Mueller’s History of Abusing Power to Entrap Others

Years later I ran into Mueller, and I told him of my disappointment in being the target of a sting where there was no reason to think that I would knowingly present perjured evidence to a court. Mueller, half-apologetically, told me that he never really thought that I would suborn perjury, but that he had a duty to pursue the lead given to him. (That “lead,” of course, was provided by a fellow that we lawyers, among ourselves, would indelicately refer to as a “scumbag.”)

Eating a Donut Can Send You to Jail

We incarcerate people at a rate matched only by North Korea. Why? It would seem there are only three possible explanations:

1) Our justice system is vastly better at catching bad guys than anyone else in the world
2) Our citizens are much more prone to criminality than anyone else in the world
3) Something is wrong

Here’s an article I recommend at Reason

Worse Than Rape or Murder

Winston felt the law was on his side and refused to plea. He expected to have the best defense money could buy, but after the US Attorney froze all of his assets, he was unable to hire the criminal defense attorney of his choice. He lost at trial, was convicted of bribery, wire and bank fraud totaling $100 million and was sentenced to 24 years in prison. The feds and the state moved in to seize his companies and personal property. He was 50 years old, with a wife and four mostly grown children.

Winston was 68 years old, 5’6”, slightly hunched, with pale skin and a rapid fire manner of delivery.  I first met him when he was transferred to Marion from Butner Medical Center after having surprised (and disappointed) many people in the Bureau of Prisons by surviving his third round of cancer.

He was not the type of person to suffer fools, and would respond to any inquiry about him or his past by asking a series of questions designed to determine, in his mind, whether the subject of his interrogation was worth spending time with.  As he would later explain to me, after 20 years in federal prison, he didn’t think he had time to waste on inmates who placed no value on time simply because it was in such supply.

Winston was the founder and CEO of a hugely successful property and casualty insurance company in Illinois.  He built his madoff100614_2_560company by specializing in hard to insure properties and businesses and collecting what was then an enormous amount of data about his clients so he could both better design policies and help them to reduce losses.  The combination of his insuring higher-risk (and thus, higher premium paying), clients and diligent underwriting made him wealthy by the time he was 40.  

As often happens to successful men, he grew bored and decided to tackle new challenges.  Some state laws at the time prohibited companies like his from competing across multiple jurisdictions.  There were also other laws in the state of Illinois that limited the types of coverage he could offer and proscribed certain regulations he found onerous.  

He began lobbying the state legislature to change the rules and simultaneously hired as an employee a member of the state assembly.  The assemblyman’s job was marketing and public relations, and while not illegal, was certainly imprudent.  Over the course of a few years, Winston succeeded in getting the laws changed in Illinois to permit the writing of certain lines of insurance and the transfer of excess risk to offshore re-insurers.

However, an enemy of the assemblyman Winston had hired felt the relationship was improper and complained to every regulator he could find.  Eventually a US Attorney, whose older brother had lost a primary election to the assemblyman, indicted Winston on 149 counts of bribery, wire and bank fraud.  The basic contention was that the job he gave the assemblyman was a bribe, and the subsequent writing of insurance policies a fraud which grew out of the effort to manipulate the legislature and defraud the not-so-good people of Illinois.  He was charged with a $100 million dollar fraud, based on the anticipated losses the insureds would experience.

Winston felt the law was on his side and refused to plea.  He expected to have the best defense money could buy, but after the US Attorney froze all of his assets, he was unable to hire the criminal defense attorney of his choice.  He lost at trial, was convicted of bribery, wire and bank fraud totaling $100 million and was sentenced to 24 years in prison.  The feds and the state moved in to seize his companies and personal property.  He was 50 years old, with a wife and four mostly grown children.

His employee, the assemblyman, was found not guilty of accepting that bribe.  He lost his seat anyway and was dogged for years by various state and federal agencies.  

Winston appealed his conviction on numerous grounds, including the fact that he could not be guilty of bribing someone who had been found innocent of accepting a bribe (this argument failed).  At one point, his conviction was overturned by a judge who found ground for a mistrial, and he was released from prison.  However, a later court overruled, and he went back to prison.

