Only Results Matter

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However, section 793 has a lower mental state.  18 USC section 793(f) states: “Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—  Shall be fined under this title or imprisoned not more than ten years, or both.”   This statute only requires “gross negligence,” and (for what it’s worth) the FBI director pretty much stated that he believed this mental state existed during the conduct at question.  Gross negligence requires an extreme breach of the standard of care that a reasonable person would exercise under the same circumstances.   This would be an easier statute to prosecute than 798 because of the much lower mental state requirement, although prosecuting a Democratic celebrity for a national security technical crime in Washington, DC would be difficult under any circumstances. But, prosecutors regularly use such indictments to attempt to squeeze misdemeanor pleas out of high profile persons.

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While this type of conduct is not necessarily the Lindbergh baby kidnapping or the OJ Simpson murders, people have had their careers ruined and regularly faced at least misdemeanor prosecution for these types of violations.   The Hillary Clinton email articles which I have read have focused on two federal statutes regarding mishandling of classified information.   There are two statutes that are normally in play regarding the actual classified information, and which are most commonly used in similar national security breach/leak prosecutions.

front-rack-server-124342918 USC section 798 states:  “(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—  (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or (3)  concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—  Shall be fined under this title or imprisoned not more than ten years, or both.”  Here, the unsecured server made classified information available to anyone with access to the server and also hackers.  The details have not been brought forward on how many people had such access, but it is common sense that at least the host of the server had unauthorized access.   The details of the emails are also sketchy (and will not be detailed due to national security), but it is likely that the emails contained at least the type of information found in (3) and (4) of the statute.   However, the statute not only requires this crime to be committed “knowingly,” but also “willfully,” which requires that a person know they are violating the law and intend to violate the law in doing the conduct.  It is targeted for intentional espionage cases.

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As the information in the public goes, Hillary Clinton maintained her State Department emails and conducted State Department business on a private, nonsecure server.  She then wiped (or had her people wipe) at least part of the server, including many emails, before handing them over for investigation.   Many people want her prosecuted for mishandling classified information, but from the facts as provided by the media (reliable or not) there are several federal statutes that could be involved, including other felonies.   This article does not express judgment on Ms. Clinton’s guilt, but attempts to correct or expand on previous articles and information disseminated in the media.

Many people have been prosecuted for similar acts which Hillary Clinton might have committed.   We all know about Iraq War Hero General David Petraeus being prosecuted for allowing his mistress access to classified information.  But, less famous people have been recently prosecuted for similar conduct. Bryan Nishimura of the Naval Reserve was placed on two years of probation for downloading classified material to a personal electronic device, without any intent to distribute it.  Chief Petty Officer Lyle White pled to a 60-day sentence for downloading classified material to a nonsecure device.  The Blaze has a good article at  http://www.theblaze.com/stories/2015/08/14/if-hillary-clinton-mishandled-classified-information-heres-what-it-could-mean/.

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arab-mosque-1-1533662.jpgImportantly, the Penal Code does not define what an “explosive or incendiary device” is, which is a big problem in prosecuting a hoax bomb case. The legislature needs to revisit this issue and make the definitions more clear. Under 46.01(2), “‘Explosive weapon’ means any explosive or incendiary bomb, grenade, rocket, or mine, that is designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage, or for the principal purpose of causing such a loud report as to cause undue public alarm or terror, and includes a device designed, made, or adapted for delivery or shooting an explosive weapon.” This is more specific but it is not incorporated into the hoax bomb definition or statute. It probably needs to be, so the legislature needs to diligently review this Penal Code section if it wants to make an enforceable offense. Jurors are allowed to use plain meaning to define terms that are not defined in the code, but isn’t “explosive device” and “incendiary device” a little overbroad?

It appears that there certainly is little or no case against Mr. Mohamed, and the government might have a hard time legitimately prosecuting this statute if a hoax bomb as intended to be defined does pop up.

