Ever since I learned that Jerome “Jerry” Corsi of World Net Daily (WND) and Deputy Mike Zullo of the Cold Case Posse (CCP) had a pre-existing book deal when the investigation began, I have wondered if the sleeziness of such an act crossed the line into possible criminal activity. It just doesn’t seem right that an law enforcement investigator has a pecuniary interest in the outcome of an investigation. Well, I am not a lawyer but I play one on my blog sometimes. So here are my thoughts.
First, there is a Federal law which addresses a conspiracy against the rights of a person, 18 U.S.C. 241:
Conspiracy Against Rights (18 USC 241)
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
The United States Department of Justice says about this statute:
Section 241 of Title 18 is the civil rights conspiracy statute. Section 241 makes it unlawful for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same). Unlike most conspiracy statutes, Section 241 does not require that one of the conspirators commit an overt act prior to the conspiracy becoming a crime.
The offense is punishable by a range of imprisonment up to a life term or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.
Well, despite the Image above, which is for humor, I don’t think they went in disguise. But did they:
conspire to injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same
Obama certainly qualifies as any person. Is running for the presidency or being the president a right or privilege??? According to a set of Federal Pattern Jury Instructions I found, the range of rights is pretty broad. The 9th Circuit Federal Court of Appeals, which includes Arizona, has general instructions to the jury, but none specifically tailored to individual offenses. However, I did find some for the Federal District Court in South Carolina. Each page there was a separate pdf file, so I combined them as text files in a word processor, and then repubished them as one pdf document. I also made minor cosmetic changes to make it easier to read. Here is the pdf file:
I also included the instructions for Color of Law abuses. If you want to double check these instructions, here is the link to the South Carolina Federal District Court, where they run from page 50 to page 56:
Now, back to whether running for the presidency is a right or privilege, we find on pages 52 and 53:
Other protected rights include the following:
The right to vote, United States v. Classic, 313 U.S. 299, 323 (1941), but the issue of voter bribery and an honest election falls under 42 U.S.C. § 1973i, United States v. McLean, 808 F.2d 1044, 1046 (4 Cir. 1987);
The right to report a crime, In re Quarles, 158 U.S. 532, 535 (1895);
The right to testify at trial, United States v. Thevis, 665 F.2d 616, 626-27 (5 Cir.1982);
The right not to be subject to cruel and unusual punishment, United States v. LaVallee, 439 F.2d 670, 686 (10 Cir. 2006);
The right not to be deprived of liberty without due process of law. This right includes the right to be kept free from harm while in official custody. “No person may ever be physically assaulted, intimidated, or otherwise abused intentionally and without justification by a person acting under the color of the laws of any state.” United States v. Bigham, 812 F.2d 943, 949 (5 Cir. 1987);
The right to enjoy public accommodations, 42 U.S.C. § 2000a. The presence of electronic video games turns a convenience store into a supplier of entertainment and therefore a place of public accommodation. United States v. Baird, 85 F.3d 450 (9 Cir. 1996). In United States v. Piche, 981 F.2d 706, 716 (4 Cir. 1992), the defendant was prosecuted for interfering with Asian-American men because they were enjoying the goods and services of a public facility. The district court correctly charged the jury that “[a] place of public accommodation is any establishment that is used by members of the general public for entertainment, that is, recreation, fun, or pleasure, and in which the sources of entertainment move in interstate commerce.”
You also find the range of rights to be fairly broad from these cases cited on page 51 of the Instructions:
“The right to choose is the right of qualified voters to cast their ballots and have them counted at Congressional elections. [T]his is a right secured by the Constitution [and] is secured against the action of individuals as well as of states.” United States v. Classic, 313 U.S. 299, 315 (1941). This includes primaries for Congressional elections.
§ 241 embraces a conspiracy to stuff the ballot box at an election for federal officers, and thereby to dilute the value of votes of qualified voters. The government does not have to prove an intent to change the outcome of the federal election. The intent required is to have false votes cast and thereby to injure the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect. Anderson v. United States, 417 U.S. 211, 226 (1974).
