2005/02/05

Talk to Government Investigator, Go to Jail

The following clauses have been prosecuted against individuals, such as Martha Stewart, by U.S. government agents. It is allegedly authorized by the Commerce Clause, extended not only to all economic activity, even intrastate, but to all activity whatsoever, even noneconomic:

TITLE 18 > PART I > CHAPTER 47 > § 1001

§ 1001. Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years, or both.

...

TITLE 18 > PART I > CHAPTER 73 > § 1510

§ 1510. Obstruction of criminal investigations

Release date: 2004-08-06

(a) Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned not more than five years, or both.

...

(c) As used in this section, the term "criminal investigator" means any individual duly authorized by a department, agency, or armed force of the United States to conduct or engage in investigations of or prosecutions for violations of the criminal laws of the United States.

______

TITLE 18 > PART I > CHAPTER 73 > § 1512

§ 1512. Tampering with a witness, victim, or an informant

Release date: 2004-08-06

...

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to -

...

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation [1] supervised release,,[1] parole, or release pending judicial proceedings;
shall be fined under this title or imprisoned not more than ten years, or both.

...

(h) There is extraterritorial Federal jurisdiction over an offense under this section.

...

______


TITLE 18 > PART I > CHAPTER 73 > § 1515

§ 1515. Definitions for certain provisions; general provision

Release date: 2004-08-06

(a) As used in sections 1512 and 1513 of this title and in this section -
(1) the term "official proceeding" means -

...

(C) a proceeding before a Federal Government agency which is authorized by law; or

...

(3) the term "misleading conduct" means -
(A) knowingly making a false statement;
(B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement;
(C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;
(D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or
(E) knowingly using a trick, scheme, or device with intent to mislead;

...

(4) the term "law enforcement officer" means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant -
(A) authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or

...

(b) As used in section 1505, the term "corruptly" means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.

...
______

There is reason to suspect several such prosecutions have been done using false evidence or testimony. In the Martha Stewart case, there were no audio or video recordings made or disclosed. It was the word of the investigators against hers.

Their procedure following an encounter is to fill out a Form 302 report of what the subject said, signed by two agents. But they do not make a recording, so the evidence against the subject is whatever the two agents say it is, and they can lie. Whatever they write will generally be accepted without question. Even refusing to say anything at all will not protect one against lying agents.

It is the usual practice of investigators not to make an audio or video record such interviews, but to have two or more agents do it, and then file a report, Form 302 for FBI agents, then join in testifying in support of that report, even if it is itself not truthful. Without a recording, you can't subpoena it as evidence.

It should be noted that the technology now exists to speak into a microphone with one voice and have a computer transform the voice into that of another, in real time, with such fidelity that the falsification is not readily detectable even by expert analysis. Such transforming of video records is more difficult, and not yet possible in real time, but given enough time, a video can be produced that can have anyone saying or doing anything.

We cannot trust government agents not to use such methods to produce false evidence.

We must therefore issue this warning:

NEVER talk to federal agents on any matter whatsoever. Don't even give them the time of day, or your name or other information, unless they waive in writing, certified by a court of competent jurisdiction, all rights to prosecute for making false statements or obstructing an investigation, you are accompanied by legal counsel, have at least two independent witnesses you can trust, and the entire session is video recorded and multiple copies of the records widely distributed to the custody of trusted persons.

But to avoid being prosecuted for obstruction of justice for refusing to talk to them, you need to say something like, "I will only talk to you with advice of, and in the presence of, legal counsel. Give me your card and my attorney will contact you."

