Comments on: Marine Biologist Faces 20 Years For Feeding Whales

By: anon

anon — Thu, 12 Apr 2012 16:22:18 +0000

And now it’s not available again.

Available. Not Available. Available. Not Available.

MOM, the WSJ is trolling me again, make htem stop!

By: anon

anon — Thu, 12 Apr 2012 09:21:46 +0000

Not sure why, but the article appears to be available (at the moment) here:

For Feds, ‘Lying’ Is a Handy Charge

MONTEREY, Calif.—When federal prosecutors can’t muster enough evidence to bring charges against a person suspected of a crime, they can still use a controversial law to get a conviction anyway: They charge the person with lying.

The law against lying—known in legal circles simply as “1001″—makes it a crime to knowingly make a material false statement in matters of federal jurisdiction. Critics across the political spectrum argue that 1001, a widely used statute in the federal criminal code, is open to abuse. It is charged hundreds of times a year, according to court records and interviews with lawyers and legal scholars.Nancy Black, a marine biologist and operator of whale-watching boats, recently became ensnared by 1001. When one of her boat captains whistled at a humpback whale that approached the boat a few years ago, regulators investigated whether the incident constituted harassment of a whale, which is illegal.

This past January, Ms. Black was charged in the case—not with whale harassment, but with lying about the incident. She also faces a charge of illegally altering a video of the whale encounter, as well as unrelated allegations involving whale blubber. Together, the charges carry up to 20 years in prison.

She denies all wrongdoing, including lying. “I wasn’t charged with anything about the dealings with the humpback,” says Ms. Black, 49 years old. “So why would they charge me with lying about it? It makes no sense.”

A Justice Department spokesman declined to comment.The law against lying, officially Title 18, section 1001 of the United States Code, is “a bread-and-butter” statute for Justice Department prosecutors, says Thomas O’Brien, the former U.S. Attorney in Los Angeles. The law’s breadth makes it useful for nabbing wrongdoers, particularly in cases where suspected crimes are complex and tough to prove, he says.

For instance, supporters of 1001 say, the law can be useful in financial or accounting-fraud cases where catching a suspect in a lie that could carry a prison sentence can be a powerful tool for enlisting that person’s cooperation in unraveling the broader crime.

As the U.S. federal criminal code has grown increasingly large and complicated, critics from the left and right alike argue it is becoming too easy for Americans to unwittingly commit crimes.

Nobody argues that telling a falsehood to Uncle Sam is either wise or admirable, but some say 1001 is overly broad. “There is no statute out there that’s more pernicious,” says Stephen Saltzburg, a former senior Justice Department official and now a law professor at George Washington University.

He says the law is so vague that harmless misstatements can be turned into federal felonies. A person can be charged even if the lie didn’t really fool anyone, or if the person didn’t know the criminal consequences of fibbing, some critics point out.

By contrast, Mr. O’Brien says that in his experience local authorities rarely prosecute someone for lying, and when they do it is generally treated as a misdemeanor

While 1001 helps nab guilty parties, it can also be a trap “for innocent people to fall into,” said Rep. Louie Gohmert (R., Texas), in an interview. Rep. Gohmert, a critic of the federal justice system’s expansion, said he hopes to put new limits on the statute in a criminal-reform bill pending in the House.

Statute 1001′s precursor, the False Claims Act of 1863, had a relatively narrow focus: It was intended to punish contractors and suppliers who were defrauding the government during the Civil War.

Over the next 135 years, Congress significantly increased the reach of federal law regarding falsehoods. By 1998, courts around the country carved out an exception—known as the “exculpatory no”—aimed at blocking prosecution of a person who denied (falsely) being involved in wrongdoing. The exception was at least partly inspired by the Constitution’s protection against self-incrimination.

But in 1998, the Supreme Court threw out the exculpatory no, saying the law as written by Congress didn’t allow for an exception. While some false-statement prosecutions might seem “harsh,” Justice Antonin Scalia wrote, “courts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so.”

Justice Ruth Bader Ginsburg, in a separate opinion, worried about “the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes” out of false statements.

