When Steven Kurtz awoke one morning in his Buffalo home to find
his wife, Hope, unresponsive, he rushed to dial 911 and summon
paramedics. It was May 11, 2004. He had no reason to expect that
his wife's fatal heart attack and his call to the authorities would
mark the beginning of a four-year odyssey to the belly of the
criminal-justice system.
The paramedics and police detectives who arrived at Kurtz's home
that morning to tend to his wife found more than they expected. Off
the upstairs bedroom was a small table on which was arranged a home
laboratory containing Petri dishes and various items of lab
equipment. The detectives spent hours-- nearly the entire
day--interrogating Kurtz about the equipment and his relationship
with his wife and then called in local health department officials,
who ran tests on the cultures in the Petri dishes. They were
harmless.
Unsatisfied with Kurtz's answers, however, and still suspicious
of the lab, the police decided to call in federal authorities. The
next day, three or four vehicles came screeching up to Kurtz as he
walked across a funeral home's parking lot, intending to make
arrangements for his wife's cremation. It was the FBI. Kurtz was
detained on suspicion of bioterrorism and held for 22 hours.
While Kurtz was being questioned in a downtown Hyatt, his home
was being ransacked. Agents from the FBI, the Joint Terrorism Task
Force, the Department of Homeland Security, and the Department of
Defense, as well as officers from the local police and fire
departments and the state marshal's office, arrived on the scene
and cordoned off the entire block with crime-scene tape. As the TV
cameras looked on, federal agents wearing hazmat suits and bearing
guns entered Kurtz's home and seized all of his equipment, as well
as books, personal papers, and his computer. Authorities went
door-to-door, questioning Kurtz's neighbors about his habits and
their impressions of him.
Nine-Day Ordeal
Their search went on nine days, and the authorities even seized
his dead wife's body, despite the fact that the local coroner had
already determined that her death was due to natural causes. Then
federal officials announced triumphantly that they had thwarted a
major bioweapons manufacturing plot.
But Steven Kurtz, a professor of visual studies at the
University of Buffalo, was no terrorist, "homegrown" or otherwise.
He is an artist and activist who works in unusual media. As a
review of one of his recent exhibits explains, "Kurtz has never
been shy about challenging the establishment, using a blend of
performance art and science with his Critical Art Ensemble to stir
debate about such things as genetically modified crops and germ
warfare."
The CAE, which Kurtz co-founded in 1987, is an art ensemble that
produces Web projects, books, and gallery shows intended to engage
viewers on the impact of technology on modern life. Its exhibits
regularly include computers and electronics, as well as cultured
bacteria, which are sometimes thrown at audience members. According
to one of the collective's members, "We're...tactical media. We're
mainly interested in how issues of cultural representation, how
things are represented to the public, and what's the ideology and
the subtext to how something is being represented."
At the time of his wife's death, Kurtz had been at work on three
projects. The small laboratory was intended for an exhibit on
genetically modified organisms contained in store-bought foods at
the Massachusetts Museum of Contemporary Art. Most of the Petri
dishes and harmless bacteria growing in them were meant for an
exhibit called "GenTerra," the subject of which was the genetic
engineering of organisms. The rest of the Petri dishes, as well as
many books and papers, were part of Kurtz's early research for
"Marching Plague," a project critical of the development and use of
biological weapons agents. Those bacteria, as well, were
harmless.
Claims Unravel, but Investigation
Continues
After more than a week of searches and analysis, the FBI
determined that Kurtz's home presented no public health risk--and
never had. The agency further confirmed that his wife's death had
nothing to do with anything Kurtz might have done in his lab. Kurtz
returned home to find the place ransacked, the detritus of a rushed
investigation--stacks of pizza boxes and piles of sports drink
bottles, discarded hazmat suits, used chemical test-kits-- strewn
throughout. Many possessions were missing--apparently
confiscated--including a draft manuscript for his book on
biowarfare.
