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Thursday, April 22, 2010

Is it legal to stamp "TAX CHEAT!" over Tim Geithner's signature on $1 bills?

Instapundit links a website named taxcheatstamps.com that includes a YouTube video of a Fox News segment about a fellow who was protesting TreasSec Tim Geithner's confirmation by stamping, in red ink, the words "TAX CHEAT!" over Geithner's signature on $1 bills.

The person being interviewed in the video is, I gather, named Michael Williams — and I assume he also runs the website and sells the stamps. He writes at the top of his webpage: "I'm being audited because this website pissed someone off," which almost counts as a warning and disclosure to consumers, but in the video clip, he gives his assurance that to the "best of [his] knowledge in [his] research," using such stamps for such a purpose is "not illegal," and that "it's only illegal to deface currency if you prevent it from being circulated or if you're trying to do it for the purposes of fraud." On an associated website with some other snarky protest stamps for sale, he writes that it's "probably not" illegal to deface currency with his stamps, but allows that "that's part of the risk of civil disobedience[,] right?" and warns customers to "[d]o it at your own risk." As support for his "probably not illegal" claim, he in turn links this page, which quotes the relevant statute but is remarkably light on legal reasoning or analysis. Overall, then, despite some mild reassurances, this is pretty much the opposite of an iron-clad guarantee that you won't be prosecuted and a promise to pay your legal fees if you are.

By linking Mr. Williams' site, I'm pretty sure Prof. Reynolds wasn't giving his own legal opinion to back up Mr. Williams' opinions, and I'm not sure what Mr. Williams' own legal qualifications may be. Were I asked for my opinion, however, I would warn that the legality of this practice is far from well-established or clear. I would warn that in the current political climate, there instead may be a legitimate, nontrivial risk that using these stamps on circulating American currency could result in prosecution and even conviction.

The relevant statute is 18 U.S.C. § 333, which provides:

Whoever mutilates, cuts, defaces, disfigures, or perforates, or unites or cements together, or does any other thing to any bank bill, draft, note, or other evidence of debt issued by any national banking association, or Federal Reserve bank, or the Federal Reserve System, with intent to render such bank bill, draft, note, or other evidence of debt unfit to be reissued, shall be fined under this title or imprisoned not more than six months, or both.

There's only one reported federal decision — Keese v. Zerbst, 88 F.2d 795 (10th Cir.), cert. denied, 301 U.S. 698 (1937) — which deals with this statute or its predecessors, and it's not really helpful since the court concluded that the defendant had been correctly indicted, tried, and convicted under the counterfeiting statute (and its more severe penalty), rather under this one. So there are no reported cases in which you can take comfort before starting your protest stamping.

Just looking at the text of the statute, I don't think there is any doubt that using these stamps — even if the read ink leaves Secretary Geithner's signature still legible — would qualify as "defac[ing or] disfigur[ing]" the bills. But I think Mr. Williams is also probably right, and that — properly construed to be given its least expansive interpretation — the "with intent to render [the instrument] unfit to be reissued" clause must be read to modify all of the previous language. Therefore the prosecution would have to prove that intent beyond a reasonable doubt as an element of the crime.

Any defendant would surely argue that instead, his intent was to make a political statement and protest, and that his action constituted symbolic speech protected by the First Amendment. At least superficially, those are attractive positions.

But what if the government adduces evidence — from, say, the responsible officials at the U.S. Mint — which unequivocally and persuasively establishes that the government considers currency that has been so stamped to have been rendered "unfit to be reissued" when it's passed through government hands? What if the rationale is politically neutral, and the government has a plausible and logical explanation for why it must destroy such bills, an explanation which doesn't depend on defending the bona fides of Secretary Geithner?

If so, the government would have its proof of the required consequence, and thereafter the government would only need to also show that the defendant — because he knew of that consequence and proceeded anyway — must have intended that the currency become "unfit to be reissued." The statute doesn't require, after all, that causing the currency to become "unfit to be reissued" be the sole intention behind the act. A prosecutor could persuasively argue, and a jury could well agree, that the defendant had both a legitimate intention to protest, and an illegal intention to cause the currency to be withdrawn from circulation.

Indeed, with a good processor, the wrong jury, and just a few bad breaks, the defendant's admitted desire to protest can be re-characterized as a desire to cause the government the expense and inconvenience (as well as perhaps embarrassment). At a minimum, the defendant — who'd probably have to take the stand in order to dispute the prosecutors' inferential arguments about his intent — would have a dangerous tightrope to walk on cross-examination.

As for the First Amendment defense, this might be considered "conduct" rather than "speech," the way a minority of the current SCOTUS considers flag-burning to be conduct (and hence something that may be regulated and prohibited) rather than speech.

Bottom line: There is more risk here than I would recommend that any client willingly undertake. There are plenty of other ways to protest that don't require you to essentially concede guilt on any elements of a federal crime. Some of those means of protest might actually be persuasive, which this isn't actually likely to be. So if you're inclined to protest, pick one of them instead.

Posted by Beldar at 07:45 PM in Law (2010), Politics (2010), SCOTUS & federal courts | Permalink

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Comments

(1) Captain Ned made the following comment | Apr 22, 2010 10:46:59 PM | Permalink

If they haven't convicted anyone who's ever used the www.wheresgeorge.com stamp (go to the site and input the serial number to see where your bill has been) I can't see how they could convict this guy. He was smart in stamping over the signature rather than the seal, as that would have gone too far.

(2) Beldar made the following comment | Apr 22, 2010 11:06:48 PM | Permalink

Captain Ned, thanks for your comment. I don't have a way to readily rule out the possibility that someone has been prosecuted under section 333. The annotations to the statute are a strong indicator that there have been no reported appellate decisions from appeals from convictions under section 333, but that could be (a) because no one's been prosecuted, or (b) because no one's been convicted, or (c) because those who've been convicted haven't chosen to appeal, or (d) because none of those appeals produced w written opinion that was marked for publication (this last potential explanation is by far the least likely) . That's why I said that "there are no reported cases in which you can take comfort before starting your protest stamping."

