2007 International Law Update, Volume 13, Number 11
(November)
Legal Analyses published by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
EVIDENCE
Ninth Circuit finds that Immigration Judge improperly
failed to consider asylum applicant’s own testimony as a means of
authenticating a foreign government document; asylum applicant may resort to
any recognized procedure for document authentication, including the procedures
permitted under FRE 901, and is not restricted to recognized procedures for
authenticating foreign public documents
Petitioner, Vladimir Vatyan, a citizen of Armenia, applied
for asylum and other forms of relief from deportation in the United States.
According to his asylum application, he was born in Azerbaijan but forcibly
deported to Armenia during the social unrest that followed the collapse of the
Soviet Union. Petitioner claimed that like other ethnic Armenians who had lived
in Azerbaijan, he was marginalized and had difficulty finding work. He alleged
that his son was conscripted into the military and died under mysterious
circumstances suggesting murder, although the Armenian government labeled the
death a suicide and refused Petitioner’s request to investigate further.
Finally, Petitioner claimed that his objections to the
military’s handling of his son’s death and other injustices made him a target
of the Armenian government, which allegedly imprisoned him for several months.
At his hearing before the Immigration Judge (IJ), Petitioner
sought to introduce into evidence several documents, including: (1) a 1999
letter, purportedly from the Armenian Ministry of Internal Affairs and National
Security, stating that Petitioner’s son had committed suicide and that there
would be no further investigation into the son’s death; (2) a 1999 death
certificate for Petitioner’s son; and (3) a 2000 letter, also purportedly from
the Ministry of Internal Affairs, that “certified” Petitioner’s imprisonment
from January to April 2000.
The government objected to the documents as not properly
certified under the authentication standards for foreign public documents set
forth by 8 C.F.R. § 287.6(c), and thus inadmissible. The IJ, acknowledging the
Ninth Circuit’s holding in Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001),
that a foreign public document may be authenticated in an immigration
proceeding either under § 287.6(c) or through “any recognized procedure,” asked
Petitioner’s counsel whether the documents had been authenticated in any other
way. When counsel responded that Petitioner would authenticate the documents
through his own testimony, the IJ rejected this proposed authentication method
and granted the government’s motion to exclude the documents, stating that they
have not been properly authenticated either under 8 C.F.R. § 287.6, or in any
other recognized manner under the Federal Rules of Civil Procedure as is
outlined in Khan v. INS, 237 F.3d 1143.
At the conclusion of the hearing, the IJ found that
Petitioner lacked credibility. The IJ based his finding on, among other things,
discrepancies between the dates of imprisonment Petitioner claimed on his
asylum application and the dates he had given during his testimony at the
hearing. The IJ also found discrepancies in Petitioner’s story of how he
secured his release from the prison. The IJ concluded that these and other
inconsistencies made him question whether Petitioner ever was in the custody of
the internal affairs prison. The IJ did not consider Petitioner’s documentary
evidence, which purported to certify the fact of his imprisonment. Based on the
adverse credibility finding, the IJ denied relief. The Board of Immigration
Appeals summarily affirmed the IJ’s decision, and Petitioner filed a petition
for review in the Ninth Circuit.
The U.S. Court of Appeals for the Ninth Circuit grants the
petition and remands.
The Ninth Circuit has recognized in Khan that documents may
be authenticated in immigration proceedings through any recognized procedure,
such as those required by INS regulations or by the Federal Rules of Civil
Procedure. In this case, the Court acknowledges the reasonableness of the IJ’s
refusal, based on his reading of Khan, to allow Petitioner to authenticate the
proffered documents through his own testimony. Established authentication
methods for foreign public documents generally require a government
certification. See 8 C.F.R. § 287.6(c) (requiring a “certificate . . . signed
by a foreign officer so authorized by the signatory country”); Fed. R. Civ. P.
44(a)(2) (requiring “a final certification as to the genuineness of the
signature and official position (i) of the [foreign official attesting to the
document], or (ii) of any foreign official whose certificate of genuineness of
signature and official position relates to the attestation or is in a chain of
certificates of genuineness . . .”); see also Fed. R. Evid. 902(3).
However, the majority of the Court places considerable
weight on the practical difficulties of applying the established procedures for
authenticating foreign public documents in the context of an immigration
proceeding. Requiring an asylum petitioner to obtain a certification from the
very government he claims has persecuted him (or has failed to protect him from
persecution) would probably create an insuperable barrier to admission of
authentic documents. To enlist an expert to testify as to the authenticity of
the document at issue would create an undue burden on the asylum seeker and in
most cases be impracticable.
The Court then discusses the scope in the Federal Rules of
Civil Procedure and the Federal Rules of Evidence of alternative methods of
authenticating foreign public documents: Fed. R. Civ. P. 44(a)(2) allows the
court to admit an attested copy of a foreign public document without final
certification when the party offering the evidence demonstrates that it was
unable to satisfy the basic requirements of the rule through reasonable
efforts, and all parties have been given a reasonable opportunity to
investigate the authenticity and accuracy of the foreign official record.
Similarly, if the party offering the evidence is unable to self‑authenticate it
pursuant to Federal Rule of Evidence Rule 902, the party can still attempt to
authenticate it under the general provision of Rule 901. The requirement of
authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.
The Court concludes that the IJ made a legal error in
refusing to weigh Petitioner’s testimony regarding the authenticity of the
documents, and requiring Petitioner to produce an official certification as a
mandatory prerequisite to authentication. The majority emphasizes that it has
made no judgment regarding the credibility of Petitioner’s testimony or the
weight to be assigned to it in evaluating the authenticity of the proffered
documents, nor was it altering the highly deferential standard of review for an
IJ’s factual findings.