Therefore, it appears to me, a non-lawyer, that Obama having the right to run for President is a right belonging to any natural born citizen, and subject only to the Constitutional limits imposed by Article II, Section , Clause 5. The recent ruling of the FEC regarding non-natural born candidate Abdul Hassan seems to confirm a citizen’s right to run for office, but not the right to receive matching campaign funds.
There does not seem to be a color of law requirement element in violations of the Conspiracy section. Here is the actual jury instruction from page 50:
Title 18, United States Code, Section 241 makes it a crime to conspire with someone else to injure or intimidate another person in the exercise of his civil rights. A conspiracy is an agreement between two or more persons to join together to accomplish the unlawful purpose. It is a kind of partnership in crime in which each member becomes the agent of every other member. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt:
First, that two or more persons agreed to injure, oppress, threaten, or intimidate any person;
Second, in that person’s free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having exercised his right or privilege [the right or privilege should be identified and explained to the jury]; and
Third, that the defendant knew of the agreement and willfully participated in the agreement.
Now the question becomes whether or not the actions of The Cold Case Posse and any potential co-defendants had an unlawful purpose. In other words, is the mere act of investigating Obama an unlawful purpose, such as to injure, oppress, threaten, or intimidate anyone. This issue has come up before when the police are involved. In a recent 2011 case, a Memphis police officer, Arthur Sease was accused of violations of BOTH Section 241 Conspiracy and Section 242 which is actually depriving someone of their rights under color of law:
Sease’s convictions are based on fourteen separate incidents. The incidents follow the same basic plan. Sease would arrange for a drug buy or a drug sell (using drugs taken in a previous incident) using a non-officer contact as the front person. As the deal was occurring, either Sease or one of his fellow co-conspirator officers would arrive at the scene to make a purported arrest and seize the money and drugs involved in the deal. The participants would then be released, and Sease and his conspirators would split the proceeds without reporting the incidents.
Sease argued on appeal:
Sease is correct that his appeal is properly understood as a challenge to the sufficiency of the evidence. The offenses for which Sease was charged and convicted are predicated on the illegality of the searches and seizures he conducted. For example, Sease’s convictions under 18 U.S.C. § 242 for deprivation of rights under the color of law require the government to show that the defendant “depriv[ed] [any person] of [the] rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . .” If Sease’s actions were in fact legal, the government could not prove the deprivation of rights element of the offense, and the convictions must be overturned.
Sease argues that this case is governed by Whren v. United States, 517 U.S. 806 (1996). In Whren, plain-clothed officers made a traffic stop on an individual who stopped for an unusually long time at a stop sign, and then dashed off at a high rate of speed. Whren, 517 U.S. at 808. Because the officers were working a high-drug area, they believed that individuals in the car were engaging in drug activity, but they did not have probable cause or reasonable suspicion to make a stop on that basis. Id. at 809.
According to the petitioners in Whren, the police officers had improper motives, in the sense that the officers conducted a stop for the purpose of investigating drug offenses for which they did not have probable cause or reasonable suspicion, using the traffic offenses for which they did have probable cause as a pretext. Id. at 810-12. These improper motives, the petitioners argued, made the stop a constitutional violation. The Supreme Court rejected this approach, citing previous case law to “foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” Id. at 813 (citing previously, e.g., Scott
However, the Sease Court distinguished between improper actions in the course of duty and non bona-fide activitities:
Whren, however, presumes that the officers are engaging in bona fide law enforcement activities when they make the stops. However improper it may be to use a traffic violation as a pretext to look for drugs, there is no question that making traffic stops and looking for drugs are valid and appropriate law enforcement activities. It is only arguably improper if the officers lacked the required probable cause or reasonable suspicion under the specific facts of the situation. By contrast, it is inherently improper for officers to set up drug deals for the purpose of taking the money and drugs for themselves, regardless of the context. Sease’s actions are improper in an entirely different way and to an entirely different degree than the actions of the officers in Whren.
Unlike the actions of officers in cases such as Whren, Sease’s conduct was thoroughly and objectively illegal from start to finish.
Then, the Sease Court went deeper into the differences, and the burdens of proof:
[S]imply, the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.” Whren, 517U.S. at 814.