For more on why this code is unconstitutional see Original Understanding of the Commerce Clause

______

Since this article was originally posted with the title "Talk to Federal Investigator, Go to Jail", I learned of cases in which people are being prosecuted for "lying" to state or local "investigators", on the alleged theory that such nonfederal agents or contractors share their information with federal agencies, and thus are acting as agents for the federal government. The same reasoning could extend to foreign government agents or contractors. The standards for evidence of what people might say to such nonfederal investigators are generally even weaker than for federal, often no more than the word of one agent against one civilian with no witnesses and no recording. Therefore, I have changed the title to replace the word "Federal" with "Government". Since there is no definition of what an "investigator" is, or even if such person has to be a government employee, the advice to people needs to be, "Don't talk to anyone about anything." At least not without video recording the encounter and with at least one neutral witness who can't be compromised.

You might memorize the following statement:
"I note that you appear to be a government investigator. I hereby invoke my rights under the Fifth Amendment to the United States Constitution. Furthermore, while 18 USC 1001 remains in effect, and on advice of counsel, I will not speak to any government investigators without a lawyer and two independent witnesses, and a video recording of the encounter under my control and to which I or my attorneys shall have exclusive possession."
Also, never allow them into your residence or vehicle without a warrant, because if let in, they can claim they saw something that would support a warrant, and plant incriminating evidence.


The government needs to make up its mind. It can either get the cooperation of citizens, or it can prosecute them for what they (may or may not) say.

We are entering the era in which only militia can get the cooperation from civilians needed to enforce the law. That suggests government agents need to abandon law enforcement and leave it to militia.

Give Social Security Number, Go To Jail

The following clause has been prosecuted against individuals by U.S. government agents. It is allegedly authorized by the Commerce Clause, extended not only to all economic activity, even intrastate, but to all activity whatsoever, even noneconomic:

http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00000408----000-.html


TITLE 42 > CHAPTER 7 > SUBCHAPTER II > § 408

§ 408. Penalties

Release date: 2003-07-24

(a) In general Whoever —

...

(7) for the purpose of causing an increase in any payment authorized under this subchapter (or any other program financed in whole or in part from Federal funds), or for the purpose of causing a payment under this subchapter (or any such other program) to be made when no payment is authorized thereunder, or for the purpose of obtaining (for himself or any other person) any payment or any other benefit to which he (or such other person) is not entitled, or for the purpose of obtaining anything of value from any person, or for any other purpose.

...

(B) with intent to deceive, falsely represents a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the social security account number assigned by the Commissioner of Social Security to him or to such other person; or

...

shall be guilty of a felony and upon conviction thereof shall be fined under title 18 or imprisoned for not more than five years, or both.

______

Note that this is not confined to providing a social security number to a federal agent or agency, or on a federal form or document. It also applies to private transactions, such as opening a bank account, applying for a loan, leasing an apartment, or applying for a job. It is not limited to the individual whose social security number is entered. Anyone involved in the recordation of the SSN may also be prosecuted.

There is reason to suspect several such prosecutions have been done by altering the records of use of social security numbers, or some anonymous off-shore data entry clerk mistyping the number into a computer, to make it appear a false number was used. Since this can easily be done by anyone with access to the records, we must issue this warning:

NEVER give or disclose a social security number to anyone for any purpose whatsoever, unless they can and will effectively guarantee, in writing, secured by a large bond, that any records of the use of the number will be kept secure from all persons who might have the capability to physically alter them to change the number, for the remainder of your life. Furthermore, you must be able to make and keep your own copy of any such records in a secure location, backed by a video tape of the complete transaction, with all records verified by a notary, and affidavits of at least two independent witnesses to the complete transaction and the social security number you provide.

In principle it might be safe to provide a social security number just long enough to verify the records of the correspondent, if no record is made of the number provided, but this should only be done if one can be sure no record is made.

One might think, wrongly, that it would be a defense against criminal conviction that there is no evidence the defendant personally provided the incorrect number. However, apparently courts are holding that if the number is found to be incorrect, regardless of who made the error, the defendant is presumed to have done it. Now, one might think at least a jury would refuse to convict without such evidence, but since it is a matter of interpreting a record, the judge may, and likely will, find that there is no issue of fact and deny the defendant a jury trial. 

