Published September 10, 2009
The community organizing group ACORN has fired two employees at its Baltimore office who were seen on hidden-camera video giving advice to a man posing as a pimp and a woman pretending to be a prostitute, as some legal experts raise questions over whether the employees broke the law.
In the video made public Thursday, two visitors to an ACORN office in Baltimore told staffers they needed assistance securing housing where the woman, a 20-year-old who called herself "Kenya," could continue to run her prostitution business.
An ACORN official told the couple how to falsify tax forms and seek illegal benefits for 13 "very young" girls from El Salvador that they said they wanted to import as prostitutes.
On Thursday night, the two employees were fired. But legal experts say their next stop could be a courtroom.
Though no tax forms were filed and the child prostitutes didn't exist, at least one ACORN official engaged in "numerous acts of criminal facilitation," said Judge Andrew Napolitano, FOX News senior judicial analyst.
"Criminal facilitation occurs whenever a person encourages, enables, entices, or explains to another how to commit crimes with the real purpose of helping that person to commit those crimes" — a violation the ACORN employee "committed in full," he said.
Napolitano said the worker could also face charges for criminal conspiracy, though each charge would require a heavier burden to prove: a so-called "act of furtherance" — a concrete move that makes the conspiracy active.
Napolitano outlined eight crimes the ACORN worker could potentially have committed that could bring a total sentence of 24 years in prison, including criminal facilitation and conspiracy to:
• (a) commit prostitution
• (b) operate a prostitution ring
• (c) file false documents with taxing and other government authorities
• (d) file false documents with a bank [also known as bank fraud]
• (e) violate numerous immigration laws
• (f) transport children into the U.S. for immoral purposes
• (g) transport women into the U.S. for immoral purposes [also known as violating the Mann Act]
• (h) impair the welfare of minors.
But not all legal experts agreed that ACORN had committed a crime. Trial attorney Lee Armstong said that the employee had engaged in "repulsive ... disgusting behavior," but nothing illegal occurred because the entire scenario was a sham.
"For aiding and abetting tax evasion, for aiding and abetting child prostitution ... you need the actual crime," said Armstrong, an attorney for Jones Day in New York. "That's what's missing here."
Armstrong said that the videotape appeared to show the ACORN official hatching a conspiracy, but no violation occurred because the 25-year-old filmmaker was only "pretending" to be a 25-year-old pimp.
"You need an actual agreement between two people to commit a crime. If one person is just faking it, you don't have a meeting of the minds, you don't have a conspiracy," Armstrong told FOX News. "How do you clap with one hand?"
ACORN — the Association of Community Organizations for Reform Now — calls itself a network of families "working together for social justice and stronger communities," according to its Web site.
But the organization has been accused by conservatives and Republicans of committing fraud in voter registration drives around the country, and reaction to the videotape came swiftly after its release on Thursday.
"Taxpayers should be outraged that their money has gone to an organization that, in addition to facing charges of voter fraud and tax violations, is willing to facilitate prostitution," said Rep. Steve King, R-Iowa.
"As this video confirms, ACORN continues to operate as a criminal enterprise."
In a selection from the video, ACORN officials treated the "pimp's" illegal schemes with nonchalance and offered to help further what they knew to be crimes.
"It's illegal. So I am not hearing this, I am not hearing this," said an ACORN staffer who identified herself as an accountant. "You talk too much. Don't give up no information you're not asked."
Because the group receives millions of dollars in federal grants, Napolitano said, "ACORN agents and employees are required by law to adhere to high standards of lawful and ethical behavior; standards akin to those required by law of federal employees."
ACORN suggested a plan of action for the purported pimp and prostitute, but did not fill out tax forms with any false information. But because the official sought a $50 fee for ACORN's services, a conspiracy charge could still be considered, a defense attorney told FOX News.
"Conspiracy requires an agreement to do something unlawful and an act in furtherance," said Mark Eiglarsh, a New York-based attorney. "There's an agreement to assist in creating the brothel, in tax evasion, a number of other offenses."
The act in furtherance, he suggested, could be the staffer's seeking payment for the work. "I think that a prosecutor ... would agree to go forward on a conspiracy count," he said.
Whether or not prosecutors charge any ACORN officials in Baltimore, the filmmaker himself could be in hot water.
A Maryland state statute requires consent from all parties whenever a conversation is taped, according to the Reporters Committee for Freedom of the Press. Violations of the law are punishable by a maximum of five years in jail and a fine up to $10,000.
But that statute does not apply to videotape recordings — only to phone calls or other electronic "communications," Napolitano argued — meaning the filmmaker is likely in the clear.