Finally, the majority concludes that the IJ’s error was not
harmless. One reason for the IJ’s adverse credibility finding was his doubt
that Petitioner had been imprisoned at all. Had the IJ considered Petitioner’s
testimony as a means of authenticating official documentation of his
imprisonment, such documentation may have been admitted into evidence, and the
IJ could then have drawn a favorable conclusion as to Petitioner’s credibility.
Because the Court finds that this error was not harmless, it grants the
petition for review and remanded the case.
One judge on the Ninth Circuit panel dissents, rejecting the
majority’s conclusion that the IJ had rejected the documents because they had
not been properly certified. The dissent points out that the IJ had
acknowledged the availability of alternatives to official certification to
authenticate documents, had in fact heard petitioner’s testimony regarding the
authenticity of the documents, and determined that the petitioner was not a
credible witness. The dissenting judge concludes that remanding this matter is
an empty and pointless exercise.
Citation: Vatyan v. Mukasey, No. 04‑72386 (9th Cir.
November 27, 2007).
EXTRADITION
West Virginia district court denies request from Ireland
for the extradition of a U.S. citizen accused of assisting in suicide; dual
criminality requirement of the U.S.–Ireland extradition treaty was not met;
although the court recognizes that dual criminality could potentially be
satisfied by the existence of substantially comparable laws in a
“preponderance” of the states, there was no consensus in the laws of the U.S.
states as to assisted suicide
The following district court case concerns Ireland’s request
for the extradition of a the Reverend George Exoo of the “Compassionate
Chaplaincy Foundation,” an organization that assists people who wish to commit
suicide. Such has been termed “suicide tourism” by critics. More information
about the background of this matter is available at www.compassionate‑chaplaincy.com.
The United States initiated an action for the extradition of
American citizen George Exoo to Ireland. The Dublin Metropolitan District Court
issued a Warrant to Arrest Exoo on May 21, 2004, based upon information
provided by a police detective that Exoo (1) aided and abetted and (2)
counseled the suicide of an Irish woman, Ms. Toole, in violation of Irish law.
That law provides that “a person who aids, abets, counsels or procures the
suicide of another . . . shall be guilty of an offense and shall be liable on
conviction on indictment to imprisonment for a term not exceeding fourteen
years.” Section 2(2) of Ireland’s Criminal Law (Suicide) Act, 1993.
Exoo was affiliated with an organization known as the
Compassionate Chaplaincy Foundation which provided assistance to dying people.
Exoo, in his position as a minister, provided instruction and spiritual support
for people seeking to end their own lives. In 2002, Exoo traveled to Ireland
after some correspondence with Ms. Toole, a woman suffering health problems who
had attempted and failed at suicide once before. Ms. Toole paid for Exoo’s
traveling expenses. On January 25, he was with Ms. Toole when she took
unspecific pills and out on a mask that supplied her with helium, not oxygen.
She soon asphyxiated, and Exoo left the country without notifying authorities
of her death. In 2007, a warrant was issued in the U.S. and Exoo was arrested.
The court subsequently held a hearing to determine where extradition of Exoo to
Ireland was permissible.
Under the 1983 extradition treaty between the United States
and Ireland, “An offense shall be an extraditable offense only if it is
punishable under the law of both Contracting Parties by imprisonment for a
period of more than one year, or by a more severe penalty¼
Extradition shall also be granted for attempt and conspiracy to commit, aiding,
abetting, counseling, procuring, inciting, or otherwise being an accessory to
the commission of [such an offense that is punishable under the law of both
states].” The treaty further stipulated that it “adopts the modern practice of
permitting extradition for any crime punishable under the laws of both
contracting Parties for a minimum period,” and that the doctrine of dual
criminality should be interpreted liberally under it.
To extradite Exoo, the Court would have to determine, among
other things, whether “in consideration of the offenses with which he is
charged in Ireland, [Exoo] is extraditable under the ‘dual criminality’
provision contained in Article II of the Treaty. Under this provision, the
Court must determine whether the offenses with which [Exoo] is charged in
Ireland are also punishable under the law of the United States by imprisonment
for a period of more than one year or by a more severe penalty.” [pg. 5]
“To determine whether dual criminality exists as between the
law of Ireland and the law of the United States, the Court must look to federal
law first. If there is no corresponding federal law, then the Court must look
to the law of the State where [Exoo] is found. If there is no corresponding law
in the State where [Exoo] is found, then the Court must look to the law of the
preponderance or majority of States.” [pg. 5–6] These laws need not be
identical between states, merely similar. In Exoo’s case, the proper inquiry
was first into Federal and West Virginia law, neither of which possessed laws
that would satisfy the duality requirement. However, the United States in its
memorandum maintained that a preponderance of the States criminalize assisted
suicide, and alleged that 39 have statutes forbidding such acts and 29 of those
attach aiding and abetting liability to providing assistance in any form to the
suicide of another.
In June 2007, the Court held an Extradition Hearing.
“Essentially, the question presented was¼ whether the [Extradition
Treaty between the US and Ireland] permitted dual criminality to be assessed in
consideration of the law of a preponderance of the States and, if so, [did] it
appeared probable that dual criminality does not exist as between the law of
Ireland and the law of a preponderance of the States¼ [L]egal research
indicated that several Courts have stated that, absent duality as between the
law of the requesting State and federal law and the State where the relator is
found, the Treaty language would permit an assessment of dual criminality in view
of the law of a preponderance of the States.” [pg. 8]
At the hearing, both sides presented evidence on the
differing assisted suicide laws of various states and the status of assisted
suicide at common law where no statute existed. While the Government maintained
that a majority of states had statutes criminalizing assisted suicide and also
recognized aider and abettor liability for such acts, Exoo argued that not only
had the Government failed to show a majority trend among the various states,
even if it had, majority alone was not enough. Instead, the requisite for a
finding of duality under a “preponderance” of state laws was “consensus” among
them.