So, Mr. Mohamed, keep working on your dreams. I see a scholarship in your future if you are truly interested in engineering and science. But, any time you bring a unique device to school, let them know ahead of time so everyone is on the same page. There is certainly a level of profiling of Arab Americans and Muslim Americans since 9-11 both nationally and internationally, so you must be aware of this in your endeavors. Use your new celebrity for the good of mankind, however you see best to do so.

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clock1.jpgIrving Police based their investigation on investigation of possession of an explosive weapon or hoax bomb. When it was ruled out that the item was not an explosive weapon, possession of which would be a third degree felony, the fall back statute became possession of a hoax bomb. Texas Penal Code 46.01 defines a hoax bomb: “(13)’Hoax bomb’ means a device that: (A) reasonably appears to be an explosive or incendiary device; or (B) by its design causes alarm or reaction of any type by an official of a public safety agency or a volunteer agency organized to deal with emergencies.” Thus, anything that “reasonably appears” like an “explosive or incendiary device” warrants closer review. That’s common sense in a way, but isn’t that a broad definition. There are many things that could be considered “explosive” or “incendiary” which are not illegal. Wouldn’t a cigarette lighter meet this definition? While that might be a violation of school rules to possess, it is certainly not criminal. Why didn’t they just say “reasonably appears to be an explosive weapon”?
Additional review of the statutes give us little further guidance.

Under Penal Code section 46.08 “[a] person commits an offense if the person knowingly manufactures, sells, purchases, transports, or possesses a hoax bomb with intent to use the hoax bomb to: (1) make another believe that the hoax bomb is an explosive or incendiary device; or (2) cause alarm or reaction of any type by an official of a public safety agency or volunteer agency organized to deal with emergencies.” Such an offense is a class A misdemeanor. Okay, so we really haven’t pinpointed what a hoax bomb is, but if we use something that maybe is a hoax bomb to make someone else believe it is a hoax bomb or cause emergency services to react, we have committed a misdemeanor.

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Ahmed Mohamed recently became an international celebrity by being detained by the Irving Police on suspicion of a hoax bomb at school. Mr. Mohamed brought a “rearranged” clock to school in a carrying case which reportedly looked suspiciously like a bomb or bomb detonating device. In the post 9-11 world, things are taken far more seriously, and it was probably a questionable idea to bring the clock in its condition into class without an up-front talk with the school, but such are the minds of 14 year olds. 17-ahmed-mohamed-gmaw529h529.jpgFrom the Iraq war, it was learned that items as small as cell phones or even garage door openers could trigger large bombs which killed Americans. Teachers and administrators were alarmed at the look of the clock device, and called in police. They claimed Mr. Mohamed was evasive with questioning, and was detained on suspicion of a hoax bomb.

Nationally, the case is being used as a hot point to debate the fear or profiling of Muslims by law enforcement. But, the case could actually come down to a poorly written statute and miscommunication by the student to the school. Ahmed by all accounts is a bright and curious kid who likes to tinker with such things as clocks and electronics. His creativity should be encouraged and supported. But, is this another “example” of “Islamaphobia in Texas” for a child to be detained and questioned regarding the improvised or rearranged clock, or would any child regardless of religion or creed be detained for such a “suspicious looking device”? The school district is not allowed to comment on the contents of the questioning. So, without a court case which does not appear forthcoming, there will likely be no record. However, the student’s family has hired a lawyer for a potential civil rights case which may develop the facts more coherently.

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high-school-2-1460866.jpgIn Coronado v. State, the Texas Court of Criminal Appeals tackled a “scope” issue in reviewing a case of a student who was attempting to leave campus during school hours. The student claimed to be going to a relative’s funeral, but the assistant principal called his family and found this untrue. The student was also “evasive” in response to questions. The assistant principal patted down the student in an officer’s presence and found no safety risks. He then searched Coronado’s person and found $197 in currency, searched the student’s locker and the trunk of the student’s car. In the trunk, the assistant principal found cocaine, marijuana and a balance beam.

