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A Good Setback for RICO

I have serious problems with the 1970's Racketeer Influenced and Corrupt Organizations Act (RICO). It started as an attempt to go after Mafia kingpins who often were careful never to personally take part in crimes. The federal government felt that the rules of evidence were too strict at the time, so the theory of conspiracy was used as RICO's foundation. But you need no direct evidence (i.e. witnesses, hard evidence, etc.). If a prosecutor could prove that someone knew about criminal activities committed on his/her behalf, then they were as guilty as the person(s) who committed the crimes. In order to successfully argue that, the prosecution was required to prove facts in court known as "predicate acts". They theory was that you could add up the predicate acts to show that the indicted was, in fact, knowledgeable and responsible. This would enable the government to convict Mafia kingpins for the crimes of their organizations without a direct "smoking gun", rather than going after them for things like tax evasion (which was how Al Capone got nailed).

RICO statutes also include such things as treble damages, in which a successful RICO prosecution would automatically triple any applicable fines. RICO lawsuits are also incredibly expensive to defend, and raises the value of circumstantial evidence to new heights.

RICO has evolved from a somewhat useful law to a law that is being widely abused. Since litigants can be sued under civil RICO statutes, often those suits are filed against people who cannot afford to defend them, in an effort to bankrupt them.

And even criminal RICO prosecutions have jumped the shark. A few years ago the Mayor of Providence, Buddy Cianci, was convicted under RICO. Several other defendants were convicted as well. There was no doubt that crimes were committed - the feds had those crimes on tape. But they had nothing hard on Cianci other than the fact that his subordinates committed crimes. The RICO case against Cianci went forward with the prosecutors alleging over a dozen predicate acts, necessary to convict under RICO. Then the unthinkable happened - Cianci was found innocent of all of the predicate acts, but was found guilty of RICO conspiracy! I thought predicate acts were necessary for a RICO conviction! I know an awful lot about this case for various reasons, which include the fact that one of the jurors was a childhood friend of mine. In deliberations, the jury acknowledged that Cianci was innocent of all of the predicate acts alleged by the government, but (and here's was the kicker for me) he had to have known about what was happening! Not that he knew, but that he had to have known. Trust me, the jurors had no evidence offered in court at the trial that Cianci was guilty RICO. Cianci was convicted by jurors using nebulous and legally undefined "feelings", not facts!

So a mayor was thrown out of office after being found innocent of everything the government alleged that he had done, because a jury "felt" that Cianci "had" to have known about and controlled the conduct. Think about that for a second. This means that in a prosecution, the government doesn't have to prove anything anymore. They just have to make a jury, in absence of any hard facts, "think" that someone was responsible. That's the area of fiction writers, not criminal prosecutions. I'd be able to live with Cianci's conviction if he had been found guilty of even one of the predicate acts. But none!

RICO has been abused on a civil level as well. 19 years ago the National Organization for Women brought a lawsuit under RICO and the Hobbs Act against anti-abortion protesters. It was a transparent attempt to intimidate and bankrupt several prominent anti-abortion activists. NOW found a friendly venue, and initially succeeded. It bounced around on appeal for a few years, but today the Supreme Court ruled unanimously (sans Alito, who hadn't heard the case) that this was a misapplication of RICO and Hobbs.

I hope that NOW has to pay damages. And it is time (actually far past time) to rewrite RICO and Hobbs so that these kinds of abuses can never happen again.

Hillary Clinton - Priceless!

I look forward to Hillary Clinton being the Democrat's Presidential nominee in 2008. She is going to provide more fodder for pundits and comedians than we've ever seen before. She makes Richard Nixon look warm, fuzzy, and honest. And she just can't resist her nature. All one will have to do to defeat Hillary is make commercials consisting entirely of her own statements. And please, don't take them out of context. They're not as funny that way. Here's the latest example reported by John Fund, courtesy of OpinionJournal.com's Political Diary:

"Swillary

Senator Hillary Clinton was on the warpath last week against school vouchers, warning an economic development conference in the Bronx that vouchers could encourage the creation of taxpayer-funded white supremacist schools -- or even a "School of the Jihad."