The state and the feds pushed his companies into bankruptcy, which Winston and his fellow shareholders resisted.  The shareholders rightly claimed the companies were profitable and had no need for bankruptcy.  They argued that with Winston gone, another CEO could be hired to run the company without future liability.  The feds disagreed, and solved the problem by seizing all of the monthly revenues, until the company was in fact bankrupt.  This also had the consequence of the company lacking the resources to pay any claims, which would help buttress the claim that Winston’s actions had caused a $100 million loss to policyholders.

Winston started his life in the Bureau of Prisons at a maximum security prison because of the length of his sentence.  The BOP reasons, not unjustly, that men who may effectively be serving a life sentence have little incentive to not attempt escape or to follow the rules, and so men with no prior history of crime or violence, but with long sentences, go to the worst possible prisons and live in the most restrictive and dangerous conditions.

Winston survived, like other white collar inmates, by bartering his education, communication skills, and understanding of people to buy protection and make friends.  Where poorly educated white, black and Latino inmates saw violence as an only option to resist ‘the man’, Winston helped them to file administrative grievances and complaints, and not infrequently, civil rights lawsuits.  He was very successful, causing innumerable problems for a bureaucracy with little tolerance for prisoner and a desperate fear of accountability, so the Bureau of Prisons placed him in solitary confinement, or what inmates call “the hole”.

Solitary confinement is officially a way to segregate inmates who are a danger to staff or other inmates.  Unofficially, it is a way to prison___solitary_confinement_by_akradish1punish inmates and prevent them from communicating with family, friends and legal counsel.  The Bureau of Prisons may hold an inmate for up to 179 days without cause (investigating a ‘security risk’), and so in Winston’s case, he was held for 179 days, released for one day, and placed back in ‘the hole’ for another 179 days.  This continued for two years because he would not promise to not help inmates read their legal mail or report assault and abuse by officers.  He was eventually released from the hole and immediately transferred across the country to a prison notorious for official misconduct and inmate violence.

During the time he was held in the hole and prevented from communicating with his attorneys, he lost several of his appeals and, due to a lack of communication, forfeited his right to continue his appeals.  He also lost most of his civil litigation, challenging certain decisions by the bankruptcy court and by the trustee chosen to dissolve his companies.  Despite all this, one extraordinary development went his way; when the state finally closed his corporate bankruptcy, there were only $1.2 million dollars of outstanding claims.  

Winston was thrilled, because this proved there was no $100 million dollar fraud.  Since fraud amounts are largely the basis for length of sentence calculations, the proof that the fraud-if there was one-was at most $1.2 million, would result in a re-sentencing for Winston which would send him home immediately.

In fact, over the course of several more years of filings and lawsuits, most of those claims were found to be baseless (policyholders who filed frivolous claims after hearing about Winston’s conviction), and the net outstanding losses dropped to less than $100,000.  These losses could  not be paid because the feds had seized all the corporate assets.

And yet, Winston could not get a court to hear his claim.  So much time had elapsed by this time-more than eight years-and so much correspondence from the court had gone unanswered during his two years in the ‘hole’, that the courts considered the matter closed.  Further, US Attorneys opposing his claims pointed out that federal law allows for sentencing based on ‘intended losses’, which means that if Winston intended to bring about a $1 billion fraud, he could be sentenced at that level, even if there had actually been no fraud.  This argument succeeded in spite of the legal technicality that the government had alleged actual, rather than intended losses.  Close enough for government work, presumably.

Another five years would pass, and Winston was progressively moved from maximum security to medium, then to low, and finally to a camp once his sentence length was under 10 years.  He would be diagnosed, and eventually recover, from skin cancer, prostate cancer and colon cancer.  He took it as a sign that he wasn’t meant to die in prison.

After 15 years in the federal prison system, Winston woke up one morning and read in a law journal that the statute under which he had been convicted of bribery had been overturned by the Supreme Court.  In effect, what he had done was not, in fact, illegal.  Winston was convinced he would be released.  However, his further filings were ignored on the basis that, although the law was clearly not constitutional, it was the governing law of the land at the time the acts occurred, and thus, he was guilty, and would remain in prison.

