The Jury Talks Back


A Quick Primer on Federal Criminal Prosecutions and the Statutes Involved in the O’Keefe Arrest.

Filed under: Uncategorized — WLS @ 8:31 am

Posted by  Shipwreckedcrew

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 recieved 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 Prelim. 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, it's 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 wok on the main telephone system and asked for the location o 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 funtioning 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.


  1. Is the preliminary hearing only a way to toll the time for returning the indictment, or can it be a substitute for an indictment for the case to proceed to trial, like in some states?

    Comment by nk — 1/28/2010 @ 5:34 pm

  2. Thank you Shipwreckedcrew, I feel like I just took a class in law — and even understood it!

    I do have a question about Section 1362, if you would be so kind.

    Does Section 1362 distinguish between a working piece of equipment versus a non-working one?

    Just curious, thanks again.

    Comment by Pons Asinorum — 1/28/2010 @ 6:06 pm

  3. And to further extend the question – does “turning a phone bank on” or “undoing a re-rout so the phones actually ring” count as “tampering”?

    Comment by Scott Jacobs — 1/29/2010 @ 11:54 am

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