Qui Tam Law How to be the Prosecutor Qui Tam are the first two words of the Latin phrase "qui tam prodomino rege quam pro se ipso sequitur." A literal translation is: he who brings the action for the King (Crown, or government) as well as himself. This law originated four centuries ago when law enforcement was up to the King of England and his appointed agents (Sheriffs). However, they had a couple of problems. First, there weren't enough law enforcement officers to go around. Laws were constantly being broken and the majority of violators seldom punished. Second, the King sometimes didn't favor certain laws passed by Parliament as they sometimes interfered with his whims and pleasures or those of the nobility. As a result, politics entered the scene of law enforcement: only laws the King liked were enforced, and the laws the King didn't like weren't enforced. In desperation, early lawmakers sought ways and means to recruit a few thousand volunteers to act as unofficial crime fighters to enlarge their law enforcement staff. To solve the first problem, they passed a law that said, with words to the effect, "any citizen, who provides or gives evidence leading to conviction, shall receive 50% of the fines collected." To solve the second problem of politics and corrupt officials not properly enforcing the law, they passed another law: Qui Tam law. Informants who had financial interest in the fines and forfeitures automatically had the legal standing to start prosecution "in the name of the King and himself" when there was any delay or political reluctance to prosecute the offender. The same problems apply to today's world: Not enough police (i.e. drug wars and the rate of pollution everywhere). Politicians with their financial sponsors often put their interests first and the public interest last. And, sad to say, graft and corruption still exist at all levels of government. Because Qui Tam is based on old English law, it's probably also valid in Great Britain, Canada, Australia, and former British colonies. If you live in any of these countries, look into it. Broad Application Qui Tam has been used in many environmental lawsuits where no criminal law has been broken but a planned project threatens to spoil the ecology, environment, water table, or poses a threat to those that live in the area. In this situation, the rights of those involved may be in jeopardy. Rather than wait until the damage has been done, Qui Tam law allows environmenta- lists or others having an "interest" to take legal action via this law to stop the development before it gets too far underway. Getting an injunction to halt the project is the first step and puts the project in limbo until the case goes to court. Qui Tam law has been successfully used many times to prohibit certain harmful development in wilderness areas. Such lawsuits allege that development would create an intangible loss to the public who enjoy their many benefits or may cause other harmful effects. In recent years this law has been used mostly for pollution control and to protect the environment via class action suits, but it isn't limited to those issues. It's a stand-alone common law that can be used when you have a financial interest, or other considerations, which provides the standing requirement. Pending rewards, when you're eligible, provide legal standing. Qui Tam law hasn't been used very often (lately) in criminal prosecutions because regular law enforcement and prosecution have usually been adequate. Now, it's being dusted off for modern-age CrimeFighters. Use Qui Tam to control plea bargaining in prosecution to protect your financial interests. Your reward is not the prosecutor's interest. He or she is concerned with the number of cases pending prosecution, limited budgets and legal resources to do the job, and the always-crowded court calendar. When it's possible and practical, CrimeFighters should control plea bargaining. Take charge of the case and you won't be disappointed in the outcome. Case Law In an historic case (United States vs Griswold, F Cas 15266 (1877) the action involved false claims or fraudulent acts against the government. The counsel for the defense objected on the grounds the informer wasn't a district attorney and therefore had no standing to lay charges. He asked that the case be dismissed on those grounds. The Court denied the defendant's motion to dismiss the case because, as the court observed, Qui Tam law provides an informer with the right to initiate an action against a lawbreaker. The court said: "When, as in this case, a statute imposed a penalty for the commission of an act, and also gave such penalty in part to whomever would sue for it, and the remainder to the King or other public use, the action to recover such penalty, if brought by a private person, was brought in his own name and subject to his control. Although a judgment obtained therein was for the benefit of the King or other public use as well as the plaintiff, yet the action was, to all intents and purposes, the private action of the latter." The court also said: "For all purposes, except the discontinuance of the action, the attorney employed by the informer to commence and conduct the same is the attorney of the United States therein. Neither does the fact that the district attorney is required to be diligent to enforce the statute against