Erlich Bachman's Bad Day


          T.J. Miller has a temper, but we knew that. Fans of “Silicon Valley” heard the rumors. The 36-year-old comedian was not invited back after four seasons on the hit show. Entertainment reporters said he was erratic on set, often coming late to table reads, and then, well, sometimes appeared to work drunk and/or high.

         But last month, Mr. Miller, who played the character Erlich Bachman, got into a squabble with a fellow passenger on an Amtrak train passing through Connecticut. He appeared to have had a few too many to drink; the woman was not amused by his advances; he thought he’d teach her a thing or two. So he called in a bomb threat, stating that a woman more or less matching the appearance of his antagonist was behaving in a suspicious manner.

         Amtrak and law enforcement responded. There was no bomb. But what there was were a legion of terrified passengers and pissed off lawmen.

         Investigators determined that Mr. Miller made the call. They decided to arrest him. Today they nabbed Mr. Miller at LaGuardia Airport as he disembarked from a flight. They handcuffed him and whisked him to Connecticut, where he was charged with making a false report. The statute has a humorless title: False Information and Hoaxes, and is codified at 18 U.S.C. 1038(a)(1). It’s a federal offense carrying a maximum of five years in prison.

         I know what you’re thinking: A federal offense? Isn’t this the sort of whacky, off-handed stunt we’d expect from a comedian? Let’s face it: this is the adult version of the sort of prank that leads some kids to call a funeral home to report their cranky neighbor dead, against the hope that a hearse will arrive to find the geezer alive and stunned.

         Mr. Miller had the misfortune to be riding on Amtrak, a transportation facility governed, arguably, by federal law. His lawyers can try to fight whether the feds have jurisdiction over a local offense. Getting the case tossed from federal court would be a major victory, even if Mr. Miller were re-charged in state court.

         Why?

         The federal penal code is top-heavy: almost every federal offense is a felony. State penal codes, by contrast, are more robust – you can actually break the law and be charged with a less serious offense.

         If the case remains in federal court, Mr. Miller’s lawyers have a fight on their hands. Clearly, the comedian had a few too many drinks. He behaved out of character. He appears not to have a criminal history, and, one suspects, after this arrest, he’ll unlikely reoffend – his arrest was reported worldwide.

         There is a rarely used provision in federal law to give folks who make a mistake a chance to avoid a felony conviction: It’s called pre-trial diversion. Prosecutors are stingy in granting access to the program, but Mr. Miller ought to fight for entry into it, if, in fact, the feds can prove their case. It is significant to note that no grand jury voted to indict the actor. Although the event is almost a month old, prosecutors side-stepped a grand jury and proceeded by way of a complaint. Mr. Miller has a right to have a grand jury decide whether the government can make a case against him.

         So welcome back to the limelight Erlich Bachman. This time you’ll need to show up on time, remain sober, and follow the script your lawyer assigns. If you listen, you might just be spared a prison sentence, and, perhaps, even a felony conviction.

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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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