,,,

By: anon

anon — Tue, 10 Apr 2012 06:42:08 +0000

The Wall Street Journal has a new story about this detailing what they appear to consider egregious abuses by the prosecutors, first by accusing her (by way of her captain) of harassing whales by whistling, second by going Martha Stewart on her and not being satisfied with the video she turned over, but accusing her of editing it, maliciously, to deceive them, instead of accepting her admission and explanation that she turned over what they asked of her, the specific video of the captain whistling.

I say “appear” because the majority of the article is behind a pay wall, but you can read Amy Alkon’s excerpt here:

Meet The Legally Allowed Mob: Your Government

John R. Emshwiller and Gary Fields write for the WSJ about a woman’s story I’ve blogged about before — marine biologist and whale-watching boat operator Nancy Black, who was charged with lying to the feds about…”whale harassment.”

When federal prosecutors can’t muster enough evidence to bring charges against a person suspected of a crime, they can still use a controversial law to get a conviction anyway: They charge the person with lying.
The law against lying–known in legal circles simply as “1001″–makes it a crime to knowingly make a material false statement in matters of federal jurisdiction. Critics across the political spectrum argue that 1001, a widely used statute in the federal criminal code, is open to abuse. It is charged hundreds of times a year, according to court records and interviews with lawyers and legal scholars.

…The trouble began in October 2005. During a whale-watching trip, a humpback whale approached one of her boats. The captain began whistling, hoping the noise might keep the creature from leaving, according to Ms. Black. A crewman on her other boat, which Ms. Black was captaining nearby, also urged passengers to make noise, she says. (Neither the captain nor the crewman faces charges.)

The Marine Mammal Protection Act of 1972 outlaws “harassment” of whales that could disrupt their behavioral patterns or injure them. Ms. Black says she doesn’t believe the whistling, or the ships’ closeness to the whales, violated the rules, particularly since the creature had approached on its own.

Ms. Black says she considered the whistling “unprofessional” and told her employees not to do it again. She says the then-wife of her boat captain then went to the government to find out if there was anything wrong with whistling on the boat. The now former captain declined to comment. His ex-wife couldn’t be reached for comment…. more at the link

By: Jim Scarff

Jim Scarff — Thu, 02 Feb 2012 02:39:49 +0000

There are a bunch of factual errors in the article (e.g. there is no such thing as a gray humpback whale) and the comments, though the gist of the story that this is an unnecessary and unwarranted prosecution is correct. The indictment apparently refers to two separate incidents a year apart. One is the video of the humpback close to the boat talked about by her attorney. The other involves a piece of blubber from a gray whale calf that had just been killed by orcas (= killer whales). The best factual account appears in an article yesterday in the Monterey Herald (http://www.montereyherald.com/news/ci_19865751)

By: DigitalDave

DigitalDave — Mon, 09 Jan 2012 19:42:18 +0000

I agree with Roland Darby… Why hasn’t Martha Stewart been charged? Clearly the DA is shielding Martha on this one!

By: gbk

gbk — Mon, 09 Jan 2012 09:48:58 +0000

How does one feed a pod of orcas? Funnel a school of salmon into their maws? Lead a raft of sea lions to their death? Bring a few hundred tons of smelt on the boat?

The article(s) are at best non-descriptive of how this was accomplished yet suggest that the whale blubber the orca pod fed on was the same grey whale that visited the boat, swimming from one side to the other.

There are a lot of details missing in the written accounts which is not surprising as the incident supposedly occured in 2005.

Something is amiss.

By: More stupidity from DOJ…jail for whale researcher | pindanpost

More stupidity from DOJ…jail for whale researcher | pindanpost — Mon, 09 Jan 2012 01:47:44 +0000

[...] Marine Biologist Faces 20 Years For Feeding Whales [...]

By: Marine Biologist Faces 20 Years For Feeding Whales | Cranky Old Crow

Marine Biologist Faces 20 Years For Feeding Whales | Cranky Old Crow — Mon, 09 Jan 2012 00:27:02 +0000

[...] Marine Biologist Faces 20 Years For Feeding Whales [...]

By: pete

pete — Sun, 08 Jan 2012 22:36:58 +0000

maybe she should have dressed like a pimp while editing the video.