At the hearing, the court emphasized that extradition
treaties were to be interpreted liberally, and this applied as well when
determining if dual criminality exists when there is no comparable federal or
State of asylum enactment. In order to make such a determination, it stated,
the court must compare the laws of the country requesting extradition and the
fifty States to determine if the conduct charged in the requesting country is
punishable in a preponderance of the States. [pg. 17]
In the court’s determination of the meaning of applicable
laws, it noted that, in general, the law of the United States and Ireland are
conceptually consistent in defining aiding and abetting. In then turned to a
comparison of the assisted suicide laws of Ireland and the 50 states, in order
to determine “the extent to which the States’ laws are ‘substantially analogous’,
‘relate to the same general offense’ or involve conduct which is criminal in
both countries.” [pg. 21]
After conducting this comparison, the court found there was
no dual criminality under the “preponderance of the states” standard, and
extradition was not permissible. The State Court decisions analyzed by the
court in making its comparison indicated that the strong majority of the
States’ statutes would not be “substantially analogous” for duality purposes.
“Utilizing as broad a notion as possible of what legally constitutes ‘aiding’
and ‘causing’ in order to conform to the liberality requirements of the Treaty
and the law, the Court [found] that the laws of the 25 States set forth in the
first category incorporate both aiding and causing suicide and therefore
included conduct such as Exoo’s indirect, secondary participation in Ms.
Toole’s suicide.” [pg. 30]
However, the Court also finds that 25 States did not have
laws which were “substantially analogous,” and as such, the Court could not
find that aiding and abetting and counseling suicide as charged in Ireland are
generally recognized as criminal in the laws of the States, and extradition was
denied.
Citation: In the Matter of the Extradition of George
David Exoo, 5:07‑0059 (S.D.Wv. 11/26/2007).
EXTRADITION
As matter of first impression, Ninth Circuit reviews
whether U.S. government must seek extradition of a suspect when it believes
that extradition is futile
Felipe de Jesus Corona‑Verbera (“Corona Verbera”) was
involved with the Sinaloa Cartel, one of the largest drug‑trafficking
operations in Mexico in the late 1980s. He allegedly designed a sophisticated,
200‑foot‑long tunnel between Agua Prieta, Mexico, and a warehouse in Douglas,
Arizona. That the tunnel was used for drug‑trafficking is evidenced by the
2,037 pounds of cocaine found at the same time. Corona Verbera was first
charged in 1990, and there were indictments in 1995 and 2001. He arrested in
Mexico in 2003, and extradited to the U.S. Eventually, after many delays, he
was convicted in 2006 of various drug‑related offenses, and now appeals.
The U.S. Court of Appeals for the Ninth Circuit affirms. One
of Corona Verbera’s challenges on appeal is that his Sixth Amendment right to a
speedy trial was violated because the U.S. government did not timely seek his
extradition from Mexico.
The Court agrees that an almost eight‑year delay between
indictment and arrest is presumptively prejudicial. However, the Court does not
find a duty upon the government to seek swift extradition.
“Whether or not our government is required formally to seek
extradition and execute an arrest warrant when it believes extradition is
futile is an issue of first impression in this Circuit. The Second Circuit
addressed the issue in United States v. Blanco, 861 F.2d 773, 778 (2d Cir.
1988). In Blanco, the court held that seeking extradition of a defendant from
Colombia would have been futile and “[d]ue diligence does not require the
government to pursue goals that are futile.” Id. We agree with the Second
Circuit and hold that where our government has a good faith belief supported by
substantial evidence that seeking extradition from a foreign country would be
futile, due diligence does not require our government to do so.” [Slip op. 8]
Here, the government presented testimony by Agent Grant
Murray that Mexico did not extradite its citizens on drug charges until the
late 1990s. Thus, any attempts to seek Corona Verbera’s extradition would have
been futile. Even a defense expert agreed that Mexico did not extradite its
citizens between 1980 and 1996. The government did, however, enter him into the
National Crime Information Center (NCIC) computer system.
Therefore, the Court concludes that “that the government
exercised due diligence in this case. Substantial evidence supports the
government’s assertion that extradition from Mexico on drug related charges
prior to 2002 was extremely rare. The futility of extradition, combined with
the government’s entry of Corona‑Verbera into NCIC and border stop computers,
and the airing of the Most Wanted and Unsolved Mysteries segments, indicate
that the government did not simply forget about Corona‑Verbera. Rather, after
extradition became more likely in 2002, the government obtained an arrest warrant
and diligently sought extradition. Consequently, the reason for delay weighs
against dismissal.” [Slip op. 10]
Finally, the Court rejects Corona Verbera’s argument that
his 18‑year sentence violates the terms of his extradition. The U.S. Ambassador
had assured Mexico that the U.S. would not seek a death sentence or life
imprisonment. Corona Verbera argues that, because he is 53 years old, the 18‑year
sentence is effectively a life sentence. Also, Articles 18 and 22 of the
Mexican Constitution prohibit such punishments. Such cruel and extreme
punishment violates the U.S.–Mexico Extradition Treaty.
The Court disagrees. “Neither our Ambassador’s letter nor
the Treaty itself mention any prohibition against a sentence imposing a precise
term of years. Likewise, no mention is made of “unusual or extreme punishment”
or any equivalent thereof. See Extradition Treaty Between the United States of
America and the United Mexican States, U.S.–Mex., May 4, 1978, 31 U.S.T. 5059.
Accordingly, the simple answer to Corona‑Verbera’s argument is that he was not
sentenced to life in prison. He was sentenced to eighteen years in prison, with
credit for more than four years served. Moreover, his projected release date is
at the age of sixty‑four.” [Slip op. 18]
Citation: United States v. Corona‑Verbera, No. 06‑10538
(9th Cir. December 7, 2007).
