Crime, White-Collar Crime

The Logic Of Law Enforcement Investigations

There's no meaningful set of rules constraining how law enforcement authorities start investigating a case -- but there ought to be.

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Karl Popper, the philosopher of science who was most influential in the era before Thomas Kuhn’s Structure of Scientific Revolutions, said that you can break scientific advancement into two parts. Popper’s theory can teach us a lot about one thing wrong with how law enforcement do their job.

In a nutshell, Popper thought that, first, a scientist comes up with a theory, then tests that theory to see if it’s confirmed by data. If it’s confirmed, you’re more likely to think it’s true and, voila, progress. You probably learned something like this in fourth-grade science. (Though, in fairness, it was a pretty cool and revolutionary idea in its time).

When it comes to testing a theory, Popper had detailed views about the logic of such a process. Coming up with the logic of things was all the rage in philosophy circles in those days. Sparing you the details, Popper’s theory seemed intuitive but got complicated quickly. It was criticized by professional philosophers because Popper’s theory sort of meant that the proposition “all ravens are black” is confirmed by the existence of a non-black non-raven, like a blue blazer. And, if true, that seems silly.

If you needed it, this rejoinder to Popper is confirmation for the theory that professional philosophy can be a little bit pointless. Think of professional philosophers as lawyers who are worse in every way: their job prospects are worse; their arguments are more pedantic and less persuasive; their writing is more dense and dull; and their parties have less booze. But I digress.

When it comes to the second part of scientific progress – coming up with a theory – Popper’s view was that there was no logic to scientific discovery. Where ideas like theories come from is a psychologist’s job. Not only does that process have no logic, it doesn’t need one.

Similarly, for lawyers, there is a logic to the use of evidence in court, and how it can be gathered. The Fourth Amendment, Fifth Amendment, Sixth Amendment, and Federal Rules of Evidence (among other things) bound what cops can use to get evidence and what judges will let into a criminal trial.

We have a robust law of evidence gathering and the introduction of evidence.

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There is, though, no similar set of rules constraining how law enforcement start investigating a case.

There ought to be.

First, there are clearly some good practices. For example, the government is now using data analysis to generate investigative leads.

Check out this Forbes article describing what HHS’s OIG is doing with data analysis:

For example, the national average of prescriptions given to a patient under the plan is 23 (still seems high to me).  However, OIG found instances in over 400 pharmacies that dispensed over 62 prescriptions per patient, nearly 3-times the national average.  The primary type of drug that these pharmacies were prescribing were for highly addictive opioids

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The government has massive stores of data from claims submitted to it. It’s hard to argue that they shouldn’t be allowed to look at that data. This is a smart way and reasoned way to harness technology to allocate limited resources in how to generate leads.

On the other hand, here are two abuses of the lack of clear rules on generating investigative leads that ought to be ended. Agents shouldn’t simply have unbounded discretion in how they come up with ideas for who to investigate.

Consider Agent Robert Nordlander. He investigated ultra-marathoner Charlie Engle and, at the end, Engle went to prison.

Engle had a tremendously cool story. He overcame drug addiction to become a very impressive elite athlete. Matt Damon financed a movie about him.

Nordlander saw the movie and, like many viewers, was inspired. His inspiration, though, took a creepy turn. As the New York Times reports, based on his grand jury testimony:

“Being the special agent that I am, I was wondering, how does a guy train for this because most people have to work from nine to five and it’s very difficult to train for this part-time.”

So he looked at Engle’s mortgage applications and found that, like a quarter of Americans with a house, there were false statements on those applications. (I mean, really, your bank balance on your last mortgage application wasn’t an estimate? Did you update it before closing? Of course not. No one does. Congratulations, you committed bank fraud.)

About Nordlander’s investigative lead generation approach, the New York Times also noted:

[Nordlander] also told the grand jurors that sometimes, when he sees somebody driving a Ferrari, he’ll check to see if they make enough money to afford it. When I called Mr. Nordlander and others at the I.R.S. to ask whether this was an appropriate way to choose subjects for criminal tax investigations, my questions were met with a stone wall of silence.

Clearly, law enforcement should not just prosecute people who work out a lot. That seems unfair and those folks are already punishing themselves enough. Also, while there are serious problems with wealth inequality, just investigating all the people with the trappings of wealth is the worst kind of class warfare.

Or, if Nordlander’s use of his power to take down people doing better in life than him doesn’t trouble you, think about evidence laundering.

In cases of evidence laundering, the government takes evidence they got either illegally or in a way that the government doesn’t want to disclose (say, because it’s done by the NSA), then “federal agents . . . ‘recreate’ the investigative trail to effectively cover up where the information originated.”

That way, if the government violated your rights by, say, tapping your phone, they can cover that up if a beat cop just happens to stumble upon you while you’re running a counterfeiting machine at a Denny’s. Or whatever. And unless that’s a super-honest beat cop, there’s no reason to think the illegal wiretap would ever come to light.

Right now, the feds can get leads however they want. It leads to abuses. It should be regulated in a meaningful way.

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.

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