But even if no one has ever been charged with violating the statute in the past, that's no defense that can be argued by someone who may be charged now. The prosecution would be one of "first impression," as lawyers say, but that's small comfort to the first guy convicted.

The absence of precedent increases the effectively increases the risks by making more speculative any predictions about whether or how the statute will be enforced.

Thanks for mentioning the "Where's George" site, which I'd read about some time ago but had forgotten. However, the FAQ page on the site you linked says that they "no longer sell any Where's George? rubber stamps," and that they "[do] not encourage the defacement of U.S. Currency." It also links this page from the Bureau of Engraving & Printing's site, which in turn closely paraphrases section 333 without giving any hint that the Treasury Department (or the Secret Service in particular) will ignore or approve defacement of bills as part of a political protest. The "Where's George" folks themselves backed off their stamping based an explicit threat of prosecution according to Wikipedia and this reprint from Wired magazine. So nothing I see on their website which causes me to rethink my assessment of the risks in my post here, or which should give any comfort to a would-be protester. Indeed, because the "Where's George" program wasn't likely to step on anyone's toes, I think the risks of prosecution from stamping "TAX CHEAT!" over Geithner's signature is, as a practical matter, considerably greater — especially with a presidential administration and a Justice Department now presided over by politicians like Obama, Emanuel, Holder, and, not least, Geithner.

(3) Captain Ned made the following comment | Apr 23, 2010 12:24:27 AM | Permalink

Ah, so the Where's George bills I regularly see in commerce here in Vermont have likely remained in local circulation long after the initial Where's George idea.

With that in mind, how does one square the Section 331 prohibition of defacement of coin with the explosive proliferation of machines designed to turn pennies into (for currency purposes) unrecognizable objet d'art?

Section 331 makes criminal the fraudulent defacement of US coinage, yet no one would argue that the machines found in every museum allowing a kid to turn a penny into the museum's logo (along with a "donation" of a pair of quarters) turns these 6 year olds into Federal felons, because they have no fraudulent intent. In fact, I'd argue that the fraudulent defacement language would require finding that someone attempted to convert a lower-value coin into a higher-value coin. Since I don't see the Feds ripping out the penny-smashers, I think I'm on to something here.

(4) Dustin made the following comment | Apr 23, 2010 3:12:26 AM | Permalink

I think Beldar isn't saying it would be consistent to prosecute people for what has been ongoing for ages and ages.

He's just saying that such a thing could occur in today's political climate. I think it would be worth it, but I admit it's not smart to bet too much on fairness from the DOJ today.

Just look at what this guy is protesting. Unfairness. Inconsistency. Lying.

Look at them Black Panthers.

The DOJ legally stopped Georgia from complying with the HAVA, kinda like a pocket veto from hell.

I don't think they would prosecute people for this silly stuff, but I absolutely would expect an audit if I were prominent enough about it.

(5) Libertarian Advocate made the following comment | Apr 23, 2010 8:30:59 AM | Permalink

Seems to me that the government would have a tough row to hoe on a prosecution, particularly where it bumped into the exercise of 1st amendment rights.

Audits of course are always a very real threat and difficult to challenge since the IRS is more an administrative agency than a "police" agency.

(6) Diffus made the following comment | Apr 23, 2010 9:38:46 AM | Permalink

Let's move from the theoretical to the practical.

Someone 'splain to me how, even if our host is correct, this could be enforced. The most likely agent to report me to the Currency Police is my bank, and that's likely to happen only if I try to deposit or exchange a large amount of "defaced" currency. Whether it's the back or someone else, there's no way to prove that I altered the currency; the only way to link me to it would be to find the stamp on my person or premises. Would even this regime conduct search my body and effects for a "Tax Cheat" stamp?

Note: I'm the proud owner of a "Tax Cheat" stamp. I've been waiting to use it since Geithner was confirmed, but I have yet to come across a bill bearing his signature.

(7) Beldar made the following comment | Apr 23, 2010 10:02:25 AM | Permalink

Diffus (#6): You spend three of your stamped bills at a restaurant. The waiter doesn't object and takes your bills as usual when you settle your tab. But later, the owner's going through the cash drawer and asks about the bills. The waiter says he got them from a customer. The owner wants to know which one. The waiter says its a customer who comes in once a week or so. Does he ever pay by credit card, asks the owner? Look through last week's receipts, let's get his name.

Bad luck for you to have run into a pro-Obama/pro-Geithner member of the hard Left who happens to run a restaurant. Bad luck that they have your name and a credit card number associated with your address and your SSN. Bad luck that the Secret Service has a hotline for counterfitting and defacement complaints, and that its parent agency, the Treasury Department, is run by the guy you're mocking. Bad luck for you that this Administration plays by Chicago Rules.

It turns out our prisons are full of people who got caught through bad luck. Funny how that works.

Is it possible you might just not get caught? Oh, sure. Is it wise to count on that when you're even arguably breaking the law? Not so much. Certainly the more bills you stamp and then put back into distribution, the more exposed you are. Is stamping three $1 bills, or even ten, likely to get you prosecuted? No, probably not. But is it likely to give you the satisfaction you're seeking to only distribute ten of them? No, probably not.

Libertarian Advocate (#5): Yes, you might be successful with a First Amendment defense, reasoning by analogy from the flag burning cases, which did, after all, turn out to favor the "expressive speech" argument by repeated 5/4 votes of the SCOTUS. Justice Stevens, surprisingly to many, was on the dissenting side, and he's leaving, so maybe your odds will even improve. But the speech/conduct distinction has been pretty slippery in actual practice, and you may be fairly lonely as you risk incarceration — potentially six months per bill you've stamped — until you establish your breakthrough legal precedent, if you ever do. Despite the fact that your purported speech was critical of the government, the prosecution would argue that the law banning defacement of bills is content-neutral and reaches all defacement, regardless of message, so that it's a restriction on conduct rather than speech; that was an argument that wasn't really available to the prosecution side in the flag cases. I hope you don't have to watch that new precedent you're trying to set be created and further tested while you're actually doing your time, since the federal courts disfavor bail pending appeal.