However, this balance shifts in the context of a § 242 prosecution. Section 242 is a punitive statute designed to punish officers who willfully violate constitutional rights under color of law. The punitive purpose would be undermined were the court to allow a corrupt officer to hide behind the policy goals of the exclusionary rule. Accordingly, although for the purposes of the exclusionary rule the subjective intent of the officer is irrelevant, in the context of a § 242 prosecution, the courts may inquire whether the officer acted with a corrupt, personal, and pecuniary purpose.1 In addition, unlike in the exclusionary rule context, the court must already inquire into the subjective intent of the officer because willfulness is an element of an offense under 18 U.S.C. § 242. Accordingly, there is no additional evidentiary burden to justify ignoring subjective intent. 1
In other words, actions that may be legal on their surface, may be a violation if there was a corrupt,personal and pecuniary purpose. There is some question where the line is to be drawn. Not all corrupt, personal, and pecuniary purpose constitutes a violation under Section 241 and/or Section 242. From Sease, here an acquittal:
Finally, while there are fortunately few reported cases that deal with this level of officer misconduct, those that do exist all agree that purely illegal activities by law enforcement constitute a constitutional violation. In United States v. Bradfield, we considered a series of raids of crack houses by Detroit police officers. 225 F.3d 660, 2000 WL 1033022 (6th Cir. July 18, 2000) (unpublished table decision). During the course of the raids, officers would take a portion of the money, drugs, and guns for themselves, while reporting the rest for forfeiture. Bradfield, 2000 WL 1033022, at *1.
We upheld the judgment of acquittal, via a review of the quantum of evidence supporting the individual charges against the officers. Id. at *4-10. However, implicit in our analysis is the premise that the actions of the officers would amount to constitutional violations, if supported by sufficient evidence.
Also reported in Sease, among several other cases, is this one:
[I]n United States v. Contreras, a Laredo police officer arrested a woman, raped her, and attempted to kill her to avoid having her testify against him. 134 F. Supp. 2d 820, 823 (S.D. Tex. 2000). On habeas review, Contreras argued that his stop was proper pursuant to a provision in federal law authorizing municipal police officers to make stops based on reasonable suspicion that the detainee is an illegal alien, and thus his 18 U.S.C. § 242 conviction should be overturned. Id. at 825. The district court dismissed Contreras’s contention stating “Contreras did not arrest [the victim] because he had probable cause to believe she was an illegal alien; he arrested her so he could rape her.” Id.
In my non-lawyer opinion, that is where any such action against the CCP and others would end up. Trying to determine the intent of the parties. Is the investigation of Obama based on any objectively realistic probable cause, or is it just a cover to get him, in violation of his rights??? One thing mentioned on page 51 of the jury instructions is that “the government is permitted to present evidence of acts committed in furtherance of the conspiracy even though they are not specified in the indictment. (United States v. Janati, 374 F.3d 263, 270 (4 Cir. 2004)). This means any book deals and other quid pro quos could be introduced as evidence.
It is unlikely that Obama would ever make the complaint against the Cold Case Posse and any accomplices, because at this point in the game, it is probably politically expedient to let them run around in hysterics. But I think I have shown that a viable legal option exists. A violation of the conspiracy statute seems easier to prove. No actual harm is required, nor any overt act. The whole thing is going nowhere, so there will probably never be a violation of Section 242.
I would certainly appreciate any input from real lawyers on this. In the mean time, make up your own mind whether or not the lines have been crossed. As for me, I assure you any Defendants would certainly not want me on any jury.
Note . Jury Instructions for 18 U.S.C. Section 242. From page 53, here are the jury instructions for this section:
Title 18, United States Code, Section 242 makes it a crime to deprive any person of his civil rights under color of law. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt:
First, that [name of victim] was present in [name of state];
Second, that the defendant deprived [name of victim] of a right secured or protected by the Constitution or laws of the United States [the right infringed must be identified], or to different punishments, pains, or penalties on account of such person being an alien, or by reason of his color or race;
Third, that the defendant acted under color of law; and
Fourth, that the defendant acted willfully.
As I said above, I don’t think the CCP et.al. can accomplish anything other than to sling mud. But I am not sure what this part means:
different punishments, pains, or penalties
Do extra legal fees and emotional distress count???