A couple of weeks ago, when the judge in the Enron case deemed Ken Lay a flight risk, we were speculating with a friend of DealBreaker about what it would involve, logistically speaking, to actually smuggle Ken Lay out of the country. As it turns out, a friend of a friend who we don't know once specialized in such things, so we sent Mr. Anonymous a few questions:
DealBreaker: How would Lay possibly be able to sneak out of the country with a mob of reporters and cameramen stalking him day and night, as they surely will be doing for the next few weeks?
Anonymous: It is true that he has probably been in an envelope since the charges were leveled. depending on how serious a flight risk the prosecution considered Mr. Lay, they might ask law enforcement to begin intense surveillance of Mr. Lay. In this case, that would likely be the FBI. Since the charges were severe enough from the beginning it is not unlikely that he has been under surveillance since before the trial. Certainly the prosecution considered him a flight risk. They asked for $6 million in bail and the confiscation of his passport at the arraignment. The judge didn't agree, let him keep his passport and set bail at $500,000. From that point, certainly, there were people concerned about the possibility he would abscond. Perhaps the judge was unimpressed with the case against Lay and felt he would likely be acquitted on some or all of the charges. It was after his conviction that the bond was boosted. Suddenly he is even more a flight risk.
The press is not, in my experience, particularly difficult to dupe. One interesting tactic is to place an 'anonymous' call in to a few members of the press, reporting that he is doing something unusual, like vacationing at a spa in Aspen, or something equally irresistible to the press. On arriving at the spa, the press might catch a glimpse of Mrs. Lay, and camp out waiting for that scoop photo of lay sunning himself while under indictment, while Lay himself slips away somewhere. The press is easy because they are the mob. Even local law enforcement, depending on who you are dealing with, is not particularly difficult. It is federal law enforcement, that you worry about. Marshals, FBI, etc.
The message is that you have to prepare early on. Even Scott Peterson, and there is no doubt in my mind he was preparing to flee, started too late. And he was caught because local law enforcement was watching him carefully even before the trial.
DB: Would a lack of passport really be a huge roadblock? Wouldn't someone with Lay's means be able to procure a fake one easily enough?
Anonymous: Oh, certainly he could procure one. But, again, you have to prepare early. Reporting your passport lost and getting a replacement months before the indictment gives you an extra copy to 'surrender.' That doesn't keep your first passport number out of the State Department's "lost or stolen passport database" but that isn't hard to deal with since you will attempt to cross borders at places where passports are not scanned. Even in this day and age, these are plentiful.
Certainly, the State Department will probably cancel your passport and it will be red flagged on TECS [Treasury Enforcement Communication System], though this is usually only checked on entry into the United States, not exit. Someone has certainly already reviewed Lay's state department records to see if there are any clues where he might flee to. Perhaps he is constantly traveling to the cayman islands or something?
In addition, once convicted, a "temporary felony want" will likely be put on the FBI's NCIC [National Criminal Information Center] if Lay absconds. That will be followed by a permanent want. NCIC entries used to be not a big deal. They weren't shared with the NCB [National Central Bureau] that is now shared with Interpol states. Today, increasingly, they are. On top of that, Interpol will be asked to issue what is called a "red notice," or the request that any Interpol member state encountering the individual arrest them and process them for extradition. Some states check those databases at the border, some do not bother. You can guess which ones will be interesting to Mr. Lay.
Of course the US Marshal Service will get in on the act and he will have a felony warrant entered into the usms and that will be put into the passport lookout system yet again.
His family and even close friends might be put into the passport lookout system as well on the chance they he will be traveling with them, or that the family can be detained for questioning to try and either pressure Lay to return, or to determine his whereabouts. These are all issues Lay will have to consider. This was one of the ways Pablo Escobar was pressured when he was a fugitive. It may seem like a third world tactic but the United States is not above it.
The trick would be to get something passable with the little scrutiny a bored immigration official in a fairly backward state will give it, sneak across the border, perhaps in a small plane, or cross overtly in an area with lax immigration controls [Mexico is often a good bet] and then hop to your final destination. Once there, you make local arrangements. It is a long term commitment, flight.
DB: If passport and press were surmountable problems, what would Lay's strategy be? What steps would he take, logistically speaking to get out of the country?
Anonymous: Again, the trick is to get out of the us and to a spot that is either not an Interpol state or where you can arrange to get legitimate looking documentation in the short term and quasi-legitimate documentation in the long term. It is enough usually in the short term to look well-off and have a decent looking set of documents. How many times in the ordinary course of life have you had your criminal record run? Probably not often. Keep out of trouble and you are unlikely to be detected and therefore buy the time required to develop a more serious cover for yourself that will withstand more detailed scrutiny. Of course, picking a jurisdiction without an extradition treaty with the United States is a good idea as well. Just in case.
You used to be able to actually negotiate with local government for protection, if you could pay. In the era of global terrorism, that is not often possible.
Were I Lay, I would have started preparing when it began to look like i might be indicted. You will need someone to help and family or friends are a bad idea. Not only will they face charges for aiding a known felon, but they are more likely to be watched carefully.
The most important logistical issue would be getting funds to your eventual waypoint. Flight is more an endurance issue than it is a logistical issue. Most people do not have the stomach to cope with the months or years of isolation and the need to develop an entirely new network from scratch. Particularly at Lay's age, this is difficult.
For Lay, the funds issue wouldn't be hard. Liquidity and portability is the main concern and you do the same things to prepare for a massive legal defense, sell assets, that you would for a flight effort.
DB: How often to people in these situations flee or try to flee?
Anonymous: It is pretty rare. I am sure there is some strong relationship with the gravity of the offense or the perception of ease. rich white collar criminals and murderers are the most common probably.
DB: How often does it work?
Anonymous: This depends on how you measure success. If you take the defense attorney's approach, every day out of jail is a victory, Then the answer is probably about half the time someone manages to get a few weeks or even months if they make a serious attempt. This is at the expense of additional charges for flight from justice, not a big deal if you are facing life, which Lay basically is. If you take the more long term approach, evading capture for a year or more, the amount shrinks to a small fraction of those who try to flee. If you take the fugitive who dies a free man in his bed in uraguay, that is a rare bird indeed.
DB: What do the unsuccessful attempted flee-ers do wrong?
Anonymous: Three things: either fail to appreciate the level of law enforcement attention they have prior to their flight, fail to really give up their old life and try to contact old friends or family, or fail to realize how expensive, both mentally and financially, it is to flee. The FBI occasionally snags people on boats in the Pacific or small islands. Almost always its because they try to maintain ties to their old life. You cannot do that unless you have the fairly explicit protection of the local jurisdiction like, say, Robert Vesco did.