Seriously, my estimation is that there's at least a non-trivial risk of a First Amendment defense failing. If you think it's merely a trivial risk instead, I'd be curious to know what cases you're relying upon.

(8) Gregory Koster made the following comment | Apr 23, 2010 11:56:51 PM | Permalink

Dear Mr. Dyer: 1. I'd love to see the Feds try a prosecution of "Tax Cheat" bills, the sooner the better. I can't think of a better rallying event for the Tea Partiers in the country, or a better symbol of how The One views Americans. I think you are right that there's some risk involved, but the mere existence of such a law should give any of the Framers discomfort. Can't even write nasty cracks about our rulers on your own money?! Bring on the revolution! But, as you say, there's risk for the poor fellow who's first in line.

2. Go back to your response to Ned's #1. I think it most likely that the reason the records don't show any appellate decisions on this statute is because there haven't been any prosecutions. Given that "Where's George" has been in business since December 1998 and at least 170 million bills have been marked (from Wikipedia and the Where's George? website) what are the Feds waiting for? Isn't there a "squatter's right" issue here, i.e. why have you waited so long to prosecute, Mr. US Attorney? Any private citizen who allows squatters to reside on her land for an extended period of time is putting his title into question. Is there a similar sort of legal doctrine that holds "dead letter" laws are, in fact, dead from lack of use? I expect that if any such prosecution was started, the prosecutor would be careful to get a variety of "defacements" besides "Tax Cheat" bills, so the bias inherent in such prosecutions is better hidden.

3. I myself think the best way to get this business started is to pass the "Tax Cheat" bills to the disgruntled LOS ANGELES TIMES staffer who fears being laid off, in return for a bootleg copy of the Obama tape on Israel that you are asking for. You're welcome.

Sincerely yours,
Gregory Koster

(9) Insufficiently Sensitive made the following comment | Apr 24, 2010 9:09:53 AM | Permalink

re Beldar(7):
So the restaurant identified you and turned you in for passing 'Tax Cheat' bills. But how is the Justice Department going to establish that you personally applied that stamp?

Next: what's to prevent circulating literature, or putting up billboards, showing a detailed photo of just part of a bill - that is, enough to identify what it is, but insufficient to serve as evidence of a counterfeiting attempt - with a lovingly applied 'Tax Cheat' over the Geithner signature?

(10) TMLutas made the following comment | Apr 24, 2010 5:24:37 PM | Permalink

Since we're in the fantasy land of what if ("what if the government adduces evidence"), what if the ink used on the "tax cheat" stamp is the same ink used routinely to detect counterfeit bills. We're right back in the land of regulating speech because there is no way that they're going to illegalize that sort of ink when it's not stamped in the form of the two words "tax cheat".

Perhaps I should drop Michael Williams a line for a new product, an ink pad that uses that very ink...

(11) mariner made the following comment | Apr 24, 2010 5:31:20 PM | Permalink

Thank you for the warning, sir.

While you're correct that there may be an offense, Mr. Koster's first point is also correct -- if Democrats think they're in trouble with the voters now, just wait until Zero's Justice Department tries someone, and it will be, "Katy bar the door!"

I can promise you that were I on a jury there would be no conviction.

(12) YJLAW made the following comment | Apr 24, 2010 5:39:44 PM | Permalink

Technically speaking, you are not acting with the intent to render such unfit to be reissued. Your intent is that the bill circulate as much as possible, otherwise, the stamp is pointless. The intent is that the message be spread as wide and far as possible.

(13) newrouter made the following comment | Apr 24, 2010 5:42:13 PM | Permalink

i found a tim g. dollar bill in my wallet. i wrote "TAX CHEAT" with an arrow pointing to his signature.

(14) SDN made the following comment | Apr 24, 2010 5:47:42 PM | Permalink

I'd also hate to be the business owner who had to appear as a witness and identify himself publicly (and he would have to; for chain of evidence if nothing else).

(15) Amused Observer made the following comment | Apr 24, 2010 6:07:04 PM | Permalink

Beldar does us all a service reminding us of whom and what we are dealing with, The Chicago Way. Now a way of looking at this, politically speaking, is as guerrilla warfare. (Insert mandatory "metaphorically speaking" here, it's not like I'm actually "targeting them", etc. etc.)

Now a wise guerrilla fighter retreats to fight another day. It's not quite the pure rush for the soul but a guerrilla doesn't have the luxury of overwhelming superiority, no "shock and awe", however he does get to pick the time and place. And it's as American as George Washington!

Stealthy distribution is simply a case of ingenuity. Vending machines, tip jars, I'm certain there's a million of them. It's attitude as much as technique. Hell, it's not like small bundles of ones are going to be thrown away if accidently "lost" for those money is no object types.

Publicity is the key to make something like this really sting. Make the problem seem bigger than it is. A store owner is interviewed on tv about the growing problem. Or he complains in the media about being questioned by inquisitive treasury agents etc. The internet holds countless possibilities. Stealthy agents provacatour make fun of "tea baggers" using the tactic or even more in charactor demand retribution in the popular liberal feverswamp blogs. Make them do our dirty work for us.

Obama's thin skinned, he won't be hard to provoke. Subject to ridicule he may have a glass jaw. Just sayin.

(16) Paul made the following comment | Apr 24, 2010 6:28:43 PM | Permalink

Gee, we wouldn't want to mark up fiat, fake paper monopoly money, would we?

(17) J. E. Tarpon made the following comment | Apr 24, 2010 7:15:47 PM | Permalink

Captain Ned,

While the wheresgeorge site itself does not sell the stamps any more, you can still buy them from other vendors.

I believe the problem that the govt had with wheresgeorge selling them himself was that he was then using currency for advertising purposes.