The authorities' initial terrorism claims unraveled almost
immediately, but the federal investigation dragged on for weeks,
with FBI agents questioning museum curators and university
administrators with ties to Kurtz's art collective. Agents issued
10 subpoenas to shocked guests at the opening reception for the
CAE's Mass MoCA exhibit, which the artists had had to cobble
together from materials that had not been seized from Kurtz's home.
One CAE member was subpoenaed on the street by an FBI agent and
made to appear before a federal grand jury for an inquiry into a
possible charge of "possession of biological agents," a criminal
offense created by the Patriot Act. The offense prohibits the
possession of "any biological agent...that, under the
circumstances, is not reasonably justified by a prophylactic,
protective, bona fide research, or other peaceful purpose."
Kurtz and his allies believed he had two sure-fire defenses to
that charge that would keep him from being indicted.
First, the bacteria were completely harmless. Indeed,
their safety had been an essential component of the planned
exhibit. "We were kind of demystifying the whole procedure and
trying to alleviate inappropriate fear of transgenic science and
redirect concern toward the political implications of the
research," one CAE member told The New York Times. As one
leading biochemist explained in a letter to the lead prosecutor,
the bacteria found in Kurtz's home "are so safe that they are
cultured on open lab benches and used in public education." He
continues: "You have more dangerous organisms likely growing on
soft cheeses in your refrigerator."
Second, the work done by Kurtz and his allies clearly fit
into the "peaceful purpose" exception in the statute--after all,
they were artists, not belligerents, and their work was actually
critical of bioweapons.
The Indictment
It was a surprise, then, when nearly two months after the death
of Kurtz's wife, a federal indictment came down: Steven Kurtz and
Robert Ferrell, a CAE associate who researches genetics at the
University of Pittsburgh, were charged not with possessing
biological agents, but with mail fraud and wire fraud. According to
the indictment, Kurtz had used Ferrell to purchase several strains
of bacteria from an academic supplier, American Type Culture
Collection (ATCC), in violation of ATCC's terms of sale: that its
customers be associated with an approved lab or business, use the
bacteria for research purposes only, and not distribute or transfer
the bacteria.
The "crime," in other words, was breaking the terms of a private
contract. Scheming to violate these contractual terms, under the
prosecution's theory, was fraud, and both ATCC and the University
of Pittsburgh were victims. And since Kurtz and Ferrell had
discussed the matter over e-mail and the bacteria were shipped by
mail, they could be prosecuted under the federal wire fraud and
mail fraud statutes.
Just because the grand jury had declined to approve the charge
that they had feared most-- possession of biological agents--did
not mean that Kurtz and Ferrell would get off easily. The fraud
charges carried penalties of up to 20 years in jail and potentially
$1 million in criminal fines apiece.
Kurtz and Ferrell vowed to fight the charges and were better
positioned than most to do so. Their friends had established a
defense fund to pay legal expenses, which would ultimately top
$250,000, and the art world rallied on their behalf. Dozens of
newspapers and magazines ran articles and columns on the case, most
of them critical of the prosecution. Both of their universities
stood by them. Few defendants in their position, Kurtz explains,
would have the connections that they did and the resources and
support needed to fight such a prosecution.
A Reputation Ruined
Even so, the pressure and uncertainty eventually proved too much
for Ferrell. The prosecution put a major blot on what had been a
long and outstanding career during which he had contributed over
200 articles on the causes of diseases such as schizophrenia,
muscular dystrophy, and diabetes. With criminal charges and the
possibility of jail time hanging over his head, Ferrell, 64, was
forced to curtail much of his research.
The prosecution also took a toll on his health. Previously
diagnosed with non-Hodgkin's lymphoma, an incurable disease,
Ferrell had undergone a bone-marrow transplant shortly after the
indictment came down. The stress of the case contributed to a
series of strokes, further weakening him.