FORUM NON CONVENIENS
First Circuit overturns district court’s dismissal for
forum non conveniens, holding that, all other factors being equal, the
existence of concurrent litigation in a foreign state does not overcome the
strong presumption that an American forum selected by an American plaintiff is
the proper forum for a suit
Plaintiff Sheldon Adelson, a United States citizen,
possesses substantial holdings in Interface Partners International, Ltd.
(“IPI”), a Delaware corporation which was established for the purpose of making
business investments in Israel, and has offices in both Massachusetts and
Israel. The Defendant, an Israeli resident and citizen, was hired by IPI to be
the company’s General Manager of operations in Israel. Prior to the current
suit, the Defendant had previously filed two suits against the Plaintiff in the
Tel Aviv District Labor Court, alleging, inter alia, that he was due
compensation from IPI for his employment as well as twelve percent of the
Plaintiff’s shares in a development project in Macau, China. The Plaintiff had
filed a countersuit in the Israeli court. In February, 2004, the Plaintiff also
brought suit in the United States District Court for the District of
Massachusetts seeking a declaration of the parties’ respective rights under the
oral employment contract between IPI and the Defendant. The Plaintiff also
contended that the Defendant’s suits in Israel “amount[ed] to extortion and
that they are inhibiting his ability to deal freely in his Macau business
venture.” [¶ 18]
Following jurisdictional discovery, the Defendant made a motion
to dismiss for lack of personal jurisdiction and forum non conveniens. The
district court denied the motion to dismiss for lack of personal jurisdiction,
but granted the motion to dismiss for forum non conveniens. This appeal ensued.
The U.S. Court of Appeals affirms the denial of the motion
to dismiss for lack of personal jurisdiction, but reverses the dismissal on
forum non conveniens grounds.
The Court upholds the district court’s finding that personal
jurisdiction over the defendant existed. For specific jurisdiction over an
alien defendant, a finding of necessary minimum contacts could be made where
the defendant had entered into the contract at issue in the forum state,
communicated regularly with that state during the course of his employment in a
foreign State, and had business operations that were primarily channeled
through the forum state. The Court further holds that, although the defendant
lived and worked in Israel and was legally blind and diabetic, and that “those
facts evoke sympathy for the undeniable burden placed upon the [Defendant],”
the district court had acted properly when it found that no special or unusual
burden existed that would counsel against a finding of jurisdiction, as neither
the Defendant’s foreign location nor medical condition prevented him from
traveling internationally during the course of business. [¶ 45]
The Court then turns to the Plaintiff’s appeal from the
dismissal of his suit for forum non conveniens, and applying the framework
supplied by the Supreme Court Gulf Oil Corp. v. Gilbert, 330 U.S. 501, and
Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, overturns the district
court’s decision. “Those cases and their progeny established forum non
conveniens as a discretionary tool for the district court to dismiss a claim,
even when it has proper jurisdiction. See Gilbert, 330 U.S. at 507. That power,
however, is limited by the overarching principle that a ‘plaintiff’s choice of
forum should rarely be disturbed.’ Id. at 508 ¼ Accordingly, the party
moving for dismissal bears the heavy burden of establishing that an adequate
alternative forum exists and that ‘considerations of convenience and judicial
efficiency strongly favor litigating the claim in the second forum.’ Iragorri
v. Int’l Elevator, Inc., 203 F.3d at 12.” [¶ 49]
In the past, the First Circuit recognized a strong
presumption in favor of an American forum selected by American plaintiffs.
Mercier v. Sheraton Int’l Inc., 981 F.2d 1345, 1355 (1st Cir. 1992) For the Plaintiff’s
suit, although the Plaintiff was not himself a Massachusetts domiciliary, the
Massachusetts district court was still to be deemed his “home forum” where the
alternative was a foreign court, as there exists a strong federal interest in
ensuring that American citizens will generally be able to enjoy an American
forum to settle their disputes rather than be relegated to foreign courts.
Thus, while the district court “properly observed that
[Plaintiff] is a United States citizen and that there is a ‘heavy presumption’
in favor of his choice of forum, the district court ignored that presumption
because of the existence of the concurrent action in the Israeli court. Indeed,
in its analysis up to that point, the district court had found that the ‘private
interest factors did not weigh in favor of either party’ and that the public
interest was ‘also in equipoise between the parties.’ Moreover, the court also
found that [Plaintiff’s] suit was neither vexatious nor oppressive. Thus, it
was the existence of concurrent litigation that not only caused the balance to
shift in favor of the foreign forum, but also eviscerated the presumption in
favor of the plaintiff’s forum. In discussing the Israeli suit, the district
court stated, ‘I see no reason why [Plaintiff] cannot fairly litigate his claim
in Israel.’ The district court erred in so construing the importance of
concurrent litigation within the forum non conveniens analysis.” [¶ 53]
By taking the pending Israeli cases into account, the district
court “erroneously lowered” the Defendant’s burden of proving that the balance
of factors justified dismissal of a suit from an American citizen’s choice of
forum. “The existence of concurrent litigation is not a relevant factor to the
analysis; none of the factors enumerated above invokes a comparison between the
two competing fora. By focusing on the existence of parallel proceedings in a
foreign court, the district court essentially converted the analysis into a
determination of which of the two pending cases should go forward. ¼
Having found the public and private interest factors [related to the
Defendant’s motion to dismiss for forum non conveniens] to be in equipoise, the
district court should have concluded that the defendant failed to overcome the
heavy presumption in favor of the plaintiff’s home forum.” [¶ 54–56]
Citation: Adelson v. Hananel, No. 06‑2281 (1st Cir.,
December 5, 2007).