(18) Sluggh made the following comment | Apr 24, 2010 7:46:22 PM | Permalink

Beldar's restaurant example is so replete with contingencies as to make me think the moon will sooner crash into the Earth. Sometimes the customer pays with a CC, sometimes with cash. Somehow the proprietor is able to identify him through an old credit-card receipt. Oh, and said restaurateur is an ardent contributor to a little-used Secret Service hot line. C'mon.

(19) raymondshaw made the following comment | Apr 24, 2010 7:52:07 PM | Permalink

The stamp seller should ink his stamps with
the ink in the pens convenience stores use to detect counterfeit bills ;)

(20) Georger made the following comment | Apr 24, 2010 8:55:14 PM | Permalink

Re #17, J.E. Tarpon:

That is exactly my understanding of what went down. Realize that I am no expert,and do not have all the info, but the word I heard was that Hank (who runs the wheresgeorge site), agreed to stop selling the stamps, and they'd back off. Do note that his site is still up, active, and there are thousands and thousands who stamp bills. The thought was that he was stamping bills, and getting others to stamp them, to advertise for himself, where he could make money. By dropping the stamp-selling, he's no longer attempting to profit, directly or indirectly, from the site.

With all that said, going after Geithner could be a very different proposition. I know people who stamp or write wheresgeorge on their bills (cough, cough), but I would be extremely cautious about doing the Tax Cheat thing...and would not pass them personally to others.

(21) Captain Ned made the following comment | Apr 24, 2010 10:06:52 PM | Permalink

If wheresgeorge.com got into trouble because he might be making money from it, why do the penny-smashing machines still infest every museum, toll-road rest stop, and any other place they can find to plonk them? After all, the tab for smashing your penny runs between $0.50 and $1.00 (at least on the machines I've seen lately).

(22) Antimedia made the following comment | Apr 24, 2010 10:42:15 PM | Permalink

Beldar, I am certain that there are very specific rules regarding the determination of when currency is unfit for reissue. I would expect that the Feds would need to show in court that the defacing of the bill would meet the criteria for destruction. Furthermore, they would be open to questioning regarding whether they destroy every bill that has been defaced. Correct?

(23) Beldar made the following comment | Apr 24, 2010 11:34:48 PM | Permalink

Several commenters have scoffed at the possibility of prosecutions for various reasons, and there's good reason for skepticism. I agree with Prof. Reynolds that "such a prosecution would be unjust," and one of the reasons for that is that a federal prosecution would, at a minimum, offend our common sense of proportionality: The Secret Service? Federal court? A grand jury? A hot argument regarding the First Amendment? All over some stray ink on a $1 bill!?!

Sluggh (#18) politely mocks my hypothetical scenario (#7) in which a hypothetical protester is linked back to a stamped bill he's spent at a restaurant, and that's also fair. I'm not claiming that my scenario is a probable one — and I probably should have made a bigger effort to concede in so many words that it isn't. And yes, as other comments have noted, the prosecution would not only have to trace the circulated bill back to a particular defendant, but then prove that he (rather than some prior holder, the proverbial "empty chair" that the defense would point to in closing argument) applied the ink. To find a defendant in possession of a stamp, the prosecution presumably would have to secure a search warrant, which (again) would strike most of us as a disproportionate and even silly investment of investigative and prosecutorial resources. And yes, the defense would certainly argue (among other things) that the prosecution was politically motivated. (But "selective prosecution" is a very, very hard pitch to sell, and it's quite likely that a judge who's rejected that pitch will not only refuse to give a helpful instruction, but will also prevent defense counsel from arguing it to the jury.)

My response to these valid points was encapsulated in, but not fully developed, when I wrote: "It turns out our prisons are full of people who got caught through bad luck. Funny how that works."

The thing about the feds is this: When they want you, sometimes they do AMAZING things to convict you, and although they don't really have unlimited resources, once they've focused on you it will seem to you that, for all practical purposes, they do. (See, e.g., the Scooter Libby prosecution in connection with his non-outing of a non-spy, which consumed tens of thousands of DoJ and FBI man-hours and many millions of dollars.) So are they going to fire up the gas chromatographs and the DNA trace evidence testing equipment and go all CSI-Washington on a currency stamper? A rational law enforcement regime wouldn't, but just how much confidence do you have that the Obama Administration is going to be rational when it comes to protesters who mock it?

Most laymen, and even many lawyers who don't bump up against the criminal justice system much, would be astonished at the very high percentage of criminals who either confessed and/or got caught by doing something stupid. I will even accept as a plausible premise that in comparison to the existing prison population, people who want to protest Sec. Geithner or, more generally, the Obama Administration are vastly less likely to do something stupid to get caught, and that they would be vastly more likely to effectively exercise their Fifth Amendment rights against self-incrimination. But especially with volume, the odds of stupid mistakes can eventually catch up with even very smart people. Moreover, habitually honest people (including even criminal defense lawyers!) often end up failing when they try to be clever in dealing with law enforcement personnel, and it's stunning how many very smart people who think they can talk their way out of legal problems end up waiving their rights against self-incrimination and handing the prosecution ample (albeit usually metaphorical) rope for a hanging. (See, again, for example, Scooter Libby.) And once you're under the feds' microscope, there are just a whole lot of things that can go wrong, including the stumbling into other and even potentially more serious crimes. (Yet again, see for example convicted obstructer of justice and disbarred lawyer Scooter Libby.)

If this caught on big-time, if even just awareness of this means of protest became truly national — if the protest began to be effective, in other words! — then the odds of someone being investigated and then prosecuted would rise accordingly, especially if the target could be identified as an organizer or a ringleader or a commercial beneficiary (e.g., a supplier of stamps) or even just a particularly robust stamper.

Don't mis-read me: I'm not saying you'll "probably" or "very likely" end up in prison for stamping a handful of $1 bills.

But the risk is non-trivial. The consequences of being accused and prosecuted — even if you avoid conviction — are genuinely dreadful and, again, entirely disproportionate. The benefits of this particular protest (as compared to other unquestionably legal ones) are questionable. In advising clients about risks, good lawyers have to look not only at the odds, but also at the alternatives and the range of consequences (including but not limited to worst-case scenarios).