This is not a small matter. Convicting innocent persons on false evidence is suspected in several cases. Anyone having information about any such prosecutions is asked to contact the author of this article.

For more on why this code is unconstitutional see http://www.constitution.org/col/02729_fed-usurp.htm

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2005/01/30

Getting it right on the First Amendment

In his op-ed on the First Amendment,1 Rich Oppel commits two errors, the first fundamental, the second seemingly minor, but both revealing of the difficulty in educating Americans on the principles of constitutional republican government.

First, the seemingly minor error. He asked, “Can the government censor the Internet?”. An English teacher would remind him that the correct word is “may”, not “can”. The question is not about physical ability but legitimate authority. Of course, government may not censor the Internet. However, we can also ask whether it can, and the answer is also no. Several repressive governments have tried and failed. The Internet was designed to survive nuclear war. It routes around censorship like any other errors.


Second, the fundamental error is found in his statement that “First Amendment rights ... could be withdrawn or curtailed by amendment of the Constitution.” The error lies in regarding rights as deriving from the Constitution as the source. The rights recognized in the First Amendment precede and are superior to the written Constitution of government. While it would be possible to adopt an amendment that would seem to curtail those rights, such an amendment would itself be unconstitutional, and the rights would continue even if their exercise were threatened by official repression.


There are actually three constitutions. The third is the written Constitution of government, framed in 1787, ratified in 1789, and subsequently amended.


The second is the unwritten constitution of the society, arising from the social contract that created the society, obliging its members to mutual defense of one anothers' rights, and involving decision by deliberative assemblies or conventions called by due public notice and conducted by established rules of procedure. It was such conventions that established the written Constitutions of governments, both federal and state.


The first is the constitution of nature, the elements of which are the laws of nature, the nature of human beings and their situation in the universe, and the constraints those things put on what is rational for humans to do. Ancient political philosophers wrote of “natural law”, and theologians identified it with “God's law”, but whether one discusses the principles in natural or theological terms is a matter of personal preference.


A well-framed constitution of government must conform to the superior constraints of first, the constitution of nature, and second, the constitution of the society. Provisions or amendments not derived from or in conflict with them are unconstitutional, just as are statutes not derived from or in conflict with the written constitution of government. “Unconstitutional” means lacking in legitimate authority, even if enforced by physical compulsion.


Each of these constitutions are the sources of their own rights. From the constitution of nature we get the rights of life, limb, and liberty, and the means to secure them, such as arms. From the constitution of the society we get the right to title to property and the rights of due process. From the constitution of government we get the rights of denizenship, including the rights to remain on and return to the location of our birth, and citizenship, including the rights of voting and holding office.


Due process does allow for the exercise of a right to be “disabled”, or restricted, either to resolve conflicts in the exercise of rights that infringe on one another, to protect innocent individuals from harm, or as punishment for an offense. It also allows such exercise to be waived temporarily in a particular proceeding. But disablement or waiver is not removal of rights, the exercise of which can be fully restored by the removal of the disablement or waiver.


Therefore, any amendment to withdraw or curtail the rights of assembly, petition, speech, press, or religion would be as unconstitutional as would an amendment to require objects to defy the law of gravity or make two plus two equal five. Only changing humans into a very different kind of being would allow that.


We need to convey a deep understanding of “legitimacy” or “legitimate authority”, and how it can descend or not by a logical chain of derivation from superior laws like the Constitution to lower level acts of officials. We need teach that law is not just whatever official like judges do, or can be expected to do, or can get away with doing, but what they are authorized to do, and that legitimacy does not stem just from the results of the last election, but from the original historic act of ratification of the written Constitution of government, amendments thereto, and the admissions of each state.


Jon Roland is founder and president of the Constitution Society with a website at http://www.constitution.org

1http://www.statesman.com/opinion/content/editorial/01/30oppel_edit.html?UrAuth=%60N%60NUO%60NTUbTTUWUXUTUZTZUTUWU_UaUZU%60U]UcTYWVVZV

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