He stated that he could not get through….
7) Thereafter Flanagan and Basel told Witness 1 that they needed to perform repair work on the main telephone system and asked for the location to the telephone closet. Witness 1 directed Flanagan and Basel to the main GSA office….
11) Based on the above information, your Affiant believes there is probable cause to believe that Flanagan and Basel by false and fraudulent pretense attempted to enter, and did in fact enter, real property belonging to the United States for the purpose of willfully and maliciously interfering with a telephone system operated and controlled by the United States…. Your affiant further believes that Flanagan and Basel were aided and abetted by O’Keefe and Dai to commit the entry for the purposes of interfering with the telephone system…
By reading the above referenced language closely, you can see that the Agent is alleging ONLY a violation of Section 1036 — entry under false pretenses for the purpose of committing a felony — and he is NOT alleging the actual commission or attempted commission of that felony, i.e., interfering with a communication system.
This description does not prevent them from being indicted for a violation of Section 1362 should the prosecutor decide to pursue that charge. But the complaint only alleged a felony trespass charge, nothing more.
It is also now being reported, as Patterico’s post from last night indicates, that law enforcement officials are saying that O’Keefe and the others intended to, in some manner, disable Landrieu’s phone system in an effort to see how Landrieu’s staff would react to the fact that constituents couldn’t get through, and to possibly capture that reaction and their comments on video.
If that is true — and I’m not convinced that the press is accurately reporting what they are being told — then O’Keefe and the others have a serious problem under Section 1362. No defense of “public interest” or “journalism” is going to get them out from under an effort to disable a Senator’s phone system, IF it is true that they intended to do that when they entered the building and her offices.
On the other hand, if their only purpose was to demonstrate on video that the current state of the phone system was that it was working or not working, and their intent was to return later with that video to press the Senator or her staff on their claim that constituents were unable to get through to her because her phone system was not functioning properly, then I would not be surprised if no indictment was filed — or if something is filed, that it is a charge under Subsection (b)(2) of Section 1036, which would be a misdemeanor. A conviction under that section would likely result in a fine and probation.
I’m going to put up another post later that examines some of the “legal eagle” reporting that has taken place over the last couple days, including Jonathan Turley’s initial comments on Olbermann on Tuesday, as well as David Shuster’s reporting yesterday from New Orleans.
Shuster should be particularly entertaining since last night he was stating that there are “no new charges” being contemplated, though it was possible that there might be a “superseding indictment” depending on what one or more of the defendant says while cooperating with the authorities.
Those comments, for the most part, are a good example of why you should not trust “reporters” to explain to you events and circumstances which are beyond their area of expertise, since almost NOTHING of what he said is accurate.
— Shipwrecked, formerly WLS
[Promoted to the main page from The Jury Talks Back, a site written by several Patterico readers. Check it out.]
Thank you, thank you. I always appreciated learning things from the posts of WLS-> Shipwrecked.
So, most likely we will hear something more definitive in another week or so (unless it gets pushed back).
In the meantime, it appears the big issue is what they did/intended to do meet the criterion of “maliciously interfering”. If not, then misdemeanor entering under false pretense looks like the most that is likely.
As said before, the MSM had them convicted of wiretapping, etc. while Hassan of Ft. Hood is referred to as the “alleged gunman”.
MD in Philly (d4668b) — 1/28/2010 @ 9:24 pmI can’t wait for some of the trollish superminds to read this and give thoughtful analysis of it. Because people who pick names that begin with “assclown” are, well, smarter than people with jobs and legal training and all that!
No, they will just fling poo in another direction, like the bored little zoo monkeys that they are.
Shipwrecked, thank you for going to the trouble to share your analysis. I think it will prove useful in the days to come.
And we may discover that Breitbart is, once again, smarter than the average bear.
Eric Blair (20b3a8) — 1/28/2010 @ 9:24 pmOn the other hand, if their only purpose was to demonstrate on video that the current state of the phone system was that it was working or not working, and their intent was to return later with that video to press the Senator or her staff on their claim that constituents were unable to get through to her because her phone system was not functioning properly, then I would not be surprised if no indictment was filed — or if something is filed, that it is a charge under Subsection (b)(2) of Section 1036, which would be a misdemeanor. A conviction under that section would likely result in a fine and probation.
That’s a crazy difficult intent to prove.
For one thing they asked to see the phone closet, which implies there was more in mind then simply testing out the phones and coming back.
For another thing, from O’Keefe’s previous work with ACORN, I don’t believe he went back to set them straight on their attitudes or how to do their jobs better. He simply took the footage of him and the fake hooker asking leading questions handed it Breitbart and destroyed their lives.
He or Breitbart do not strike me as the type looking to make people better or correct their ways. They seek to entrap, demonize, harass, lie and destroy lives for the great cause of the modern day right-wing politics and they feel more or less free to do anything they feel like and stoop to any level to fight an adversary they see as a great evil danger to their preconception of America.
Yet, now their defense might rest on the court giving them the understanding and forbearance they were loathe to give anyone else.
Wow, now, that is a hard sell counselor.
Assclown doodyheads (f0d390) — 1/28/2010 @ 9:29 pmThat’s a crazy difficult intent to prove.
The Government has to prove intent. The defendants don’t.
There is a tape out there that should go a long way towards establishing what the intent was. Let’s see that.
For one thing they asked to see the phone closet, which implies there was more in mind then simply testing out the phones and coming back.
