For the readers who are aficionados of Southern college football or ESPN junkies, the recent conviction of Logan Young in a Memphis, Tennessee, federal court has been a big story. The Associated Press story filed shortly after the February 2 conviction begins as follows:
MEMPHIS, Tenn. (AP) — A federal jury convicted millionaire businessman Logan Young on Wednesday of paying $150,000 to get a top football recruit for Alabama.
The jury deliberated for about 5 1/2 hours before returning the verdict. Young, 64, was convicted of conspiracy to commit racketeering (by breaking state bribery laws), crossing state lines to commit racketeering and arranging bank withdrawals to cover up a crime.
Young could receive prison time and a heavy fine. The charges carry a maximum penalty of 15 years behind bars, but federal guidelines would call for a much lighter sentence.
The highly publicized recruitment case coincidentally ended up in jurors’ hands on college football’s National Signing Day.
Given the intensity of the various college football rivalries in the Southeastern Conference (SEC), most people (except for some Alabama fans) were happy to see the results. After all, here was a rogue booster who for years most likely had been "buying players" to steer them to play for the Crimson Tide — in violation of NCAA rules — and now is going to receive his "just deserts."
(In the interests of full disclosure, one of the authors is a graduate of the University of Tennessee, where he was a member of the track team. He specialized in beating Alabama runners, and later received his doctorate from Alabama’s most hated rival, Auburn University. Thus, he is no fan of Logan Young.)
However, given that the United States allegedly is a nation where the rule of law prevails (emphasis on "allegedly"), it is time to take a hard look at this verdict. It not only is a case of federal overreaching; we contend that this verdict — and, indeed, this trial — was illegal in itself and poses a much greater danger to the former Republic than anything that Young could have done with his checkbook.
While the AP article gives a bare bones description of the case, the listing of some facts are in order. Lynn Lang, the former head football coach at Trezvant High School in Memphis, had a prize college recruit, a defensive lineman named Albert Means, whose services were coveted by nearly every SEC coach for his team. Means, however, was someone who lacked in academic skills, but also wanted some personal guidance from his coach to steer him to the college program that would be best for him. In other words, Means trusted his coach to make the decision.
Lang, whose salary at the time was $29,000 a year, had decided that one way to supplement his meager income was to auction (for lack of a better term) his star players to the highest bidders. Thus, he let it be known to college recruiters and coaches that Means’ services would come at a price, a rather steep price, with all payments going to himself. (Keep in mind that this was different than most cases in which money changes hands for the services of collegiate athletes — the NCAA demands that athletes be "amateurs" — in that a coach was paid off instead of the athletes and their families, which usually is the case.)
It was an open secret that Lang was auctioning off bids for Means, and as soon as most coaches heard the $150,000 price tag, they figured that perhaps they would be better off finding recruits who were lower-priced. However, as it has been alleged, Young, an Alabama booster who was a friend of the late Alabama coaching legend, Paul "Bear" Bryant, was willing to pay up. On top of that, it is alleged that a member of the Alabama football coaching staff arranged for someone else to take the college entrance exam for Means, and soon afterwards, Means was wearing Alabama crimson.
The whole affair became public in 2000, which led to the firing of the-then Alabama coach Mike Dubose and an NCAA investigation. Means transferred to the University of Memphis and played out his career there. In early 2002, the NCAA placed Alabama’s football program on probation, taking away scholarships for two years, and imposing a two-year ban on playing in a post-season bowl game. The program has struggled since then.
Once upon a time, that would have been the end of the story. Boosters have been placing collegiate basketball and football programs in hot water for years with their "$50 handshakes" and other such activities. (One of the authors — the former collegiate athlete — can tell many stories of his own and teammates experiences with the forbidden extracurricular benefits that have been a normal part of the collegiate athletic experience. For coaches, the "rogue" booster is an occupational hazard.)
However, today we live in an age of the federal prosecutor, and it was not long afterward that the U.S. attorney’s office in Memphis — in the spirit of prosecutorial entrepreneurship, no doubt — decided to fashion a new case. Tennessee has a law that prohibits "bribing a public servant," a Class C felony that carries three to six years in prison upon conviction. It should be noted that the Shelby County, Tennessee, district attorney’s office did not bring any indictments, and there is good reason.
Bribes commonly are understood to be payments to make an individual act either against the law or to break contractual obligations. For example, if I were stopped by a police officer for reckless driving and offered him $150 not to write a ticket, that would be considered an attempt to induce the "public servant" to accept a bribe. No one, however, induced Lang to do anything; Paul Finebaum, a sports columnist for the Mobile Register and a well-known radio personality in Alabama, wrote that Lang was holding an auction and that Young apparently was the highest bidder. (Young denied paying Lang anything, but the jury — and most other people on the planet — did not believe him.) Furthermore, it is difficult to know whether or not this constituted a bribe, since Lang was acting in the fully legal capacity as Means’ advisor. Indeed, it is not unusual for high school coaches to point athletes toward certain colleges — and away from others.
