Today's New York Times gives big play to an article about a federal case against 22 arms-industry executives that the newspaper describes as "the biggest prosecution of individuals for foreign corporate bribery ever pursued by the Justice Department." The article makes clear that the "bribes" in question were actually payments by arms dealers to undercover FBI agents posing as African government officials. I emailed Harvey Silverglate, a lawyer and civil liberties activist who is author of Three Felonies a Day: How the Feds Target the Innocent. "Isn't that entrapment?" I asked, "Are there any limits on this sort of thing? I realize it happens all the time -- Marion Barry, Abscam, street-level local drug type operations -- but am I wrong to be uncomfortable with the blurring of the distinction between an actual crime and a potential crime manufactured by the government for the purpose of tempting people into violating the law?"
Mr. Silverglate was kind enough to respond as follows:
Unfortunately, the Supreme Court has a very narrow definition of entrapment. If the subject of the scenario is shown to have a "predisposition" to commit the time, then there is no entrapment. The bottom line is that the definition is, oddly, both vague and very narrow. And so entrapment defenses rarely persuade juries, given the judge's narrow instructions. And, in fact, trial judges often do not even allow the defendant to present an entrapment defense.
Ellen Podgor, in her excellent "White Collar Crime in a Nutshell" volume, notes that "entrapment first requires a showing of government inducement." Entrapment "requires a lack of predisposition by the defendant to engage in criminal conduct." An infamous case is the prosecutor of former Senator Harrison Williams in the infamous "Abscam" investigation. See U.S. v Williams (2nd Circuit, 1983). I viewed the videotapes secretly recorded of Sen Williams' discussions with the faux Arabs, and I would have voted to acquit. He got convicted, however.
The result is that more and more DOJ/FBI investigations involve "crime" that is suggested, originated, spurred on by the feds or by "cooperating individuals" (informants and such) who need to work off a beef the feds have with him/her. One wonders how much lower the federal crime stats would be if it were not for federally-invented and generated "crime."
But none of this should surprise us citizens any longer. Federal agencies for a while now have been creating the problems that they then need ever-more agents to "solve." Consider that the drug war enforcers lobby for stricter drug laws! For them, it's a guarantee of full employment. And so the drug law enforcement industry has grown and prospered. ...
The FCPA investigation reported in today's NYTimes (page A3 of the Boston edition) has one sentence that is of great interest to me, although I do not have time to follow through and look more deeply into it: "According to one indictment, a Florida executive later showed the deal to his company's outside law firm and sent the undercover team an e-mail message rejecting the corrupt proposal. The same day, he called and negotiated a way to do the deal anyway, the indictment claimed."
What this conveys to me is that the defendant actually tried to obey the law, tried to structure the deal in a way that would be legal. What other likely explanation could there be for the guy checking with legal counsel (!), then following legal counsel's opinion that the deal, as then structured, was unlawful? He actually rejected the deal that his lawyer said was unlawful! In other words, the executive restructured the deal in a way that he thought was legal. How is this a crime? And because of the amorphous wording of these statutes, it is quite difficult to know when one is violating the law. This, combined with the entrapment aspect, should leave one uneasy, skeptical, careful in jumping to conclusions of guilt.
None of this is to say that bribery by businessmen of foreign government officials is a good thing or that it should be legal or that prosecutors should turn a blind eye to it when it occurs. But it is one thing to discover emails or wire transfers or checks or to wiretap phone calls indicating an actual bribe of an actual foreign government official. It's another thing to employ an FBI agent to pose as a government official in the hope of inducing a businessman to commit a crime.
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