Clients often insist that lawyers try to quantify statements like "the risk is non-trivial," and lawyers usually resist — not only because it smacks of making a guarantee, but because it implies more precision to the process than is in fact possible. But suppose, if pressed hard, I said to you, "On the scale you're planning to do this, I estimate that there's only a one percent chance that you'd make it onto the government's radar screen, but there's an 80% chance that once you did get their attention, they would turn your and your family's world completely topsy-turvy." Take a clear-eyed look at all that you have at risk, and then think again just how much satisfaction you're likely to get from the imagined chuckles your stamped bills are going to provide for the complete strangers who know or care about Tim Geithner's tax cheating. Still as enthusiastic?

So with due respect to the scoffers, I'll stick to my "bottom line" conclusions in the final paragraph of my original post.

(24) Rick Caird made the following comment | Apr 25, 2010 2:34:39 AM | Permalink

I believe there is a hole in your reasoning. You say

"...and an illegal intention to cause the currency to be withdrawn from circulation."

It would be easy to argue the intent is not to withdraw the currency, but to circulate it further. The whole point of the stamp is to make the political point.

However, your point about the cost of a defense is the more significant point.

(25) Beldar made the following comment | Apr 25, 2010 3:21:23 AM | Permalink

YJLAW (#12) and Rick Caird (#24): As Mr. Caird wrote, "It would be easy to argue the intent is not to withdraw the currency, but to circulate it further." A defense lawyer would certainly make that argument regarding intention to bolster circulation. It might work. Your logic is sound so far as it goes.

But "easy to argue" doesn't necessarily mean "and it's a slam-dunk, unbeatable argument that will always work." What you're not taking adequate account of, I think, is that during trials, the other side always gets to make its pitch too — and the jury won't always prefer the defendant's pitch over the prosecution's when the evidence can plausibly support either.

As I've previously pointed out, it's entirely possible to simultaneously intend more than one thing, and it's entirely possible — indeed, entirely common — to sometimes intend two or more different things collectively and/or in the alternative.

If the prosecution has put on a plausible inferential case of criminal intent, there would be a tactical pressure to put the defendant on the stand to testify about his intent, since he, after all, is the only person able to offer direct evidence on that subject. The defendant would presumably be obliged to deny having an intention to cause the bills to be withdrawn from circulation. (Without a testimonial foundation from the defendant himself, defense counsel could still perhaps argue this simply as a matter of logical deduction — just as the two of you have done in these comments.)

But then the defendant would be subject to cross — or, if he didn't take the stand, his lawyers' arguments would be subject to counter-arguments — like so:

You expect this jury to believe that you wanted to deface all of these bills, but you didn't expect that defacement would cause any of them to be withdrawn? You expect the jury to believe that you would have been surprised to see any of them withdrawn?

Isn't the truth that you wanted to embarrass Secretary Geithner? Whatever actually ended up happening to the currency after you stamped it, wasn't embarrassing Secretary Geithner your number one goal all along? Wouldn't Secretary Geithner be embarrassed by the disclosure that the Treasury Department was withdrawing thousands of currency notes with "Tax Cheat!" stamped over his name?

You were trying to get his attention too, weren't you, in addition to drawing more public attention to his personal tax problems? Well, tell the ladies and gentlemen of the jury this: Would you be happy or sad to see Secretary Geithner forced out of office? Would you be happy or sad to see him forced to resign?

In fact, your purpose would be served either way: If the bills circulated, more people would see the defacement. If they were withdrawn, Sec. Geithner would look thin-skinned and like he had something to hide. That's what you intended, didn't you -- that he be subjected to that either/or choice, a Hobson's choice? Either or both outcomes would have made you at least somewhat happy, wouldn't they? For you, stamping the currency was just a means to any one of several acceptable ends, wasn't it?

I'm a trial lawyer but I've never been a prosecutor; these are potential cross-exam questions that occurred to me off the top of my head, and I offer them just to show you how I think a prosecutor might respond to this defense tactic. But a regular prosecutor with considerably more time to plot his cross-examination could probably improve considerably on my efforts here.

These are almost (but not quite) "when did you stop beating your wife" questions — not because they improperly presume an inaccurate predicate, but rather in the sense that the prosecutor doesn't much care what answer the defendant (or his lawyer) makes. Simply using the question to highlight the possibility — that's the point of these questions, and if they fluster the defendant (or his lawyer), so much the better. If some members of the jury are already leaning to convict, then these questions set up a powerful inferential argument that those pro-prosecution jurors will latch onto and argue back in the jury room.

In short, it's entirely plausible that the jury might conclude -- regardless of how the defendant or his lawyers spin it -- that the defendant had as at least one of his contemplated and intended outcomes the withdrawal of at least some bills. What seems to you an irreconcilable logical inconsistency between these two different, almost opposing intentions might strike the jurors as something the prosecution has adequately reconciled and explained. Again, I'm not predicting that this necessarily would happen, but merely that it could. And this kind of dispute about intent is something I've factored in already in coming to the conclusion that the risk of prosecution and even of conviction is non-trivial.

Finally: Note that the "intended to bolster circulation" argument is one which concedes — at least for purposes of argument — every other element of the crime. You're saying "I did what they've alleged, but I had a different subjective intention when I did it." (Defendants face basically this same disincentive to argue self-defense.) If the defendant doesn't take the stand, then sure, his lawyers can argue this intent inferentially without absolutely, positively conceding the stamping, etc. But some jurors may interpret that as an implied concession anyway, basically ignoring the first half of the defense lawyer's statement when he says, "Now I'm not conceding the prosecution showed that Mr. Smith actually did deface any of these bills, but if we are to suppose, just hypothetically, that he did, then ..." And if he does take the stand, he's going to be savaged on cross-examination by having explicitly admit to each of the other elements of the crime in detail.

