NewsMax
By Paul Craig Roberts
January 14, 1999
If President Bill Clinton were being tried by the U.S. 10th Circuit Court of Appeals, he would be home free.
In a horrendous ruling devastating for justice, fair play and the rule of law, the 10th Circuit has ruled (9-to-3) that the laws of the United States do not apply to officers and agents of the government unless Congress specifically designates that the law applies to the government.
"Statutes of general purport do not apply to the United States unless Congress makes the application clear and indisputable," says the court, citing a 1873 case that "it is a familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words."
At dispute in the case, Singleton v. U.S., is the federal statute that specifies punishment for "whoever" promises anything of value to a witness in exchange for testimony for or against another person. Under the normal reading of the statute, prosecutors who promise defendants reduced sentences in exchange for testimony against others are violating the prohibition.
According to the majority opinion, federal prosecutors are not bound by the law against bribing witnesses, because they serve as alter ego for the government and "the word 'whoever' connotes a being," whereas "the U.S. is an inanimate entity, not a being. The word 'whatever' is used commonly to refer to an inanimate object. Therefore, construing 'whoever' to include the government is semantically anomalous."
In other words, "whoever" doesn't mean "whoever" if the "whoever" is an officer of the government. This Clintonesque word-play is necessary because, as the court acknowledges, "no practice is more ingrained in our criminal justice system" than convicting people with purchased testimony. Faced with an emptying of the prisons, the court ruled that the U.S. government is not a government accountable to law, but a "sovereign" above the law.
Prosecutors have found that it is far easier to purchase with leniency the testimony of accomplices against their confederates than to build a case against the confederates. When this practice began it was aimed at known criminals against whom evidence was lacking. But once the practice began, it has taken on a life of its own.
Today many innocents are ensnared by untrue accusations from criminal defendants seeking reduced charges by producing more fodder for prosecutors. Less and less does the criminal justice system work by police investigating a known crime and building a case. All too often, the first knowledge of the "crime" occurs when a defendant seeking reduced charges accuses others. In these cases, the accusation is the sole "evidence" of the crime, and prosecutors, who serve career instead of justice, are increasingly destroying innocents with purchased testimony.
A recent example is Khem Batra of Burke, Va. Mr. Batra, married with two children, came to the U.S. in 1974 from New Delhi, India. He has been a U.S. citizen since 1981 and was successfully operating his own travel agency. His troubles began when the husband of one of his employees approached him for loans to enable him to purchase distressed properties at auction. Soon Mr. Batra found himself in partnership, pooling money to bid on properties.
Unbeknownst to Mr. Batra, his sometime partner was illegally obtaining multiple mortgages on the same property. When the partner was apprehended, instead of being indicted, he was wired and promised leniency in exchange for implicating others. The partner managed to implicate some mortgage companies in technical infractions and apparently made an unsuccessful attempt to implicate the Burke and Herbert Bank in Alexandria, Va.
Mr. Batra was never implicated in the illegal financing schemes, but his partner, desperate to earn his leniency, testified that his money-pooling partnership with Mr. Batra was a conspiracy to under-bid the properties. On the basis of his partner's plea-bargained testimony, Mr. Batra was convicted in federal court of one count of violating the Sherman Anti-trust Act.
It is a definite sign of prosecutorial abuse when the Sherman Anti-trust Act, designed to bust up large monopolies, is applied to a small-time local partnership speculating in distressed properties sold at auctions where Mr. Batra and his partner comprised one of many bidders.
Such a dubious interpretation of the anti-trust statute shows an extraordinary determination to convict. But justice is forfeited when, in addition, the conviction is obtained solely through the purchased testimony of a defendant who committed a real crime and is seeking to reduce his charges.
Until the Glorious Revolution when Parliament established the supremacy of law over the sovereign, kings dealt with enemies by bribing or compelling witnesses to testify against them. Once law and not the king's government was supreme, Matthew Hale established the maxim that testimony purchased with reward has no standing in court.
It is an abomination that the 10th Circuit has enabled unscrupulous prosecutors to resurrect the ancient practice of convicting defendants with paid testimony.
COPYRIGHT 1999 PAUL CRAIG ROBERTS DISTRIBUTED BY CREATORS SYNDICATE, INC.
WIN AT ALL COSTS
Pittsburgh Post-Gazette
By Bill Moushey
November 22 - December 13, 1998
SPECIAL REPORT: TEN-PART SERIES
Hundreds of times during the past 10 years, federal agents and prosecutors have pursued justice by breaking the law.
