Three Felonies a Day
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Praise for Three Felonies a Day “Now comes veteran defense lawyer and civil libertarian Harvey A. Silverglate with riveting case studies exposing in technicolor a pat- tern of serious abuses and convictions of innocent people in some of the most famous (as well as obscure) federal cases of recent decades. Abetted by compliant courts and easily gulled media, the feds brand as criminals good people who intended no crime.” —Stuart Taylor, Jr., National Journal columnist and Newsweek contributing editor “In Three Felonies a Day, Harvey A. Silverglate has written a work peerless in revelations about the mad expansion of federal statutes whose result is to define, as criminal, practices no rational citizen could have viewed as illegal. The book is chilling in its detail of the investigations and ruin that have befallen people ground up in this prosecution mill. Whether in the book’s scathing chronicle of the destruction of Arthur Andersen, largest accounting firm in the nation, an obscure attorney, or the bizarre government case mounted against a Boston politician—to name a few—Harvey A. Silverglate brings home, unforgettably, the truth that everyone is vulnerable to the terrors wrought by out of control prosecutors. No one reading this can fail to be gripped by these cases, by the hard bright light he shines on every step of these prosecutions, and the mindset that created them. It’s a bombshell that was worth waiting for.” —Dorothy Rabinowitz, Wall Street Journal editorialist and a winner of the Pulitzer Prize (Continued) “Gilbert & Sullivan wrote about how the punishment fits the crime. Three Felonies a Day shows how federal prosecutors have conceived of something truly frightening—punishment without crime. Harvey A. Silverglate, one of the truly hard-working and uncompromising defenders of our civil liberties, has written the ultimate horror-story of prosecutorial abuse. We, the public, should pay attention.” —Errol Morris, documentary film-maker, winner of the Academy Award for The Fog of War, producer and director of the legendary documentary The Thin Blue Line “This brilliant book lays out the terrifying threat to human rights posed by vindictive federal prosecutions, often sold as moralistic crusades to a gullible press and public. Anyone who cares about American democ- racy should read this gripping and vitally important expose.” —Steven Pinker, Johnstone Family Professor, Harvard University, and author of The Stuff of Thought “Harvey A. Silverglate masterfully chronicles federal prosecutors’ vindictive enlistment of opaque criminal prohibitions to snare the unwary and to stunt civil society. A bloated criminal code that fails to warn before it strikes is tyranny’s first cousin.” —Bruce Fein, former associate deputy attorney general under President Reagan, and chairman of the American Freedom Agenda “Three Felonies a Day is one of the most important books to be written about law in a generation. It should be read by anyone who cares about the rule of law.… Law-abiding citizens beware: Prosecutors wield Godlike power as they decide how to interpret vague and open- ended statutes that can turn the stuff of everyday life into a federal case. Individual freedom and the rule of law hang in the balance. Three Felonies a Day is more than a brilliant collection of great stories about law, although it is sure that: it is a manifesto from one of America’s staunchest defenders of civil liberties demanding that all of us join in the fight for true freedom and the rule of law.” —Susan R. Estrich, Robert Kingsley Professor of Law and Political Science, University of Southern California “In Three Felonies a Day, Harvey A. Silverglate zeroes in on govern- mental misconduct—the brazen abuse by certain federal prosecutors of immense government power for purposes other than justice. The book is a clarion call—to prosecutors, reminding them what their true role is in a democracy—and to the public, reminding everyone of our collective responsibility firmly to oppose, discipline and prohibit such unacceptable abuses in order to protect the Constitution and the rights it guarantees. The book is a compelling read.” —Michael S. Greco, former president of the American Bar Association “To many readers, the book will read like a highlight reel of the most prominent and challenging cases to be brought in recent years…. Silverglate deftly combines the legal sophistication of a criminal de- fense expert with the plain speech and driving narrative of a journalist.” —Matthew W. Hutchins, The Harvard Law Record (Continued) “[Three Felonies a Day] argues that federal criminal law is so com- prehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.” —Adam Liptak, The New York Times “Technology