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Congress must rein in federal prosecutors also!

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Hundreds of thousands of Americans and foreigners, including Guyanese and other Caribbean nationals, and unwary people from all over the world, are suffering unjustly in federal prisons, forever tarnished and destroyed by the stigma of a federal conviction, trapped in a vicious cycle of exploitation, modern day slavery and inhumane suffering. Many do not even understand why they were convicted and deprived of their freedom. Congress must open its eyes to this problem which disproportionately affects minorities and people of color.

Judge Frederic Block, a highly regarded federal judge with over 24 years’ experience, has exposed a serious flaw in our justice system. “[Federal] Prosecutors are responsible for holding people accountable when they violate the law, but what happens when the prosecutors are the ones who break the rules? In most instances, nothing.” (Daily News Op-Ed July 30, 2018). Political and legal expert Errol Louis also deserves kudos for his advocacy to “Rein in N.Y.’s prosecutors to prevent abuse” dated June 19, 2018.

Governor Cuomo did a great job when he signed into law the bipartisan bill to establish a “first-in-the-nation Commission” on prosecutorial misconduct in our State Courts, noting that it impacts people of color disproportionately. Assemblyman Nick Perry, of Jamaican heritage, and Senator John DeFrancisco have championed a worthy cause. However, a big sinkhole remains in our federal criminal justice system, and Congress must also pass similar legislation to review and punish federal prosecutors who similarly pervert the rules in the federal court system, immune from personal or professional consequences for railroading innocent people into prison. Indeed, it is more than the 60 percent of exonerations in New York state that involve “official misconduct” by government agents, such as police officers and / or prosecutors.

Federal prosecutors are just as rampant in withholding and destroying exculpatory evidence, stalling trials, coercing guilty pleas and witness testimonies, suborning perjury, and pushing the outer limits of legal boundaries, sometimes in conjunction with pro-prosecution judges, who, contrary to state judges, essentially enjoy life tenure.

These rogue prosecutors must also be reined in, and held accountable in their rat race for higher offices and statistics. Their egregious abuses hardly ever surface, and remain hidden in the 95 percent morass of indicted citizens who plead guilty in federal Courts, including the large ratio of the truly innocent who succumb for lesser jail time, closure and expediency, incapable of, or afraid of the consequences of fighting overzealous prosecutors.

America is losing its soul through over criminalization, passing and enforcing far too many stereotypes and criminal laws that are making criminals out of respectable, law-abiding citizens. We must collectively make a major effort to return the criminal law and prosecutors to their proper role in society-to ensure public safety and protect the innocent.

Our lives can be upended by the government, on a whim, using legally sanctioned methods. Modern federal criminal laws have exploded in number, and have also become impossibly broad and vague. The average American is unaware that he or she has likely committed several federal crimes in a routine day, as Harvey A. Silverglate explains in Three Felonies a Day. The integrity of our constitutional democracy is being destroyed with each broadening “crime.”

The dozens of insider trading and political corruption cases recently reversed by the federal appeals court confirm this. Similar action condemning lack of fair warning and overbreadth have animated the federal Courts, to reverse convictions, like the Arthur Andersen, Marinello, Skilling, Yates, Johnson, McDonnell, Bond, McNally, McCormick and Sun-Diamond Growers cases. Devyani Khobragade, an Indian diplomat, was arrested, strip searched and federally prosecuted for allegedly underpaying her domestic worker.

US v. Albert Baldeo, for example, a maverick grass roots advocate who frequently bucked the political establishment, was a case of selective federal prosecution for a civil, administrative violation that frequently occurs in hundreds of local campaigns annually. His prosecution for “major crimes carrying 20 years sentences” highlights these overreaches, especially since the Supreme Court, in Citizens United, noted that political spending is a form of protected speech under the First Amendment, but only for corporations, and PACs and LLCs loop holes continue to make a mockery of our campaign finance laws.

In a recent Editorial, the Daily News opined in its June 1, 2018 edition: “Google-try it, Mr. President!-helps identify a few others who have been treated at least as harshly as [the pardoned Dinesh] D’Souza was,” citing “Albert Baldeo, a New York Democrat, was charged with crimes for soliciting approximately $15,000 in straw donations from seven individuals. Prosecutors pursued those allegations, ending in acquittal, and won conviction on related charges.” Baldeo suffered the injustice of being convicted of obstructing crimes he was acquitted of, a legal impossibility, but a real consequence a federal prosecution can cause.

Prosecutors have not used this statute again to indict the many hundreds of similar and even worse conduct amongst candidates running for office, and Baldeo’s selective injustice highlights a mere example of how federal, prosecutorial abuse can ruin lives.

The jury’s acquittals of all of Baldeo’s underlying charges confirmed that federal prosecutors abused federal laws to indict him on a false and fundamentally defective campaign theory that his use of his own money in a City Council election to repay his loans was somehow mail and wire fraud. Had prosecutors complied with their duties as ministers of justice and officers of the court, they would have fathomed that Baldeo’s contributions were not legally matchable and could not substantiate their bogus theory to indict, as decreed by the NYC Campaign Finance Act, Chap 49. S 1136.1 s. 3-702 (3) (d): “Money orders aggregating over $1,000 are not matchable.”

Baldeo, who was seeking to represent an emerging, ignored community, and his supporters and civil rights groups, have been crying out for justice since then with appeal after appeal, right up to the Supreme Court. Now, down to habeas appeal before the Second Circuit Federal Appeals Court, justice has been held hostage by prosecutorial misconduct. This precedent setting case now enables prosecutors to indict citizens on false underlying crimes, and convict them with impunity for ancillary tack-on crimes like obstruction, conspiracy and attempt. It stinks to high heaven that all of the evidence that convicted Baldeo in his remaining obstruction convictions came solely from immigrants who were threatened by the FBI with arrest and deportation.

Errol Louis had earlier warned in his Daily News Op-Ed back in Oct. 20, 2015, that the government should “Stop treating minor campaign violations like major crimes. By treating even minor lapses like Baldeo’s as major crimes, the CFB risks scaring away honest grass-roots candidates-the very people it is supposed to be helping take the plunge into public service…Regardless of the ultimate outcome, Baldeo’s case highlights the unsettling frequency with which candidates and their supporters get caught up in the ambiguities of the city’s campaign finance program and the arbitrariness of how violations get investigated and punished.” Once caught in their net, prosecutors routinely misled trial and appellate courts to preserve their putrid convictions.

Justified concerns that Baldeo was targeted by judicial and prosecutorial hypocrisy were ignored. Human rights groups protested that a federal judge was acquitted of worse conduct by his appellate peers in the 1995 Supreme Court landmark case, US vs. Aguilar, and where NYPD Officers were acquitted on more egregious charges of obstructing justice in the Abner Louima case, an Haitian who was assaulted, brutalized, and forcibly sodomized with a broken-off broom handle that caused his intestines to protrude, by 4 police officers of the New York City Police Department-Justin Volpe, Charles Schwarz, Thomas Bruder and Thomas Wiese.

These cases shine a light on this larger institutional problem in America, where federal prosecutors can rape our constitution and citizen’s rights with impunity, and not be held accountable for their conduct. We must remove this blight on all of us, more so, on our justice system.

Buddy Hoosein (Chairman)

United Communities Alliance, 190-25 Jamaica Ave, Hollis, NY 11423; (718) 529-2300

(Past President of the Long Island Board of Realtors (LIBOR), Director of the National Association of Realtors, Community activist for over 30 years, LIBOR Legislative Advocacy Award, Real Estate Broker, Registered Nurse).

Updated 5:46 pm, September 11, 2018
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