JURISDICTION
Federal district court lacks jurisdiction based on
diversity when alien corporations are present on both sides of the controversy,
even if one Party maintains its principal place of business in the United
States
Plaintiffs, including a Grand Cayman Islands corporation,
brought suit in a U.S. federal district court on claims of fraud and breach of
contract against a South Korea corporation and a citizen of South Korea.
Defendants moved to dismiss the suit, asserting that the district court lacked
jurisdiction, and the motion was granted. Plaintiffs appealed to the Sixth
Circuit, which affirmed the district court’s ruling.
Plaintiffs argued that complete diversity existed under 28
U.S.C. §1332(a)(2) because Peninsula Asset Management Cayman Ltd. maintained
its principle place of business in the United States, even though it was
incorporated under the laws of the Grand Cayman Islands. The Court rejected
this argument, asserting that it is well established that, under §1332(a)(2)
even if a foreign corporation maintains its principal place of business in a
State, and is considered a citizen of that State, diversity is defeated if
another alien party is present on the other side of the litigation (citing
Creaciones Con Idea, S.A. de C.V. v. Mashreqbank PSC, 232 F.3d 79, 82 (2d Cir.
2000)).
The Court also determined that jurisdiction could not be
predicated on the basis of 28 U.S.C. §1332(a)(3), which has been interpreted as
not requiring complete diversity, because there was not a United States citizen
on each side of the dispute.
The only applicable section is § 1332(a)(2), requiring
complete diversity. Complete diversity is lacking in this case, and thus the
Court remands for consideration whether the case should be dismissed for lack
of subject matter jurisdiction.
Citation: Peninsula Asset Management Cayman Ltd. v.
Hankook Tire Co., Ltd., (6th Circuit, December 13, 2007).
SOVEREIGN IMMUNITY
In case of Italian government’s sale of majority share in
Alitalia Airlines after Alitalia’s removal of a case against it to federal
court without jury under the FSIA, the Seventh Circuit holds that FSIA’s bar on
jury trials continues to apply
Olympia Express, Inc. and Neotours, Ltd. (“Plaintiffs”)
filed suit against Alitalia Airlines (“Defendant”), of which the Italian
government was majority shareholder, in an Illinois state court for breach of
contract under Illinois law. Alitalia removed the case to the United States
District Court for the Northern District of Illinois under the Foreign
Sovereign Immunities Act (FSIA), which allows for removal to federal court for
a trial without jury. The Italian government sold its majority shareholding in
Defendant, after the case was removed. Plaintiffs demanded a jury trail, which
the District Court granted, resulting in an $8.5 million judgment for the Plaintiffs.
Defendant appealed.
The United States Court of Appeals for the Seventh Circuit
reverses the lower courts ruling and remanded the case for further proceedings.
The only basis of federal jurisdiction in this case, at
least when it was filed and before Defendant’s conversion to a private company,
was the removal provision 28 U.S.C. § 1441(d). Because the action arose under
state rather than federal law, it could not have been brought in (or removed
to) a federal court under federal‑question jurisdiction or diversity
jurisdiction.
“[T]he Supreme Court had held that whether the defendant is
a foreign state within the meaning of the Foreign Sovereign Immunities Act is
to be determined on the basis of the facts in existence when the suit was
filed, and if this principle governs our case the jurisdictional basis has not
changed.” [Slip op. 2]
“’There is no doubt that 28 U.S.C. § 1330(a) and its
counterpart dealing with removal, § 1441(d), are the sole source of a district
court’s jurisdiction over a civil action against a foreign state as defined by
the FSIA.’ Houston v. Murmansk Shipping Co., supra, 667 F.2d at 1153.”
“A demand for a jury trial is made ‘after [rather than at]
the commencement of the action and not later than 10 days after the service of
the last pleading directed to [an issue triable of right by a jury].’ Fed. R.
Civ. P. 38(b). And while in this case the demand was filed much later, it could
be argued that the deadline should be tolled whenever an unforeseen change
eliminates a bar to the demand¼”
“The tolling of the 10‑day deadline would certainly be
impermissible were the bar to a jury trial in section 1441(d) itself
jurisdictional. That section is, we have just seen, the only basis upon which
this case is within federal jurisdiction.” [Slip op. 3]
“The facts of Houston make us reluctant to conclude that the
bar to a jury trial in a case under the Foreign Sovereign Immunities Act is
jurisdictional, so that a jury trial in a case governed by the Act must be
treated as a nullity even if the consequence would be to disserve the Act’s
purpose.” [Slip op. 4]
“Our conclusion that the demand should not have been granted
because of Alitalia’s change of status follows not only from the statutory
wording but also from considerations of judicial economy and of the underlying
purpose of the Foreign Sovereign Immunities Act. The reason that Rule 38(b) of
the civil rules sets a tight deadline for demanding a jury trial is that
preparation for a trial often depends critically on whether it will be a jury
trial or a bench trial.”
“On all these counts it is vital, especially in a suit
brought under the Foreign Sovereign Immunities Act, that the parties know as
soon as possible after a case is filed whether if there is a trial it will be
to the judge or to a jury.” [Slip op. 5]
“¼
[T]o provide further guidance on remand, we address an ambiguity in the meaning
of the term “non‑jury trial.” Does it mean that the trial must be conducted in
the absence of a jury, or merely that the “verdict” must be rendered by the
judge rather than by a jury? We think it is latter.”
Upon remand, the magistrate judge should first decide
whether the development of the facts at the first trial was sufficient to make
his/her own findings of fact and conclusions of law on both liability and
damages. If so, the judge need not conduct another evidentiary hearing.
Citation: Olympia Express, Inc. v. Linee Aeree
Italiane, S.P.A., No. 07‑1708 (7th Cir. November 30, 2007).