By: Otteray Scribe

Otteray Scribe — Sun, 08 Jan 2012 21:30:19 +0000

I have to echo the question posed earlier. Perhaps her work as an environmentalist has somehow threatened the bankers and investors who don’t want her work to go forward.

This story made me think of Diane Fossey, who was murdered as a result of her work trying to protect gorillas. They will stop at nothing to make money.

By: angrymanspeaks

angrymanspeaks — Sun, 08 Jan 2012 21:02:38 +0000

All excellent questions. If we only had some excellent answers.

I did hear a report on NPR the other day.

A Sommali official of some apparent authority explained that the idea of ships hiring armed guards and placing heavy weapons to protect themselves from the Sommali Pirates; Bad Idea says he.

They should not be concerned about defending the ships. They should be worrying about helping to stabilize Sommalia so that they could then stop these Pirates.

I have no comment that would not echoo your own.

By: Mike Spindell

Mike Spindell — Sun, 08 Jan 2012 19:44:34 +0000

Basic facts of case:

Famed marine biologist being prosecuted for violating the Marine Mammal Protection Act by purportedly feeding killer whales.

Juxtaposed with BP oil spill which killed many marine mammals and messed
up the Gulf Coast environmentally.

Biologist faces 20 year jail term.

BP hasn’t even fully paid for the cost of damages inflicted, not to mention that there was no criminal prosecution.

This was Mark’s point, which was a valid one. Anon, however, does not like guest bloggers by his/her own admission and so pounced on the least important facts in the case, in the interest of getting her/his rocks off. Poor
form, badly reasoned and purposeless except as an excuse to discharge bile.

By: Blouise

Blouise — Sun, 08 Jan 2012 19:30:30 +0000

angrymanspeaks,

anon goes after 1 or 2 guest bloggers almost every week. It’s his thing and some of us place private bets on who will get the “anon rectal orifice” award on Sunday morning.

mespo got off pretty easy … usually Elaine and Mike S get the harshest treatment.

blog-smog

By: Blouise

Blouise — Sun, 08 Jan 2012 19:17:27 +0000

“I suspect someone had a political agenda against Black.” (bettykath)

That is highly plausible and should be thoroughly investigated.

By: bettykath

bettykath — Sun, 08 Jan 2012 18:56:29 +0000

I’m not sure there is equal justice at all. When the rich don’t get charged and the poor get charged even if there is no crime, where’s the justice either way? I suspect someone had a political agenda against Black. Just shows my cynicism where our guvm’nt is concerned.

By: 5thGradeChief

5thGradeChief — Sun, 08 Jan 2012 18:54:21 +0000

What is the evidence against the defendant? Whale blubber. Videos of whale blubber. The prosecution does not have the actual whale blubber. Objection: Best evidence rule; Rule 1002 fed rules of evidence. Confrontation clause objection. Bring the whale into court not some hearsay of the whale. And while you are whaling about this offense please explain to the jury just what law was broken, are we talking some law of the sea which the U.S. does not recognize? Why dont we go after pirates off of Somalia when they are in internatinal waters? Inquiring minds in the Fifth Grade want to know.

By: angrymanspeaks

angrymanspeaks — Sun, 08 Jan 2012 18:49:44 +0000

anon,
While it is impossible to disagree that correct facts are important; they don’t alter the salient issue. So yes; a Dick for sure but I again must say that I understand the petty, needling satisfaction one can gain from such behavior. I believe it is usually the result of having no valid point of ones own to promote. It is rude to be sure; but no more so than when a small child loudly points out the large wart on his aunts chin.

Apparently there is no evidence of a crime being committed. The video was apparently edited; a fact Nancy Black has admitted to. She was working with Federal Government personel; using what are from all accounts normal scientific procedures. From the statement of her attourney; she introduced no new food product but used only what was already there by moving it and tying it in place to better be able to carry out her assigned research for the US Government.

As far as who she is. I would think and hope that her career and her reputation for animal care and her history of stellar work would give her testimony some added weight where no physical evidence to the contrary exists.

While true that none of the facts about he and her permit prove that she did not break the law; it would seem to make it less likely;but not impossible, No.

