Category Archives: Judiciary

Plain English: Recent grants

October was a busy month at the Court for merits cases: it heard twelve oral arguments during its October sitting, and then kicked off its November sitting with two more arguments on October 31, the first day of that sitting. However, this frenzy of activity apparently did not extend to adding new cases to its docket to be argued later this Term, an arena in which the Court continued to be parsimonious; its three October Conferences yielded only six new grants to add to the eight cases it granted in late September, after its long summer recess. Let's take a look at these new cases, in Plain English. On October 11, following its Conference on October 7, the Court granted review in just two new cases. The first was Freeman v. Quicken Loans, Inc., which has its origins in the mortgages that a group of homeowners obtained from Quicken. [Disclosure: My firm represents Tammy Freeman and the other homeowners in the case.] The homeowners filed this lawsuit because they believe that Quicken charged them various fees for which they did not receive any services. Such charges, they contended, violate Section 2607(b) of the Real Estate Settlement Procedures Act, which prohibits the "giv[ing]" and "accept[ing]" of "any portion, split, or percentage" of unearned fees for mortgage settlement services. Both the trial court and the court of appeals ruled in favor of Quicken. They held that Section 2607(b) only prohibits kickbacks – that is, when a provider of settlement services shares the unearned fees with a third party. The law does not apply, they ruled, when the provider simply keeps all of the unearned fees for itself. Freeman then filed a petition seeking review of the lower court's decision in the Supreme Court, which initially asked the federal government to weigh in on the dispute. In August, the government filed a brief urging the Court to grant review – which it did a little over a month later – and to rule in Freeman's favor on the merits. The case may be important for people who buy homes and pay various fees to the mortgage company. The other grant that week was Blueford v. Arkansas, a case involving the Double Jeopardy Clause of the Constitution. Most people are at least vaguely familiar with the clause, which prohibits "any person" from being "subject for the same offense to twice be put in jeopardy of life or limb": it means, for example, that if a defendant is tried for a crime and the jury returns a verdict of "not guilty," prosecutors can't try him again for the same crime. If all cases were this straightforward, the Supreme Court wouldn't need to get involved. But, as you can imagine, they rarely are. In this case, petitioner Alex Blueford was charged with murdering his girlfriend's young son. The jury at his trial was instructed to consider four charges, beginning with the most serious charge of capital murder and moving on to the three less serious crimes for killing – first-degree murder, manslaughter, and negligent homicide – in order of seriousness. In other words, the jury was to consider a charge only if they had "reasonable doubt" on the more serious offenses. After deliberating for several hours, the jury informed the judge that it was deadlocked. When questioned by the judge, the jury's forewoman indicated that the jurors had voted unanimously against the capital and first-degree murder charges; they were divided on the manslaughter charge and did not vote on the negligent homicide charge. After further deliberations, the jury was still unable to return a verdict, and the court declared a mistrial. The state attempted to re-try Blueford on all four charges. He asked the court to dismiss the capital and first-degree murder charges. He argued that a new trial on those charges would violate the Double Jeopardy Clause because the forewoman had told the court that the jury had voted unanimously against them. The trial court rejected Blueford's request, reasoning that the jury had not made any "findings" or reached any "verdicts," and the Arkansas Supreme Court affirmed. In its opinion, the state supreme court acknowledged that some other states would reach the opposite result, but it declined to follow those states' holdings. Blueford then asked the U.S. Supreme Court to step in, which it did after considering the case at two conferences in a row. The case will help to make clear the government's power to hold retrials after a mistrial. The Court granted four more cases on October 17. In two, the Court will consider whether corporations and organizations can be sued in U.S. courts for human rights violations that occur abroad. The first case, Mohamad v. Rajoub, was brought by the family of a U.S. citizen of Palestinian descent, who was allegedly tortured to death in a Palestinian prison in 1995. The family then sued the Palestinian Authority and the PLO (as well as several Palestinian officials) under the Torture Victim Protection Act (TVPA), a 1991 law that allows victims of torture to bring civil lawsuits for damages against the "individual" who – while acting on behalf of a foreign government – is responsible for the torture. The district court dismissed the case, and the court of appeals affirmed. The lower courts agreed with the defendants that the PLO and the Palestinian Authority could not be sued under the TVPA because it only allows lawsuits against an "individual" (that is, an actual person) who perpetrates the torture, rather than against an organization or corporation. [Disclosure: Our firm works with the Stanford Supreme Court Litigation Clinic, which is representing the plaintiffs.] In the second case, Kiobel v. Royal Dutch Petroleum Co., the Court will have to interpret a different law: the Alien Tort Statute (ATS), which allows foreigners to bring lawsuits in U.S. federal courts for serious violations of international human rights laws. Unlike the TVPA, the ATS doesn't say anything about who can be sued. Instead, it simply gives