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by Peter Moskos

June 25, 2009

Not so fine a line after all

Looks like the line between paying a C.I. and criminal bribery isn't so fine after all. Thanks to Marc S. for commenting on this post and informing me that what the DEA agent did is in fact a crime. It's called commercial bribing in the second degree and in New York State it's a class A misdemeanor. Had the $1,000 offer been one cent higher, it would have been a felony. That makes me think that the guy offering the bribe knew the law a lot better than I did.

A person is guilty of commercial bribing in the second degree when he confers, or offers or agrees to confer, any benefit upon any employee, agent or fiduciary without the consent of the latter`s employer or principal, with intent to influence his conduct in relation to his employer`s or principal`s affairs.

12 comments:

Marc S. said...

I'm also under the impression that a compensated CI is, for all intents and purposes, considered an agent of the government and thereby restrained by the 4th amendment. Any evidence turned over to a DEA agent by the CI, even if the CI had legal access to the evidence, would be treated as trespass amounting to an illegal search.

If your acquaintance can stand the heat, he should raise hell about this. The DEA attempted to bribe his employee to steal privileged information.

Anonymous said...

Hi Peter,
I hate to disagree with Marc, but if a person is aware that a client is involved in illegal activity, shouldn't they be willing to provide relevant information to the police? I assume you're referring to cops who are just walking into this guy's business and asking for sensitive personal information with no explanation. But if an explanation is given and sounds reasonable, I don't think there is any attorney-client priviledge or doctor-patient type relationship between a real estate professional and client. Informants are paid all the time to keep their eyes open for any illegal activity they become aware of. It sounds like your friend is being a little passive-aggressive in his love of the Bill of Rights and law abiding spirit. It is one thing to attempt to access real property, but information is another.
By the way, has your friend "in a form of real estate business" ever considered screening his clients a little more stringently or changing his business practices. If the police are "routinely" trying to access his clients' information, he may be attracting the wrong type of client.
Ed

PCM said...

Ed,

I am curious about the question of the legality of using CIs like this. More on that later.

But I will defend my friend with regards to his clients' info.

For him to screen his clients more would be the equivalent of a rent-a-car company making sure nobody does anything illegal with a rent-a-car, monitoring their route, and making sure nothing illegal is ever carried in the car.

And what he's being asked to do is the equivalent asking him to do is give law enforcement keys to look in the trunk and a complete log of the GPS route.

It's neither in the business model nor feasible.

Customers sign something saying they won't do anything illegal. And if there's probable cause they are doing something illegal, my friend is more than happy (really) to help law enforcement.

He just doesn't want The Man (to reintroduce a pleasantly dated expression) threatening his employees with arrest and making him violate his contracts with his customers.

How would you like it if your bank gave police access to your safe-deposit box?

Marc S. said...

Ed, if there was probably cause of something illegal going on in the office, they could get a warrant. If there was a relevant investigation, they could subpoena the files. It's pretty clear that they were attempting to use a CI to obtain private information that they could not obtain through legal channels.

Anonymous said...

Peter,
Threatening employees is a bit ridiculous and seldom works. I'm not sure who he's dealing with and why they've resorted to threatening.
Leaving aside the issue of using an employee as an informant for a minute. Doesn't your friend feel that having a client sign a piece of paper saying he wont do anything illegal and then your friend closing his eyes to clients actions is a little irresponsible. It may be good for business, but is it ethical?
As far as Marc S.' belief that the cops were attempting to use a C.I. to obtain private information that they couldn't obtain through legal channels, this may not be the case. It is very easy but time consuming(especially for Federal Agents) to subpoena information. Maybe they were just trying to cut through some red tape, and there is no real scandal here.
Ed

PCM said...

Good question, Ed.

It is ethical not to turn over your business records? I think so. Especially if there isn't probable cause of wrong doing.

It's certainly as ethical to a bank not asking where you got your money.

My friend want to follow the law. Isn't that ethical?

Maybe I can get my friend's opinion on the matter.

PCM said...

My friend responds in this post.

Marc S. said...

Ed, the process exists for a reason. Not following the letter of the law because it is time consuming is irresponsible as any evidence could fall under the exclusionary rule letting the guilty walk.

"Threatening employees is a bit ridiculous and seldom works."

Because no one has ever popped the trunk because a cop threatened to get the dog out to tear up a car or wake up the judge. No one has ever put away a video camera under threat of arrest for disorderly conduct or some such bullshit. Threatening people is a pretty standard police tactic and it works.

PCM said...

Of course threatening people is standard operating procedure for police. It should be. I certainly threatened people. Why else would people do what I told them to?

And in regards to police ethics, I draw a line at committing a crime and not committing a crime. That's the line I did not cross. Criminal violations for police are simply not ethical. Period.

But threats and lies aren't necessarily crimes, and in a good police officer's hands, They're tools.

But there's an huge ethical difference between threatening somebody who committed a crime and threatening and entrapping an innocent employee.

Now if a police officer or DEA agent were to believe that bribing an employee was legal (though I think it's pretty clear it's not), then ethically I would call it well intentioned honest mistake.

And if it is illegal, then I guess some lawyer needs to prove it so in court. A never-enforced law is no law at all.

PCM said...

Marc,

Going back to your first comment, CIs are not considered an agent of the government. Now I don't know if courts see it differently, but police paperwork on this matter is pretty clear.

Also clear, on paper, is that money is not in exchange for information. Nor do CIs ever get a get-out-jail card. There can be no quid pro quo. Otherwise they might be considered employees.

What this means is that all CIs simply tell police stuff out of the goodness of their drug-addicted hearts and in an honest desire to help law enforcement. And if sometimes police give CIs money, why that's just to help feed their hungry kids or something.

Of course this is bullshit. And some people, like "blockwatchers" in Baltimore, really do help police because it's the right thing to do.

But this is not the case for CIs. It's all about revenge or staying out of jail. It's all about that dirty little business we call the war on drugs.

Marc S. said...

Should have been more clear. For the purposes of the exclusionary rule, CI's are held to the same standard as agents of the government. They are not actually agents of the government.

Here's the most recent DOJ guidelines for confidential informants i could find. http://fas.org/irp/agency/doj/fbi/dojguidelines.pdf

on paper, payments cannot be contingent on conviction or punishment, however, they can be given rewards "commensurate
with the value, as determined by the JLEA, of the information he or she provided"

US v. Walther:
Following a suppression hearing on Walther's motion, the district court found that at the time Rivard opened the Speed Pak and summoned DEA agents, he was acting as "an instrument or agent" of the DEA. In addition to the findings recited above, the court found that in opening the Speed Pak Rivard was not carrying out a business purpose of his employer, his sole reason being his suspicion that the case contained illegal drugs. The court further found that Rivard probably opened the case with the expectation that he would be compensated by the DEA if he were to discover a significant quantity of illegal drugs. Accordingly, the court ruled that Rivard had been acting as an agent of the DEA at the time he opened the overnight case and that all evidence seized as a result of the search would be suppressed.

This was affirmed: "the government cannot knowingly acquiesce in and encourage directly or indirectly a private citizen to engage in activity which it is prohibited from pursuing where that citizen has no motivation other than the expectation of reward for his or her efforts."

In your friend's case, the employee was offered $1000 to provide information. That would have been his only motivation for doing so. Given that it's clearly not kosher, I think this supports the commercial bribery charge.

PCM said...

Thanks for the research!

Departments usually have their own guidelines. At least large ones. I should find Baltimore's policy. Maybe I'm wrong, but I remember something crazy about the money not being in exchange for anything. But perhaps I just made that up.