They lied, hid evidence, distorted facts, engaged in cover-ups, paid for perjury and set up innocent people in a relentless effort to win indictments, guilty pleas and convictions, a two-year Post-Gazette investigation found.
Rarely were these federal officials punished for their misconduct. Rarely did they admit their conduct was wrong.
New laws and court rulings that encourage federal law enforcement officers to press the boundaries of their power while providing few safeguards against abuse fueled their actions.
Victims of this misconduct sometimes lost their jobs, assets and even families. Some remain in prison because prosecutors withheld favorable evidence or allowed fabricated testimony. Some criminals walk free as a reward for conspiring with the government in its effort to deny others their rights.
BACKGROUND
This series of stories examining federal law enforcement officials’ misconduct grew from another investigative series that Post-Gazette reporter Bill Moushey completed in 1996.
PART ONE
Out of control
Legal rules have changed, allowing federal agents, prosecutors to bypass basic rights
November 22, 1998
By Bill Moushey, Post-Gazette Staff Writer
Loren Pogue has served eight years of a 22-year federal prison sentence on drug conspiracy and money laundering charges.
Pogue, a Missouri native, never bought drugs, never sold them, never held them, never used them, never smuggled them, never even saw them.
But because federal prosecutors allowed a paid government informant to lie about Pogue’s involvement in the sale of a parcel of land to supposed drug smugglers, he was convicted. Under tough federal sentencing guidelines, a judge had no choice but to give the Air Force veteran what might effectively be a death sentence.
Pogue — father of 27 children, 15 of them adopted — is 65. He doesn’t expect to leave prison alive, and as details later in this story will show, he is baffled that the government he served for more than 30 years worked so hard to betray him.
In another case, hundreds of miles away, federal agents interrogated businessman Dale Brown for four hours at a Houston, Texas, warehouse. When he tried to leave, they stopped him. When he asked for a lawyer, they refused to get him one.
After Brown finally was charged in a government sting called Operation Lightning Strike, federal prosecutors denied that the warehouse interrogation had even happened. They said the dozen others who reported the same coercive tactics in the sting were making it up, too.
Federal sting operations are supposed to snare criminals, but in Operation Lightning Strike, federal agents spent millions of dollars entrapping innocent people who worked on the periphery of the U.S. space program.
The evidence against them was contrived. The guilty pleas were coerced. Those who fought the charges won.
Brown said all it cost him was his business, his savings, his family and his health.
In Florida, prisoners call the scam "jumping on the bus," and it is as tantalizing as it is perverse. Inmates in federal prisons barter or buy information that only an insider to a crime could know — often from informants with access to confidential federal crime files.
The prisoners memorize it and get others to do the same. Then, to win sentence reductions, they testify about crimes that might have been committed while they were in prison, by people they’ve never met, in places they’ve never been. The scam succeeds only because of the tacit approval of federal law enforcement officers.
Cocaine smuggler Jose Goyriena used "jump on the bus" testimony to help federal prosecutors put three men in prison for life, and he was set to do it again for prosecutors who promised to cut his 27 year sentence by 10 years or more.
Prosecutors knew Goyriena had bragged about his lies to cellmates, but the prosecutors didn’t reveal what they’d heard to any of the men Goyriena had helped condemn — violating one of the fundamental tenets of American justice. It was defense attorneys who finally caught Goyriena in the scam.
In this nation’s war on crime, something has gone terribly wrong.
A two-year investigation by the Post-Gazette found that powerful new federal laws designed to snare terrorists, drug smugglers and pornographers are being aimed at business owners, engineers and petty criminals.
Whether suspects are guilty has come to matter less than making sure they are indicted or convicted or, more likely, coerced into pleading guilty.
Promises of lenient sentences and huge government checks encourage criminals to lie on the witness stand. Prosecutors routinely withhold evidence that might help prove a defendant innocent. Some federal agents work so closely with their undercover informants that they become lawbreakers themselves.
Those who practice this misconduct are almost never penalized or disciplined. "It’s a result-oriented process today, fairness be damned," said Robert Merkle, whom President Ronald Reagan appointed U.S. Attorney for the Middle District of Florida, serving from 1982 to 1988.
"The philosophy of the past 10 to 15 years [is] that whatever works is what’s right."
The Justice Department did not respond to questions the newspaper posed in writing about concerns raised in this series. Nor would it return phone calls requesting comment.
[END OF TRANSCRIPT - PART ONE]
PART FOUR - The Damage Of Lies
PART SEVEN - When Safeguards Fail
PART EIGHT - Calculated Abuses