(26) Bill45 made the following comment | Apr 25, 2010 7:10:54 AM | Permalink

There must be evidence BRD that the defacing was done with the intent to render the bill unfit to be reissued.

The intent here seems to be precisely the opposite. The intention is for the bill to continue in circulation in order to continue communicating the message that TG is a tax cheat.

(27) Neal K made the following comment | Apr 25, 2010 8:46:19 AM | Permalink

Beldar, you should have been a US attorney! :-)

This has been a very productive discussion. I doubt I will get a stamp of my own - out of laziness and being busy with other things rather than concern about the very slight risk of prosecution.

(28) Dowlan Smith made the following comment | Apr 25, 2010 12:23:21 PM | Permalink

I prefer F.R.A.U.D to tax-cheat. (Fiat 'Reserve' Arbitrary> Unit of Debt).

Of course the only reserve is of printing ink. oh yeah and involuntary servitude.

(29) M. Rad. made the following comment | Apr 25, 2010 2:04:09 PM | Permalink

You don't have to buy a rubber stamp, A little clever workmanship with a word processor and an inkjet printer can print "Tax Cheat" (or wheresgeorge.com) on your bills en masse.

And you will get the added defense that water soluble printer inks will wash off in the laundry.

I'm not the first to think of this:
http://www.youtube.com/watch?v=qAd2r2fq8Aw

(30) pa made the following comment | Apr 25, 2010 5:25:17 PM | Permalink

At Christmas, dollar bills with a removable sticker of a Santa Claus engraving placed on top of George Washington's picture (hiding George) are widely sold. My grocery store even sells them at the checkout stand.

Why not use a removable sticker for the "Tax Cheat" message? That completely eliminates the chance of being charged with defacing that was done with the intent to render the bill unfit to be reissued.

Lots of people write "Happy Birthday" or other personal messages on bills, especially when giving cash to children. How is that any different? Oh, the politics, I guess.

(31) Gregory Koster made the following comment | Apr 25, 2010 5:36:41 PM | Permalink

Dear Mr. Dyer: But your hypothetical cross questions open up gaps for return fire:

a) "This law you are prosecuting me under hasn't been invoked even though "Where's George?" has been in business since 1998, and has marked 170+ million bills. Why now? Since when did the US Attorney's office in (insert name of where trial is being held) get in the business of being attack dogs for gummint bureaucrats?"

b) "Mr Geithner's tax troubles? What tax troubles? He wasn't imprisoned, nor fined, nor penaltied as all the defendants in (insert prodigiously long list of names from the US Tax Court who were given the works.) Note too that those who attempt the Geithner Defense are up for keelhauling."

c) "Surprise at bills being withdrawn? Yes I would. Here's a stack of ones that I got just this morning. These cruddy notes aren't being withdrawn, so why should a little "Tax Cheat" stamp get other bills withdrawn.

d) "Embarrass Mr. Geithner? Had he withdrawn his name when this came out, he'd be forgotten. It was his insistence that he go forward that led to this. My own mother told me to ignore the other kids when they called me names instead of bursting into tears. If Mr. Geithner doesn't want to be embarrassed, let him keep the bills in circulation instead of wasting taxpayer money trying to hide his personal shame. And since when is the avoidance of embarrassment the number one goal of our public servants?"

e) " 'In fact, your purpose would be served either way: If the bills circulated, more people would see the defacement. If they were withdrawn, Sec. Geithner would look thin-skinned and like he had something to hide. That's what you intended, didn't you -- that he be subjected to that either/or choice, a Hobson's choice? Either or both outcomes would have made you at least somewhat happy, wouldn't they? For you, stamping the currency was just a means to any one of several acceptable ends, wasn't it?'

Show me the US Code section that makes lese majeste a crime? Your assumption that it is is monstrously conceited."

And so on. To be sure, from a procedural point of view, the defendant is likely to be given a rough time, and be in some danger of conviction, the more so with a carefully selected bullying judge who knows dam well that her hope of promotion to the circuit bench depends on a conviction. But this is a show trial. I repeat, let this trial go forward, and Tea Party candidates will have a good shot at defeating Pelosi in her own district. Just as the real trial of OJ Simpson took place in the press, so too this one.

Sincerely yours,
Gregory Koster

(32) Xrlq made the following comment | Apr 26, 2010 6:29:16 AM | Permalink

Sorry, Beldar, but I think you are reaching here. Big time. I cannot picture any jury seriously accepting the hare-brained notion that anyone stamped "tax cheat" over Timothy Geithner's name with the intent that the bill be withdrawn from circulation so no one else will see it. That would defeat the entire purpose of the stamp. Your cross-examination hypo is a bit far-fetched to begin with, but even if used successfully it would merely create doubt as to whether a particular defendant MIGHT have alternatively intended for all Geithner bills to be withdrawn from circulation; it wouldn't sustain a conviction beyond a reasonable doubt that this WAS his intent. I'm not even sure it would meet a preponderance of evidence, since the clear intent is to embarrass Timothy Geithner, and even withdrawing all bills bearing his signature would not embarrass him nearly as much as leaving them out there with "tax cheat" stamps would.

Where's George stamps are relevant to this analysis, not just to show selective prosecution but also to show lack of intent to cause the bill to be withdrawn from circulation. I've never heard of ANY bill being withdrawn from circulation because it bore a Where's George stamp. Have you?

Also relevant is that past Secretaries of the Treasury have never seemed to have a problem with people writing small notes on bills. Some years back I met former Treasury Secretary Rosario Marin, who was running for U.S. Senate at the time. She seemed pretty confident that autographing a dollar bill was not a crime. http://xrlq.com/Images/marin-dollar.php

(33) Xrlq made the following comment | Apr 26, 2010 6:42:23 AM | Permalink

Note that I'm not arguing there is NO risk here. Is it so small of a risk that I would advise a client to do it? Probably not. Is it a small enough risk that I'm willing to take it myself? Hell, yes, if I ever get my hands on a bill that bears Geithner's signature (I've had the stamp for over a year but have yet to find occasion to use it).