"First family that comes and says 'I want to send my daughter to St. Peter's Roman Catholic School' and you say 'Great, wonderful school, here's your voucher,'" Mrs. Clinton said. "Next parent that comes and says, 'I want to send my child to the school of the Church of the White Supremacist...' The parent says, 'The way that I read Genesis, Cain was marked, therefore I believe in white supremacy... You gave it to a Catholic parent, you gave it to a Jewish parent, under the Constitution, you can't discriminate against me.'"

The former First Lady went on to speculate about "what [happens] if the next parent comes and says, 'I want to send my child to the School of the Jihad?'" Declared Mrs. Clinton: "I won't stand for it."

This is absurdist demagoguery. Federal law prohibits the transfer of any funds to organizations that advocate hatred or violence against any group. Beyond that, federal Pell grants have long financed college students at many private and religious schools with little controversy. Last time anyone checked, none of the money had gone to colleges advocating white supremacy, though admittedly some schools do harbor some incredibly narrow-minded liberal faculty.

Senator Clinton is running for re-election this year and obviously feels the need to butter up her teacher union allies. But the depths to which she is willing to sink in attacking vouchers were distasteful and excessive even to some in her Bronx audience, two of whom called a local talk show afterwards to express their displeasure with the senator. One even dared to point out that Mrs. Clinton had sent her own daughter to an elite Washington private school, "but now she says we can only have choice if we have the kind of money she does.""

Not only that, the schools eligible for vouchers will have to be accredited locally. That means the curriculum must be approved. These vouchers aren't going to be used to send kids to Saudi-funded madrasses (don't even get me started on those). This isn't quite Hillary's "plantation" moment, but it's close.

And this might be appreciated by the teachers unions, but she already has their votes. The vast majority of the public who support vouchers are the poor, especially the black poor. A smart opponent could turn this back on Hillary rather quickly.

John J. Paquet, RIP

We lost another dear relative on Sunday. John Paquet, who was the husband of my Dad's first cousin, Ellen Fahey, died from cancer on Sunday, February 26th. John was like another uncle to us. He was inspiring. John suffered from M.S. for decades, and also had heart problems. He had a knee replaced about 9 months ago. John beat cancer several times recently, but about two weeks ago he couldn't get out of bed. He was taken to a hospital, where scans revealed that the cancer was back with a vengeance. John went into hospice, and died peacefully, alert until the end. Ironically, the last time we saw his kids was at my Dad's wake and funeral six weeks ago. Unfortunately, John was unable to attend because he was wasn't quite yet able to safely leave where he was staying. His mood at the time was frustrated that he was still immobile and unable to get out, but we didn't have a clue that the end was near. Like my Dad, John had literally beaten death so many times that you just felt he was always going to be there.

He was one of the nicest guys I have ever met. He had a deep, rolling voice and a great laugh. When we were young he would call us kids every Christmas Eve pretending to be Santa Claus. He's first ask us if we had been good, and then asked us what we wanted. It remains one of my best memories from my childhood. His wife died many years ago, also from cancer. He leaves some terrific kids and grandkids - his daughter Vanessa just had a baby girl!

I'm sure my John, my Dad, and all of our relatives are having quite a time up in heaven right now!

                                                                           

PAQUET, JOHN J., 77, of Greenbrier Road, Narragansett, and formerly of Crestwood Road, Warwick, died on Sunday, February 26, at the Philip Hulitar Hospice Inpatient Center in Providence. He was the husband of the late Ellen (Fahey) Paquet.

Born in Fall River, MA, a son of the late Joseph E. and Elizabeth (Madden) Paquet, he lived in Warwick before moving to Narragansett 8 years ago.

He received his bachelors and masters degrees from Rhode Island College. Mr. Paquet was an educator in the Warwick Public Schools for over 30 years, as a teacher of foreign languages, and as a vice-principal at Lockwood Junior High School and Warwick Veterans Memorial High School. He retired in 1990. He was a member of the Wildlife Conservation Society and Save the Bay, and an active parishoner at St. Gregory the Great Church in Warwick for many years.