While he was in prison, cell phones and the internet were invented and became mainstream, we went to war in Iraq, Bosnia, Afghanistan, Iraq again….his daughters would marry and have grandchildren, his parents and one of his sons would die, and tens of thousands of men would rape and murder and not serve even half of the sentence he received.

In the end, Winston would serve 20 years of his 24 year sentence.  His wife, who had visited almost every weekend for 20 years, picked him up by the bocce ball courts where all the other old men slowly die, and drove him home.  The last he was heard from he was filing another lawsuit in hopes of getting some compensation for all he had lost.

Johnnie Went Home

Johnnie was from a poor farming town in central western Mississippi on the river with a population smaller than the prison camp in which he now lived. He had innumerable brothers and sisters that I imagined all ran barefoot around the cotton plantation on which they were, essentially, sharecroppers. He was 12 when Emmit Till was murdered in nearby Money, Mississippi.

He called to me from across the enormous, open bay at the bottom of the stairs where the  blacks would gather to cook, laugh, scheme and taunt one another and where he would sit by one of the few working radiators to keep his feet and hands warm.  He was 71, obese, illiterate and suffered from diabetes, prostate cancer, recurring heart attacks, arthritis and the insolence of the young blacks whom he said “don’t know no better”.

Johnnie was from a poor farming town in central western Mississippi on the river with a population smaller than the prison camp in which he now lived.  He had innumerable brothers and sisters that I imagined all ran barefoot around the cotton plantation on hands-on-bars1which they were, essentially, sharecroppers.  He was 12 when Emmit Till was murdered in nearby Money, Mississippi, and quickly joined the ranks of many of the peaceful protesters and activists of that generation.  He knew Medgar Evars and marched with Martin Luther King, which as far as I can tell, every American black and most whites living in the United States, did at some point.  He couldn’t understand my disdain for Sharpton and Jackson, although he granted they seemed to be more interested in politics and making money than helping “poor folk”.

He eventually moved to Memphis, married his childhood sweetheart, had a bunch of children and was active in his church, community and Democratic politics.  I enjoyed his company immensely because I felt like I was in the south while I was with him.  He enjoyed my company because I could translate what he said to the white Yankees who made up 1/3 of the population there and because I could read his correspondence, explain his legal mail and type for him.

I had studied the criminal code night and day for two years and read thousands of indictments, petitions, appeals and rulings, which meant I had more insight into the code, procedures and individual cases of the men than most of the attorneys who had ‘represented’ them.  I knew enough Latin to understand the judicial colloquialisms and have known enough attorneys to know what they are thinking, who they are afraid of, and what constitutes success in their world to read between the lines of their correspondence.  What I had to say to convicts was rarely welcomed but always accurate.

Johnnie knew every politician worth knowing in West TN who could be bought or frightened by the black community, which naturally meant he knew all the Democrats in office west of Jackson, although I guess those were the only kind back in the day.  He leveraged his relationships in the church, in the civil rights movement and in politics to develop several successful small businesses in Memphis.  The first time I referred to “Memphrica” as Mogadishu on the Mississippi, he said in his deep baritone, and interrupted by a phlegmatic coughing fit, “Jeff, Memphis has always been a chocolate town, but it used to be run right.  Now aint nobody got no respect for nobody else and they live like animals.  The white folk just leave but where can we go?”.

I don’t know how Johnnie was successful in his little enterprises, given his lack of education, illiteracy and naivete.  Perhaps it was his affability, sincerity, network and hard work.  Those things eventually failed him, because after he managed to sell one business and buy an even larger one, it all came crashing down on him.  The business he acquired bought and sold steel drums which occasionally arrived at his location with undeclared toxins.  Not knowing what to do about it and not daring to challenge those he bought from, he just started storing them.  It’s easy to see how someone else might see how Johnnie handled the toxins and shuttled their own problem his way.  Eventually his political contacts couldn’t get regulators to look the other way.  Because he lacked the appropriate permits-or shall I dare say, the IQ to understand what those permits might have said-he agreed to an EPA fine that would bankrupt him, sold the business, and agreed to plead to a criminal act believing it would bring an end to the nightmare that had once been the justification for his dreams of a modest retirement.