(34) Xrlq made the following comment | Apr 26, 2010 6:56:05 AM | Permalink

Crap, my previous post was deleted so that last clarifying comment doesn't make much sense. I'll try once again.

Beldar, I think you may be thinking like a civil litigator in a criminal world. Your hypo about alternate intent to embarrass Geithner *either* by circulating Tax Cheat dollars far and wide *or* by getting all Geithner bills withdrawn only barely comes close to meeting the preponderance of evidence test in favor of the prohibited purpose, and then only when up against a truly incompetent defense attorney. It doesn't come close to satisfying proof beyond a reasonable doubt, especially in a world where we've all seen Where's George? bills everywhere, and few if any of us have ever heard of any bill being withdrawn from circulation on that basis. In fact, I'd argue that the actual intent is so clear in this case that a good defense attorney should be able to turn criminal law on its head and prove beyond a reasonable doubt that the defendant did NOT have the prohibited intent. Not that he'd need to do that, of course.

Also relevant, in my view, is the conduct of past treasurers and treasury secretaries. A few years back I met former Treasurer Rosario Marin, who was running for U.S. Senate at the time. She seemed pretty confident that marking up a dollar bill is not a crime:

http://xrlq.com/Images/marin-dollar.php

If anything, I'd think the intent to cause the bill to be withdrawn from circulation would be easier to prove in this case, as the bill had a personalized message to me which she knew would be meaningless to anyone else who saw the bill if I ever spent it (which I did, but the law only requires a prosecutor to prove she intended it to be taken out of circulation, not that this actually happen).

Does all this mean there is NO risk of prosecution? Of course not. How much? Tough to say. In my estimation, probably about the same as the risk that playing lacrosse in college and leaving a party when a stripper arrives will get you falsely charged with rape. Which, of course, is not to say it won't happen. Which comes back to my clarifying comment before - not necessarily the level of risk I'd advise a client to take, but certainly a risk I'm willing to take myself.

(35) Andrew T made the following comment | Apr 26, 2010 2:45:56 PM | Permalink

"A prosecutor could persuasively argue, and a jury could well agree, that the defendant had both a legitimate intention to protest, and an illegal intention to cause the currency to be withdrawn from circulation."

Huh?? Someone intends to lodge a political protest in a manner that he KNOWS will effectively emasculate his own protest? Talk about an illogical argument. I'd suggest that a defense attorney could persuasively argue that the prosecutor failed Logic 101, before persuasively arguing that the it would make no sense whatsoever for a protestor to protest in a way that he knows will scuttle the protest.

(36) Beldar made the following comment | Apr 26, 2010 9:07:59 PM | Permalink

Andrew T (#35) and others who've repeated the "contrary intentions" argument: You give abstract logic too much power. Real people and real intentions very frequently deviate from logic, and juries know that. I entirely agree that the two intentions are contradictory. I disagree with any suggestion that the human mind is incapable of simultaneously holding two contrary intentions. Nor is criminal intention necessarily limited to a snapshot in time; inconsistent purposes can be achieved in serial, and one may intend exactly that. The stamper's very best-case scenario may have contemplated that the bills he stamped would be very widely circulated, up to the point that they provoked such serious embarrassment that they'd then be withdrawn, which the stamper expects will promote even more embarrassment. If the ultimate goal is "embarrassment through protest," the stamper might be delighted to see this sequence. And the fact that one subsidiary goal is "logically inconsistent" with the other doesn't mean the stamper couldn't have intended both (in sequence) when he applied the stamps.

The bigger problem I have — with due respect to those of you who are repeating this argument so emphatically — is that you seem to have an unrealistic perception of just how effective your own rhetoric will necessarily be with a jury. Every good jury trial lawyer I've ever known has been, by contrast, exceedingly respectful of the possibility that any given jury might disagree with him. If there were such a thing as a "bulletproof jury argument," I've never made, heard, or read one in 30 years of law practice. Only a reckless and dangerously arrogant lawyer, in my opinion, would advise a client to undertake action that might get the client prosecuted on the sole basis that the logic of that lawyer's anticipated jury argument on the subject of "intent" is so overwhelmingly compelling that there's no risk, or a trivial risk, of a jury disagreeing.

Mr. Koster: The Court won't let you say in the presence of the jury that this law wasn't invoked in the "Where's George" matter. See my remarks above re selective prosecution. I agree (and Prof. Reynolds also remarked) that there would be blowback if the current administration prosecuted someone. You're watching closely enough to know, I know, that avoiding blowback isn't necessarily this administration's strong suit. (Compare, e.g., poll ratings showing Obamacare is still dropping in popularity.)

(37) Beldar made the following comment | Apr 26, 2010 10:42:14 PM | Permalink

Xrlq (#34), my friend! You've caught my drift but argued persuasively and respectfully and humorously against it. To you I award "best of thread" honors. As for this genuinely impressive image, I will submit that an equally plausible explanation may be that she was pretty sure she could get away with that signature, legal or not. Or perhaps she would rely upon a lack of capacity defense, contending that you had charmed her out of her senses at least temporarily.

(38) Doug made the following comment | Apr 26, 2010 11:10:26 PM | Permalink

I would love to be the one on TV being led out in handcuffs for stamping "TAX CHEAT" over Timmy's signature. That kind of publicity is invaluable.

(39) Xrlq made the following comment | Apr 26, 2010 11:21:17 PM | Permalink

Fair point, and thanks for the honors (and feel free to delete now redundant comments 32 and 33, which I thought had been gobbled up by the spam filter but apparently weren't after all). Marin is a Republican, and so was the President at the time, but query whether the political leanings of the Secret Service change all that much according to the Presidency. As to my alleged charm, let's just say that I didn't have a bill bearing Marin's signature in my wallet; she had a stack of them at her table and signed them for everyone who would take one.