You’re an Assclown. It implies they wanted to confront people charged with deciding whether they would be allowed access, to see if those people said there is no problem with the phones.
Assclown.
Patterico (c218bd) — 1/28/2010 @ 9:34 pm2.I can’t wait for some of the trollish superminds to read this and give thoughtful analysis of it.
No, they will just fling poo in another direction, like the bored little zoo monkeys that they are.
Comment by Eric Blair
No sooner said and…
MD in Philly (d4668b) — 1/28/2010 @ 9:35 pmIt implies nothing of the sort.
JD (c15e93) — 1/28/2010 @ 9:37 pmThe thing I like the best about Mr. Doody, Patterico, is how completely reflexive he is—while deriding others for that cognitive sin.
But the most lovely quote from this kid is the following:
And he doesn’t see the irony in what he just wrote.
Must not be a mirror in his house, metaphorically speaking.
As I said: not quite as smart or as slick as he supposes. Sophomore, maybe?
Patterico, aren’t you waiting on Mr. Doody’s ConLaw analysis? I sure am. I’m sure John Roberts is waiting!
Eric Blair (20b3a8) — 1/28/2010 @ 9:43 pmI have a stupid question. Why is someone on this site giving himself or herself a self-insulting commenter name? I’m not saying (s)he doesn’t deserve it; I’m just confused as to why (s)he’s doing it.
Alan (07ccb5) — 1/28/2010 @ 9:48 pmIf they intended to disable the phones just to see the reaction, then they are totally insane.
That seems unrealistic. Despite Assclown’s slant on their ACORN work, these people are not Candid Camera.
I hope and think it’s more likely they were doing the expose. It’s a shame they could be charged with trespass, but I hope cooler heads prevail on that. If these people were just trying to get some answers to the voters about a lying Senator, they really didn’t cross the line by checking out the phones (under my assumption).
Assclown, the people whose lives were ‘ruined’ (and most of them probably still work at ACORN, unruined) were monsters. Anyone who helps someone set up child sex slave rings is a horrible person. Anyone who fights those people is doing the right thing.
You talk about people going too far out of partisanship. Think about that.
Dustin (b54cdc) — 1/28/2010 @ 9:48 pmI would think whatever equipment the guys who went inside had on them when arrested would go a long way toward tipping the balance as to whether they intended to do anything to the phone system. For their sakes I hope they weren’t carrying screwdrivers, wire strippers, pliers and other such implements when they pulled this stunt. Such tools, like burglary tools, would likely be enough for some kind of presumption of use instruction. However lack of such would go a long way toward negating the idea that they intended to do anything but look at the phone system. A bare hands disabling of a phone clost would be so obviously wrong that even Senate staffers should be able to recognize it.
Soronel Haetir (0f70fc) — 1/28/2010 @ 10:04 pmThese boys would, quite frankly, have to be the dumbest humans on the planet to plan an operation like this, a sting, if you will, and plan to carry it out in such a way as would leave them open to be charged. I mean, for pete’s sake, none of the commenters here are investigative journalists, and already I’ve learned the specific statutes that are/would be in play, and some good ideas of what not to carry on my person. You don’t think they thought about that stuff at all before venturing into these waters?
That’s the main reason I don’t buy the “intended to disable” explanation–it takes as one of its premises that these boys were exponentially stupid.
Linus (a64166) — 1/28/2010 @ 10:12 pmSoronel,
That makes sense. Some amount of tools could be part of a disguise, of course. But a lack of tools? That would be a difficult hurdle for the Government to surmount.
Patterico (2beca1) — 1/28/2010 @ 10:18 pmComment by Dustin — 1/28/2010 @ 9:48 pm
dirtydrawers doesn’t see anything wrong with child prostitution; in fact, he thinks it’s kind of neat, and is hoping someone can score him the local address.
AD - RtR/OS! (bb36fd) — 1/28/2010 @ 10:18 pmDid the affidavit mention tools? We already know that it most certainly did not mention bugs, or wiretapping equipment.
JD (c15e93) — 1/28/2010 @ 10:22 pmwell, if it didn’t mention “wiretapping equipment” in the affidavit, then either they didn’t have any tools, or tools aren’t considered “wiretapping equipment”.
either way, that pretty much puts the skids to the case that they will be an issue further down the road, unless the Feds get desperate to file some sort of charges….
redc1c4 (fb8750) — 1/28/2010 @ 10:30 pmThere was some mention in initial reports that along with the work clothes and hard hats (carried, not worn), that they had utility/tool belts on.
AD - RtR/OS! (bb36fd) — 1/28/2010 @ 10:33 pmThe question would be, what tools were in the belts?
A couple of threads ago, I predicted this would likely end with a misdemeanor plea, assuming that the affidavit is proven correct and that the men actively represented that they were employees of the phone company. I think Shipwreckedcrew’s analysis bears that out. Unless they have a LOT more information than they put in the affidavit, or one or more of the defendants says or said something really stupid, I don’t think the evidence is there to prove an intent to actually do anything to the phone system other than observe it. That takes the felony off the table. But the phone closest is not open to the general public, and according to the affidavit the men represented themselves, falsely, as employees or agents of the phone company, and I think that fits fairly squarely within the prohibition of 1036.
As I said before, though, that depends a great deal on exactly what they said to the GSA official labeled Witness 2 in the affidavit. If they were careful and made no active misrepresentations, and simply allowed the official to draw conclusions from their clothing, then they might just ease by. But the statement about their credentials being in their vehicle worries me; that implies that they do have credentials from the phone company, and would thus probably be considered a fraudulent misrepresentation.
