Michael Gaynor
Is prison in store for the Louisiana Caper Four?
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By Michael Gaynor
February 1, 2010

Many "Pimp and Pro" sting fans will continue to rationalize that whatever O'Keefe feels he needs to do to dig out the truth is lawful, but not all means are justified by a noble end and Saul Alinksy is not an acceptable role model, especially for conservatives. Understand the enemy, do not become the enemy.

Many "Pimp and Pro" ACORN sting enthusiasts are trying hard to excuse or minimize the significance of James O'Keefe's Louisiana caper while ACORN advocates led by ACORN Chief Organizer Bertha Lewis are crowing that the Louisiana caper proves that ACORN was an innocent victim.

Both sides are wrong.

The "Pimp and Pro" videos involved surreptitious recording, not entrapment. They showed the public what ACORN is by demonstrating the willingness of some persons in ACORN offices to facilitate prostitution, child prostitution, illegal immigration, bank fraud, tax fraud, etc. But it did NOT expose ACORN's corruption of the political process, or status as an unofficial arm of the Democrat Party, or illicit coordination with now President Obama's presidential campaign, or Obama's ACORN ties and lies about them. O'Keefe and Hannah Giles, as outsiders, were not privy to evidence of such things. Bottom line: the "Pimp and Pro" sting hurt ACORN badly, allowed Obama to distance himself from ACORN in the eyes of the public, made O'Keefe and Ms. Giles celebrities and helped Andrew Breitbart's Big Government (which broke the story) and Fox News (which covered the story extensively).

The Louisiana caper involved an attempt to expose and embarrass Senator Mary Landrieu (D. La.). It failed hugely, because the investigators were arrested before they could obtain and publicize damning evidence (assuming there was such evidence to obtain and publicize) and entering a United States Senator's office under false pretenses is very different from entering an ACORN office under false pretenses.

Entering federal property by false pretenses is a crime in itself.

The potential punishment jumps from up to six months to up to five years if the entry is with the intent to commit a felony.

18 U.S.C. Section 1036. Entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport

(a) Whoever, by any fraud or false pretense, enters or attempts to enter (1) any real property belonging in whole or in part to, or leased by, the United States...shall be punished as provided in subsection (b) of this section.

(b) The punishment for an offense under subsection (a) of this section is (1) a fine under this title or imprisonment for not more than 5 years, or both, if the offense is committed with the intent to commit a felony; or (2) a fine under this title or imprisonment for not more than 6 months, or both, in any other case.

Unless Joseph Basel and Robert Flanagan are telephone service technicians who were sent to access a telephone closet in the Hale Boggs Federal Building on January 25, 2010, they entered federal premises under false pretenses.

Stan Dai did not enter those federal premises.

James O'Keefe entered them, but apparently not under false pretenses.

BUT...Dai and O'Keefe may be prosecuted as aiders and abetters.

O'Keefe issued a written statement essentially conceding that Basel and Flanagan entered federal premises under false pretenses as part of an investigation being conducted by O'Keefe.

That strongly suggests that he added and abetted them and thus has an 18 U.S.C. Section 1036 problem, even though he was already sitting in Senator Landrieu's office when they arrived.

http://www.lectlaw.com/def/a033.htm on aiding and abetting:

"The guilt of a person in a criminal case may be proved without evidence that he personally did every act involved in the commission of the crime charged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished through direction of another person as an agent, or by acting together with, or under the direction of, another person or persons in a joint effort.

"So, if the acts or conduct of an agent, employee or other associate of the person are willfully directed or authorized by the person, or if the person aids and abets another person by willfully joining together with that person in the commission of a crime, then the law holds the person responsible for the conduct of that other person just as though the person had engaged in such conduct himself. Notice, however, that before any person can be held criminally responsible for the conduct of others it is necessary that the person willfully associate himself in some way with the crime, and willfully participate in it. Mere presence at the scene of a crime and even knowledge that a crime is being committed are not sufficient to establish that a person either directed or aided and abetted the crime."

FBI Special Agent Steven Rayes alleged that O'Keefe and Dai aided and abetted Flanagan and Basel "to commit the entry for the purpose of interfering with the telephone system...." Interference with that telephone system would be a felony, and so would entering under false pretenses with the intent to commit that felony, even if that felony was not committed. O'Keefe stated in his written statement: "We video taped the entire visit, the government has those tapes, and I'm eager for them to be released because they refute the false claims being repeated by much of the mainstream media."

That videotaping strongly suggests that there was no intention to commit a felony, since felons do not usually memorialize their felonies on videotape.

But a felony can be committed in ignorance of an act being a felony if that act is done intentionally.

Did the Louisiana Caper Four know that entering federal premises under false pretenses was a crime?

They may not have realized it.

A paragraph in O'Keefe's written statement suggests such ignorance: "As an investigative journalist, my goal is to expose corruption and lack of concern for citizens by government and other institutions, as I did last year when our investigations revealed the massive corruption and fraud perpetrated by ACORN. For decades, investigative journalists have used a variety of tactics to try to dig out and reveal the truth."

The "Pimp and Pro" ACORN sting too suggests an erroneous belief that investigative journalists are exempt from criminal laws. O'Keefe surreptitiously recorded in both jurisdictions where it is lawful (the District of Columbia and New York) and criminal (Pennsylvania, Maryland and California) and seems to believe that as investigative journalist trying "to dig out and reveal the truth," he did not commit any crime.

Unfortunately for O'Keefe, if he believed that an investigative journalist has a license to do what would be a crime if done by a mere citizen, that "frivolous" belief that would not excuse him.

Footnote 19 to the majority opinion in Bartnicki v. Vopper, 532 U.S. 514 (2001): "'It would be frivolous to assert-and no one does in these cases-that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.' Branzburg v. Hayes, 408 U. S. 665, 691 (1972)."

Perhaps none of the four who were arrested in connection with O'Keefe's Louisiana caper knew that entering federal premises under false pretenses is a crime or interfering with the telephone system in a federal building is a felony.

What did they think and when did they think it?

ACORN will continue to cry that the Louisiana caper proves that ACORN is an innocent victim, but that will continue to be nonsense.

Many "Pimp and Pro" sting fans will continue to rationalize that whatever O'Keefe feels he needs to do to dig out the truth is lawful, but not all means are justified by a noble end and Saul Alinksy is not an acceptable role model, especially for conservatives. Understand the enemy, do not become the enemy.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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