TERRORISM
Changes made to the Antiterrorism and Effective Death
Penalty Act cured some, but not all, of previous defects the Ninth Circuit
found in the statute; although amendments that changed the scienter required
under AEDPA satisfy constitutional requirements, some terms continue to render
provisions of it void on vagueness grounds
In the following case, six organizations and some
individuals seek to support two organizations that have been labeled
“terrorist.” They challenge the constitutionality of sections 302 and 303 of
the Antiterrorism and Effective Death Penalty Act and its 2004 amendment, the
Intelligence Reform and Terrorism Prevention Act.
Section 302(a) of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) authorizes the secretary of state to designate overseas
groups as foreign terrorist organizations (“FTOs”). Other provisions of the
statute provide criminalize conduct that aids these groups in any of their
activities, including the nonviolent and humanitarian services they provide. In
1997, then‑Secretary of State Madeline Albright designated to the Kurdistan
Worker’s Party (the PKK) and the Liberation Tigers of Tamil Eelam (the LTTE) as
FTOs for their terrorist activities carried out in Turkey and Sri Lanka.
The Plaintiffs have brought forward two previous suits
challenging this same statute, seeking as they do now, to be permitted to
provide aid to both the PKK and the LTTE. See Humanitarian Law Project v. Reno,
205 F.3d 1130 (9th Cir. 2000), cert. denied, 532 U.S. 904 (2001); see also
Humanitarian Law Project v. United States Dep’t of Justice, 352 F.3d 382 (9th
Cir. 2003), vacated, 393 F.3d 902 (9th Cir. 2004). Prior to the groups’
designation as FTOs in 1997, Plaintiff had furnished support to them for their
lawful activities, but withdrew from such activities for fear of criminal
prosecution. In their first case, Plaintiffs challenged AEDPA as being
unconstitutional for 1) violating their First and their Fifth Amendment rights
to freedom of association and due process because the statue imposed criminal
penalty for their association with the designated organizations without
requiring the government to prove that Plaintiffs had the specific intent to
further the designated organizations’ unlawful goals; 2) violating their First
Amendment right to association by prohibiting them from making political
contributions to the designated organizations; and (3) violating their First
and Fifth Amendment rights because it gave the Secretary of State unfettered
licensing power to designate a group as a foreign terrorist organization. [¶
24] The district court found for the plaintiffs on only the second challenge,
rejecting the rest.
Following the first case, “Congress enacted the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act (“USA PATRIOT Act”). The USA PATRIOT Act amended AEDPA’s
definition of ‘material support or resources’ to include the prohibition
against providing ‘expert advice or assistance’ to a designated foreign
terrorist organization. See 18 U.S.C. § 2339A(b) and § 2339B(g)(4).” [¶ 26]
A second case was filed, and the court once again held on
appeal holding that the terms “training” and “personnel” were void for
vagueness. See Humanitarian Law Project v. United States Dep’t of Justice, 352
F.3d 382 (9th Cir. 2003) vacated, 393 F.3d 902 (9th Cir. 2004). A majority of
the panel also read into the statute a mens rea requirement holding that, “to
sustain a conviction under § 2339B, the government must prove beyond a
reasonable doubt that the donor had knowledge that the organization was
designated by the Secretary as a foreign terrorist organization or that the
donor had knowledge of the organization’s unlawful activities that caused it to
be so designated.” Id. at 403.
Finally, three days after the second case was heard,
Congress amended AEDPA by passing the Intelligence Reform and Terrorism
Prevention Act (“IRTPA”). “In enacting IRTPA, Congress amended the definition
of ‘material support or resources’ to include an additional ban on providing
‘service.’ Congress defined for the first time the terms ‘training’ and ‘expert
advice or assistance,’ and clarified the prohibition against providing
‘personnel’ to designated organizations.” [¶ 35]
To determine the effect of the IRTPA, the previous judgments
in the Humanitarian Law Project cases were vacated and remanded to the district
court. The district court consolidated the two cases on the Plaintiff’s
challenge of the terms “personnel” and “training” and the challenge of the phrase
“expert advice and assistance,” and also heard Plaintiff’s additional challenge
to the added term “service.”
Once again, “the district court held that the terms
‘training’ and ‘service’ are unconstitutionally vague. With respect to the term
‘expert advice or assistance,’ the district court held that the ‘other
specialized knowledge’ part of the definition is void for vagueness, but that
the ‘scientific’ and ‘technical’ knowledge part of the definition was not
vague. The district court also held that the newly‑added definition of
‘personnel’¼
cured the vagueness of that term. The district court rejected the rest of
Plaintiffs’ challenges and granted partial summary judgment for the
government.”
The U.S. Court of Appeals for the Ninth Circuit affirms that
decision.