He is survived by three sons, John J. Paquet, Jr. of West Warwick, Eric M. Paquet of Coventry, and Owen M. Paquet of Warwick; a daughter, Vanessa E. Strain of Warwick; a brother, William Paquet of Narragansett; and nine grandchildren.

His funeral will be held on Thursday, March 2, at 8:15 a.m. from the Peter J. Barrett Funeral Home, 1328 Warwick Avenue, Spring Green, Warwick, with a Mass of Christian Burial at 9:30 a.m. in St. Gregory the Great Church, Cowesett Road, Warwick. Visiting hours are Wednesday 4-7 p.m. Burial will be in St. Joseph Cemetery, West Greenwich. In lieu of flowers, contributions in his memory may be made to Home & Hospice Care of RI, 169 George St., Pawtucket, RI 02860.

God bless and Godspeed, John...

Funny Food Line...

Among the sites I regularly visit is Jane in Progress , which is the new name of Jane Espenson's web-blog. She's a TV writer and producer, having penned scripts for Buffy, Angel, Tru Calling, Firefly, and the Gilmore Girls. She's one of the smartest writers around - I love her work. Her blog is like a daily script writing class - very interesting. And she includes, at the end of each post, a description of her lunch that day. Here's her description of yesterday's:

"LUNCH: Went to a Greek street fair thing. Lamb! Innocent and delicious!"

I intend to use that line to torture my vegan friends! Thanks Jane!

Movies for Injured and Hospitalized Soldiers...

K-Lo just posted this on NRO from Jim Robbins. Sounds like a pretty good program to me:

"The Greater Washington Chapter of the Surface Navy Association is requesting contributions of recently released movies on DVD to be delivered to the Navy National Medical Center at Bethesda, Maryland, for the entertainment of Sailors and Marines who are recovering there from injuries received during their military service.
Please send movies by 9 March to:

Surface Navy Association

Greater Washington Chapter

c/o Captain Edward H. Lundquist, USN (Ret.)

Anteon Corporation CSSO

1100 New Jersey Ave., SE, Suite 200

Washington, DC 20003

(POC phone number for deliveries: Chris Criscuolo, 202-756-7344"

More Fitzgerald Follies...

As readers of this blog know, I was satisfied with the selection of Patrick Fitzgerald as the special prosecutor for Plamaquiddick. Looking at his record, I felt that he was a straight shooter that would not be swayed by politics. When Libby was indited, I was furious at Libby for apparently lying under oath. One of my cardinal rules is never, ever lie to police, the feds, etc. It is central to our justice system that people tell the truth to investigators. If they don't, send them to jail.

But I was dismayed at Fitzgerald's press conference to announce the indictment. I felt that he was unfairly showboating, and insinuating an awful lot of stuff that wasn't in the indictment. It has gotten worse since then. This was an investigation that we, the taxpayers, paid for into "outing" an undercover CIA operative. Prosecute Libby for lying, sure, but tell us if there was any underlying crime there. Byron York over at NRO has done some of the best reporting on this story, and I recently e-mailed a question for him about this. It was also directed at NRO's Andy McCarthy, who prosecuted cases with Fitzgerald in the past and on whose opinion I based much of my comfort with Fitzgerald (my comment on the "unconstitutional" argument relates to an argument that Libby's lawyers raised in a filing last week - I don't think that it will work, obviously):

"Hi Byron,

I like Andy McCarthy alot, and read what he puts out almost as 'gospel'. One of the reasons I was comfortable with the fairness and professionalism of Fitzgerald was because of Andy's prior relationship with him. But I find it odd, with everything that's come up with Fitzgerald (Woodward, failure to show whether or not Plame was classified or cover or neither, if National Security damage was done, Fitzgerald's recent filings vs the indictment and Fitzgerald's press conference), Andy chooses an obviously out-of-left-field/"throw everything but the kitchen sink at them" legal maneuver such as the "unconstitutional" argument to comment on, which obviously will fail.

I'd much rather hear Andy's opinion on the other things you have raised. Or I'd at least like him to come out and say he can't comment. But his silence on the other issues is deafening!