The Texas Court of Criminal Appeals overturned the search. It found that the principal:

“had reasonable grounds to investigate why appellant was attempting to leave school and was justified in ‘patting down’ appellant for safety reasons. However, the subsequent searches violated the second prong of T.L.O. The searches were not reasonably related in scope to the circumstances which initially justified [his] interference with [Coronado], i.e., [the assistant principal’s] suspicion of appellant’s skipping school. Nor were the searches reasonably related to any discovery from the initial ‘pat down.’ Rather, the post ‘pat down’ searches of appellant’s clothing and person, locker and vehicle were excessively intrusive in light of the infraction of attempting to skip school. Additionally, nothing observed during the pat down or subsequent search of appellant’s clothes and person, or locker, would justify [his] expansion of the search to appellant’s vehicle.”

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locker-1426008.jpgAll of us have had the experience of being called to the principal’s office. Well, most of us. Many juvenile delinquent conduct investigations begin this way, with a call and questioning by the principal, a search of a student’s locker or purse, or a pat down of a student suspected to be in contraband. Our first thought as Americans would assume that a student at a school has the same Fourth Amendment protection against unreasonable searches and seizures as an adult, but that isn’t quite so. The Supreme Court directly addressed this issue in New Jersey v. T.L.O., 469 U.S. 325.

In T.L.O., a principal had searched a student’s purse and found marijuana, cigarettes, money and drug notes after information from a teacher that the student was smoking cigarettes in the bathroom and in possession of cigarettes against school rules. The Supreme Court upheld the search, stating that different standards apply to searches of students by school officials than searches by police and held:

“We join the majority of courts that have examined this issue in concluding that the accommodation of the privacy interests of school children with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether the …action was justified at its inception…; second, one must determine whether the search as actually conducted was ‘reasonably related in scope to the actual circumstances which justified the interference in the first place.'”

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Harley.jpgSection 15.02 of the Texas Penal Code makes criminal conspiracy a crime one level lower than the actual substantive offense. It states: “(a) A person commits criminal conspiracy if, with intent that a felony be committed: (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he or one or more of them performs an overt act in pursuance of the agreement…(d) An offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor.”

Thus, to have probable cause to arrest a biker present at the Waco Twin Peaks on the day of the shooting for suspicion of conspiracy to commit capital murder, an officer would need probable cause that that individual specifically took an act that day intending that a felony be committed, agree with another person that they engage in conduct that would constitute capital murder, and one of them perform an act in furtherance of the conspiracy. Thus, being a biker there for the meeting alone would not be anywhere near probable cause in itself to be arrested for conspiracy to commit capital murder, even if you were wearing a similar jacket or vest to bikers involved in the shooting. The sweep was very broad and we should all be concerned about the implications of such a mass arrest. Injustice anywhere is a threat to justice everywhere.

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Texas DPS.gifThus, following the shooting, the police had the right to not only arrest any person they observed shooting weapons at others, they would have the right to conduct a protective sweep of not only the outside of the restaurant, but the inside of the restaurant for persons they believed would be a continuing danger. Any person found to be in possession of a firearm would be in violation of the law if the restaurant, Twin Peaks, sells alcohol and the alcohol accounts for 51% of its revenue. Possessing a firearm, even with a conceal and carry permit, is prohibited on the premises (including the parking lot) of such locations. Any customer possessing a firearm inside the restaurant without a conceal and carry permit would also be subject to arrest.

However, the jump to arresting everybody present is where the Constitutionality of the arrests is questionable. Police would, after a protective sweep, be able to pat down suspicions persons for “officer safety” if they have reason to suspect they might be armed and a danger to the officers. Wearing a jacket matching those who were involved in the shootout probably gets officers to this standard, and it is probably not unreasonable to pat down every person reasonably suspected to have affiliation with those involved in the shootout. If they are in possession of a firearm or other illegal items, they can be arrested for such and these are also felony level charges. But probable cause of conspiracy to commit capital murder is a very high standard that is probably only reachable with a few suspects.

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