The Court of Appeals upholds all of the district court’s
findings. First, the Court points out that because the material support
provision of AEDPA requires that to find liability a defendant must have been acting
with “knowledge,” it satisfies the requirement of personal guilt and eliminates
any due process concerns. Second, it holds that AEDPA’s “training,” “expert
advice or assistance,” and “service” provisions remain impermissibly vague
because they “implicate, and potentially chill, Plaintiffs’ protected
expressive activities and impose criminal sanctions¼ without sufficiently
defining the prohibited conduct for ordinary people to understand.” [¶¶ 74, 78]
Third, the Court finds that the amended version of AEDPA’s
“personnel” provision was not constitutionally vague, because it no longer
criminalizes pure speech protected by the First Amendment. And fourth, the
terms “training,” “personnel,” “expert advice or assistance” and “service” are
not unconstitutional for overbreadth. [¶ 92]
First, post‑IRTPA, to convict a person for providing
“material support or resources” to a designated foreign terrorist organization,
the government must prove that the donor defendant “ha[d] knowledge that the
organization is a designated terrorist organization, that the organization has
engaged or engages in terrorist activity, or that the organization has engaged
or engages in terrorism.” 18 U.S.C. § 2339B(a). [¶ 47]
This change did not satisfy the Plaintiffs, who on remand
urged the court to find the statute invalid so long as the mens rea requirement
was anything less than a specific intent to further the terrorist activities of
a designated FTO. The Court rejects their argument, and holds that the amended
version of section 2339B comports with the Fifth Amendment’s requirement of
“personal guilt,” because although unless Congress expressly communicates its
intent to dispense with a mens rea requirement and create strict criminal
liability, the notion of ‘personal guilt’ requires some culpable intent before
criminal liability attaches,” as amended, the challenged AEDPA provision
“complied with the conventional requirement for criminal conduct—awareness of
some wrongdoing.” [¶ 52]
Plaintiff’s challenge of the statute that relied on
precedent from vicarious criminal liability cases also fails, as the Court
determines that there is no liability for the criminal acts of a group a donor
has given material support to, but only liability for the illegal act of giving
to the donee organizations. “In sum, because [AEDPA] does not impose ‘vicarious
criminal liability,’ due process is satisfied without proof of specific intent
to further the organization’s illegal goals.” [¶ 58]
Second, the Due Process Clause of the Fifth Amendment
requires that statutes clearly delineate the conduct they proscribe. AEDPA
section 2339B(a), as amended by IRTPA in December 2004, now criminalizes the
act of knowingly providing “material support or resources” to a designated
foreign terrorist organization. Plaintiffs argued that the amended definitions
are impermissibly vague because the statute fails to notify a person of
ordinary intelligence as to what conduct constitutes “material support or
resources.” The terms in the definition of “material support or resources” that
Plaintiffs specifically challenged are “training,” “expert advice or
assistance,” “service,” and “personnel.” The district court ruled for the
Plaintiffs on the first three terms, and the Court of Appeals agrees.
Statutes are invalidated on vagueness grounds for three
reasons: “(1) to avoid punishing people for behavior that they could not have
known was illegal; (2) to avoid subjective enforcement of laws based on
‘arbitrary and discriminatory enforcement’ by government officers; and (3) to
avoid any chilling effect on the exercise of First Amendment freedoms.” Foti v.
City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998). Although the term
“training” was amended by Congress, it remained vague as “limiting the
definition of the term ‘training’ to the ‘imparting of skills’ does not cure
unconstitutional vagueness because, so defined, the term ‘training’ could still
be read to encompass speech and advocacy protected by the First Amendment.” [¶
73]
Similarly, because the ‘other specialized knowledge’ portion
of the ban on providing ‘expert advice or assistance’ continues to cover
constitutionally protected advocacy, the Court of Appeals holds that it, too,
was void for vagueness. [¶ 80] Finally, proscribing “service” was vague because
each of the other challenged provisions could be construed as a provision of
“service.” [¶ 84]
Third, “IRTPA added a limitation to the ban on providing
‘personnel.’ 18 U.S.C. § 2339B(h). Section 2339B(h) clarifies that section 2339B(a)
criminalizes providing ‘personnel’ to a foreign terrorist organization only
where a person, alone or with others, ‘[work]s under that terrorist
organization’s direction or control or . . . organize[s], manage[s],
supervise[s], or otherwise direct[s] the operation of that organization.’
Section 2339B(h) also states that the ban on ‘personnel’ does not criminalize
the conduct of ‘[i]ndividuals who act entirely independently of the foreign
terrorist organization to advance its goals or objectives.’ Id. As amended by
IRTPA, AEDPA’s prohibition on providing ‘personnel’ is not vague because the
ban no longer ‘blurs the line between protected expression and unprotected
conduct.’” [¶¶ 88–89]
Fourth, because AEDPA section 2339B is not aimed at
expressive conduct and because it does not cover a substantial amount of
protected speech, the Court holds that the prohibition against providing
“material support or resources” to a foreign terrorist organization is not
facially overbroad. A statute is facially overbroad when its application to
protected speech is “substantial, not only in an absolute sense, but also
relative to the scope of the law’s plainly legitimate applications.” Virginia
v. Hicks, 539 U.S. 113, 119–20 (2003). As section 2339B(a)’s ban on provision
of “material support or resources” to designated foreign terrorist
organizations “undoubtedly has many legitimate applications,” the statute “can
legitimately be applied to criminalize facilitation of terrorism in the form of
providing foreign terrorist organizations with income, weapons, or expertise in
constructing explosive devices.” [¶ 95]
Additionally, the Court of Appeals affirms the validity of
the licensing scheme added by the IRTPA.
Citation: Humanitarian Law Project v. Mukasey, No. 05‑56753
(9th Cir., December 10, 2007).
WORLD TRADE ORGANIZATION
Arbitrator issues award in U.S.–Antigua and Barbuda
dispute over online gambling; permits Antigua and Barbuda to suspend
obligations under the TRIPS Agreement even though U.S. had violated different
sector obligations, namely GATS
On December 21, 2007, an arbitrator under the auspices of
the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) issued
an award in the aftermath of the dispute between the U.S. and Antigua and
Barbuda over on‑line gambling services. Interestingly, the arbitrator permitted
Antigua and Barbuda to seek retaliation in a sector that is different (here:
TRIPS Agreement, meaning intellectual property rights) from where the U.S.
violations occurred (here: GATS, meaning services).
The dispute first came before the WTO in March 2003, when
Antigua and Barbuda complained that the U.S. had implemented measures that
impeded on‑line gambling providers from offering such services in the U.S., and
requested consultations. In particular, Antigua and Barbuda argued that the
U.S. measures were inconsistent with U.S. obligations under the General
Agreement on Trade in Services (GATS), Articles II, VI, VIII, XI, XVI and XVII,
as well as the U.S. Schedule of Specific Commitments annexed to the GATS.