As I've said before, I believe that the taxpayers are paying Fitzgerald to find out if Plame was "outed", and if she was, whether or not it damaged national security. I appreciate Fitzgerald going after Libby for lying under oath. I'm not an apologist - if Libby (a lawyer) was stupid enough to lie under oath, he should pay the price (a few months in prison is a good place to start). But Fitzgerald's job wasn't to set up people to catch then lying under oath. His job was to find out if damage was done to national security by the outing of a covert CIA agent. We deserve, and as taxpayers are owed, the answer. Does Andy agree? If not, why?

You can forward this to Andy if you'd like."

I haven't heard back from either Byron or Andy, but Byron put up an article on NRO called A CIA Leak Trial Without the CIA Leak. I guess Fitzgerald isn't planning on telling us if Plame was undercover or not, or if any damage was done to our nation's security:

"CIA leak prosecutor Patrick Fitzgerald argued at a hearing Friday that, as far as the perjury charges against former Cheney chief of staff Lewis Libby are concerned, it does not matter whether or not Valerie Wilson was a covert CIA agent when she was mentioned in the famous Robert Novak column of July 14, 2003. "We're trying a perjury case," Fitzgerald told Judge Reggie Walton. Even if Plame had never worked for the CIA at all, Fitzgerald continued — even if she had been simply mistaken for a CIA agent — the charges against Libby would still stand. In addition, Fitzgerald said, he does not intend to offer "any proof of actual damage" caused by the disclosure of Wilson's identity."

In fact, Fitzgerald is even trying not to make public the initial referral to the Justice Department from the CIA that started this investigation. This gets stranger and stranger:

"One document that might shed light on the situation is the referral sent by the CIA to the Justice Department after the publication of the Novak column. Libby's lawyers have asked for it, but Fitzgerald is refusing that request, too. On Friday, Fitzgerald said he would address the subject later in his sealed filing. But in a letter to the Libby team last Tuesday, Fitzgerald's deputy, Kathleen Kedian, said the special prosecutor will not give up the referral — and that Libby simply did not need to know what was in it. "After consultation with the CIA, we advise that we view any such documents in our possession as not discoverable," Kedian wrote. "The documents remain classified and contain information compiled for law enforcement purposes that is neither material to the preparation of the defense, nor exculpatory as to Mr. Libby."

In the end, the judge decided to put off a ruling on the issue until after Fitzgerald files his sealed document, and after Libby's lawyers have a chance to respond to it. What Walton will ultimately decide is unclear. But it is clear what Fitzgerald wants: a CIA leak trial in which the defense is forbidden from learning some critical facts about the CIA leak."

Shouldn't Libby's lawyers be the ones that decide if the referral is exculpatory or not, not the prosecutor?

Arlen Specter in a Scandal? No!

Speaking of the ports, Arlen Specter paid back a campaign contributor by using an earmark to insert a pet project that wasn't wanted or needed in an emergency spending bill last year. John Fund has the sordid details in today's OpinionJournal.com's Political Diary:

"Port Barrel

Here may be a reason why Senator John McCain has been so conspicuously absent from the hysteria over the proposed takeover of management of U.S. ports by Dubai Ports World. He may understand how deeply embedded corruption and featherbedding practices have become as a way of life at our existing port facilities. Perhaps a new management firm might shake things up, save money and perhaps even enhance security.

As blogger Chuck Muth reports, Mr. McCain and Oklahoma Senator Tom Coburn last April launched an unsuccessful attempt to block an infamous pork-barrel "earmark" pushed by Senator Arlen Specter. Mr. Specter wanted to ensure that $40 million in federal funds would be used to develop a new port in Philadelphia, along with "high-speed, advanced design vessels" for the U.S. Navy. Mr. Specter insisted that a provision be attached to a 312-page emergency spending bill requiring that the grant "be used solely... by and for a Philadelphia-based company." The wording meant that the money would effectively only go to FastShip Inc., a Philadelphia firm that had doled out $8,500 to Mr. Specter's last re-election campaign.

