Appeals Court Calls Out FBI For Treating Rich People Better Than Poor People

We may supposedly be a nation of equals but some people will always be more equal than others.

The justice system has multiple tiers. This has always been the case, despite the best efforts of the founding fathers. Rich people view some laws as optional, since they can easily absorb the fines and fees. Laws only really apply to the people who can’t afford to run afoul of them.

But there’s more to it than that. Rich people can get the best lawyers. Poor people get whatever the system hands to them. Public defenders are awesome people and often do their best, but when budgets are on the line, the people assumed to be defending the guilty are shortchanged while law enforcement agencies and prosecutors’ offices remain well-funded.

Even when you’re rich, justice is a sliding scale. Some suspects are given a perp walk in full view of the press — something that allows prosecutors and cops to pretend they’re on the side of the working class. This is done in high-profile cases where the government has a lot to prove because the government has done little to deter the sort of criminal activity now being scrutinized by citizens and the press.

In other cases, powerful people are simply allowed to turn themselves in. They can show up during off hours, free from public scrutiny, and ensured of speedy processing that will keep their embarrassment to a minimum.

In most cases, the multi-tiered system doesn’t produce a paper trail. Every so often, it does. And when it does, it’s usually ignored. But this didn’t happen here, fortunately.

The DC Appeals Court is handling some procedural evidentiary concerns in a criminal case involving insurance broker Tarek Abou-Khatwa’s alleged defrauding of BlueCross BlueShield. After a one-week trial, Abou-Khatwa was convicted on multiple charges, including health care fraud and identity theft.

But the key here isn’t the allegations, although that’s what the DOJ and Khatwa’s lawyers were arguing about in front of the DC Appeals Court. It’s how the FBI chooses to treat those who are well-off. And how that differs from how they treat the rest of us.

This difference in treatment was documented in the FBI’s criminal complaint. And it did not go unnoticed by the DC Appeals Court, which ended its oral arguments by asking the DOJ’s lawyer what exactly the fuck went on here. (h/t Slate’s Mark Joseph Stern)

Here’s a recording of the oral arguments. The excoriation of the FBI and its tactics during this case starts at 1:06:39.

Here’s an (approximate — I’m not a licensed court reporter) transcription of this exchange.

Judge Patricia Millett: I just have one more thing. And if you have the government’s supplemental appendix…

DOJ: I’m sorry. I do not.

Millett: So, up front, this is not something they’ve raised, it’s just something that, actually for me, was profoundly troubling in this case and I want to communicate it to you… in not just your personal capacity, but the United States government. Because I found this deeply disturbing.

And this goes to the execution of the search warrant at his house. What the FBI agent testified was [citation omitted], you know, we’re going to have to do a forced entry because no one was answering the door… [quoting from the FBI agent’s submission]

The decision was made, since it was an “affluent neighborhood,” “we knew we had to make a forcible entry at that point.”

“But due to the aesthetics of the neighborhood, we decided to use a rear entrance, so as to maintain the integrity of the front of the residence.”

Are you aware that the FBI has a policy of deciding not to break down the front doors in rich neighborhoods?

DOJ: No, your honor. Not aware.

[crosstalk]

Judge Millett: As I said up front, they haven’t raised this and I don’t mean to blindside you, but this is such outrageous behavior by the FBI. I mean, if there really is a policy out there that if they’re in non-affluent neighborhoods, they’ll break down the front door, but for the rich people we’ll go in quietly through the back door… that’s deeply troubling. That’s shocking to me that it didn’t get more attention. So that’s why I called it to your attention. I don’t expect you to respond.

DOJ: I appreciate that, your honor, and I will pass that on to my management.

Judge Robert Wilkins: Thank you for raising that, Judge Millett. I was a public defender here for ten years. I can’t tell you how many times my clients had their front doors bashed in. I don’t remember a single time any agent or police officer was worried about the “aesthetics” of what their house would look like after they executed a search warrant.

For most Americans, having cops stop by with a warrant means having front doors destroyed, windows broken, front rooms turned poisonous, and their children set on fire. For those who are rich enough, it means officers and agents will politely approach an entrance not visible from the street and make ingress without rendering a house uninhabitable.

This further drives a wedge between the police and the policed. It makes it clear the government (at all levels) will only tread lightly on those it thinks have the monetary means to complain about their treatment effectively. Everyone else gets unrestrained destruction and violence.

This isn’t a call for rich people to be subjected to the same violence and destruction as poor people. It’s a call for poorer people to be given the same deference and respect the FBI (and other law enforcement agencies) grant to affluent suspects in “nice” neighborhoods.

Hopefully, the DC court’s will push the FBI to treat suspects more equitably. Unfortunately, it’s far more likely to result in more reviews of affidavits and criminal complaints to ensure agents don’t say anything quite this stupid in future court submissions.