What is a “Person of Interest?”

May 26, 2017

The Washington Post and the New York Times reported last week that Donald Trump’s son-in-law, Jared Kushner, is a “person of interest” to the FBI in its investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” along with “any matters that arose or may arise directly from the investigation.” This includes false statements to investigators (18 USC 1001), obstruction of justice (18 USC 1503) and conspiracy to obstruct justice (18 USC 371).

Kushner is not a “person of interest” because it is a state law enforcement term that the FBI declines to use. The FBI says he is “under scrutiny,” which means he is a person of interest to the investigation, but not a “person of interest.” Confused? As a former criminal defense lawyer with 30 years experience defending people charged with felonies in state and federal courts, I can set you straight.

State law enforcement officials created the term to evade the Miranda rule and federal law enforcement officials declined to play that game.

A confession is powerful evidence of guilt, but only if it is voluntary. Coerced confessions are presumptively unreliable and inadmissible. The line between a voluntary and a coerced confession is indistinct and difficult to define.

To eliminate a well-documented state police practice of obtaining confessions from suspects during seemingly endless confrontational custodial interrogations, the SCOTUS created a new rule in Miranda v. Arizona, 384 US 436 (1966), that required police to warn suspects under arrest that they had a right to remain silent (Fifth Amendment) and a right to consult with counsel before answering any questions (Sixth Amendment). The rule further required police to obtain a voluntary acknowledgment and waiver of those constitutional rights from the suspect before commencing an interrogation. A statement obtained in violation of the rule is not admissible in court.

Many state law enforcement officials were furious about the Miranda rule and determined to come up with a work-around. They eventually decided to instruct police to avoid a situation that might be characterized as a “custodial interrogation” by doing the following:

  1. Refer to the suspect in official reports as a “person of interest” instead of as a suspect;
  2. Instead of placing the suspect under arrest, give him a cigarette and a cup of coffee while engaging him in a conversation that gradually turns into an interrogation, if he doesn’t confess;
  3. When cross-examined by defense counsel, insist that the POI was always free to go, until he confessed.

Jared Kushner is represented by Jamie Gorelick, a former Deputy Attorney General of the United States from 1994-97, during the Clinton administration. She has offered to make Kushner available to be interviewed, accompanied by counsel, of course. The interview will not be a custodial interrogation, so Miranda will not be implicated.

Federal prosecutors and the FBI use the following three categories to describe people they investigate:

  1. Target: a person (or persons) who is suspected of being a major participant in the crime as a boss, organizer or director of others;
  2. Subject: a person who is suspected of participating in the crime, but not as a director or major participant and is regarded as someone to potentially flip into cooperating with law enforcement to make the case against the target and testify against him before the grand jury and at the trial;
  3. Witness: a person who has information about the crime, but is not suspected of committing the crime (also called a fact witness).

Michael Flynn and Paul Manafort have been have been described as “subjects” of the investigation.

“Under scrutiny,” means that FBI investigators believe Kushner’s relationship to Trump (confidant and son-in-law) and his position as a Senior White House Advisor and gatekeeper to Trump (the “Trump Whisperer”) means that he has significant information relevant to their inquiry. The FBI has been following the money. The interview(s) will be wide ranging and include questions about documents. They will ask questions, despite knowing the answers, to determine if Kushner is telling the truth. If the investigators catch him in a lie, it’s a False Statement violation, a felony punishable by up to 5 years in prison pursuant to 18 USC 1001. A lie might also constitute obstruction of justice in violation of 18 USC 1503. If the FBI can prove that he acted with others to obstruct justice, he could be charged with conspiracy to obstruct justice in violation of 18 USC 371. Depending on the evidence the FBI uncovers, he might end up as a witness against the presumptive target of the investigation, the 45th president of the United States.

Finally, Trump’s new idea to set up a “War Room” at the White House, staffed by Kushner, Bannon and Corey Lewandowski, to fight back against leaks and the investigation sounds like a conspiracy to obstruct justice. Terrible idea from a universe far beyond stupid.


Cliven Bundy may be looking at spending the rest of his life in prison

February 17, 2016

Cliven Bundy is charged in Nevada by a six-count federal complaint alleging;

Count 1: Conspiracy to assault a federal officer;

Count 2: Assault against a federal officer by use of a deadly and dangerous weapon’

Count 3: Use and carry of a firearm in relation to a crime of violence (the assault charged in count 2);

Count 4: Interference with commerce (by extortion);

Count 5: Use and carry of a firearm in relation to a crime of violence (the extortion charged in count 4);

Count 6: Obstruction of justice.