persons violating it, make him the attorney of the United States in that action... Whichever -- the informer or the district attorney - first starts an action for a particular violation of the statute, thereby excludes the other from so doing." The court concluded: "Neither does the provision in section 771 of the Revised Statutes which make it the duty of the "district attorney to prosecute in his district... all civil actions in which the United States are concerned," authorize or require him to act as an attorney for the plaintiff in this (Qui Tam) action." Section 5 of the Informers Act says U.S. Attorneys should be diligent in inquiring into any violation of the provisions of this act... and they prosecute all offenders. However, the Court ruled that a private citizen could bring a Qui Tam action to enforce the act and the U.S. attorney could not interfere with the action after it was started. The rule of law is, and the practice has always been, a Qui Tam action is the action of the person who brings it, and the government, although concerned in the outcome of same, has no right to interfere with it, except as provided by statute. Validity and Precedents The U.S. Supreme Court ruled in 1905: "Statutes providing for actions by a common informer, who himself has no interest whatever in the controversy other than that given by statute, have been in existence... in this country since the foundation of our Government." Still later, in 1943, the Supreme Court, in rejecting the views of the third circuit court of appeals that informer actions, "have always been regarded with disfavor," stated: "Qui Tam suits have been frequently permitted legislative action..." Conclusion: It is the legal right of a person (or corporation) to initiate actions under Qui Tam law, providing the standing requirement is met for the action. Although the wording in the law being violated may state that U.S. attorneys should prosecute all offenders, it doesn't bar an individual from hiring his own lawyer and bringing a Qui Tam action. And, once the action is underway, the U.S. Attorney has no right to interfere with it or take it away from the CrimeFighter. American case law supports the proposition that a law providing for a reward to informers is to be considered as authorizing the Qui Tam action. You too, can be a Federal prosecutor! Being the Prosecutor When a guilty plea is given, there is no trial, only sentencing. The job of the prosecutor at that point is mainly to recommend a suitable sentence and to advise the court of any reasons for leniency or stiff sentences. The judge doesn't have to accept the recommendations but usually takes it into consideration. Most of the time it takes about 10 or 15 minutes per case. Read the book "Rough Justice" (in CRIMCAT) to learn all about it. If you're not sure you can handle it, hire a lawyer to process a few cases for you until you learn court procedure and feel comfortable in your new job. From then on, there's no need to have a lawyer involved (and costing you) for each person who pleads guilty. First, you have to be eligible for a reward. Title 18, Section 3059, the catch-all reward law (any felony, any state) provides eligibility. Second, the defendant must have sufficient financial resources, a steady job, real estate equity or tangible assets to make a lawsuit worthwhile. If the defendant has at least a steady job, voluntary monthly payments, or wage garnishment enforced by the courts can make it worth the effort. CrimeFighters are not usually lawyers and won't want to be involved in lengthy, expensive, jury trials. The basic strategy is to avoid a trial. All you need is a guilty plea. Ninety percent of the time the lawbreaker will WANT to plea bargain to lesser charges. But, lesser charges would jeopardize or minimize the pending federal reward. Happily, there's a simple solution called plea bargaining. The accused doesn't want to go to jail any more than you want to have a jury trial. You make an offer: If the accused settles the civil suit out of court, you can consider reduced charges on the criminal suit. That's a win-win situation. The previous chapter explains how you use your prosecutor position to allow plea bargaining and, when possible, transfer possible fines and forfeiture of assets to the Crimefighter's lawsuit. Said lawsuit being settled out of court as part of the plea bargaining deal to pay an alternate form of a federal reward via a lawsuit award. If the lawbreaker was cooperative and you obtained a settlement of the lawsuit. You can accept a guilty plea to reduced charges, just like regular prosecutors do, and for the same reasons - to avoid jury trials. You may ask for "probation without ajudication" for first time violators (no trial or guilty verdict, just probation). Another recent innovation is "pretrial diversion." This is where first offenders are placed in a rehabilitation program, with their consent, immediately after arrest, and the prosecutor agrees to drop all charges. The problem is, if there's no felony conviction there is no federal reward eligibility. That's where your lawsuit comes in. The lawbreaker will want you to go ahead with the criminal charges to get it off his or her back. If you don't clear the criminal charges, the state prosecutor may decide to take it over and ask for maximum jail time. That makes you the "good