Federal Criminal Charges Dismissed in Atlanta Against Doctor: Be Careful What you Say on an Airplane

The final step of dismissing federal criminal charges against a medical doctor took place today in Atlanta when we got word that the United States Attorney’s office agrees that our client fulfilled his part of a pretrial diversion agreement. This case is a lesson in several aspects of federal criminal cases: 1) the feds will always try to use a new law if they get the opportunity, 2) clients need criminal defense attorneys who will fight like crazy against new statutes, 3) reasonable prosecutors can usually be convinced to do the right thing.

Here is what happened. We have been representing a medical doctor for several years who was hauled off an airplane in Atlanta, and accused of making hoax statements about something in his luggage. Here is a web site created by his supporters that lays out some of what happened. Through numerous mistakes, airline and security personnel allowed the doctor to get on the wrong flight, and when the mistake was discovered, he was asked to leave. The doctor was understandably angry, and insisted that his bags be removed as well. Airline personnel refused, and he said that was a very bad idea. By virtue of his work, the doctor was trained about terrorism matters, and it was foolish to let his bags stay on theplane. He explained that for all the airline people knew, there COULD be something in his bag that COULD explode. He was arrested, and for the past two and one-half years Paul Kish has been trying to get this matter concluded.

The major problem with the case was that the government decided to try and use a brand new criminal statute, 18 U.S.C. section 1038. This law basically makes it a crime to make a false statement, which if true, would cause another person to think that an act of terrorism was about to take place. The law is way out there, an example of governmental overreaching after the horrible events of September 11, 2001.

We filed a whole bunch of challenges to the statute, pointing out that it was extremely vague, and arguing that the prosecution infringed on the doctor’s First Amendment right to say the obvious: namely, that it was a damn stupid idea to allow bags to remain on a flight when the passenger has been removed. This is a know terrorism tactic, to check baggage and then not take the flight. For over a year, we had a legal battle over the statute, and the first judge who looked at it almost, but not quite, agreed with us.

On the eve of trial, I met with the prosecutors who were in charge of the case. We convinced them to dismiss, in return for an agreement by the doctor to perform community service. This was no problem, in that the doctor is a very civic minded person anyway, and was glad to give back to his community. Today, I got the official word that the prosecutors concede that the doctor has done all he was obligated to do, and therefore the case is completely finished.

As I said above, this case shows the dangers of when new laws are handed down. There always is a danger that investigators and prosecutors will want to try it out, to see how far they can push it. The case also demonstrates that attorneys need to fight long and hard, but if they are facing reasonable prosecutors, they usually can convince everybody to do the right thing.