In October 2007, Ferrell reached a deal with prosecutors and, in
exchange for avoiding a prison sentence that would probably kill
him, pleaded guilty to a single misdemeanor count of mailing the
bacteria to Kurtz. Ferrell was sentenced to a year of unsupervised
release and a $500 fine. At Ferrell's sentencing hearing, the judge
almost apologetically explained that this was "the most lenient
sentence that I could give" under law.
Kurtz, however, declined to plead guilty to a lesser charge and
insisted that the government take the case to court. He argued that
the indictment was defective because it failed to allege several
elements of fraud: that the alleged victims--ATCC and the
University of Pittsburgh--had been deprived of property and that he
had intended to commit fraud. According to Kurtz, the prosecution
had simply failed to demonstrate, even assuming the truth of the
facts in the indictment, that he had done anything amounting to a
crime under either of the fraud statutes.
Two Theories of Fraud
Chief Judge Richard Arcara of the Western District of New York
heard oral arguments on Kurtz's motion to dismiss the charges in
late 2007 and early 2008, at which the prosecution put forward two
theories of the fraud committed.
The first theory was plain fraud. ATCC and the university,
prosecutors argued, were each deprived of two types of
property--the bacteria and intellectual property rights in the
bacteria--through Kurtz and Ferrell's scheme.
In a crisp page of analysis in its April 2008 opinion, the court
rejected these arguments out of hand. ATCC, the court observed,
"was in the business of selling biological agents in exchange for
money, and in this case it got what it bargained for. Ferrell,
using the [University of Pittsburgh] account, paid ATCC for the
biological agents. Therefore, ATCC was not deprived of the
biological agents--it simply sold them."
As for the intellectual property, the court observed that "it is
not clear what this allegation even means" and that it "appear[s]
to be simply another way of saying that the defendant sought to
obtain the biological agents from ATCC." Again, however, there was
no evidence that Kurtz did anything to deprive ATCC of its
intellectual property rights, such as reproducing the bacteria and
selling them.
Finally, the University of Pittsburgh could not be a victim of
fraud, since it never possessed the bacteria or had any property
interest in them and, in any case, the indictment did not allege
any type of fraudulent conduct directed toward the university.
Recognizing the weakness of its charges, the government
belatedly put forward a "no-sale" theory of fraud as well. Under
this theory, ATCC simply would not have sold the bacteria to
Ferrell if he had not misrepresented the use to which they would be
put--in other words, he and Kurtz used fraud to induce ATCC to make
a sale it would not otherwise have made.
The court, relying on reasoning from a recent appeals court
opinion, drew a distinction between "schemes that do no more than
cause their victims to enter into transactions they would otherwise
avoid," which are not crimes, and "schemes that depend for their
completion on a misrepresentation of an essential element of the
bargain," which are.
The distinction can sometimes be difficult to draw. False claims
made by a distributor to a manufacturer of military goggles that
its products would not be sold to restricted nations "went to an
essential element of the bargain between the parties" because
illegal exports would have dire consequences for the manufacturer,
and so could be criminally charged; but falsely claiming that one
had been referred by a friend of a potential customer is not
criminal fraud, because the misrepresentation "was not directed to
the quality, adequacy or price of goods to be sold." In short, the
false claims, to be chargeable as wire fraud or mail fraud, must
have "relevance to the object of the contract."
In Kurtz's case, the inquiry was relatively straightforward. The
prosecution, ruled the court, did not make a proper "no-sale" claim
because it did not present any evidence that ATCC's terms of
sale were an essential part of the sales agreement or that Kurtz
and Ferrell had intended to violate the terms and thereby defraud
ATCC. Indeed, the court observed, "the indictment does not allege
that either [Kurtz] or Ferrell even knew about the transfer
restriction" in the terms of sale.
The indictment, concluded Judge Arcara, did not spell out any
scheme that actually amounted to a crime. He dismissed all charges
against Kurtz.