the trial court authority to decide "any civil action by" a foreigner for substantial violations of international law. So when a group of Nigerians filed a lawsuit in the U.S. against three oil companies, seeking to hold them liable for human rights abuses allegedly committed on their behalf by Nigerian soldiers, the U.S. Court of Appeals for the Second Circuit explained that it was not enough that corporations could be held liable under U.S. domestic law. Instead, it looked to whether corporations could be sued under established principles of international law – and concluded that they could not. The court reasoned that only individuals have traditionally been held liable for violations of international law, because the kinds of violations that international law is intended to address are so serious that the blame for them can only rest with the individuals who are responsible for the violations. The Nigerian plaintiffs then asked the Supreme Court to take up the question, which – after considering the case at three straight Conferences – it finally agreed to do. Although important in their own right, these question may take on even more significance (or depending on how the Court ultimately rules, irony) in the context of the Court's recent decision in the Citizens United campaign finance case, in which the Court held that corporations have First Amendment rights. In the last case granted on October 17, Elgin v. Department of the Treasury, the Court will consider whether and where federal employees can challenge negative employment decisions. In 1978, Congress enacted the Civil Service Reform Act (CSRA) to set up a comprehensive system to deal with claims by federal employees that they had been wrongly fired. As a general rule, an employee who believes that he should not have been terminated must go to the Merit Systems Protection Board (MSPB), an independent government agency. From there, an employee would normally appeal to the United States Court of Appeals for the Federal Circuit – a specialized appellate court that deals with certain kinds of cases (including patent and international trade) from all over the country, no matter where they originate. The petitioners in this case are four federal employees who, as required by a 1985 law, were fired because they had failed to register for the draft. They then filed a lawsuit in a federal district court in Massachusetts, arguing that the federal law prohibiting them from holding government employment was unconstitutional because (among other things) it discriminated on the basis of gender (because women aren't required to register for the draft). They asked the court to hold the 1985 law unconstitutional and issue an order barring the government from enforcing the statute. The district court declined to do so, rejecting the employees' constitutional arguments. On appeal, the U.S. Court of Appeals for the First Circuit (which would normally hear appeals from federal district courts in Massachusetts) did not decide the merits of the employees' claims. Instead, it held that the CSRA prohibited the employees from going to the district court to challenge their firings at all. This is true, the First Circuit explained, even if they are only challenging the law requiring their dismissal as unconstitutional and even if the MSPB – where the employees would have to bring their challenge first – can't rule on whether the law is constitutional. In doing so, the First Circuit acknowledged that other courts of appeals have reached different results on the same question – a split that was no doubt very helpful in convincing the Supreme Court to review of the case. In the last granted case, the Court will consider the constitutionality of the statute that wins the award for best name of the month: the Stolen Valor Act, which makes it a crime to lie about having received military honors. The respondent in this case, Xavier Alvarez, was elected to the board of his local water district in southern California. He was charged with violating the Act after he falsely told the audience at a meeting that he had been awarded the Congressional Medal of Honor. To defend himself, Alvarez sought to have the charges dismissed on the ground that the Act was unconstitutional because it violated his right to free speech. When the district court rejected that argument, Alvarez pleaded guilty but reserved the right to challenge the constitutionality of the Act on appeal. Alvarez found a friendlier audience in the Ninth Circuit, which reversed his conviction. After the full court of appeals declined to re-hear the case, the United States sought Supreme Court review. In its petition for certiorari, the government began by emphasizing that the Act plays an important role in protecting the integrity of the military honors system: if people can lie about receiving awards without any penalty, it will cheapen the value of the awards for the soldiers who actually did earn them. Moreover, the government argued, the Act is constitutional: it is exactly the kind of false factual statement that, under the Supreme Court's precedents, should receive only limited First Amendment protection. Although the government conceded that the Ninth Circuit's decision was the first one to weigh in on the constitutionality of the Act (so that the case lacked the kind of circuit split that the Supreme Court would normally look for in deciding whether to grant review), the Court's decision to review the case was not at all surprising given the federal government's high batting average in seeking review generally but also because the Supreme Court will almost always agree to review a lower court's decision striking down a federal statute as unconstitutional. The Court is likely to hear argument in the case, as well as the others discussed in this post, in February. When it does, we will cover those arguments in Plain English. In association with Bloomberg Law.. 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Family Matters

