Review-Journal resists subpoena for names of readers who posted views


Free speech collides with fair trial.

Review-Journal readers who posted online their views about a federal criminal tax trial are the target of a sweeping federal grand jury subpoena asking for information so that authorities may identify who they are and where they live.

The Review-Journal plans to file later this week a motion to quash the subpoena, and the American Civil Liberties Union has posted its own online solicitation asking those who posted whether they would like the ACLU to legally represent them.

The newspaper received the subpoena on June 2, and Editor Thomas Mitchell revealed the existence of the subpoena in a June 7 column.

This past week the grand jury subpoena, which is separate from the ongoing trial but was signed by one of the prosecutors involved in the tax trial, was the topic of discussion between the trial judge and attorneys, revealing for the first time a possible motive for the subpoena.

The newspaper's subpoena does not explain why the U.S. attorney's office wants to know who commented on the case, but prosecutors told federal Judge David Ezra that they issued it out of concern for jurors' safety, because some comments hinted at acts of violence.

Las Vegas business owner Robert Kahre and others face federal tax fraud charges for paying contractors with gold and silver U.S. coins based on the precious metal value of the coins but using the much lower face value of the coins for tax purposes.

As of 9 p.m. Monday, 173 comments were listed below the May 26 Review-Journal article about the trial. Many comments deal with the trial and its principal players. Others were posted after the subpoena arrived.

The subpoena bears the name of U.S. Assistant District Attorney J. Gregory Damm, who is part of the government team prosecuting Kahre and three others on charges that include tax evasion, fraud and criminal conspiracy.

Jury members, Damm and Christopher Maietta, another government attorney, are the subjects of online comments that might be construed as threats.

On Thursday, the ACLU of Nevada also posted below the article an offer to help people who feel threatened by the subpoena. Allen Lichtenstein, general counsel of the civil rights organization, said it has received "several" inquiries.

Mitchell said the paper is resisting the sweeping nature of the subpoena, noting that anonymous speech is "a fundamental and historic part of this country," citing the Federalist and Anti-Federalist Papers that argued for passage and against passage of the nation's Constitution as an example. All were written under pseudonyms. He said the paper would consider cooperating if specific crimes or real threats were presented.

Interest in the Kahre case appears to run counter to a remark that Ezra made during a hearing to prepare for jury selection. If "CSI: Tax" were a television crime show, it wouldn't pull much audience, he said.

In the case, the government contends the defendants operated illegally, out of greed. The defense contends they had an honest but mistaken understanding of tax laws, and therefore had no criminal intent.

Many used the newspaper Web site to say the U.S. government has turned socialist, the nation's monetary system encourages deficit spending and guarantees inflation, or the Internal Revenue Service has to be reformed or abolished.

In addition to requesting the names of people who posted, the subpoena also tells the newspaper to supply the writers' gender, birth date, physical address, telephone number, Internet service provider, IP address, credit card numbers and more.

The reason for the subpoena came up in court, outside the jury's presence, after an alternate juror sent a note to Ezra, explaining that his spouse had told him to avoid a certain talk radio station, which was discussing the trial. Ezra retained the alternate after he determined the man did not know any details of the broadcast.

Ezra said this past week in court that he would not be handling the subpoena. However, "anytime we get people writing ... that if a particular verdict isn't reached, that jurors ought to come to physical harm -- that's no good. And if somebody wants to investigate that, that's their perfect right."

One commentator said, "The sad thing is there are 12 dummies on the jury who will convict him. They should be hung along with the feds."

Another writer suggested supporting Kahre with a public protest at the courthouse. A third writer advised moving it across the street from the courthouse, or to the local IRS office, to avoid court security officers.

Kahre has been gaining an opinionated Internet audience after an armed team from several law enforcement agencies raided several of his business locations -- including his sister's home office -- in 2003 to collect evidence for the tax case.

Readers' online feedback, mostly anonymous, is almost entirely pro-Kahre. Some comments personally attack Damm. One, for example, calls him a "socialist, fascist Mormon" and a "Nazi moron."

David Heller, senior staff lawyer at the Media Law Resource Center in New York, characterized the subpoena as "heavy-handed" and "bizarre."

"Federal prosecutors do have very wide latitude in investigating crimes," he said. "Even so, their power isn't unlimited." Some of the online comments struck Heller as "loose slang and hyperbolic language" rather than authentic threats to juror safety.

To ensure safety but still allay the concern about violating writers' First Amendment rights, the Justice Department could have avoided a blanket subpoena and sought instead only authors of specific comments, defense attorney Michael Kennedy said June 9 in court.

The subpoena might entail "mixed motives due to the personal animosity between the parties," the New York media lawyer said after he heard a description of several court actions that have pitted Kahre against Damm, going back several years.

After the raid in 2003 -- but before Kahre's 2005 indictment -- Kahre and several of his workers sued Damm, two IRS agents and others who had helped plan or execute it. That civil matter is on hold until after the criminal trial.

In February 2007, Kahre sued Damm and agents of the FBI and IRS, alleging they conducted themselves during the investigation in a way that constitutes a criminal pattern. Judge Ezra dismissed the complaint in December, but Kahre appealed and the 9th U.S. Circuit Court of Appeals heard oral arguments on Friday.

Kahre, his sister and a former assistant are standing trial for how they handled their own income taxes as well as their roles in Kahre's unique payroll system. Kahre paid workers at his six trade-related businesses in $50 gold or silver dollar coins. Those minted after 1985 are allowed to circulate as money. He also allowed workers to immediately exchange the coins for paper currency, as determined by the coins' investment value.

Two years ago, Damm prosecuted a similar tax case against nine defendants, including Kahre, on more than 160 counts. The trial ended with no convictions and four acquittals.

Five defendants were only partially acquitted, and two of them were dropped from the indictment that generated this trial.

Contact reporter Joan Whitely at jwhitely@reviewjournal.com or 702-383-0268.

 

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