(40) Captain Ned made the following comment | Apr 27, 2010 10:31:20 PM | Permalink

Beldar:

Having once worked the "scratch & dent" side of banking back in the late '80s New England real estate mess, I fully understand your cavils WRT to juries, even though I was only dealing with civil juries. I've met a criminal jury exactly once, in Federal court where I was the lead witness for the gov't.

The problem I keep having, and no one answers, is the disparate treatment of notes and coin. The stamp defacement of notes does not involve any payment from one party to another, and personal experience as a consumer and as a state-level bank regulator has never raised a single issue (from a regulatory viewpoint) over the multitude of politically-motivated stamps seen on notes these days. Conversely, the defacement of coin is a profitable industry and each and every defacement in the penny-smashers results in someone other than the gov't profiting from the intentional defacement of gov't issued coin.

If they don't prosecute the penny-smashers who profit from the defacement of US coin but prosecute note stampers for political reasons, how are these positions reconciled?

(41) Beldar made the following comment | Apr 27, 2010 11:09:10 PM | Permalink

Captain Ned (#40): Other than noting that you seem to be correct that it's not being prosecuted, I really don't have any other comments about coin-smashing. I just haven't looked into it.

But if someone were prosecuted for bill defacement, the fact that the government isn't prosecuting coin-smashers won't help the defendant. The criminal trial won't have any stage where the defendant can argue, "Hey, these positions can't be reconciled," because — as I've noted several times before — selective prosecution isn't a defense that's been generally recognized. It does factor into our sense of non-specific "fairness," I'll grant you. If a juror, inside the jury room, were to make this argument anyway, that might lead to an act of jury nullification, but it's not prudent to rely on getting acquitted by jury nullification.

(42) Dustin made the following comment | Apr 28, 2010 1:19:55 PM | Permalink

One further point:

I don't think Beldar is all that off base saying there's some small risk in doing this, and you should accept that when you do things like this (or marking 'American' on your race queries).

Another aspect is that I and many would think that such a speech restriction would bolster the case for writing 'tax cheat' on bills because it's now civil disobedience on a more grand scale.

It's unrealistic to predict conviction, but there's some small risk. Even if conviction is unlikely, or you are audited rather than prosecuted, the risk is there. I had never heard of the practice of marking Tim's name, but now I will do it every time I see his name on a bill. If I'm prosecuted, I will buy a lottery ticket.

(43) Xrlq made the following comment | Apr 28, 2010 5:40:56 PM | Permalink

Captain Ned and Beldar, the answer to the coin-smashing question is that coins and currency are two different legal animals. It's not illegal to deface coins, except for fraudulent purposes.

http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000331----000-.html

(44) Murgatroyd made the following comment | May 3, 2010 4:34:49 AM | Permalink

The Treasury Department not only tolerates but actively cooperates with people who manufacture and sell devices that are intended to deface U.S. currency.

Here's one such device: http://www.amazon.com/Counterfeit-Money-Detector-Marker-Buy1get1FREE/dp/B001F02XAY

Please note that false positives do occur, and in such cases the bills are actually withdrawn from circulation.

(45) Greg Q made the following comment | May 3, 2010 12:59:37 PM | Permalink

Hi Beldar,

You seem to have missed an important point:

with intent to render such bank bill, draft, note, or other evidence of debt unfit to be reissued.

Now, if you had asked me whether stamping "tax cheat" on a $1 bill would make it "unfit to be reissued", I would answer "No".

And, to the best of my knowledge, no Federal Official has announced that such bills are "unfit to be reissued."

So, lacking such a public statement, it seems such a prosecution must fall apart on "intent".

"Yes, i stamped them. I did so with the hope that hundreds, if not thousands, of people would see the stamp, and be reminded that the Obama Administration is a government of criminals. I had, and have, absolutely no desire for those bills to be removed from circulation.

"The claim that the stamp would caused them to be removed from circulation, made by official 'X', was made after I stamped the bills. I am sorry to hear that it's true, but as a consequence I won't be stamping any more bills."

End of prosecution. The reasonable inference of the person's behavior is that he wanted people to see the bills. So unless and until some Federal Official legally states that stamping bills with that stamp will lead to the bills being removed from circulation, the prosecution has bupkis on "intent".

Proof that I did it, with no proof that I intended for the bills to be "unfit for circulation" == no crime.

And a Federal Official publicly announcing that they'll pull any bills with that stamp on them would create more problems than teh stamp ever will.

(46) Beldar made the following comment | May 3, 2010 9:16:49 PM | Permalink

Greg Q (#45): Thanks for your comment. With due respect, however: You, like many other commenters here, seem to have a mistaken concept of how trials work. You say your argument will result in the "end of the prosecution." How? When, exactly? What is actually going to happen when you try to make that argument to the judge — say, in some sort of pretrial motion to dismiss, or in a motion for directed verdict at the end of the prosecution's evidence — is that the judge is going to say, "Very interesting, counselor tell it to the jury."

I can't rule out the possibility that the jury might buy your argument. The jury might also laugh in your face — and I suspect, frankly, that's the more likely result — when you argue that defacing bills with a calculated insult to the Secretary of Treasury couldn't possibly be predicted to cause the withdrawal of the bills. That's actually my reaction too: It's one of those "too clever by half" arguments that requires the juror to pretend it doesn't know things they really do know, just as a matter of common sense, and in fact it's likely to strike some as a scoundrel's argument. It's like the five-year-old arguing to his parent, "But you never said I couldn't hit my little brother Jimmy in the head specifically with a shovel, therefore it's okay and I couldn't have intended him any harm."

Intent is the quintessential jury question. You certainly can use arguments based on logic to ask the jury to infer what a defendant's intent might have been, or even what it probably was. The stronger the inference, the stronger the argument. But there is no bulletproof argument on intent.

Murgatroyd (#44): I suspect that the manufacturers of pens like the one you linked would assert that their diagnostic ink doesn't "deface" a bill, and that it instead only need be used to make a very small mark in a portion of the bill with no printing on it. In any event, as I've said now several times, selective prosecution is not a defense.

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