If he is convicted, Bundy could be sentenced up to five years in prison on the conspiracy charge, up to 10 years in prison on the obstruction of justice charge, up to 20 years in prison on the assault on a federal law enforcement and interference with commerce by extortion charges and a mandatory minimum consecutive seven years on the use and carry of a firearm in relation to a crime a violence charge. The charges could also bring up to $250,000 per count.

Since he is 69-years-old, there is a significant possibility that he may spend the rest of his life in prison, if he is convicted on all counts.

He has been detained without bail. Oregonlive is reporting,

A federal judge [in Portland] Tuesday ordered Nevada rancher Cliven Bundy to remain in custody pending trial on a complaint stemming from his 2014 standoff with federal agents trying to round up his cattle grazing on public land.

U.S. Magistrate Judge Janice M. Stewart found Bundy, 69, remains a danger to the community and a risk to flee, citing his “ongoing defiance of federal court orders.”

For more information regarding the evidence that the government relied on to draft the complaint, please read the affidavit attached to the complaint (pp. 6-32).

Also, here’s the government’s memorandum in support of order detaining Bundy without bail.

Finally, here’s a link to an article I wrote about conspirator liability. Note that the government need not prove that Bundy ever held a gun or threatened anyone with a gun, so long as it proves that he was a member of the conspiracy and at least one other member of the conspiracy committed such an act or acts in furtherance of the conspiracy.


Zimmerman: Conspiracy and Coconspirator Liability for Crimes Committed by a Member of the Conspiracy

October 16, 2012

Lonnie Starr has been discussing the possibility of others being involved with George Zimmerman in a conspiracy to detain and possibly kill a suspected residential burglar.

Here is a brief discussion of general conspiracy law and the potential liability of coconspirators for a murder committed by a member of the conspiracy.

A conspiracy is an agreement by two or more people to commit a specific crime.

Assuming for the sake of argument that there was a conspiracy, liability would depend on the purpose of the conspiracy.

If it were to kill, then the appropriate charge would be conspiracy to commit murder and all members of the conspiracy would be charged with that offense as well as the murder itself.

If it were to detain a suspect for arrest by a police officer, conspiracy to commit murder would not be an appropriate charge.

However, if the objective of the conspiracy were a crime, which it would be if it were to detain someone because that would be an assault, battery and possibly an involuntary detention or a kidnapping, and a killing were a reasonably foreseeable consequence, as would be the case if the plan included the use of a gun to detain a person, then all of the coconspirators could be held responsible for the murder.

The legal rule is coconspirators can be held responsible for the crimes committed by other members of the conspiracy in furtherance of the conspiracy, even if they did not know about those crimes and never consented to them, so long as the crimes were a reasonably foreseeable consequence of the conspiracy.

Therefore, if other people were involved with George Zimmerman in a conspiracy to detain suspected burglars for arrest by police officers and they knew he was armed with a gun and intended to use it, they could be charged and convicted of murder as coconspirators, even though they did not specifically intend that outcome.

If this were the case, the prosecution would have considerable power to obtain cooperation from identified coconspirators against George Zimmerman in exchange for light sentences.

At this point, however, I am not aware of sufficient evidence to charge anyone with conspiracy, despite hints that Zimmerman did not act alone.

Keep this article in mind as the case progresses.


Conspiracy

October 24, 2011

The crime of conspiracy consists of an agreement between two or more people to commit a specific crime and one of the members of the conspiracy commits an act in furtherance of the conspiracy.

For example, let’s revive the characters in our hearsay hypothetical and say Beauregard, who is still married, has a thing for Amanda that resembles a pickle in his pocket, but she loves Peter Piper. In fact she told Beauregard that she had just moved into Peter Piper’s apartment. They are living together and discussing getting married.

Poor Beauregard! Unrequited love is difficult, but not as difficult as being married to Zelda, who is a trust fund baby and a dominatrix to boot, literally. The money is nice, but he loses access to it, per the prenup, if he leaves her. Talk about golden handcuffs. My oh my!

Over a few beers one night, make that quite a few beers, Beauregard confesses his love lust for Amanda to his friend Igor Ivarson and they agree that Peter Piper needs to die.

Amanda and Peter Piper do not know Igor, so Beauregard and Igor agree that Igor will shoot Peter Piper when Peter and Amanda arrive home from work the next day.

Beauregard tells Igor that he has another friend, Bernie the Zipper, who knows how to keep his mouth shut, and Bernie has a knack for obtaining guns with obliterated serial numbers. So, the deal is Beauregard will acquire an untraceable gun from Bernie and give it to Igor. When Igor commits the murder, Beauregard will be with Zelda doing what comes naturally, to her. Thus, he will have an alibi.