Hope I’m wrong, though. There’s plenty of serious crimes the DOJ should really be focusing their efforts on, rather than political theatrics.
PatHMV (003aa1) — 1/29/2010 @ 12:23 amI tend to agree with PatHMV’s analysis, except PatHMV is a Taints supporter.
JD (636015) — 1/29/2010 @ 12:26 amPatHMV,
Following up on your point, let’s assume that at most the two men dressed in telephone company-type clothing misrepresented themselves to gain access to the equipment closet. How would that impact O’Keefe and the man in the car on what I assume is the “aiding and abetting” charge, especially if they did not participate in any misrepresentation and that wasn’t part of the plan?
Further, does there have to be proof of a misrepresentation or interference to successfully prosecute O’Keefe and the man in the car for “aiding and abetting”?
DRJ (84a0c3) — 1/29/2010 @ 1:06 amPATHmv
It was an overt act – planned – if its stupid – so was pretending to be a pimp exploiting underage girls in sex trades – its all about the deposition – if one of them said the magic words “interfering with the phones” no way are they getting off with a warning and I can bet you dollars to donuts those words may just find themselves in the mouth of someone who witnessed it
Also amongst the four if on confessess that the intent was to disrupt the phones to show they were not concerned – its all bad – all bad
EricPWJohnson (c8e67e) — 1/29/2010 @ 1:34 amWhen people are facing a decade in prison – political ideology is about the first thing that gets tossed out the window
EricPWJohnson (c8e67e) — 1/29/2010 @ 1:36 amDefendants in a criminal proceeding aren’t deposed because they have the right to remain silent. They can be interviewed but only after being given their Miranda rights and waiving the right to remain silent.
DRJ (84a0c3) — 1/29/2010 @ 1:45 amIf I was defending against the charge, I would also determine whether it would be fruitful to push on the language in 1362, that limits the scope of criminal offense to either 1) facilities operated or owned by the US, or 2) facilities used for military or civil defense purposes. It’s possible there is no 1362 violation, even if they actually intended to and succeeded in cutting the main trunk that serves the Senator’s offices.
cboldt (60ea4a) — 1/29/2010 @ 4:42 amSo if they aren’t charged under s1362 — and I don’t see that they were trying to interfere with the phone lines (“interfere” is a bit nebulous) — then at most the s1036 charge would be a misdemeanor — subsection (b)(2) instead of (b)(1), correct?
So the case would hinge upon whether the way they dressed & acted would give rise to false pretense that they were The Phone Company employees (IIRC, they never said they were from TPC.)
Makes a much thinner case for the government, but there is still some meat there.
Oh, and I think assclown has to be a parody of the typical lefty troll.
rbj (65c648) — 1/29/2010 @ 5:59 am— if they aren’t charged under s1362 — and I don’t see that they were trying to interfere with the phone lines (“interfere” is a bit nebulous) — then at most the s1036 charge would be a misdemeanor — subsection (b)(2) instead of (b)(1), correct? —
cboldt (60ea4a) — 1/29/2010 @ 6:11 amThat’s the way I see it. And to make the 1036 trespassing charge, the area they attempted to obtain access to has to somehow “off limits” in a way that supports a violation of 1036. There are plenty of places off limits to the general public (my house, for example – and the telephone company’s facilities), where entry on false pretenses does not a 1036 violation make. The closet itself has to be “real property belonging in whole or in part to, or leased by, the United States.”
From the USDOJ prosecution handbook and caselaw, the meaning of “interfere” is pretty clear. One has to accomplish or attempt to accomplish an inability to use the communication service. Cutting the lines does this.
I disagree that the affidavit doesn’t allege 1362. The affidavit is styled in a way that aims to support a formal charge of 1036(b)(1), and in order to obtain a conviction under that subsection, there must be a charge of attempting to complete a (separate) felony.
rbj, according to the affidavit:
Then,
Then, the two spoke with
The affidavit never purports to quote the exact words that they used, but to my mind it fairly strongly suggests an affirmative, verbal misrepresentation.
DRJ, to answer your point, according to the affidavit, O’Keefe and Kai admitted to the FBI (never a smart thing to do, talk to the FBI under any circumstances, these days; I’m not sure I would do it, even as a 100% innocent person questioned as a witness) that they helped plan, coordinate, and prepare the “operation.” (the FBI’s word, don’t know if that’s what O’Keefe et al called it)
Again, everything is dependent on exactly what was said (one of the reasons not to trust the FBI, as they don’t allow the recording of interviews and fight like hell to avoid disclosing even the agent’s contemporaneous notes of the interviews). But if they did say something like that, then one can engage in a conspiracy to commit a misdemeanor, and I think that’s what we would have here.
EricPWJohnson… the various statements about repairing the phones would provide probable cause for the arrest for the tampering/interfering charge. But I agree completely with Patterico, that there’s no way they had any actual intent to mess with the phone lines, and I don’t see any indication in that affidavit that they have enough proof of intent to convince a jury beyond a reasonable doubt that they had an intent to do anything other than observe the phone lines.