The initial Panel Report in this dispute was issued on
November 10, 2004, and found, inter alia, that the U.S. Wire Act, the Travel
Act, and the Illegal Gambling Business Act, as well as several state laws,
impede the cross‑border supply of recreational gambling services, contrary to
the U.S. commitments. Thus, the U.S. failed to grant Antigua and Barbuda
service providers a treatment that is “no less favorable” than provided for in
the U.S. Schedule, and thus contrary to the market access provisions in
Articles XVI:1 and XVI:2.
On April 7, 2005, the Appellate Body issued its report in
this regard, affirming on different grounds the Panel’s finding that the U.S.
Schedule includes a commitment to grant full U.S. market access for gambling
and betting services. It confirmed that the U.S. had acted consistently with
Articles XVI:1 and XVI:2 by limiting market access contrary to its commitments.
Subsequently, an arbitrator ruled that the U.S. should comply with the
recommendations and rulings of the DSB by April 3, 2006.
The WTO subsequently issued a Compliance Report, which found
that the U.S. had failed to comply with the recommendations and rulings of the
Dispute Settlement Body (DSB). In June 2007, Antigua and Barbuda requested DSB
authorization to suspend $3.443 billion in concessions and related obligations
that Antigua and Barbuda had towards the U.S. under the GATS and the Agreement
on Trade‑Related Aspects of Intellectual Property Rights (TRIPS). Even though
the TRIPS Agreement is in a different sector, Antigua and Barbuda claimed that
retaliation in the GATS sector was not practicable. The DSB referred the matter
to an arbitrator according to Article 22.6 of the Dispute Settlement Understanding.
Antigua and Barbuda later clarified that it was seeking retaliation only by
suspending obligations under the TRIPS Agreement.
The arbitrator found that the annual level of nullification
or impairment of benefits in this case is $21 million per year. Thus, Antigua
and Barbuda may request permission from the DSB to suspend obligations to the
U.S. under the TRIPS Agreement for up to $21 million per year.
Citation: World Trade Organization, United
States—Measures Affecting the Cross‑Border Supply of Gambling and Betting
Services (WT/DS285/ARB) (21 December 2007). The Report is available on the
website www.wto.org. A press release of the U.S. Trade Representative of
December 21, 2007 on this issue is available at www.ustr.gov.
WORLD TRADE ORGANIZATION
WTO Panel issues decision in U.S–Mexico dispute over anti‑dumping
measures on Mexican steel; holds that model zeroing “as such” is inconsistent
with the Anti‑Dumping Agreement
A Dispute Settlement Panel of the World Trade Organization
(WTO) has issued its Report on the U.S.–Mexico dispute over anti‑dumping
penalties on Mexican stainless steel in the form of steel sheet and strip in
coils.
Mexico requested WTO consultations in May 2006, after the
U.S. Department of Commerce (DOC) determined in 1999 that Mexico was dumping
its stainless steel, and conducted five subsequent reviews. Mexico claims that
several U.S. measures are inconsistent with trading obligations, including (1)
the U.S. Tariff Act of 1930, (2) certain regulations of the U.S. DOC in Title
19 of the C.F.R., (3) the 1997 edition of the Import Administration Antidumping
Manual, and (4) the DOC methodology to determine the overall margin of dumping
for the products at issue, where the DOC disregarded (“zeroed”) negative dumping
margins. According to Mexico, these U.S. measures violate Articles VI:1 and
VI:2 of the GATT 1994; various articles of the Anti‑Dumping (AD) Agreement; and
Article XVI:4 of the WTO Agreement.
Particularly, Mexico argues that with the DOC “zeroing procedures,”
the margins of dumping calculated in investigations and periodic reviews do not
fully reflect export prices that are above the normal value. It does not
include the numerator of the weighted average dumping margin calculations of
the results of comparisons where the export price exceeds the normal value.
Mexico challenges the DOC “zeroing procedures” in connection with
investigations where the weighted average normal value is compared with the
weighted average export price (“model zeroing in investigations”), and the
periodic reviews where the weighted average normal value is compared with
individual export transactions (“simple zeroing in periodic reviews”).
Typically, the DOC calculates weighted‑average net prices
for the product at issue. It then compares these U.S. prices to the product’s
normal value, ideally in the form of a weighted‑average net price. After
comparing U.S. price and normal value, the DOC applies “zeroing.” When the
normal value is higher than the U.S. price, the resulting difference is the
dumping amount. However, when the U.S. price is higher, the dumping amount is
set to “zero” instead of applying the negative value. Consequently, “zeroing”
eliminates negative dumping margins from the calculation and can easily create,
at least in theory, dumping margins when there is no dumping.
After the consultations were unsuccessful, Mexico requested
a dispute settlement panel in October 2006. The Panel finds, in particular,
that:
(1) Model zeroing in investigations “as such” is
inconsistent with Article 2.4.2. of the AD Agreement. However, simple zeroing
in periodic reviews is “as such” not inconsistent with Articles VI:1 and VI:2
of the GATT 1994 and Articles 2.1, 2.4 and 9.3 of the AD Agreement.
(2) The DOC acted inconsistently with Article 2.4.2 of the
AD Agreement in the investigation at issue by using model zeroing. However, the
DOC did not act inconsistently by using simple zeroing in the periodic review
on such Mexican steel products.
The Panel recommends that the U.S. bring its measure into
conformity with its WTO obligations. It does not make a recommendation as to
model zeroing in investigations “as such” because the DOC stopped using the
methodology during these dispute settlement proceedings. The Panel does not
make any specific recommendations as to how exactly the U.S. should implement
the Panel findings.
Citation: World Trade Organization, United
States—Final Anti‑dumping Measures on Stainless Steel from Mexico (WR/DS344/R)
(20 December 2007). The text of the Panel Report is available at www.wto.org.