Mr. McCain told his fellow senators that he and Mr. Specter had been in a meeting with the Secretary of the Navy to discuss the FastShip issue. He added that he had been very proud of the Navy chief "because unequivocally the Secretary of the Navy said: 'No, we do not want this money, we do not have the technology, we do not have the design for this, this is not one of our requirements, and we do not want to spend $40 million in this fashion.'" Mr. McCain added, "It was as strong a statement as I have ever heard from the Secretary of the Navy. This is basically a $40 million giveaway of the taxpayers' dollars to a private corporation."

Senator Coburn spoke out too. "I believe this is the wrong way we should be doing things," he told the Senate. "Our future depends on the integrity of a budgeting and appropriations process that is not based on politics but is based on having the future best will for our country."

Of course, it's essential that we beef up security at our nation's ports. But the Dubai Ports World issue should also open a discussion of exactly how and why our ports are being run so often as a playpen by the scandal-tarred Longshoremen's Union and greedy contractors seeking federal handouts under a false banner of national security."

When Did We First Learn of the Dubai Ports Deal?

The politicians and the media would like you to believe that the P&O sale to Dubai Ports World was sprung on them from left field. Well, the story first was reported by the Financial Times and the Wall Street Journal in October 2005. That's when P&O and Dubai Ports first started serious due diligence. If there were concerns, politicians could have involved themselves in the deal by voicing there concerns last fall.

Also not being reported is the fact that there are very few companies interested in bidding for major port operations. All of them, save one, are located outside the United States. Most of them don't want to deal with port operations because of the involvement of the corrupt Longshoreman's Union.

The one US company that could run the ports, and thus supposedly calm the security fears of the media and the politicians?

Halliburton!

This Makes Me Feel Really Good...

Missed this when it came out about a week ago. Iran's Foreign Minister Manouchehr Mottaki met with Hamas leader Khaled Mashal in Tehran last Tuesday. Iran and Hamas have both called for the immediate destruction of Israel. And here's what Mashal said about Iran's future involvement with Palestine"

""With respect to the challenges that we have ahead of us, Iran's role in the future of Palestine should continue and increase," Meshal said in a joint press conference in Tehran with Iranian Foreign Minister Manouchehr Mottaki."

Iran has promised to fund Hamas in light of the West's desire to withhold funding until Hamas agrees to Israel's right to exist and renounces (and actively works against) terrorism. Iran plays the "angel" role here, attempting to portray itself as coming to the aid of the Palestinians. In reality, Hamas has always received terrorist funding and training from Iran (although not as much as Hezbollah) and will continue to do so regardless of the West's participation in funding the Palestinians.

It is helpful when your enemies are no longer hiding behind diplomacy. But this is still scary, nonetheless. I fear for Israel.

Here's the Council on Foreign Relations' FAQ on the P&O Sale

In the interest of quickly getting the facts out and ignoring the MSM (who won't tell you the facts anyway) here's the FAQ on the P&O sale to Dubai Ports World from the Council on Foreign Relations' website:

"Introduction

Dubai Ports World (DP World), a United Arab Emirates (UAE)-owned company, recently bought the British-owned Peninsular and Oriental Steam Navigation Company (P&O). Effective March 2, the purchase gives Dubai Ports World control over facilities in six U.S. ports: New York, Miami, Newark-Port Elizabeth, Philadelphia, New Orleans, and Baltimore. Politicians in affected states and cities have raised alarms in the media over vital infrastructure "falling into Arab hands." Others in Washington are questioning the Bush administration's quick approval of the sale and are working with local officials to block the takeover through legal and legislative channels.

What is the primary objection critics cite?

Critics point to the fact that two of the 9/11 hijackers were from the UAE and that the emirate was used as a financial and operational hub by al-Qaeda. Some say the UAE-owned company operating portions of U.S. ports could provide a link for terrorists to transport operatives and/or weapons into the United States.
Congressman Peter King (R-NY), chairman of the House Homeland Security Committee, told the Associated Press federal approval of the sale was focused on how the "company carries out its procedures, but it doesn't go to who they hire, or how they hire people. They don't address the underlying conditions, which is how are they going to guard against things like infiltration by al-Qaeda or someone else; how are they going to guard against corruption?"

Does foreign ownership of terminals make ports more vulnerable?