PatHMV (95883f) — 1/29/2010 @ 6:35 am[…] Anyway, the point here is that contrary to first reports, this wasn’t some grand scheme, and the reality is it likely will amount to jack shit in the way of punishment. (That per a Federal Prosecutor.) […]
This ain’t Hell, but you can see it from here » Blog Archive » Gordon Duff: Sky diving off the cliffs of insanity (ad36aa) — 1/29/2010 @ 7:35 amYou mean that it’s illegal to misrepresent yourself? I mean, apart from impersonating a police officer or something, it would be illegal to claim to be a phone repairman, or a school teacher, or a pizza deliveryman???
If that’s the case, there are a LOT of legislators who could be in big trouble.
And to all of you who have been critical of Mr. Assclown Doodyhead, you’ve got to at least give him credit on this score. He represents himself for what he is. Wouldn’t the integrity of our political process be enhanced if our legislators followed his example? I, for one, would love to see the senior senator from Michigan call himself Senator Assclown Doodyhead. I might even send him a donation just for the joy of writing that on a check!
Gesundheit (cfa313) — 1/29/2010 @ 7:49 amOoh here’s one for a prosecutor: the accused is under a limited gag order, and can’t talk to victims or witnesses. Does that forbid him from tweeting? What if some witnesses (like his co-accused) are followers on twitter?
[note: fished from spam filter. –Stashiu]
imdw (143bb3) — 1/29/2010 @ 7:52 amGesundheit… it’s illegal to misrepresent yourself to fraudulently gain access to U.S. government property which you would not be allowed to access if you correctly identified yourself.
Perfectly legal to tell the girl at the bar you’re a telephone repairman, or a CIA spy, or whatever it takes (scummy, perhaps, but legal). But tell the same story to a government official in the course of their official duties of deciding whether you are allowed to access restricted government property, and that becomes legally questionable.
PatHMV (95883f) — 1/29/2010 @ 8:20 am“Did the affidavit mention tools? We already know that it most certainly did not mention bugs, or wiretapping equipment.”
It mentioned tool belts. You think these guys would be the types that would affect a blue-collar costume including a tool belt….without tools?
imdw (842182) — 1/29/2010 @ 8:22 amPhew! Thanks Pat! That’s a big relief because I’ve been fooling some of the people for a long time around here, pretending to be an adult.
I’d still like to write my first letter to Senator Assclown Doodyhead though. Even to have one honest Democrat go by that name would seem to cast a refreshing aura of authenticity over the world of politics again. “And in the news today, Speaker of the House, Ms. Assclown Doodyhead, told reporters…”
Gesundheit (cfa313) — 1/29/2010 @ 8:26 amI know I should turn to other websites for comedy, but I do enjoy I’M a DimWit. He could use his staightman humor and make some good money touring. Who’s on first?
Corwin (ea9428) — 1/29/2010 @ 8:27 amDRJ
IF they talked – its highly likely one did – they are in deep deep dodo
I was talking about depositions will be coming and coming soon. The witnessess and the office and the building have voice and video – if these brain surgeons were discussing plans in the hallways or even outside the building those survelliance tapes – just the mere mention of them – may very well do them in
EricPWJohnson (c8e67e) — 1/29/2010 @ 8:32 amNo way a Federal Magistrate and the FBI are going on this based on a cheap stunt – there must be other evidence that something was said or implied caught on video
EricPWJohnson (c8e67e) — 1/29/2010 @ 8:35 amHave they been indicted yet, Eric?
JD (b9cdd4) — 1/29/2010 @ 8:35 amThe phone closet shouldn’t be open to the public. Asking where it is, and discovering that access is through an unlocked door in an unlocked janitor’s closet in the hall would be something to learn. Hopefully they’ve made extensive notes about what they were trying to do and how they were going to try, perhaps even with a video discussion of that.
htom (412a17) — 1/29/2010 @ 8:40 amSo, the affidavit didn’t mention any actual tools.
Lacking any evidence that they were carrying tools, yes.
Some chump (d97978) — 1/29/2010 @ 8:45 amEricPWJohnson @33 — the complaint filing normally takes place very quickly, and there generally isn’t the opportunity to be extremely thorough.
The other option would have been to question them, release them, and the conduct an investigation before deciding whether to go to the grand jury — skipping the criminal complaint altogether.
Had this been some ordinary run-of-the-mill government office, that would have been the more likely case.
But in circumstances like this DOJ is very sensitive to Congressional perceptions. This was a US Senator’s Office that was “targeted” for some form of action. DOJ is going to respond promptly to that by way of arrest and complaint.
They have interviews from one or all of the guys arrested, and I’m sure they are talking with their attorneys now about the various avenues that can be pursued. We’ll know more about what they are going to do in the next 10 days.
WLS (3d3fb8) — 1/29/2010 @ 9:04 amEricPWJohnson, what evidence are you relying on for your belief that “if they talked, they are in deep dodo”? What facts presented in the affidavit lead you to the conclusion that they intended to actually disrupt or even lay hands on the phone system, as opposed to, say, take a picture of it?
Yes, if they talked and said “we intended to yank some wires out of the wall and disconnect some phones,” then yeah, that’d be bad. But if, as I believe to be the case based on the facts presented in the affidavit and based on O’Keefe’s history, they simply told the FBI agents that they had no intention of even touching the phone system, that they merely intended to look at it and takes some pictures, how do you think that gets them in felony trouble (i.e., “deep dodo”)?
PatHMV (95883f) — 1/29/2010 @ 9:11 amBy the way, WLS, thanks for the excellent and thorough analysis.
PatHMV (95883f) — 1/29/2010 @ 9:12 am“Lacking any evidence that they were carrying tools, yes.”