cop" and the state prosecutor the "bad cop." That gives you leverage for cooperation and settlement of your civil suit. Doing It When possible, contact the nearest FBI agent to negotiate rewards and let them make the arrests. If there is no time to negotiate a reward with the FBI agent and you are capable of making the arrest yourself, or with a CrimeFighter partner, take the lawbreaker into custody and turn him/her over to a law enforcement agency as soon as possible. If necessary, call the local police department and ask for "back up" for your citizen arrest (like Bounty Hunters do when re-arresting a bail bond skip). But remember, it's important for you to get official credit for the arrest when you can. The law enforcement agency who gets credit for the arrest and handles the prosecution usually gets 50% of the fines and forfeitures. The informant gets the other half, sometimes! It depends on which law you use. That's why you need to control the prosecution! If it's you, you have no problem. If it's not you, you may have a problem. If a law enforcement agency helps you make the arrest, they may elbow you out of the way, take credit for it and ask the court for 50% of fines and forfeitures. That may cause you problems when you lay claim to 100% in your lawsuit. But, if you beat them to the draw, by including all the known assets in your civil suit before you make the arrest, you have first claim. If you are the prosecutor you can usually negotiate an out of court settle- ment of your civil suit before the criminal prosecution is completed! If there is a negotiated reward, the agency authorizing payment of a reward will most likely want to prosecute the case. Compare what you might get from them against what you might get from the defendant in your lawsuit. If the pending reward plus 50% of the fines and forfeitures is about the same amount as your lawsuit, you could hand it over to the law enforcement agency who provides the reward. The drawback is, rewards are contingent on a conviction. There is a possibility of many delays because of appeals. And, there's an uncertainty of full and speedy payment (even when it's in writing!) You could be stonewalled when asking for payment, as Billy Breen and many other informants have been. It may be better to prosecute the case yourself and be paid an award via a civil suit that can be settled in a week or so. Weigh your options before you disclose the details to the FBI. As soon as possible after the arrest tell the regular district attorney you are asserting your Qui Tam right to prosecute the case. Ask to be put on record as the prosecuting attorney. If you're asked about your legal qualifications, aside from Qui Tam law, you can mention that, if no guilty plea is obtained and a trial is required, at that time you will either hire a qualified lawyer to be your assistant to handle the legal work for you, or you will turn the case over to the regular prosecutor. If the D.A. ignores your legal right to be the prosecutor of your arrests, initiate a lawsuit against the city, county or state for triple the amount of your possible loss of rewards, fines and forfeitures, and civil suit awards. If it's not settled out of court, hire a lawyer on a contingency basis to take it to trial. (He gets 40%) Don't let anyone push you aside because of their official position. You have the right to be prosecutor. Plea bargaining between defense lawyers and prosecutors is usually a friendly, informal negotiating procedure, often over a cup of coffee. If you feel you can handle it on your own, you won't need to pay a lawyer to supervise the plea bargaining. Since 90% of the time plea bargaining will be requested, you can handle 90% of the cases. To minimize your costs, you can arrange to meet the defendant or his lawyer at the lawyer's office, nearby coffee shop, or in a (free) prosecutor's room in the courthouse. When you have the opportunity to talk to the defendant in your prosecutor role, you can explain who you are, what you want, and the reason for the personal lawsuit. When he learns you are a bounty hunter, and in it mainly for rewards and the lawsuit award, he will realize he can (maybe) negotiate reduced charges by settling the civil suit and/or providing information on other criminal activity. At that point, the negotiating process will be under way. He may or may not want a lawyer to do the negotiating. If he does, you deal with his lawyer instead. Tell the defendant and/or his lawyer the monetary amount or assets listed in the civil suit are to provide an alternate reward/award when (and if) plea bargaining results in converting a felony to a misdemeanor. If that happens, you lose the federal reward. The lawsuit is the means to divert the pending federal rewards and your 50% share of fines and forfeitures of the criminal suit into your civil suit. If there is no deal, the criminal suit will be pressed for the original charges (and maximum penalty) to qualify for the maximum reward, and you will ask for the same fines and forfeitures in the criminal suit of which you get 50%. The difference is, if there's no deal, you both lose. The defendant gets prosecuted on original charges so you qualify your for the maximum reward. You lose 50% of the fines and forfeitures. Negotiating an out of court settlement, in exchange for a guilty plea to reduced charges is