Not really, experts say. The UAE is considered a U.S. ally in the "war on terror," and many experts see the fact that the 9/11 hijackers used the UAE as a hub are irrelevant. As Stephen Flynn, CFR's Jeane J. Kirkpatrick Senior Fellow for National Security Studies, points out, shoe-bomber Richard Reid was a British citizen, yet no objections were raised over the U.S. operations of P&O, a British company. Senators Hillary Rodham Clinton (D-NY) and Robert Menendez (D-NJ) have indicated they will propose legislation banning the sale of terminal operations at U.S. ports to foreign entities. But the majority of port terminals across the country are foreign-run. For instance, more than 80 percent of the terminals in the largest U.S. port, the port of Los Angeles, are operated by foreign companies. Representative King's objections over internal workings of DP World are more reasonable, experts say, but the same concerns could be raised over most other shipping companies, U.S.- and foreign-owned alike.

Who runs DP World?

The company is a state-owned entity of the UAE, a Persian Gulf monarchy. Yet many of its senior leaders are Americans, including the Chief Operating Officer Edward "Ted" H. Bilkey, who was sent to Washington to assuage fears over the company’s recent acquisition. A former DP World executive, David Sanborn, was recently nominated by the Bush administration to be the U.S. Maritime Administrator. With the $6.8 billion purchase of P&O, DP World is now the third-largest port-operator in the world.

Was there any government oversight of the sale?

The Bush administration signed off on the February 13 sale of P&O to DP World only after unanimous approval by the Committee on Foreign Investments in the United States, a twelve-member, interagency body that evaluates the security implications of such transactions. Calls from lawmakers to reconsider the approval have come after the thirty-day period to raise objections had expired.

What’s the significance of a foreign company operating terminals in a U.S. port?

While foreign and U.S. companies are able to lease terminals in American ports, the ports remain publicly owned. Each company is responsible for moving ships and goods in and out of their terminal, and may even hire a private security firm, but the U.S. Customs and Border Protection remains responsible for checking the cargo and the U.S. Coast Guard is charged with overseeing security. These responsibilities are mandated by the Maritime Transportation Security Act of 2002. An analogous relationship may be seen in U.S. airports, where foreign airlines may lease a terminal, but the U.S. Transportation Security Administration is responsible for security.

Which nationality will the workers be at the ports in question?

The workers who load and unload cargo from ships at U.S. ports are represented by the International Longshoremen's Association (ILA), a powerful union that deals with shipping companies directly. Experts say shipping companies are often unaware of which workers will be present; this is controlled by union leaders, who tend to be Americans. While not as highly organized as the dock workers, experts say most private security personnel and shipping company staff at U.S. ports are also likely to be U.S. citizens.

What are some other security concerns at U.S. ports?

The greatest security concern is the estimated 9 million containers that enter U.S. ports every year. The volume is so vast, that only a small percentage of these containers can be effectively searched, Flynn says. In many ports from which U.S.-bound cargo originates, there is little security oversight, which makes it possible to fill a container with people or weapons intended to harm the United States. The gravest concern is that terrorists could smuggle a weapon of mass destruction into the United States in an unchecked container. Another growing concern is the vulnerability of shipments of liquefied natural gas—an increasingly important energy source—to terrorist attacks while in U.S. harbors.

Why are the majority of U.S. ports operated by foreign companies?

Operation of a port terminal is first and foremost “a commercial activity,” says Chuck Carroll, executive director of the National Association of Waterfront Employers. Foreign companies wish to control terminals so they can better serve their clients. “They want to control the terminal business for their customer relations,” Carroll says.
What sets the DP World apart from other foreign companies controlling terminals at U.S.ports is that DP World is state owned. According to Carroll, the only other state-owned shipping company to have leased a U.S.port terminal is the Singaporean company Neptune Orient Lines.

Have there been other objections to foreign ownership of U.S. resources?

Yes. Most recently, Congress blocked the sale of Unocal, a U.S. energy company, to CNOOC, a Chinese company. In 1999, much uproar was caused when Hutchison Whampoa, another Chinese company, signed a lease giving them control of the shipping yards that line the Panama Canal."