But we’re not “lacking any evidence.” We know they were carrying tool belts. I’d have a hard time imagining these guys are SO bad at costuming that they would have on tool belts without tools.
imdw (017d51) — 1/29/2010 @ 9:13 amWLS
No, they have something on video – they had the option of turning it over to NOPD – when they Use Bernard Parish thats the protocol for breach of national security
These guys are in serious trouble
They asked for access implied they were repairmen to secure federal communications portals
They are looking at a whole list of charges to be added by the US Attorneys guideline office in DC
EricPWJohnson (c8e67e) — 1/29/2010 @ 9:14 amThe comprehensive details will come out eventually, so we won’t have to keep wondering about the meaning of “tool belt” and other silly things.
Name me one life James O’Keefe or Andrew Breitbart has tried to “destroy” for the purpose of their politics. “Destroy” is an incredibly strong term to use. To me, it means making a person so socially untouchable in their sphere of life that they more or less disappear off the face of the earth and are held up as objects of ridicule and contempt whenever they do briefly and unfortunately (for them) return to the public eye. Incredibly strong also, the way you use it, is “lie,” since you can’t prove that O’Keefe or Breitbart have ever knowingly and willfully lied regarding anything concerning the ACORN story or with BigGovernment’s activities in general. I’m not interested in “back in 2002 Breitbart blah blah blah,” that kind of desperate courtroom theatrics crap isn’t going to cut it.
“More or less free to do anything they feel like” is nothing more than a lame rhetorical trick, style (very little of it) trying to cover up a complete lack of substance. This is the United States of America, it isn’t Venezuela or Iran or even Italy. The rest of the sentence, “and stoop to any level,” is just the climax to your pathetic abuse of written English.
“Preconception to America” is not only nonsensical, it’s just more of the same. “Preconception”? O’Keefe and Breitbart don’t know enough about America to have an opinion of it that isn’t “preconceived”? They are Americans, you know. They do live in America, you know. O’Keefe is just out of college (or is he still in graduate school)? Breitbart has been a part of the American media for decades. I’m pretty sure they don’t need to “preconceive” to know what the American people are like.
What you really meant to say is “a great evil danger” to their vision for America’s future. You don’t “preconceive” when you’re thinking about how you’d like things to be. You “preconceive” when you make a conclusion about something before even experiencing it.
chaos (9c54c6) — 1/29/2010 @ 9:16 amPATHMV
The Federal Office for Ethics takes a dim view of FBI agents inventing charges where non exist
Federal law enforcement employees dont take stupid chances
they have tape and video
I’ve been involved down there – very single day someone gets arrested either there or at the annex – New Orleans has the largest concentration of Federal Administration offices second only to Washington DC
Believe me – there are uniformed police there – the fact that US Marshalls arrested immediately and FBI already investigated means this was not a simple tresspass
not at all
EricPWJohnson (c8e67e) — 1/29/2010 @ 9:19 amEricPWJohnson, actually you’ve no real basis for that statement at all.
We saw a reporter arrested without actual cause in Denver District Court building just last month. I’m not saying that this is the equivalent; however, your claims are overblown.
SPQR (e91b2e) — 1/29/2010 @ 9:22 am“They seek to entrap, demonize, harass, lie and destroy lives for the great cause of the modern day right-wing politics and they feel more or less free to do anything they feel like and stoop to any level to fight an adversary they see as a great evil danger to their preconception of America.”
Assclown – Do you mean that he is trying to do what the left has done to Sarah Palin and Joe the Plumber? Is that what you mean?
daleyrocks (718861) — 1/29/2010 @ 9:24 amFBI agents usually don’t have weird stuff going on in US Senator’s offices in the middle of the day with the alleged criminals being surrounded by office employees and nothing threatening to anyone life’s or public order going on too. You seem to think that the FBI only jumps in when the red phone at Quantico (or at a field office) starts going off and it’s Code Red everyone throw your papers in the air and rush out.
I’m pretty sure a casual 3-minute perusal of The Smoking Gun, or just plain old Google, would say: you wrong, sah.
Where is there any mention of the government possessing tape (presumably audio tape) and video?
So every single day someone gets arrested at the building Senator Landrieu’s offices are in, or the annex, and they are all presumably charged with some kind of federal crime since it is federal property – are you saying that serious crimes are being committed there every day? With audio and video recordings galore? Come on man.
Or it could just mean that the closest personnel available were some US Marshals and that since it is the office of a US Senator not exactly politically friendly towards O’Keefe, good ole Mary pulled some strings and got the FBI involved to the hilt. Or, perhaps, since it is the FBI’s job to investigate alleged crimes taking place on federal property no matter how serious (or not), that means your comment about the FBI “already investigating” is pretty meaningless.
No, your claims aren’t overblown at all. Not. At. All.
chaos (9c54c6) — 1/29/2010 @ 9:34 amChaos
really – the FBI has NO JURSIDICTION in OFFICES of CONGRESS
getting back to basic civics questions
They attempted to access a secure federal communications portal
they lied to the GAO in an attempt to access a TOP SECRET communications portal of the United States Government
Using the argument they were doing on the side of truth and righteousness is not going to go far
Thats the hammer – and they are going to use it
EricPWJohnson (c8e67e) — 1/29/2010 @ 9:38 amEric, does the FBI have jurisdiction in Congressional offices that are not in ALL CAPS?