Thus, the question of whether or not Young actually bribed Lang is an open one. Certainly, it would have to be established that Young’s alleged payment of $150,000 to Lang actually broke Tennessee law. (Had Young taken Lang to dinner at the finest restaurant in Memphis, would anyone have cared?)
These are matters that could have been decided in state court, where such a case — if a crime even was committed — should be heard, under the rules of the U.S. Constitution. Lang was a state employee, and the alleged transactions occurred in Tennessee. Unfortunately, John Ashcroft’s Department of "Justice" decided to make this a federal case, and it is here that any pretense of rule of law is gone.
First, the U.S. attorney’s office in Memphis charged Lang with numerous counts of "conspiracy to commit bribery." These were what we labeled "derivative crimes" in previous articles in The Independent Review and Reason. We define "derivative crimes" as "crimes" that in themselves are fictitious concoctions; they are charges "derived" from the alleged breaking of state laws. The development of these fictitious "crimes" has been one of the sorriest chapters in U.S. legal history, something that has given federal prosecutors near-total powers to indict nearly anyone in this country no matter how innocuous the original act might have been.
Furthermore, the rules of evidence in state courts and federal courts are much different, as federal courts allow for hearsay evidence and federal judges routinely block legitimate defenses. While the supposed "burden of proof" in criminal cases is "guilty beyond a reasonable doubt," in federal courts, part of that "proof" actually constitutes the lesser "preponderance of the evidence" that exists for civil cases, something we shall demonstrate.
Second, Lang agreed to plead to lesser charges in order to testify against Young, who was indicted for "conspiracy to commit racketeering (by breaking state bribery laws), crossing state lines to commit racketeering and arranging bank withdrawals to cover up a crime." We now break down the essence of each of these charges.
Conspiracy to commit racketeering (by breaking state bribery laws): One of the things alleged in the trial was that Young’s actions broke Tennessee bribery laws. However, since the case was not tried in a Tennessee court, it never was proven that the supposed action broke any laws. This is hardly what one calls a "legal technicality." (Remember, what prosecutors and journalists describe as "legal technicalities" are your Constitutional rights.) If one is to be convicted of breaking a law, it needs to be firmly established in a court of law that a law was broken and that the accused actually broke it. However, by hearing the matter in federal court, it never was established in the proper legal arena that a state law was transgressed. Indeed, jurors were supposed to conclude that Tennessee’s bribery law was broken, but for all of the "guilty beyond a reasonable doubt" talk, the standard of proof actually was something less than that, since it had not legally been established otherwise.
Second, "racketeering" is a classic "derivative crime." One does not "racketeer" anyone. Furthermore, "conspiracy" itself is a derivative crime, since no action that harmed anyone was taken. Thus, we have the legal absurdity of Young being convicted of a "derivative of a derivative crime" in which the original "crime" was not legally proven in the proper court of law. If this sounds like a trashing of the Constitution, the reader is correct.
Crossing state lines to commit racketeering: It was inevitable that federal prosecutors would resort to a most-tortured interpretation of the Commerce Clause of the Constitution to make charges. There is nothing inherently criminal about crossing state lines; the term simply is a "hook" on which a U.S. attorney is able to hang a criminal case. Furthermore, it is another example of a derivative crime, so once again we have a "derivative of a derivative crime" in which the original "crime" was not legally proven in the proper court of law, all in the name of the rule of law.
Arranging bank withdrawals to cover up a crime: Young had a number of withdrawals from his bank account that were in amounts of less than $10,000, the threshold for setting off routine federal investigations and that banks must report to the Internal Revenue Service. (In slang terms, it is called "smurfing.") Now, there is nothing inherently criminal about withdrawing money from a bank account; Congress created this "crime" in order to give federal prosecutors more weapons to use against individuals targeted for criminal investigations. This, too, is a derivative crime, and, to be honest, is a "derivative of a derivative of a derivative crime" in which the original "crime" was not legally proven in the proper court of law.
All these derivative crimes have one thing in common: an innocent act (like withdrawing money from your bank account) that can be used as a hook to charge you in federal court instead of state court. Toss in the Federal Sentencing Guidelines with their stringent minimum mandatory sentences and array of enhancements for various acts that don’t have to be proved in front of a jury, and it spells doom for anyone caught in the federal system.
Logan Young is 64 years old and is in failing health (he will soon begin kidney dialysis, and if the judge sentences him to multi-year terms, he will — in effect — receive a death sentence, given the deplorable state of medical care in federal prisons). He presently is wealthy and was able to buy excellent legal counsel. However, he would have been just as well off had he represented himself or picked a student from the nearby University of Memphis law school. Such is the state of the federal criminal system.
The day of the conviction, Finebaum had an Alabama state prosecutor as a guest on his radio show. Not surprisingly, the prosecutor praised the verdict, then announced that it should "send a message" to "rogue boosters" around the country. Indeed, the verdict does send a message, but not the one the prosecutor stated.
The message is this: the rule of law in the United States is dead. We now have rule of people, and dishonest people at that.
February 4, 2005
William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute. Candice E. Jackson [send her mail] is an attorney and graduate of Pepperdine Law School.