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Date Set for Appeal of Anthrax Hoax Case

A federal appeals court has scheduled oral arguments and assigned a three-judge panel to hear the case of the former Capitol Police officer convicted of making false statements in connection with a 2001 anthrax hoax.

The U.S. Court of Appeals for the D.C. Circuit will hear arguments Oct. 9, when James Pickett appeals his conviction in front of Judges Judith Rogers, David Sentelle and A. Raymond Randolph.

And aside from the fact that Pickett was a 14-year veteran of the Capitol Police, the case is intrinsically tied to Capitol Hill in other ways.

One of the arguments Pickett makes in his appeal is that the false statement did not fall within the jurisdiction of the federal government because when Congress revised the statute governing false statements in 1996, it circumscribed its application to the legislative branch to only “administrative matters” or “investigation or review.” Pickett’s attorney, Eli Gottesdiener, asserts that neither is applicable in this case.

The U.S. attorney’s office countered in its brief that the Capitol Police opened such an investigation after the note was found, and even if the statute includes only investigations ongoing at the time of the false statement, “a Capitol Police investigation into the anthrax-laden Daschle letter was already pending at the time of appellant’s actions.”

Both parties cite Congressional floor speeches — Pickett to assert that Congress narrowed the law in 1996 and the government to argue that the statute’s jurisdiction was actually expanded.

Gottesdiener cites a Sept. 25, 1996, floor speech by then-Rep. Bill McCollum (R-Fla.), who managed the bill on the floor. “I think it is important to note that the term ‘review,’ as used here, refers to an action that is ordinarily initiated by the chairman of a committee, subcommittee, office or commission, consistent with the performance of their oversight or enforcement activities,” McCollum said. “‘Investigation or review’ is not intended to include routine fact gathering or miscellaneous inquiries by committee or personal staff.”

The government quotes Sen. Arlen Specter (R-Pa.), one of the act’s sponsors, in a floor speech two days later: “This provision will prohibit knowing and willful material false statements to entities like the General Accounting Office and the Congressional Budget Office. False statements to the Capitol Police will also be covered.”

Gottesdiener replied that false statements to the Capitol Police are covered only if they satisfy the jurisdiction criteria. “To the extent Senator Specter meant something else, his sole statement (echoed by no one) cannot override the explicit text,” he wrote.

If the appeals court allows the statute to be construed the same way U.S. District Judge Thomas Penfield Jackson did, Gottesdiener writes, there would be ominous implications for speech on the Hill. A “false statement in a constituent’s letter that sparked an inquiry by a congressional office would indeed be a criminal act,” his brief states.

The appeals court agreed to hear Pickett’s case in March, a month after a U.S. District judge sentenced him to two years of probation and 200 hours of community service. The sentence was suspended pending appeal. Pickett was terminated from the force after a jury convicted him in November 2002 of the more serious of the two counts he faced.

In November 2001, shortly after letters containing anthrax were sent to the Hill, Pickett left a note and the contents of an Equal sweetener packet at his post in the Cannon House Office Building tunnel. The note read in all capital letters: “Please inhale. Yes this could be? Call your doctor for flu symptoms. This is a Capitol Police training exercize [sic]! I hope you pass!”

In its brief, the government reminds the appeals court of the “context” immediately following the Sept. 11, 2001, terrorist attacks and the anthrax letters sent to the Hill to demonstrate that Pickett’s letter, if seen by members of the public, could have provoked panic.

Gottesdiener retorts in his reply brief that the government’s own evidence shows that some members of the public were panicking at the sight of “drywall dust in an elevator” and that the letter and powder were seen only by Capitol Police officers, who didn’t take them seriously.

“The First Amendment is not calibrated to the sensitivity of the most skittish,” Gottesdiener wrote.

The government’s brief, he added, “never acknowledges the more relevant context — as pointed out by eighty-nine Capitol Police officers in the amicus brief they filed in this appeal — that Officer Pickett and his colleagues had been working twelve-hour shifts, six days per week, since that date.

“It never acknowledges that they had received no training in responding to anthrax incidence. It never acknowledges that they had been sent into ‘hot zones’ without proper protection, and that all this was a matter of active discussion in the force,” Gottesdiener wrote, arguing that the court needs to recognize the “protected political content of the defendant’s speech.”

The local chapter of the American Civil Liberties Union filed a “friend of the court” brief in June. The amicus, signed by 89 Capitol Police officers, argues that those circumstances prove the note was satire, making it constitutionally protected speech.

When he took the stand during his trial, Pickett testified that he meant the note as an editorial statement on the lack of training the force received after the anthrax attacks. The government’s own witness (the officer who took over Pickett’s post) said she didn’t believe the substance to be the deadly pathogen and consequently didn’t call the Hazardous Device Unit. The force never tested the substance.

The free-speech questions in this case are particularly interesting because of Sentelle’s presence on the bench. An appointee of President Ronald Reagan, Sentelle has established conservative credentials (he was the judge then-first lady Hillary Rodham Clinton accused of being part of a “vast right-wing conspiracy”), but he has also rigorously supported the First Amendment in several cases.

In 1999, Sentelle dissented from a 2-1 appeals court ruling that determined the First Amendment did not protect Rep. Jim McDermott (D-Wash.) from being sued by Rep. John Boehner (R-Ohio) over the disclosure of a taped cell phone call during the ethics investigation of then-Speaker Newt Gingrich (R-Ga.). He argued that a line of Supreme Court cases protecting the right of newspapers to publish important information also protected McDermott.

The other two judges, Rogers and Randolph, were appointed by Presidents Bill Clinton and George H.W. Bush, respectively.

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