U.S. prosecutors narrow subpoena


The Las Vegas U.S. attorney's office appears to have relented in its demand for the identities of all of thepeople who wrote comments on the Review-Journal Web site about a criminal tax trial in progress. Now it is asking for information pertaining to only two comments that might be construed as threatening to jurors or prosecutors.

The newspaper's attorneys received a revised subpoena Tuesday afternoon. The original June 2 federal grand jury subpoena sought information on about 100 online comments posted on a May 26 article. That article now has close to 200 comments posted.

Editor Thomas Mitchell said the newspaper was prepared to seek to quash the sweeping subpoena on First Amendment grounds but plans to comply with the narrow request on the two comments.

"I'd hate to be the guy who refused to tell the feds Timothy McVeigh was buying fertilizer," Mitchell said, referring to domestic terrorist McVeigh, who destroyed a federal building in Oklahoma City in 1995.

Mitchell said it was to the prosecutors' credit that they realized their initial request might be overly broad and have a chilling effect on free-wheeling public debate of an important topic.

But the American Civil Liberties Union of Nevada is not satisfied and late Tuesday filed its own motion to quash the subpoena and stop the release of any identities.

Federal prosecutors told U.S. District Judge David Ezra this past week they had issued the first subpoena out of concern for juror safety. Ezra is presiding at the trial of Las Vegan Robert Kahre and three others, who face charges of tax evasion, fraud and criminal conspiracy. The grand jury matter is separate from the Kahre trial.

In the two online comments that are still targeted, one called jury members "12 dummies" and said they "should be hung" if they convict Kahre.

The other wanted to wager "quatloos" -- a form of money in "Star Trek" -- that one of the federal prosecutors would not reach his next birthday.

The newspaper has deleted that from its Web site because it violated the paper's policy. That policy also states that the paper reserves the right to reveal information about posters in the event of legal action.

"We want to be good citizens and do the proper thing," Mitchell said. "We will give them what we have, which frankly isn't much, since most postings are anonymous."

"I think it's to the paper's credit that it decided to fight," said Roger Myers, a San Francisco lawyer retained by the newspaper to prepare a motion to quash. The newspaper "got the government to back way down."

The original subpoena, Myers said, would have caused "a chilling effect on people who want to criticize government prosecutions, on the (fear) they may get dragged in" to a grand jury.

The original subpoena bore the name of Assistant U.S. Attorney J. Gregory Damm, who is helping prosecute Kahre. The name of Assistant U.S. Attorney Eric Johnson is on the revised subpoena.

But the ACLU of Nevada believes a chilling effect remains. Staff attorney Margaret McLetchie said the civil rights organization is seeking a court order declaring the original subpoena unconstitutional. She said it has filed on behalf of three clients, who posted anonymously on the Review-Journal Web site and who will remain anonymous during the legal action.

"The right to speak anonymously about politics is older than the Constitution," she said, alluding to the Federalist and anti-Federalist papers, which were published under pseudonyms.

"We don't think any of the comments we've seen are the appropriate target of government inquiry," McLetchie said, adding that ACLU staff never saw one about betting on a prosecutor's death.

The organization does not view any of the remaining comments as posing a "true threat," which she defined as showing "a clear danger of imminent action."

Christopher Hansen, who posted comments under his own name, is the brother of Joel Hansen, one of the defense attorneys, who is representing defendant Alex Loglia.

Christopher Hansen, a prolific blogger, told the Review-Journal he had e-mailed to an extensive circle of friends at the start of the Kahre trial to "bury the R-J (Web site) in positive Kahre comments." He added that he never consults his lawyer brother when exercising his right to free speech, and his statements sometimes anger his sibling.

On Friday, Christopher Hansen sent a group e-mail in which he reminded his readers, "I support only peaceful actions through the legal system in order to save the (U.S.) Constitution." He is a former member and officer of the Independent American Party.

The criminal trial before Ezra, which began May 19, has to decide the motivation of Kahre and two of his co-defendants. The government alleges the motive was greed. The defendants claim ignorance of tax law as to the handling of gold or silver coins minted after 1985, which are allowed to circulate as money.

Those three defendants arranged to pay the workers at Kahre's construction-related businesses in gold and silver coins based on their precious metal value, but used the coins' lower face value for tax purposes.

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

 

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