exacerbates the problem of laws so open and vague that they are hard to abide by, to the point that we have all become poten- tial criminals. Boston civil-liberties lawyer Harvey Silverglate calls his new book ‘Three Felonies a Day,’ referring to the number of crimes he estimates the average American now unwittingly commits because of vague laws.” —L. Gordon Crovitz, The Wall Street Journal “After studying dozens of prosecutions dating back 25 years, among them cases he worked on and several that were tried in Massachusetts federal court, Silverglate concludes that federal criminal laws have run amok, enabling overzealous prosecutors to pin flimsy, headline-grab- bing crimes on any one of us—even for well-intended behavior that does not appear to violate any law.” —Tom Mashberg, The Boston Herald “In a work that is sure to stir sharp public debate, veteran defense-attor- ney-turned-author Harvey A. Silverglate examines the legally and politi- cally charged issues surrounding recent federal criminal prosecutions.” —Robert A. Cornetta, presiding justice of the Salem District Court Three Felonies a Day How the Feds Target the Innocent harvey a. silverglate ENCOUNTER BOOKS new york • London Copyright © 2009 by Harvey A. Silverglate New Material © 2011 by Harvey A. Silverglate All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Encounter Books, 900 Broadway, Suite 601, New York, New York, 10003. First American edition published in 2009 by Encounter Books, an activity of Encounter for Culture and Education, Inc., a nonprofit, tax exempt corporation. Encounter Books website address: www.encounterbooks.com Manufactured in the United States and printed on acid-free paper. The paper used in this publication meets the minimum requirements of ANSI/NISO Z39.48‒1992 (R 1997) (Permanence of Paper). PAPERBACK EDITION ISBN 978-1-59403-522-7 THE LIBRARY OF CONGRESS HAS CATALOGUED THE HARDCOVER EDITION AS FOLLOWS: Silverglate, Harvey A., 1942- Three felonies a day : how the feds target the innocent / by Harvey Silverglate. p. cm. Includes bibliographical references and index. ISBN-13: 978-1-59403-255-4 (hardcover : alk. paper) ISBN-10: 1-59403-255-6 (hardcover : alk. paper) 1. Prosecution—United States. 2. Public prosecutors—United States. I. Title. KF9640.S578 2009 345.73’05042—dc22 2009006511 COntents Preface to the Paperback Edition . .xi Foreword by Alan M. Dershowitz . xxv Introduction: Traps and Snares for the Unwary Innocent . xxxiii 1. Reeling in the Great White, and Other Tales of Fishing for State and Local Pols ������������������������ï3 2. Giving Doctors Orders . 45 3. The Unhealthy Pursuit of Medical Device and Drug Companies . 75 4. Following (or Harassing?) the Money . 97 5. Accounting for the Perils Facing Business Support Services: The Late Arthur Andersen & Co. and Its Repercussions . 131 6. Lawyers: Government Offense Against the Best Defense . 159 7. Doing Their Duty (or Committing Espionage?) and Other Media Twilight Zones �����������������ï¿189 8. National Security: Protecting the Nation from Merchants, Artists, Professors, Students and Lobbyists for Non-Profits? . 217 Conclusion: For Whom the Bell Tolls . 255 Acknowledgments . 277 Endnotes . 285 Index. 319 To wife and partner Elsa Dorfman and son Isaac Dorfman Silverglate, who have lived with the often inconvenient consequences of my obsession with liberty during decades of a tumultuous career that continues unabated, and who have added enormously to my insights; and Alan Dershowitz, who first nurtured my interest in the criminal law and civil liberties when we arrived at Harvard Law School in 1964 (he as professor and I as student), and who has continued to nurture and support that interest over the decades; and Dorothy Rabinowitz, who has insisted that I have an obligation to write, in non-legalese English, about the lessons learned and still being learned from that career, and who pushed me relentlessly to complete this book. preface to the paperback edition Three Felonies a Day is the story of how citizens from all walks of life—doctors, accountants, businessmen, political activists, and oth- ers—have found themselves the targets of federal prosecutions, despite sensibly believing that they did nothing wrong, broke no laws, and harmed not a single person. In these wheels of injustice, vague laws are the lynchpin, functioning in very much the opposite way than origi- nally intended: they obscure, rather than clarify, the law’s demands. Since the hardcover version of this book was published, there has been considerable tumult in the arena of vague federal legislation used as a tyrannical trap for the unwary innocent. While some raised con- sciousness has become visible on civil society’s horizon, grave damage continues to be inflicted by out-of-control federal prosecutors.