Sherman & Plano, TX Criminal Defense Lawyer Blog
You may be reading this because you received a Touhy letter from the Department of Veterans Affairs, Social Security or another federal agency that does not want to comply with your state-court subpoena. They are citing the Supreme Court’s Decision in Touhy, where the Court stated that the Federal housekeeping statute prohibited an FBI agent from being compelled by subpoena and contempt into bringing in his testimony and agency documents to testify regarding a state inmate’s claims. See Touhy v. Ragen, 340 U.S. 462.
There are several ways to both attack this request while and attempt to get your witness in Court. First and foremost, you should write a letter to the head of the agency requesting the witness, and they can consent to his appearance. Next, get a copy of the agency’s regulations to see if the witness meets the definition of “employee” under the regulations and the Housekeeping Statute. If all else fails, you will most likely end up in a United States District Court to review how Touhy applies to your particular fact situation. Remember that Touhy involved a full-time FBI agent and his records of investigation. The further we get from that, the more likely the witness should be amenable to a state-court subpoena.
From the “facts” as disseminated in the media, there are also problems with the apparent destruction of records on the Clinton side. Following the Enron Collapse and the Arthur Anderson scandal, Congress passed the Sarbanes Oxley bill which overhauled accounting and recordkeeping at financial institutions. In that law there was also a new obstruction of justice law that created an easier statute to prosecute than most of the old obstruction of justice statutes, as it did not contain a “willful” requirement. 18 USC section 1519, destruction, alteration or falsification of records in federal investigations and bankruptcy, states that “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.” Thus, if there were emails and chains of emails destroyed in the investigation without explanation, a prosecutor could likely obtain an indictment on the conduct from all persons who have probable cause to have destroyed or ordered the destruction of the emails with the intent to keep them from availability in an investigation. Also, the case law requires that the emails actually be destroyed and not just moved from one folder to another.
18 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.
Importantly, 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?
Irving 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”?
From 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.
In 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.