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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