a win-win situation for both parties. If you're unsure of your ability to handle the plea bargaining part, and if the defendant has sufficient assets to pay for it, hire a lawyer to handle the first one or two cases. The lawyer's legal fees will be added to your civil suit costs which the defendant will be required to pay when he is either convicted or agrees to a guilty plea on lesser charges. (If you belong to a CrimeFighter lodge there may be an ex-cop or lawyer who will coach you or help you with the first one or two cases.) When plea bargaining isn't successful, and there is sufficient assets to make it worth while, ask your lawyer to take over the criminal prosecution for you on a contingency basis. The arrangement: he will be paid from 30 to 50 percent of the rewards, fines and forfeitures you receive. The percentage is negotiable. It depends on the complexity of the case, and rewards, fines and forfeitures available. (The many reasons for you to use your own lawyer instead of the regular prosecutor is mentioned in detail in chapter 27.) If the anticipated rewards, fines and forfeitures are minimal, your lawyer won't be interested. In this situation, turn the prosecution over to the state or federal prosecutor and apply for all possible rewards. When there is a conviction or guilty plea, and the lawbreaker has enough assets to make it worthwhile, apply for summary judgment of the pending civil suit to collect your award as an alternate reward and to pay for the investigation time and costs. * * * * * * Environmental Lawsuits If the Qui Tam action is based on environmental issues, a better strategy is to contact one of the many organizations who might be interested in the action being prosecuted. In some instances they may do the prosecuting for you because of their special interest in the matter. Environmental groups have thousands of members and can raise large amounts to pay the sometime huge costs of prosecution. Large corporations and municipalities can afford to raise a million-dollar defense fund. In that case, you'll want and need many good lawyers to match the big guns hired by the violator! If the case drags on for years, it could cost more than CrimeFighters or their lawyers could afford. A CrimeFighter strategy would be to initiate a civil suit and lay criminal charges (if applicable) to get them both on record in his name, to qualify for rewards and 50% of the fines and forfeitures. Then, if the civil suit can't be settled out of court, look for organizations who have their own interest in the case. Ask them to provide either the funding or their own lawyers to prosecute the case for you. When you win the suit, the court will award your financial claims as well as "costs" to pay the lawyers. Other Considerations First, find out if the violator has the money or assets to pay the amount asked for in your suit. A large award or fines can't and won't be imposed against an almost bankrupt corporation or a person with few assets. That means your award actually collected may be far less than the costs involved and not worth pursuing. The Rules of Discovery can be used to obtain financial information in great detail, but only within the framework of a civil suit. Before you spend the filing fees (about $150) try to find out how much the lawbreaker has in the way of assets that can be seized to pay the sought for lawsuit amount. Use a skip tracer, or learn how to be one yourself. Learn to uncover hidden assets and sham transactions. The CrimeFighter Catalog (CRIMCAT) has a few good books on skip tracing. Many lawyers looking for work may consider working for you on a contingency basis. When you win a civil suit the defendant is usually required to pay your legal and investigative costs. Thus, the defendant indirectly provides you with the money to pay your lawyer. An alternative is to ask your lawyer to work for a percentage of your share of the award/reward or fines and forfeitures if it's large enough for such an arrangement. Limiting Your Liability Using a corporation can limit a CrimeFighter's personal liability against possible counter-lawsuits from cases that are not successfully prosecuted. Courts recognize American corporations as "citizens" and corporations can sue and be sued in their corporate name. The main reason corporations were given legal status was to limit personal liability of shareholders to the amount of money invested. With that idea in mind, it may be a good idea to incorporate as a business entity before starting Qui Tam actions. Then, if incorporated, sue in the corporation's name. Crimefighters should consider incorporating their CrimeFighter business as a separate business entity, like most private detectives do. Your corpor- ation can "hire' and pay you as an employee. That can provide many tax sheltering and payroll fringe benefits. It can also limit your personal liability against possible lawsuits for CrimeFighter activity. Incorporating costs are about $300 if you do it yourself with Kits that are now available. ($29.95 Incorporation Kits are listed in CRIMCAT.) Consider the cost of your corporation like insurance. Actually, it's much less than liability insurance -- if a Crimefighter could buy such insurance -- and the annual corporation registration fee is far less than annual premiums for even minimal liability insurance. F9 for next Chapter