However; as the defendant here has admitted that the tape was edited; unless the prosecution can recreate the lost footage or has some other evidence as yet unrevieled; I don’t see that they have a case.

From the article: http://www.dailymail.co.uk/news/article-2083331/Marine-biologist-Nancy-Black-arrested-charges-abused-whales-feeding-them.html?ito=feeds-newsxml – I don’t see why they are even going to court with it. Of course as i have stated I am no lawyer.

I would appreciate hearing the opinion of one should there be one in the house; Heh; Heh; Heh

As far as the BP Gulf Spill and Lame Response. And their apalling attitude.

I see no way that you can justify a twenty year sentence for Feeding a whale if you do not even attempt to prosecute a person who created such widspread and near purposeful pollution.

They are admittedly two seperate crimes but assuming that all crimes are equal in importance and that we should prosecute each with equal zeal; we are then left to examine the details, results and motive for each crime.

On the one hand we have the case of a respected Marine Biologist who; (we will assume guilt for the purpose of this comparison) in the proccess of performing research work for the Government; fed a whale inappropriately.
There was no harm done to the environment or the whale in question. Her motive was to film the whales feeding for the purpose of her assigned project.

On the other hand we have the case of a Multi-national Corporation who; through a lack of safety precautions and careless maintenace proceedures, along with an under-redundant system to begin with; cause untold death and destruction as well as an economic disaster for hundreds of thousands or millions of people. Extreme levels of pollution.
The motive for this crime? Profit profit. Greed and Profit. And there initial response to the suggestion that they be in some way responsible for recompencing the people and helping to clean up the pollution
“Of course our first consideration must be to our stockholders”

Now you see here we are at the most Salient point of this entire discussion. I wasn’t sure until i got it all down on paper so to speak.

In the beginning you were accused of; well to quote: “it appears you just wanted an excuse to be a dick out in public”.
But here is my point. The fact that you actually did have something substancial to say means that you were just being a dick for no good reason. Ok; I don’t judge.
But when your subtancial statement is anylised as I just di ; it is clear that you were not just being a dick; but were actually hiding a huge flaming Asshole behind that dick.

To even suggest that we as a people should consider prosecuting this scientist and allow the hugely more serious crime committed by a souless, conscienceless corporation to go unpunished is not just ludicrous. It is twisted and and a betrayal of all that we are supposed to stand for.

But as I say: I don’t judge.

By: rafflaw

rafflaw — Sun, 08 Jan 2012 18:16:56 +0000

Mark,
I think the article was not only interesting, but timely. I did understand your point.
Blouisem,
You are right. Equal justice under the law only works if you are wealthy or a corporation these days.

By: Blouise

Blouise — Sun, 08 Jan 2012 18:06:12 +0000

I believe Roland Darby took mespo’s point and ran with it.

And anon … hey, it wouldn’t be Sunday without a typical anon hangover rant.

“Equal justice under the law” and the US Department of Justice … perhaps at one time that had an “apples to apples” validity but those days are long gone.

By: Roland Darby

Roland Darby — Sun, 08 Jan 2012 17:15:56 +0000

I just don’t feel safe while this scientist walks free. I’ve never really felt safe since the government let Martha Stewart free.

By: Anonymously Yours

Anonymously Yours — Sun, 08 Jan 2012 17:06:33 +0000

Elaine,

Now, now….BOA executives did have to get out from under the TARP regulations before they could get bonuses…That should count for something…ROFLOL….not really

By: Elaine M.

Elaine M. — Sun, 08 Jan 2012 17:00:33 +0000

AY,

Not just the mortgage scandal–but the whole financial crisis. These corporate criminals have their companies pay fines for their transgressions–yet they don’t have to admit any guilt for their fraudulent activities. They aren’t required to resign. They don’t get fired. And they keep getting huge salaries and obscene bonuses.

By: Anonymously Yours

Anonymously Yours — Sun, 08 Jan 2012 16:52:07 +0000

Elaine,

When Vital (you define) resources are at stake….money for prosecution is scarce….Then again…who’d thought that they would have one single criminal indictment arising out of the housing mortgage scandal…one state Attorney General did not sign on to it and they were removed from the investigation panel….all’s they the bad guys face are civil charges…

By: Dredd

Dredd — Sun, 08 Jan 2012 16:07:35 +0000

Good principles applied in this post. "They" allow the enemies of the environment to destroy it on a massive scale, but will not allow a scientist to do what she knows to do, and knows how to do it without damaging the environment. "Pure", unmitigated insanity on the part of the persecutor.