Instead, he received a three year sentence in federal prison.  As I worked through the stacks of paper which showed his obvious incompetence at managing employees effectively or leading a business of any regulatory complexity, I could see the violations of the law were obvious, and potentially serious (although knowing how things work myself I doubted whether Johnnie was in fact conspiring with Al Qaeda to import and store bio-weapons in his neighborhood).  I heard hour upon hour of his story of helping young black men try to straighten out their lives and families and contribute to their community rather than adding to its misery.

Every few days Johnnie would breathlessly track me down to tell me about a story he’d heard on TV and ask whether I thought it might mean he could go home early.  He was seriously ill, he told me.  His wife was ill.  His family was coming apart, sons abandoning their wives, grandsons embracing drugs, granddaughters getting pregnant, hooked on drugs, having babies, having abortions, disappearing.  After Obama’s election, Johnnie was beaming for days and was certain the “Freedom Bus” would be arriving to take the blacks “home”, possibly with Mr. Obama driving himself.

Johnnie was prejudiced, just like me.  He had a perception of the white man that had been set many decades before and was largely grounded in reality.  He did not hate me for being white, or for the stereotypes I held of young black men which he agreed were most often correct.  But he did not try to hide his desperate hope that some special consideration would be given to the black men who had suffered from the injustice and disparity of the criminal justice system, and perhaps, of society itself which had not been designed to solve the problems of his people.

I spoke simply and bluntly to him and told him I did not believe Obama would grant special consideration to the black men in prison, and I think I broke his heart.  I know he cried when I told him that, yes, I was quite sure, that even with a black attorney general, I did not think it would happen.  He choked back tears and with a huge lump in his throat, patted me on the shoulder and said, “I know you understand these things better than I”.

He would rush to the TV every time there was rumor that sentencing reform would send every black man home, but even as reform came to pass, it was modest and affected only non-violent drug offenders, not Johnnie, who ironically-although I never shared my love of painful irony with him-was considered white collar.  He must have been the least sophisticated white collar criminal ever to serve a three year federal prison sentence.

The young blacks had no use for Johnnie, and neither did the young whites.  The Mexicans always keep to themselves, and so Johnnie found few comrades in prison, and often struggled up and down stairs and into bed on his own.  Books had no great value for him, exercise was out of the question, and he wasn’t interested in the TV options, limited largely to BET, WWF or shows about prison.  The only occasions I remember seeing Johnnie out of his bunk were when a black preacher would visit.  At those times he would press his uniform as well as he could, shine his shoes and linger in the chapel as long as allowed.

The last time I saw Johnnie, he was sitting in his sweat suit by the door, letting the December sun and the 30 year old radiator do what his heart could no longer.  He was humming a tune and rocking gently, coughing as he always did.  I couldn’t make out the tune he was humming over the screaming and gang-rapping at the other end of the room, but I liked to think it was a gospel hymn from the church where he had served as a deacon.

I left Marion and heard a month later the Bureau of Prisons had finally relented and was sending Johnny to the halfway house in Memphis early given his extreme health condition and advanced age.  I knew that he had a chance for early release, because the Bureau of Prisons doesn’t want to bear the high costs of medical care for the terminally ill, so if there is any way they can shift that burden to another federal agency or the inmate, that is an inmate with a chance of early release.

And so it was for Johnny, who could be covered by ObamaCare, Medicare, or Medicaid.  He was released to the halfway house in Memphis in January, and died the following day.  Less than a month later, his wife of 51 years died, of heart failure.

Limbo Is Real

It used to be believed by Catholics that a place existed where souls who were destined for heaven but were prevented from the beatific vision remained, awaiting Christ’s Ascension, or in the case of those guilty only of original sin,  for some sort of divine indulgence (presumed).  Like so many other traditions of the Catholic Church this belief has been abandoned by laity and cleric alike.  But limbo IS real.  I live in limbo right now.