SPQR (e91b2e) — 1/29/2010 @ 9:44 amDo any of you know what a “blue gun” is?
What if all of the “tools” in the tool-belts were “blue tools”?
What is it, they have ten-days to go for indictment or a preliminary hearing?
I suppose we’ll know, when we know?
AD - RtR/OS! (098720) — 1/29/2010 @ 9:48 amAD – I think they were carrying Sky Hooks.
daleyrocks (718861) — 1/29/2010 @ 9:53 amDon’t forget Breitbart, Eric. he is in a world of trouble too.
JD (861229) — 1/29/2010 @ 9:57 amNever said they didn’t, learn to read. Go ask someone to re-read my post for you. Or try your hardest and re-read it yourself, particularly this part:
Getting back to embarrassing your ranting.
A secure federal communications portal? It’s the goddam phone box in a Senatorial home office. Don’t pull this bullshit like he was breaking into Pentagon Subbasement Level 4A where only members of the Illuminati are allowed access, k?
They lied to the Government Accountability Office in order to access Barack Obama’s top secret Blackberry back-up server?
Come on man, you’re spinning out of control now. There’s nothing in the affidavit about “TOP SECRET” “communications portals” anywhere.
Put down the dramamine, drink a lot of Nyquil, and come back tomorrow when you’re not frothing at the mouth.
[note: released from moderation. –Stashiu]
chaos (9c54c6) — 1/29/2010 @ 10:02 amdaley…they would have been better served to be carrying communicators, so they could have instructed Scotty to “Beam me up”.
AD - RtR/OS! (098720) — 1/29/2010 @ 10:10 amThey attempted to access a secure federal communications portal
they lied to the GAO in an attempt to access a TOP SECRET communications portal of the United States Government
Please name the statute which you believe makes it a crime to “attempt to access a secure federal communications portal”.
You don’t know what “TOP SECRET” means. If this closet (or as you like to call it, “secure federal communcations portal”) was really top secret, nobody would even know it was there.
Subotai (fc1340) — 1/29/2010 @ 10:38 amNo, imdw, that isn’t evidence. You are inferring that there were tools in the belts, but that information doesn’t appear in the affidavit.
So, other than speculation, there is no evidence that they were carrying tools.
Some chump (d97978) — 1/29/2010 @ 10:40 amEric, I never said the FBI didn’t have probable cause for the arrest. In fact, I think they did (assuming, as always, that what the 3 guys did in the building is accurately described by the affidavit). The statement that they are there to repair the phones certainly can be interpreted as a statement of intent to do something, to interfere in some way with the phone lines. But there’s a far, far distance from probable cause to proof beyond a reasonable doubt of a subjective intention.
I’ll ask again. What FACTS presented so far lead you to conclude that they intended to damage or otherwise interfere with the phone system operations?
As for the nonsense about the Senator’s office, there’s no charge in the affidavit against them based on their entry into Landrieu’s office. It was the apparent intent to get into the phone closet which led to charges.
PatHMV (95883f) — 1/29/2010 @ 10:45 am“No, imdw, that isn’t evidence.”
Sure it is. It is probitive and relevant. There’s much better evidence that will come up. But even without that, we have this now.
[note: fished from spam filter. –Stashiu]
imdw (22078e) — 1/29/2010 @ 11:16 amIt is no more evidence that they carried tools than saying “I know that guy had socks on because he was wearing shoes.”
Since you have no real evidence other than your assumptions, it’s time to be quiet until you have the “much better evidence” you claim exists (despite having no basis for this claim).
Some chump (36dbd5) — 1/29/2010 @ 11:31 amMy advice to those reading here would be to ignore for now the posts of EricPWJohnson. Based on what I’ve read, he doesn’t know what he is talking about.
It’s not “GAO”, it’s GSA (General Services Administration) that owns all federal buildings. It was the GSA office that they went to for some purpose relating to the main phone system closet.
FBI has jurisidiction to investigate any crime under Title 18. The issue with the search of William Jefferson’s office was not jurisdiction to investigate, but whether Jefferson had immunity under the “Speech and Debate” clause of the Constitution that extended to materials inside his office, thereby making the search of his office unconstitutional.
The “entry under false pretenses” was complete when the defendants entered the federal building, since the entire building is owned by GSA. The fact that they ultimately ended up in a Senator’s office, as opposed to a Dept. of Agriculture office, doesn’t change that.
Shipwreckedcrew (cb5f32) — 1/29/2010 @ 11:43 amimdw — let’s say the “tool” was an ice cream scooper — a kitchen “tool” — would that be relevant?
Don’t have enough facts yet to know for sure how they are involved, if at all.
Shipwreckedcrew (cb5f32) — 1/29/2010 @ 11:45 amWLS, thanks for making this episode at least very educational.
It’s challenging to keep up with all the aspects, but it’s very interesting and it’s a damn shame this isn’t what the profession journalists are interested in.
I think it says something that this blog would even attempt to be this informative, and MSNBC or the WAPO or CNN wouldn’t dare provide this level of detail and analysis. They know their viewers would flip over to American Idol.
It must have taken hours to put all that together, much less sort through the babbling of the commenters such as myself or less earnest folks.
Dustin (b54cdc) — 1/29/2010 @ 11:53 am— The “entry under false pretenses” was complete when the defendants entered the federal building, since the entire building is owned by GSA. —
cboldt (60ea4a) — 1/29/2010 @ 12:55 pmI disagree with this conclusion. The “entry under false pretenses” relates to spaces that require credentials in order to enter. The issue that Congress was attempting to remedy was the use of false credentials (badges) in order to enter spaces not open to the general public. The federal building is open to the general public. There allegation of attempts to bypass security take place AFTER they entered the building.
