In what must be great news for ACORN, the filmmaker that was responsible for the recent controversy has been arrested in a bizarre effort to bug the offices of U.S. Senator Mary Landrieu. Filmmaker James O’Keefe (shown left) was reportedly arrested with other individuals in the Hale Boggs Federal Building in downtown New Orleans. Also arrested were Joseph Basel, 24, Stan Dai , 24, and Robert Flanagan, 24. Notably, Flanagan is the son of the Acting United States Attorney for the Western District of Louisiana. I discussed the story on the Countdown segment below. O’Keefe previously dressed as a pimp to implicate Acorn in a videotaped interview.
The men reportedly entered the federal building at 500 Poydras Street about 11 a.m. Monday, dressed as telephone company employees, wearing jeans, fluorescent green vests, tool belts, and hard hats. O’Keefe reportedly was videotaping the operation with his cellphone.
This is a very serious violation for all involved. This is a terribly sad day for William J. Flanagan, who I doubt had any knowledge or hint of this activity.
I cannot imagine anything quite as stupid as this operation. Whatever credibility O’Keefe had with conservatives just evaporated with any future that he had. Even the sponsor of a resolution praising O’Keefe seems to be moving to distance himself from the filmmaker, here. One organization has already canceled a keynote by O’Keefe, here.
It is hard to imagine an obvious defense, though all of the facts are not yet disclosed. There is a host of differences between a stunt in an Acorn office and this alleged stunt in a senatorial office.
They have been charged with entering federal property under false pretenses with the intent of committing a felony. However, that is likely only the first charge. There are a host of additional charges, particularly if the prosecutor support the widespread speculation of an alleged conspiracy to wiretap the office of a federal official. It is not clear if the authorities confirmed an effort to wiretap or found such equipment — as opposed to another prank-like video. Moreover, I would expect other possible arrests. Usually there are other individuals with knowledge of such a boneheaded plan. As for Flannagan’s father, he is in Shreveport and thus not necessarily involved in any official capacity. Obviously, he will be insulated from any role in any investigation under standard procedures for conflicts.
The men appear charged under 18 U.S.C. § 1036, “Entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport or seaport.” This provision states:
Whoever, by any fraud or false pretense, enters or attempts to enter–
(1) any real property belonging in whole or in part to, or leased by, the United States;
(2) any vessel or aircraft belonging in whole or in part to, or leased by, the United States;
(3) any secure or restricted area of any seaport, designated as secure in an approved security plan, as required under section 70103 of title 46, United States Code, and the rules and regulations promulgated under that section; or
(4) any secure area of any airport,
shall be punished as provided in subsection (b) of this section.
(b) The punishment for an offense under subsection (a) of this section is–
(1) a fine under this title or imprisonment for not more than 10 years, or both, if the offense is committed with the intent to commit a felony; or
(2) a fine under this title or imprisonment for not more than 6 months, or both, in any other case.
(c) As used in this section–
(1) the term “secure area” means an area access to which is restricted by the airport authority, captain of the seaport, or a public agency; and
(2) the term “airport” has the meaning given such term in section 47102 of title 49.
The affidavit refers to an intent to interfere with the telephone system. It does not refer to finding surveillance equipment while it does refer to an effort to gain access to the main control board for the telephone system. It also indicates that two of the suspects already made incriminating statements.
A number of possible charges are possible depending on how the evidence unfolds.
First, there is “the prosecutor’s darling” conspiracy under 18 U.S.C. 371, which makes it is a crime for “two or more persons [to] conspire … to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.” There are roughly twenty other conspiracy crimes in the federal code in addition to section 371.
Then there is the possibility of electronic surveillance charges from attempted interception to possession of surveillance equipment if such evidence is confirmed. Section 2511 states:
Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or
(i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by sections 2511 (2)(a)(ii), 2511 (2)(b)–(c), 2511(2)(e), 2516, and 2518 of this chapter,
(ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation,
(iii) having obtained or received the information in connection with a criminal investigation, and
(iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation,
shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
Section 2512 deals directly with any electronic surveillance device:
(1) Except as otherwise specifically provided in this chapter, any person who intentionally –
* (a) sends through the mail, or sends or carries in interstate or foreign commerce, any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications;
* (b) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce;
Depending on who they spoke to in the course of this day, they could also conceivably face charges under 18 U.S.C. 1001, in giving false information to federal officers. The provision:
(a) Except as otherwise provided in this section, whoever, in any
matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States, knowingly
and willfully –
(1) falsifies, conceals, or covers up by any trick, scheme, or
device a material fact;
(2) makes any materially false, fictitious, or fraudulent
statement or representation; or
(3) makes or uses any false writing or document knowing the
same to contain any materially false, fictitious, or fraudulent
statement or entry;
shall be fined under this title, imprisoned not more than 5 years
or, if the offense involves international or domestic terrorism (as
defined in section 2331), imprisoned not more than 8 years, or
both. If the matter relates to an offense under chapter 109A, 109B,
110, or 117, or section 1591, then the term of imprisonment imposed
under this section shall be not more than 8 years.
For the original affidavit, click here.