It is a component of the criminal “justice” system that when a convict is finished with the imposed sentence he will remain in a period of limbo for a period of time, in my case, three years.  The convict is no longer incarcerated, but is still subject to the full weight of the federal government.  Not that every living person isn’t already, but in a more particular way.  It is a quirk of the system that although I have retained my first amendment rights, and thus, I may write this post, and for the time being, practice my faith publicly, I have lost my 2nd, 4th, 5th, 6th, 8th and 14th amendment rights.  For the 99% of you unfamiliar with the Bill of Rights and other constitutional amendments, here’s a link.

In brief, because of my conviction for mail and securities fraud, I may not posses a firearm (or even be in close proximity to one, lest I be deemed to have potential control over it), I may not refuse any search, reasonable or not, of my being, property, or the space I may occupy in private or public, I may not move about as I wish or need, I may not seek the best possible employment, I lack the freedom to remain silent, I do not have the right to a speedy trial or to confront my accusers, I may suffer, as I have already, cruel and unusual punishments or unreasonable bail requirements, and I do not benefit from the Due Process and Equal Protection laws of the 14th amendment.  The central government refers to this condition as ‘Probation’.  Probation infers a time of testing or trial, but since this period seems to me to include also a punitive condition-the denial of certain benefits accorded to others, albeit not perfect union with God, I think limbo is more appropriate.

I am told I will remain in this state for three years.  There is nothing I can do to help myself.  There is nothing that anyone else can do to help me.  I am not truly suffering in limbo, at least, not at the moment, and if I were, I suppose that would prove purgatory rather than limbo.  It is possible that at the end of three years, my time in limbo could be extended, even indefinitely, if the court is not pleased with me.  It is very likely that if the court looked hard enough, it would definitely NOT be pleased with me, because I hold many thoughts in my mind which would likely to be offensive to God and any number of people, modernists, yankees, communists, et al, and because most of us commit a felony every day anyway.  Sometimes more than one.  So it’s merely a matter of choosing to get you, not whether they can.

Don’t get me wrong, I have no plans to commit a crime.  I do not wish to leave limbo and return to purgatory.  It is just that I am both aware of the reality of my vulnerability-unlike, probably, you-and, perhaps more importantly, I no longer live in fear.  I am not indifferent to the future or to suffering, but somewhat more accepting of realities which I cannot change, and which, while unpleasant, and perhaps even unavoidable, may actually work for my good.  You don’t need to be a Catholic, or even a Christian to believe these things, although being one for many does not lead to this truth.  You need not even be a Buddhist, who practice a form of detachment which to me seems detached also from virtue.  I’m not that fond of virtue myself, vice always being more enjoyable, but I do hold virtue in my mind as something good and desirable.  It is inescapable, however, that suffering can be good for you.

It is ironic, to me, and I do love irony even when it is the hammer and I the anvil, that I retained this most potent civil protection of the 1st Amendment.  Is it because my expression of thought and faith are not dangerous, and thus the courts have found no cause to restrict them?  That surely cannot be, because I admit freely that both my thoughts and faith are dangerous to the status quo.  (Clarification, it is not ‘my’ thoughts but rather those beliefs which I adhere to which are dangerous to tyrants and modernists and their way of life, so before you report me to the thought police, reflect carefully, please).

Is it then, that I retain these first amendment rights because the courts have recognized that, however dangerous my expressions may be to society and the government, they are so fundamental to a free society that even for me, the lowest and most dangerous of society’s members, they must remain unimpeded?  Odd, isn’t it?  The pen is mightier than the sword, and there has never been a time when this adage was more true.  Surely the war of ideas is bringing about greater consequences now than in any previous generation.

Or is it that the most helpless members of a society are always the first to suffer as rights dissolve generally, and this should be seen by the rest of you as a warning about the erosion of rights? As a convict, I am certainly in that class of the helpless, stripped of the most basic forms of self defense, for even my conscience is not safe from examination and I lack the protections seen by the founders as being most important for the promotion of individual liberty.  Does the way in which we treat the untouchables and the unwanted in a society act as prediction of the future of of our culture?

Read Animal Farm, if you haven’t lately, and then write me about your thoughts.