The $256 Question

The way William Hochul sees it, the situation couldn't be simpler: "We take an oath to follow the Constitution and enforce the law. The law says you can't acquire any property by fraud -- whether it's a gun or an automobile or something biological, it doesn't matter."

As an assistant U.S. attorney for the Western District of New York, based in Buffalo, Hochul is leading the prosecution of Steven Kurtz and Robert Ferrell, who were indicted a little over a year ago for mail and wire fraud. Kurtz, a professor of art at the University of Buffalo and co-founder of the internationally acclaimed Critical Art Ensemble (CAE), is accused of obtaining bacterial cultures illegally through the mail.

Ferrell, a geneticist and professor at the University of Pittsburgh, allegedly provided Kurtz the organisms for use in an artwork, rather than using them in his own research, thereby violating an agreement he had signed when he purchased the cultures for $256 from the American Type Culture Collection (ATCC).

Although Hochul doesn't say so, this has to be a frustrating time for him. Last spring, he and the Terrorism Division that he heads appeared to be setting their sights on a big-time conviction. Federal agents in biohazard suits had confiscated laboratory equipment and bacterial cultures from Kurtz's home. And they had served subpoenas -- under the U.S. Biological Weapons Anti-Terrorism Act -- on several of Kurtz's colleagues and a company that publishes CAE's books.

Then, in July 2004, after health authorities declared Kurtz's bacteria to be harmless, and once it became clear that his lab equipment was to be used for art, not bioterrorism, the grand jury produced indictments only for mail and wire fraud.

A year later, Ed Cardoni of Hallwalls Contemporary Arts Center in Buffalo and a friend of Kurtz's, told me the prosecution still has no case. "They're just sifting through a lot of chaff, trying to find a few kernels of wheat in it."

Why is this case in federal court?

A dispute involving $256 worth of merchandise would seem to be more at home in Judge Judy's courtroom than in a high-profile federal prosecution. Indeed, the United States Attorney's Manual published by the Department of Justice appears to discourage prosecutors from bringing such a case to the federal courts.

The manual states, "Prosecutions of fraud ordinarily should not be undertaken if the scheme employed consists of some isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts."

It goes on to describe the sort of case that federal authorities should pursue: "A scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct." The Kurtz-Ferrell case does not appear to meet any of those criteria.

A mail or wire fraud conviction can result in up to 20 years imprisonment. But this case does not appear to have any of the characteristics -- large numbers of victims, large sums of money, physical endangerment, etc. -- that the U.S. Sentencing Commission applies when weighing the seriousness of a fraud crime.

When I asked Hochul about the U.S. Attorney's Manual guidelines, he explained his office's actions this way: "All of our practice is guided by guidelines, our supervisors, and levels of review. I can't answer more specifically."

Buffalo attorney James Harrington, who is not representing Kurtz or Ferrell but has squared off against Hochul in the past, thinks that in a case like this, guidelines are not the determining factor.

"There's no way of knowing whether it's Bill Hochul or the U.S. Attorney in Buffalo or their superiors in Washington making the decisions. But this has gotten a lot of publicity, and, generally, the more publicity a case receives, the higher in the food chain it goes before decisions are made."