Petition of the Month, Winter 2015: Baumgartner v. United States

Congress enacted the very first series of federal offenses with the passage of the 1790 Crimes Act, which specified 23 federal crimes. When we dug into the history books, we learned that among those crimes was misprision of felony. We could fmd no legislative history indicating exactly what Congress intended when it passed the statute. When we looked across the pond to England, our research uncovered an interesting debate whether the offense actually had a historical foundation in English common law. Arguably, the offense never had a meaningful existence beyond textbook writers and historical scholars.

The first case in this country we found that construed the statute was decided in 1934. The question was whether a person’s failure to report a federal crime is, itself, concealment. The answer that has been adopted by every federal circuit to consider the matter is that the statute requires an “affirmative act” of concealment in addition to a failure to report.

In 1992, Richard Baumgartner was appointed to serve as Knox County, Tennessee Criminal Court Judge. He was elected and re-elected to serve for nearly 19 years. He was a hardworking and highly respected jurist who presided over some of the most difficult homicide and death penalty cases ever prosecuted in Knox County. His downfall was tragically rooted in an addiction to prescription pain medication, stemming from multiple medical problems for which he sought treatment.

Ultimately, Richard’s addiction led him to seek out and illegally obtain opiates from other individuals, including one person who was on probation out of his court. The Tennessee Bureau of Investigation launched an investigation that resulted in a plea in state court to official misconduct. Mr. Baumgartner was allowed to keep his state pension, but he resigned his judicial office. He publicly admitted his addiction, and he permanently surrendered his license to practice law.

I won’t presume to speak for the federal prosecutors; you would need to ask them personally. All I can tell you is what happened after the state plea. The plea generated considerable media attention. Public opinion was mixed, with a noticeable segment of the community expressing sympathy and appreciation for Richard’s years of service as one of Knoxville’s most popular and hard-working judges. Sympathy began to sour in late 2011 and the beginning of 2012, when the special judge who took over Mr. Baumgartner’s cases ordered new trials for four defendants involved in the torture and killing of a young Knoxville couple. The public backlash from having to retry the murder cases and from learning that Mr. Baumgartner kept his state pension was swift and harsh. Fourteen months after the state plea, Mr. Baumgartner was arrested and arraigned on federal charges.

The indictment alleged that a woman, Deena Castleman, was part of a federal conspiracy to obtain and distribute opiates, such as hydrocodone and Oxycodone, and that Mr. Baumgartner had actual knowledge of that federal conspiracy. Indeed, Mr. Baumgartner purchased opiates from Ms. Castleman. For each of the seven counts, the specific “concealment” alleged was that Mr. Baumgartner made “material misrepresentations” either to local officials or to private citizens about Ms. Castleman. The indictment did not allege and the government did not claim that Mr. Baumgartner was a member of the conspiracy or that he was an accessory after the fact. The theory of prosecution rested solely on his statements to and conversations with a state court trial judge, hospital employees, a general sessions court judge, a juvenile court magistrate judge, the head of transitional housing at a local YWCA, and a local county prosecutor.

The implications are huge because few threats to our constitutional way of life are as dangerous as suppressing speech by making it a federal crime. Keep in mind, we are talking about criminalizing conversations that have nothing, even remotely, to do with someone else’s involvement in a federal crime—conversations that cannot possibly hinder federal law enforcement efforts or impugn the integrity of government processes. As we view it, the question is not whether criminalizing these conversations creates a slippery slope but, instead, just how steep is this slope.

Alvarez—the “Stolen Valor” case—was decided about a month after the indictment was returned against Mr. Baumgartner. Alvarez debunked the government’s long-held position that all false statements of fact fall outside the First Amendment’s scope. The government had pointed to federal statutes, such as § 1001, false statements to a governmental official, and § 1623, perjury, as supporting its argument that false statements are not protected by the First Amendment. The Supreme Court responded that those statutes don’t merely restrict false speech; they are designed to uphold the integrity of the federal trial system and protect the integrity of government processes. The statement in Alvarez that really caught our attention concerned § 1001. The Supreme Court cautioned that § 1001’s prohibition did not lead to the broader proposition that false statements are unprotected when made to any person, at any time, in any context. That warning, we contend, foreshadowed what happened in Mr. Baumgartner’s case.

The number is actually closer to 600 misprision cases that we reviewed. From that review, we confirmed our initial belief that misprision is frequently used as a landing point for compromises in reaching plea agreements. We were surprised to discover that the largest category consists of civil cases with plaintiffs trying unsuccessfully to allege misprision as a cause of action. What we found particularly significant for our purposes was that prosecutions based on “verbal” acts of concealment had a common theme. With the exception of three or four instances, the misrepresentations were made to federal authority figures, which, of course, did not occur in Mr. Baumgartner’s case.

The Supreme Court has mentioned misprision of felony, somewhat in passing, in three decisions. It has commented that misprision of felony has long been against public policy, and it has noted a common law duty to raise the “hue and cry” and report felonies to the authorities. Whether the government can use misprision to criminalize conversations that have nothing, even remotely, to do with someone else’s involvement in a federal crime is an important question of first impression.

This conviction is a classic example of a matter swiftly and effectively addressed at the local level, and yet a federal prosecution was vigorously pursued months later. If allowed to stand, every citizen legitimately should fear that his or her conversations could, at any time, be swept into the net of federal wrongdoing. It is no overstatement that this conviction basically hands a loaded gun to every prosecutor struggling to find some basis to charge a citizen with a federal crime.

We were impressed and totally satisfied with the experience working with the Supreme Court Press and, in particular, with the Editor, Geary. It was liberating not to worry about the dozens of intricate formatting and procedural rules that must be followed before the Supreme Court will accept a filing. We could focus on developing persuasive arguments and explaining why a writ of certiorari should be granted.

Geary brainstormed our arguments with us. He made many helpful suggestions on what facts to emphasize and what legal points may appeal to certain members of the Court. We pride ourselves on the quality of our writing: grammatical correctness; spelling; citation form, etc. The draft markup we received thankfully caught a few errors that we missed. Comments within the draft markup were relevant, and although we did not adopt all the suggestions, many of them convinced us to change certain language and emphasis.

We worked with Geary during the horrid weather in February 2015 that paralyzed the North East and South East parts of the country. Geary was always available by phone and email. We never worried that the weather would interfere with the timely filing of our petition by the Supreme Court Press. For our future needs, we definitely will contact Supreme Court Press.