By: Elaine M.

Elaine M. — Sun, 08 Jan 2012 16:02:40 +0000

anon,

Mespo wrote:
“When you consider not a single person from British Petroleum spent a day in the pokey or was even charged for the 2010 environmental meltdown that occurred in the Gulf of Mexico after the oil derrick disaster, you have to wonder about the notion of “equal justice under law,” and just who sets priorities for the publicly appointed guardians of the eco-system.”

You wrote:
“Fallacy of the excluded middle. That we did nothing to BP does not mean nothing should ever be done to anyone else.”

*****

Is that what Mespo was suggesting? Did you, perhaps, miss Mespo’s point about “equal justice under the law?”

It seems odd to me that the DOJ would investigate this alleged crime of feeding whales–but not the war crimes of the Bush Administration.

By: anon

anon — Sun, 08 Jan 2012 15:52:44 +0000

“anon: There is a corrections page for any typos you find, but it appears you just wanted an excuse to be a dick out in public.”

Perhaps.

By: anon

anon — Sun, 08 Jan 2012 15:47:15 +0000

AY, OS,

Mespo got the story 10000% wrong factually.

Wrong hemisphere.
Wrong law.
Wrong name.

Mespo got the story 10000% wrong ethically.

Being “renowned”, having a Ph.D, does not make you above the law.

Mespo got the story 10000% wrong logically.

Fallacy of the excluded middle. That we did nothing to BP does not mean nothing should ever be done to anyone else.

Gedanken experiment: if this was not a renowned biologist, if this was just some schmo on his tourist fishing whale watching boat, would Mespo be writing about what a travesty these charges are?

Or would he flip and take the other side?

By: Anonymously Yours

Anonymously Yours — Sun, 08 Jan 2012 15:34:32 +0000

You are a better man(person) than most..Mark…

By: mespo727272

mespo727272 — Sun, 08 Jan 2012 15:30:12 +0000

OS/AY:

Thanks guys but I’ll take criticism from anyone. I mean absolutely anyone. It’s especially galling when they’re right.

By: Anonymously Yours

Anonymously Yours — Sun, 08 Jan 2012 15:24:36 +0000

Some people do not need an excuse or reason to be a prick…or a b….

By: Otteray Scribe

Otteray Scribe — Sun, 08 Jan 2012 15:23:03 +0000

anon: There is a corrections page for any typos you find, but it appears you just wanted an excuse to be a dick out in public.

By: Anonymously Yours

Anonymously Yours — Sun, 08 Jan 2012 15:21:59 +0000

anon,

The correction page awaits your noted disputes….corrections…Unless you are just venting because you have nothing substantive to say…Now that is a different story…

By: anon

anon — Sun, 08 Jan 2012 15:15:04 +0000

What a stupid, illogical, totally incorrect, article.

Just how shit faced are you Mark Esposito? Are you always this drunk when writing your briefs?

It’s not Mary Black, it’s Nancy Black.

It’s not the Maine Mammal Protection Act, it’s the Marine Mammal Protection Act.

This didn’t happen on the East Coast, it happened on the West Coast.

That she had a Federal Permit does not mean she could not have broken the law.

That she is a marine biologist does not mean she could not have broken the law.

That she is renowned does not mean she could not have broken the law.

That no one from BP has gone to jail does not mean she could not have broken the law.

That BP destroyed the gulf and got away with it does not undermine why we have the Marine Mammal Protection Act.

More stupidity from the Turley Guest Bloggers.

By: Otteray Scribe

Otteray Scribe — Sun, 08 Jan 2012 15:00:45 +0000

Whiskey Tango Foxtrot……

By: Anonymously Yours

Anonymously Yours — Sun, 08 Jan 2012 14:53:15 +0000

Mark,

These things fall into two categories…things that make you money and those that cost you money….the second is dispensable…

You entire article is well accepted here…