I believe that the “attempt to enter under false pretenses” was complete when they uttered an expression that was reasonably taken as seeking access to the telephone closet (assuming that the telephone closet meets the “under the ownership/lease/control of the US” prong of the crime).
IOW, there is no need for any “pretense” (hence no need to falsify) in order to enter (public areas of) the building.
Comment by PatHMV — 1/29/2010 @ 10:45 am
“… The statement that they are there to repair the phones…”
But, is that what they said, or is that what Witness#1 “heard”?
AD - RtR/OS! (098720) — 1/29/2010 @ 1:17 pmThey could just as easily said something to the effect that it had been reported that the phones weren’t working and that they were just checking to see if that was the case?
Shipwreckedcrew… I tend to agree with cboldt’s analysis at #64. If you enter a building which is entirely open to the public and no identity check is made when you go in, I don’t see how you can enter under false pretenses. You can’t misrepresent who you are until you’ve actually made a representation of your identity at all.
I think I was in that building once, years ago, but I don’t remember what, if any, security checkpoints there are on the way in. If there’s a log-in sheet where they have to sign their name and their employer or something, in order to gain access, then that might provide a basis for a misrepresentation upon entry charge just for the building itself (even if they would have been admitted to the building under their own names and thus gained nothing by the misrepresentation). But without some actual representation of identity upon entrance, I don’t see how you could be guilty of entry under false pretenses at that point, even if you went in dressed as Mayor McCheese.
Am I missing something?
PatHMV (95883f) — 1/29/2010 @ 1:20 pmDustin — thanks.
But, if the truth were known, the post took about 30 minutes. Everything there is pretty much second nature. It took as long as it took me to type/cut/paste.
Shipwreckedcrew (cb5f32) — 1/29/2010 @ 1:29 pmAD, that’s possible, which is why I’ve said in almost every comment I’ve made on this subject that much will hinge on exactly what the young men said to the witnesses. However, for now, it’s the only actual evidence of any sort that we have available to us.
My general experience with the FBI, however, especially in Louisiana, is that the official interview reports will reflect the conclusions of the FBI agents, because it is those same FBI agents who write up the interview reports. And if the witness said immediately after the event that the young men claimed to be telephone repairmen, unless the fellows have that portion of the interaction on tape themselves, then that’s the evidence that’s going to wind up being used in trial and there won’t be a lot to dispute it… the contemporaneous statement of the witness will be recorded as that they made an actual misrepresentation, and that will be carried through in all the notes and official write-ups by the investigating agents, and by trial that will be what the witness subjectively remembers, even if it wasn’t 100% accurate at the time.
PatHMV (95883f) — 1/29/2010 @ 1:30 pmIt is important to note that, last time I checked, the FIB’s were about the only LE outfit that doesn’t video their interviews (or perhaps even audio – not sure of that).
AD - RtR/OS! (098720) — 1/29/2010 @ 1:37 pmBut, it seems a Dollar to a Do-nut certainty that O’Keefe & Co. have a video of what transpired in that reception area, and perhaps later too.
If #’s 1 & 2 get on the stand and testify to something that isn’t on those videos, they might be toast. Would a prosecutor risk that?
cbolt — I think that is an arguable point you make. I think to say that a member of the public may pass through building security at the entrance dressed any way they want to without incurring criminal liablity, is not without support. When they employ their manner of dress in a deceptive fashion for some purpose after entering, they have engaged in a “false pretense.”
But, if they enter dressed as telephone repairmen when they are not, go to the cafeteria and have lunch, and then leave the federal building, then they have committed no crime. So, until they did something deceptive or fraudulent in which their manner of dress played a part, the fact that they were dressed in that fashion is of no legal significance.
Shipwreckedcrew (cb5f32) — 1/29/2010 @ 1:39 pmYeah, I can’t tell whether they were recording as the guys went to find the GSA person in charge of the phone closet. The affidavit does not say that O’Keefe accompanied them, but it also doesn’t say that he didn’t. That would seem very odd behavior, though, even in those circumstances, so I doubt that he went with them. But they may have had a wireless transmitter on with them; it could have been sending to the “listening device” that was in the car outside (according to the anonymous law enforcement source). There’s just no evidence at this point one way or the other.
PatHMV (95883f) — 1/29/2010 @ 1:41 pm42.“Lacking any evidence that they were carrying tools, yes.”
But we’re not “lacking any evidence.” We know they were carrying tool belts. I’d have a hard time imagining these guys are SO bad at costuming that they would have on tool belts without tools.
Comment by imdw — 1/29/2010 @ 9:13 am
— Ladies and gentleman, i give you the self-proclaimed expert on all things TOOL.
SHOCKA!
Icy Texan (390f15) — 1/29/2010 @ 1:43 pm“Veritus!”
AD - RtR/OS! (098720) — 1/29/2010 @ 1:43 pm— If there’s a log-in sheet where they have to sign their name and their employer or something, in order to gain access, then that might provide a basis for a misrepresentation upon entry charge just for the building itself (even if they would have been admitted to the building under their own names and thus gained nothing by the misrepresentation). —
cboldt (60ea4a) — 1/29/2010 @ 1:48 pmI think this interpretation would extend the statute beyond its reach. “Access” under 1036 is something that requires a credential. If anybody can sign in, and no particular access is granted or denied to Joe Public / John and Jane Doe based on the sign in, then there can’t be a false pretense, because no secure area is put at risk on account of the falsified sign-in. No security system has been bypassed in order to obtain access – haven’t “walked around” a magnetometer, etc.