United States v. Banki, N o. 10-3381-cr (2d Cir. October 24, 2011) (Cabranes, Pooler, Chin, CJJ) Defendant Banki, is an Iranian-born United States citizen. Starting in 2006, his family transferred about $3.4 million from Iran to the United States, all of which were effectuated through the "hawala" system. Banki's hawala broker used a "matching" system to facilitate these transfers. When he knew that Banki's family wanted to send money to the United States, he would find someone in the U.S. who wanted to sand approximately the same amount to Iran. The U.S.-based contact would transfer into Banki's account a sum comparable to the amount Banki's family wished to send. Banki's hawala broker would then pay an equivalent sum to the U.S.-based contact's intended recipient, or broker, in Iran. Ultimately, Banki received some 56 hawala-related deposits. Banki would typically email a family member to confirm receipt of each payment. Although his emails did not typically acknowledge a corresponding payout in Iran for each deposit, at least one such email – relating to a $6,000 payment in August of 2006 – displayed his knowledge that that particular sum of money was moving to Iran. Banki's financial activity came to OFAC's attention in 2008 and, after receiving administrative subpoenas, Banki gave some spurious answers. He was ultimately charged, inter alia, with two counts of violating the Iranian Transaction Restrictions (the "ITR"). After a two-week jury trial, Banki was convicted of those counts, along with one count of operating an unlicensed money transmitting business and two counts of making false statements. The circuit reversed the ITR convictions based on a flawed jury instruction. While the ITR have a service-export ban, at trial Banki argued that non-commercial remittance to Iran, specifically family remittances, were exempt. He sought a jury instruction to this effect, but the district court refused to give one. This, according to the circuit, was error. The regulation at issue authorizes U.S. "depository institutions" to process transfers of funds to or from Iran, if the transfer "arises from an underlying transaction that is not prohibited by this part, such as a … family remittance not related to a family-owned enterprise." The government argued that this language permits such family remittances only if they are processed through a U.S. "depository institution." But, to the circuit, the reg was "at a minimum" ambiguous. Clearly, "family remittances" are "not prohibited" by the ITR. And, while this does not necessarily lead to the conclusion that they are permitted by the complete regulatory scheme, the language at issue "suggests that such actions do not contravene other applicable laws or regulations." And, more importantly, the government's view – that only U.S. depository institutions are authorized to process the permitted transfers – is inconsistent with the language of the reg. A "fair reading" of the reg is that it tells U.S. depository institutions that they are permitted to process such remittances, but does not provide that they are the only entities that may do so. "Indeed, nothing in [the reg] specifically prohibits anyone from making a family remittance." Accordingly, after a lot of back-and-forth over the two sides' competing views of the meaning – and purpose – of the reg, the court concluded that it was ambiguous. Interpreting it in Banki's favor under the rule of lenity required that the two ITR counts be reversed. The court also vacated Banki's convictions relating to operating an unlicensed money transmitting business, again on a flawed jury charge. Banki wanted the district court to define a "money transmitting business" in a way that would make clear that it had to be an "enterprise," not a "single transaction," that was "conducted for a fee or profit." Not only did the district court refuse, it actually told the jury that "a hawala is a money transmitting business." The charge as given was error. Banki's requested instruction was "legally correct," and there was a "foundation in the trial evidence" that the government proved Banki's knowledge of money going to Iran in only a single transaction – the $6,000 transfer in August of 2006 – which the jury could have concluded was a one-time favor for a family friend. Moreover, the "hawala is a money transmitting business" charge compounded the error by "arguably reliev[ing] the government of its burden of proving that Banki's knowledge that money was moving to Iran extended beyond the $6,000 transaction" and by suggesting that if it found that Banki participated in a hawala, "then he necessarily operated a money transmitting business.".. To continue reading this legal news please click Read full information...

