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Will star ‘prosecution’ witness in Wilson grand jury be charged with lying to the FBI?

Does the FBI actually care if you lie to its agents, or do they only throw the book at Muslims for making "false statements"? New developments in the Darren Wilson grand jury fiasco provide further evidence that the FBI uses the false statements statute not to punish everyone who lies to federal agents, but rather as a political tool to coerce people into informing for the bureau and to win convictions against people the FBI doesn't like.

The “prosecution” star witness in the Darren Wilson grand jury lied to the FBI and local officials about witnessing the officer’s killing of unarmed youth Mike Brown, according to an investigation by the website The Smoking Gun. Sandra McElroy, unmasked as ‘Witness 40,’ told the FBI and a Missouri grand jury that she saw Brown charge Wilson “like a football player,” a phrase that has been repeated over and over on right wing media like Fox News’ Sean Hannity show.

According to The Smoking Gun's investigative report, the FBI apparently suspected McElroy was lying to them when she spun her fantastical story for agents in September 2014. “McElroy’s tale was met with skepticism by the investigators, who reminded her that it was a crime to lie to federal agents,” the website reports.

The FBI claims to take it very seriously when people lie to its agents. Doing so can land someone in prison for three years—for each false statement. Recently, here in Boston, the DOJ went hard after a friend of accused Boston Marathon bomber Dzokhar Tsarnaev, prosecuting him for making false statements to federal officials. Those statements had nothing to do with the marathon bombing, and officials didn't even pretend to claim that young Robel Phillipos had anything to do with the attacks. Nonetheless, prosecutors won a conviction against the young man, and he will serve time in federal prison—solely for the crime of lying to the FBI.

The FBI similarly went after two Muslim friends of the younger Tsarnaev brother,  Azamat Tazhayakov and Dias Kadyrbayev, accusing them of making false statements. Neither of the young men is accused of having anything to do with the attacks. Along with obstruction of justice, the FBI and DOJ hit them with false statements charges. They, too, will serve lengthy federal prison sentences.

My former colleague Nancy Murray wrote about another young man's persecution by FBI agents who used the false statements charge as a wedge to try to open him up to informing for the government—and as a punishment when he refused:

Ahmad Niazi, a worshipper at a mosque in Irvine, California, reported to the FBI that someone at the mosque was making overtly jihadist statements. That someone turned out to be a paid FBI informant and convicted forger, Craig Monteilh, a.k.a Farouk al-Aziz, who later claimed to have spied for the FBI at several mosques around Southern California and been paid $177,000 tax free over a 15 month period. The mosque got a restraining order against him. 

The matter did not end there. The FBI asked Niazi to become an informant, and he refused – whereupon an FBI agent allegedly said he would make his life a “living hell.” Niazi was subsequently charged with perjury, fraud and making false statements.

Those are just a few cases I can recall off the top of my head. But the FBI has used false statements threats and charges to harass and persecute scores of Muslims since 2001. These cases show that lying to the FBI can get you in a lot of trouble. Even talking to the FBI can get certain people in very deep hot water, whether they lie to agents or not.

But those rules apparently don't apply to white, non-Muslim Sandra McElroy.

Sandra McElroy is alleged to have lied to FBI agents about witnessing an extremely significant event—the killing of an unarmed black teenager in Ferguson, Missouri. McElroy, who has posted racist comments to Facebook in the wake of Mike Brown's killing at the hands of Darren Wilson, told the FBI things about what she supposedly saw that FBI agents at the time apparently suspected were lies. Journalists have discovered evidence that shows McElroy wasn't likely anywhere near Ferguson when Wilson shot Brown. The FBI could use its subpoena power to conclusively determine whether her statements were true or false.

Will McElroy face an FBI investigation or federal false statements charges for lying to the FBI about having witnessed Darren Wilson shooting Mike Brown? Probably not. After all, she isn’t Muslim. Nor is she friends with Muslims the FBI has in its sights.

In the context of the FBI's use of false statements charges to harass Muslim communities over the past thirteen years, Sandra McElroy's case illustrates that the United States government distinguishes between speakers who are Muslim and those who are not.

Over the past decade plus, numerous young Muslims have been sentenced to long federal prison sentences after aggressive FBI investigations and subsequent prosecutions based largely or entirely off of supposed violations of the false statements statute. But Sandra McElroy is not in federal custody today facing these charges, despite the near certainty that she invented out of whole cloth a story that she fed to incredulous FBI agents.

Does the FBI take seriously when people lie to its agents, or does it only care to prosecute people for lying when those people are Muslim? If the DOJ doesn’t attempt to indict and prosecute Sandra McElroy for making false statements to federal officials, we’ll have yet more evidence that there’s a Muslim exemption to the First Amendment that simply doesn’t apply to anyone else.

That's not justice.

© 2021 ACLU of Massachusetts.