The Crimes of the Century

How much has the federal government overcriminalized behavior? You won't believe it...

Whenever I have the fleeting thought that our system of federal law is rational, I simply turn to the beyond wonderful twitter feed of @CrimeADay.

Let us start with the idea that a criminal sanction should be reserved for the very worst of the worst conduct. The government should only try to put someone in prison and/or brand them a felon when the harm that the government is trying to address is among the more serious threats to other people or a well-ordered society.

With that background, here are some of my recent favorite federal crimes. Like this one about a concern for misbranding after the apocalypse:

27 U.S.C. §207, §205(e) & 27 C.F.R. §4.39(a)(9) make it a federal crime to sell wine with a brand name including the word “zombie.”

Or:

49 U.S.C. §46315 makes it a federal crime to fly a plane full of illegal drugs without proper lighting.

This one I fact checked — here’s the link to the statute. I really hope some member of Congress campaigned on his or her ability to get this passed.

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Or:

18 U.S.C. §3061, 39 C.F.R. §232.1(d) & (p)(2) make it a federal crime to disobey a sign at the post office.

Though, in fairness, putting regular mail in an express mail slot is a serious threat to a well-ordered society. Or would be if people still used the U.S. Mail. (see also the criminalization of walking into a post office carrying a lit cigar.)

Normally, after pointing out that there are a bunch of really dumb crimes on the books, someone responds that it’s ok to have dumb criminal laws because (a) it makes a volume containing the U.S. Code a more useful paperweight and (b) the Department of Justice will only prosecute the most serious of crimes.

It’s hard to argue with the first point. The second point, though, is a different matter.

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As an example, let us consider a recent case from the Western District of Pennsylvania.

According to a recent press release from that office, a woman was indicted for theft of United States Mail. (Because it seems awfully mean to make her more Google-able, I’m not going to use her name here.)

Apparently, she looted a greeting card that was being sent to someone in Cranberry Township.

So, my first thoughts on this one — stealing the mail is bad, prosecuting that generally makes sense. Still, dude, a greeting card? There must have been a ton of cash in that greeting card — someone has a very generous grandmother!

And, yes, there was a lot of money in that card — if this case was brought in 1917. The woman took two $20 dollar bills.

Two!

Worth $40!

Here’s the language from the press release:

[O]n or about Oct. 8, 2014, [the alleged mail thief and threat to civil society] did abstract and remove two $20 Federal Reserve notes that had been the contents of a greeting card envelope addressed to an individual in Cranberry Township.

The law provides for a maximum total sentence of five years in prison, a fine of $250,000 or both.

Let us imagine how many multiples of $40 have been spent on this case. According to the docket, she hired an attorney — Owen Seman (his twitter page is here). The government had to send witnesses — probably the agent — into the grand jury. The agent had to investigate someone (e.g., “Ma’am, did you mean to send $40 — in two twenty dollar bills — to your grandson for his fortieth birthday? Do you know if he received them?”).

Unless there’s some other massive fact here — like the woman used the money to help a minor mail a cigarette — it’s really hard to see how any prosecutorial discretion is involved in this charging decision. Seriously, the United States wants to brand her a felon over $40?

It used to be that federal crimes were only for serious cases. That “making a federal case out of” something was meaningful. Serious crimes, like carrying a dead bird around Yosemite National Park, viewing pornography privately on Wake Island, or selling seeds for seeding purposes when those seeds were imported for a non-seeding purpose.

Alas.


Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.