Pleased with themselves and their plan, they have another beer, and drink to better days.

Beauregard calls Bernie the next morning and tells him he wants to buy a gun and Bernie being Bernie, he agrees to sell him one that’s untraceable, but it’s going to take some time to find one. Bernie tells Beauregard that he’ll call him when he’s ready to deliver.

Later in the day after he sobers up, Igor calls Beauregard and tells him that what seemed like a cool idea no longer is a good idea. In fact, he thinks the idea is crazy and he just called the cops and spilled the pickles, er beans. They are on their way to pick him up for questioning.

What, if any, are the legal consequences?

First, ask yourself what are the elements of the crime of conspiracy? Elements, by the way, are what a prosecutor must prove beyond a reasonable doubt to obtain a conviction.

Elementary, my dear Watson. Eh, what?

The first element is proof of an agreement to commit a specific crime. Check. Beauregard and Igor agreed to participate in a murder with each of them performing specific acts to make it happen.

Is that it?

Nope, you forgot the overt act. Remember the phone call.

Beauregard called Bernie and told him he wanted to buy an untraceable gun. While the call by itself was not illegal, Beauregard called him to facilitate the commission of the crime. Therefore, he committed an overt act in furtherance of the conspiracy.

Now what?

Well, the crime of conspiracy was completed with the overt act.

Does it matter that the object of the conspiracy was not completed, or that it was impossible to complete, given Igor’s decision to withdraw from the conspiracy and call the police?

No. Impossibility is not a defense.

Does it matter that Igor Ivarson did not know that Beauregard had called Bernie the Zipper before he called the police?

No, if it was reasonably foreseeable that Beauregard would call Bernie, which it was because Beauregard told him that he was going to call him.

By calling the police, did Igor withdraw from the conspiracy in timely fashion so that he is not guilty of conspiracy?

Yes, to withdraw from a conspiracy, a member of the conspiracy must contact the police and inform them of the conspiracy and then stop participating in the conspiracy.

Did Bernie join the conspiracy?

No, he did not know why Beauregard wanted the gun and did not agree to provide it so that it could be used to kill someone. He did not know that there was a conspiracy to kill Peter and did not agree to join it.

Since a conspiracy requires at least two people and Igor withdrew from the conspiracy, can Beauregard be convicted of conspiracy when he is the only member?

Yes, because the crime of conspiracy came into being after the agreement to kill Peter when he committed the overt act in furtherance of the agreement by calling Bernie the Zipper.

Does Beauregard have a defense to the charge based on voluntary intoxication or diminished capacity?

No, because his effort the next morning to contact Bernie the Zipper demonstrated that he recalled what he agreed to do and he followed up on what he agreed to do when he was sober.

The crime of conspiracy is easy to prove. Conspiracies typically begin to unravel when a member of the conspiracy is arrested and agrees to inform on his coconspirators in exchange for leniency. In drug cases, the cooperating coconspirator usually introduces an undercover cop to his fellow coconspirators as an interested buyer or seller of drugs. Several deals are negotiated and then the big bust happens during a deal involving sufficient drugs to trigger minimum mandatory sentences.

Under federal law (the United States Sentencing Guidelines), the sentences are based on the total amount of drugs dealt over the course of the conspiracy and each member of the conspiracy is liable for the whole amount even though they may not have known about some of the deals. In this way, wives and girlfriends who relay messages to their husbands and boyfriends from coconspirators generally knowing that the messages relate to drug dealing, find themselves in a hell of a jam when the bust goes down because they are liable for all the drugs dealt by all members of the conspiracy, even though they knew very little about what was going on.

We also have been seeing federal prosecutions for conspiracy to commit acts of terrorism where the feds have inserted an undercover informant into a group of malcontents who talk about revolution in order to get them to do what they like to talk about doing. The informant facilitates the offense.

Does that constitute entrapment, which is a defense?

Depends on whether the malcontents were predisposed to commit the offense and the undercover informant merely provided them with an opportunity to do what they already were predisposed to do. If so, entrapment is not a defense.

To keep fear alive so that the government can continue to eliminate our civil rights without a peep in protest, the feds continue to seek out malcontents and infiltrate them with instigators to get their periodic busts and the attendant headlines. They operate as close to the line on entrapment as they can and sooner or later they are going to cross it.

Cross posted at Firedoglake/MyFDL and the Smirking Chimp.


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