I also think this detail is just an interesting sidebar (nitpick), because, according to the affidavit, the boys attempted access to an area that requires a credential to enter.
“It is no more evidence that they carried tools than saying “I know that guy had socks on because he was wearing shoes.””
Sure. And people usually wear socks with shoes. But even more than that, people who are trying to dress like blue collar repairmen wear tool belts with tools, not without. That’s how it is “probitive.” The fact that there were tool belts makes the existence of tools more probable.
“Since you have no real evidence other than your assumptions, it’s time to be quiet until you have the “much better evidence” you claim exists (despite having no basis for this claim).”
The “much better evidence” would clearly be videos from the scene and more statements from witnesses, including the 4. Clearly there is better evidence out there. How is this “no basis”? Are you on drugs?
imdw (89ba95) — 1/29/2010 @ 1:48 pmI’ll be surprised if they left any relevant tools off the affidavit. But imdw defeats him own argument. To him, it makes sense that they brought tools because that would naturally be required of their costume. This defeats the argument that if they had tools, they show intent to tamper.
You can’t assume something is there because it would have to be regardless of tamper intent, and they say, now that I’ve shown they were probably there, it’s evidence of the tamper intent.
No matter. There’s a video. The truth will out, and if O’Keefe winds up in jail he probably deserved to.
Dustin (b54cdc) — 1/29/2010 @ 2:08 pmDid O’Keefe get dressed up?
JD (c971c7) — 1/29/2010 @ 2:19 pmStrange that the affidavit itemizes stuff like reflective vests and hard hats and belts. You’d think they would mention the tools, especially since any imbecile would recognize their potential in this situation.
But imdw could very well be right on this. There’s nothing but guess work on both sides.
Dustin (b54cdc) — 1/29/2010 @ 2:24 pm“You’d think they would mention the tools, especially since any imbecile would recognize their potential in this situation.”
There’s also the issue that for some people, seeing a tool belt with tools, they would just describe it as a “tool belt.” I’m not even giving it that interpretation. But it’s a potential one.
imdw (00bfab) — 1/29/2010 @ 2:28 pmcboldt, I’m not so sure. I could conceive of a circumstance where admittance is allowed to everybody, conditioned only on the requirement that they disclose their (true) identity. Misidentifying themselves would then be fraudulent misrepresentation to gain access.
PatHMV (95883f) — 1/29/2010 @ 2:33 pm— I could conceive of a circumstance where admittance is allowed to everybody, conditioned only on the requirement that they disclose their (true) identity. Misidentifying themselves would then be fraudulent misrepresentation to gain access. —
cboldt (60ea4a) — 1/29/2010 @ 3:04 pmI’m not positive either, but the legislative intent is based on access to SECURED areas, where such access is limited to authorized people. The token that signals authority to enter is typically a credential, such as badge and/or ID card. If there isn’t some sort of limitation on authority to obtain access, then pretense or not, entry is permitted. The House Report accompanying promulgation of the statute (Dec 2000) describes the function of the law as to provide a penalty for breaches and bypassing of security checkpoints.
I’m thinking “airport,” where anybody can walk in the front door; but a boarding pass or substitute credential is required to enter the sterile area; and a different credential is required to access secure areas. Entering the airport with a bogus boarding pass does not constitute an attempt to access a secure (or sterile) area under false pretenses. Going through security check DOES.
There are separate crimes for possession of falsified credentials, separate from being in the act of seeking access.
Found a picture of the tools and the tool belt that they were wearing. This ought to confirm that imdw is correct, please click to see the tools he is so concerned about.
Criminal tool belt
peedoffamerican (0a295f) — 1/29/2010 @ 3:17 pmComment by peedoffamerican — 1/29/2010 @ 3:17 pm
Well, that convinces me.
AD - RtR/OS! (098720) — 1/29/2010 @ 3:31 pmSuperMax them!
dear sweet god, someone PLEASE get this lawyer a copy of “plain english for lawyers”. does this guy charge by the number of words he can pack into a sentence? lawyers write like this in order to feel needed.
throw the book at these men, imagine if they were muslim, would you be excusing it then?
armyvet (c672d1) — 1/29/2010 @ 3:51 pmHow do you know they weren’t Muslims, armyvet, and what’s your problem with freedom of religion?
Oh… you think we’re bigots.
Indeed, if they can prove their case, they should. That’s what we’re talking about. That wall of text you cannot penetrate without feeling intimidated is this proverbial book.
Dustin (b54cdc) — 1/29/2010 @ 3:54 pm[…] of felonious intent, it appears increasingly clear that the only potentially viable charge is a misdemeanor for entering a federal building under false pretenses. Stein says: They were undercover reporters […]
Hot Air » Blog Archive » Ben Stein: Free James O’Keefe (e2f069) — 2/1/2010 @ 7:51 am[…] of felonious intent, it appears increasingly clear that the only potentially viable charge is a misdemeanor for entering a federal building under false pretenses. Stein says: They were undercover reporters […]
Free James O’Keefe (8fd7f7) — 2/2/2010 @ 9:52 am