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2B, Or Not 2B?

United States v. Bahel, No. 08-3327 (2d Cir. October 26, 2011) (Pooler, Raggi, CJJ, Korman, DJ) Sanjaya Bahel, a chief procurement officer at the United Nations, was convicted of honest services fraud and bribery offenses in connection with a kickback scheme in which he improperly steered lucrative U.N. procurement contracts to a friend, in exchange for money. This long opinion covers a lot of very fact-specific issues. This post focuses only on the sentencing claim. Both U.S.S.G. § 2B1.1 and U.S.S.G. § 2C1.1 can apply to fraud convictions. The difference is that § 2C1.1 applies to specifically to "public officials" and carries a higher base offense level. The district court sentenced Bahel under § 2C1.1, over objection; on appeal, and the circuit rejected his claim that the court should have used § 2B1.1. Under the relevant definition, which is to be "construed broadly," Bahel was a "public official." That he was employed at an international organization does not take him out of § 2C1.1. Indeed, the commentary to § 2B4.1 specifically indicates that that "officials" of, inter alia, "public international organizations" are covered by Chapter 2, Part C. And other guideline provisions support this analysis. For example, the commentary to § 2C1.1 defines "public official" to include anyone who is "in a position of public trust with official responsibility for carrying out a government program or policy." As Chief of Commodity Procurement, Bahel was clearly a "high ranking U.N. official" and not the "baggage porter" with a "ministerial job" that he compared himself to, in reliance on a 1921 Supreme Curt decision. Rather, Bahel's position was "closer to that of a foreign diplomat, political party official, or a tribal leader, all of whom are expressly covered by" § 2C1.1, not § 2B1.1... To continue reading this legal news please click Read full information...

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Interim Judiciary Committees meeting in Illinois and Pennsylvania

This is going to be a very active week for interim judiciary committees. Today, October 24, the Pennsylvania House Judiciary Committee looks at venue in personal injury actions (HB 1552) while tomorrow it will vote on HB 1552 as well as HB 1156 (Offense of phishing and for protection from liability under certain circumstances) and HB 1709 (child custody, further providing for consideration of criminal conviction)... To continue reading this legal news please click Read full information...

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Ohio Issue 1: Legislative Proponents

Proponents of Issue 1 (then known as HJR 1) in the Ohio House and Senate made several arguments in favor of the proposal. The video below outlines many of them, but they can be (and have been for electoral purposes here) summarized as follows: The proposal keeps experience, knowledge, and integrity in the judicial system The proposal includes rigorous judicial accountability The proposal creates no additional financial burden.. To continue reading this legal news please click Read full information...

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