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Re: On the crime bill and remailers
- To: [email protected]
- Subject: Re: On the crime bill and remailers
- From: [email protected] (Anonymous)
- Date: Tue, 20 Sep 1994 13:22:51 -0700
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>From: Black Unicorn <[email protected]>
>Subject: Re: On the crime bill and remailers
>Anonymous must be a Baker & Botts associate.
Now that's funny.
>> 1) The act does not make it a per se offense to have a remailer.
Below it is asked whether this is assertion or assumption. Neither. It
is obvious. If the act wished to make running a remailer a per se offense
it would simply say so. It doesn't say anything like that.
[...much deleted. Time preses and this is unpaid...e$ anyone?...]
>Instead you might ask how the statute will be read in the context of the
>differing language between the investigation threshold requirement and
>the definition of offense. Why would one mention intent so explicitly
>and the other ignore it? Did congress anticipate the difficulty of
>showing intent in this type of prosecution and structure the act
>accordingly? This would be my argument as a prosecuter.
This argument is not frivolous. But I doubt it would work, particularly
since the counterweight is constitutional due process.
>> 3b) Query: why would it be a violation of due process to
>> have a ban on unknowingly aiding terrorists in the manner Mr. Unicorn
>> wishes to read the satute?
>Ah, but the counter to this arguement (obviously structured well into the
>statute) is that there will never be any investigation into the offense
>without resonable facts to suggest intent. (This is the killjoy to the
>due process arguement.)
This won't work either. First, it is not "obviously structured well into
the" badly drafted statute. Second, a limit on investigations does not in
this world of police and prosecutorial discretion operate as a meaningful,
or even mesurable, limit on prosecutions. Suppose the police get
information in the course of a separeate investigation? Suppose they are
following Carlos and see him go into your resturant?
>You rely on the construction tending to constitutionality here, but it is
>equally valid to construct the statute as meeting the due process
>requirement via the investagatory intent requirement. This was my entire
I disagree completely. See above.
>point. Given the difference in the requirements between allowing
>investigation and definition of offense, there is a basic imbalance in
>the act. Why? Accident, poor drafting? Intent?
Neither. A guess, and only that: the investigation limit (which I would
argue is uneforceable) is intended as a signal to cops/sop to civil
libertarrians that the act should not start witch hunts.
>> N.B. these problems could be cured, and due process observed, by finding a
>> duty to make enquiry or imputing a negligence standard of some sort, but
>> we do not see any hint of this in the statute.
>Exactly. So why are they not? Why is this never mentioned. I can only
stupid drafters is the most likely explanation
>believe that the structure of the statute is intended to provide this
>arguement as a loophole. I'm not paranoid enough to want to claim that
>this is to peg remailer operators specifically, (duh) but what are the
>implications for a very soft offense definition in a federal crime bill?
Standard operating procedure these days. Hmmm...maybe a literal-minded
court is not so bad?
>> Ratzlaf v. United States,
>> 114 S.Ct. 655 (1994) [summary quoted below], in which the Supreme
>> Court imputed a scienter requirement into a money laundering
>> statute which on its face required no such scienter at all.
>I have not had time to look at 31 USC 5324(3) in detail with reference to
>this problem. Nor have I looked at the case. At first glance it looks
>promising, but I remain a skeptic. It is too tempting to use the
>language in the investigatory intent requirement to dismiss the
>arguements you make.
I disagree. Intent from investigation won't cure the due process problem.
Intent -- at a minimum in the sense of knowingly committing the act of
aiding a terrorist, not necessarily in the sense of knowing that it is
illegal to do so -- must be read into the offence itself. Only a very,
very clear statutory command to the contrary would suffice to avoid this
reading -- and then we have pretty much created a per se offense of
running an open remailer since it is impossible to know who you are
I might add that I believe it would be a violation of the First Amendment
to make running a remailer a per se offense, but that's not required for
>> SYLLABUS: >
>> time it is called into play. Because currency structuring is not
>> inevitably nefarious, this Court is unpersuaded by the United
>> States' argument that structuring is so obviously "evil" or
>> inherently "bad" that the "willfulness" requirement is satisfied
>> irrespective of the defendant's knowledge of the illegality of
>In any event, this is the real key here. What do you think a judge will
>find encrypted remailing rates on the "nefarious" scale? In context I
>think it will be quite harsh. Especially given the very nature of the
Given the importance of money laundering to drug deals, and the 1st
Amendment aspect of remailing, I rate it at least a tie or better.
Since we are now being civil, I should note that the Ratzlaf case has been
criticized by almost every commentator as wrongly -- even insanely --
decided, and I tend to agree with the critiques. Nevertheless, the
decision is of a piece with other odd, hyper literal, statutory
construction cases in the past two years and the odds are it will be