A Bittersweet Victory
For Kurtz, the victory was bittersweet. Though he was ultimately
exonerated, the government's misguided prosecution imposed enormous
costs on him, Ferrell, and many other artists and scientists.
Kurtz, in particular, remains angry that he was denied the
opportunity to mourn for Hope, his wife and artistic partner of 20
years, whose death launched the strange series of events that
consumed him for four years. "I think all adults know the feelings
of intense grief and depression that are brought about by the loss
of a loved one," Kurtz told writer Ken Goffman. "But when you spice
it up with the adrenalin and the hyperanxiety of being attacked by
the full weight of federal forces, which in turn causes all your
survival instincts to really kick in, you have a bad trip from
which you are not going to come down for a long time."
Dr. Patrick Moore, a professor of genetics at the University of
Pittsburgh who has received many awards for his cancer research,
laments the effect that the prosecution has had on his and his
colleagues' research. Foreign collaborators, he writes, "have
described to me their befuddlement over the Ferrell-Kurtz case,"
and this apprehension has stymied his labs' efforts to recruit
foreign scientists to conduct genetic research in the United
States. The case, he believes, "marks a low-tide for American
scientists."
Moreover, the prosecution has impeded his research because
shipments from biological agent suppliers are now reviewed multiple
times and delayed out of the fear of criminal liability. In a
letter to the prosecution, Moore is especially blunt: "You are
interfering with my work on finding the cause of a cancer because
of your prosecution."
Other cancer researchers found the Kurtz prosecution unsettling.
One prominent government scientist, who asked not to be identified,
explained that "We share cells every day as a part of our
research.... We couldn't replicate experimental results if we
didn't." Further, "The suppliers are aware of it" but don't mind,
because the purpose of transfer agreements is to prevent labs from
competing against suppliers, not to keep them from sharing cells
with other scientists engaged in the same work. If transfer
agreements were enforced in that way, she said, basic research
"would grind to a halt."
Conclusion
Despite everything, Kurtz is proud that he was able to fight the
charges against him and prevent the government from establishing a
precedent that exchanging harmless biological agents and running
afoul of other contractual terms are criminal offenses:
[W]hat we were most worried about and why I wanted to fight this
case to the end was this precedent, as we were talking about
earlier. What should have been at best a civil suit, and it wasn't
even that, the Department of Justice wanted to be able to say, "You
know, whenever there's a contract dispute that involves the mail or
internet"--and what contract dispute doesn't?--"we're going to have
the right to come in and decide whether or not it's a civil case
or, if we wanted to be, however arbitrary, a criminal case. And
then we are going to prosecute it as a criminal case...." So, you
know, if you filled out a warranty card wrong and mailed it in,
that could now be a twenty-year jail sentence. That's what they
were after, and happily the judge ruled against them and said this
is an abuse of the law and that mail fraud cannot be used this way.
So the precedent went our way and narrowed the law instead of
expanding it.
The law, however, remains almost unimaginably broad. Despite
Kurtz's successful defense, prosecutors continue to abuse the
federal mail and wire fraud statutes to go after contractual
violations, local-government patronage politics, minor regulatory
violations, and other conduct that may not warrant civil lawsuits,
let alone criminal prosecution. In one recently prominent case, a
prosecutor brought charges based on a violation of a Web site's
terms of service--terms that many courts refuse to enforce in
contract lawsuits.
In short, prosecutors still wield the unbridled discretion to
bring criminal charges against almost any individual, whether or
not he or she has done anything typically regarded as a crime. Most
of these defendants, like Dr. Ferrell, accept plea bargains to
avoid the risk of lengthy sentences. A few, like Kurtz, have the
resources and stamina to fight the charges, at great personal
expense, and actually win--but they are the rare exception that
proves the rule.
Andrew M.
Grossman is Senior Legal Policy Analyst in the Center for Legal
and Judicial Studies at The Heritage Foundation.