2011 International Law Update, Volume 17, Number 1 (January - March)

2011 International Law Update, Volume 17, Number 1 (January - March)

Legal Analyses published by Mike Meier, Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com. 

CHILD ABDUCTION/PROCEDURE

In case of alleged international child abduction, Eighth Circuit holds that there was no abuse of discretion in excluding expert testimony relating to Article 13(b) (grave risk to child) exception to Hague Convention on International Child Abduction

Carlos Fernando Colores Vasquez (Carlos) petitioned a Minnesota federal court to order the return of his twenty‑two‑month‑old daughter, I.R.C., to Mexico pursuant to the Hague Convention on the Civil Aspects of Child Abduction (the Convention) [in force for U. S. July 1, 1988; T.I.A.S. 11670], as implemented in the U.S. by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. Stephanie Jo Colores (Stephanie), Carlos’ estranged wife and IRC’s mother, opposed the petition.

Stephanie, an American citizen, and Carlos married in Minnesota in the summer of 2007 and moved to Mexico. Their daughter, I.R.C., entered the world in December 2008. In early May 2010, Stephanie left Mexico with I.R.C. and traveled to South Carolina, where her mother was vacationing.

All three returned to and stayed in her mother’s home in Minnesota in late May. Carlos petitioned for emergency ex parte relief under the Convention on August 23, 2010. The district court granted that petition two days later. On August 26, United States Marshals transferred I.R.C. to Carlos’ custody.

Stephanie asked for a continuance, claiming that she needed more time to obtain additional information from the United States Embassy in Mexico City and security footage from the gated community in which she and Carlos had lived. Carlos objected to the continuance, arguing that Stephanie had failed to show that the information would be material to the petition. The district court denied the motion for a continuance, and, on September 1, the parties began the first of three evidentiary hearings.

The parties agreed that I.R.C. was a habitual resident of Mexico and that her removal was wrongful because Carlos did not consent and I.R.C. did not have a valid passport. Stephanie claimed that the Article 13(b) exception applied and thus the district court had no duty to return I.R.C. to Mexico. Over the course of the hearings, she sought to prove that Carlos’s anger problems and alleged history of abuse posed a grave risk of physical or psychological harm as demanded by the Article 13(b) exception.

For example, Stephanie testified that Carlos had abused I.R.C. by shaking her head forcefully six to ten times a month, head‑butting her two to three times a month, or hitting her on the back with his fist. Barbara Jo Gangl, Stephanie’s mother, testified that she had once seen Carlos shake I.R.C.’s head forcefully and pull her hair.

In its Preamble, the numerous signatory nations of the Convention—including Mexico and the United States—sought “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 375 (8th Cir.1995) (quoting the Preamble).

Under ICARA, a petitioner whose custody rights have been violated must establish, by a preponderance of the evidence, that the child was wrongfully removed from the country of her habitual residence. 42 U.S.C. § 11603(e)(1). A court is bound to promptly return a child who was wrongfully removed unless certain “narrow exceptions” apply. § 11601(a)(4).

The Article 13(b) exception, on which Stephanie relied, applies if the party opposing the petition establishes by clear and convincing evidence that “there is grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”§ 11603(e)(2).

Courts have so far recognized two types of grave risk that fall within Article 13(b): [1] cases in which a child is sent to a zone of war, famine, or disease and [2] those involving serious abuse or neglect. Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir.2003). The inquiry is narrow in scope: “[it] does not include an adjudication of the underlying custody dispute, and only requires assessment of whether the child will face immediate and substantial risk of an intolerable situation if he is returned to [his habitual residence] pending final determination of his parents’ custody dispute. Nor is it relevant to this Convention exception who is the better parent in the long run, or whether [Stephanie] had good reason to leave her home ... and terminate her marriage to [Carlos]. Nunez–Escudero, 58 F.3d at 377.

Following Stephanie’s testimony, she sought to bring out testimony from John Gangl, her stepfather. She proffered that he would corroborate her account of Carlos’s episodes of rage by recounting a telephone conversation in which Carlos allegedly furiously lashed out at Gangl after Gangl complained about Carlos’s refusal to pick up Barbara Jo from the airport when she visited. The district court inquired whether Gangl had witnessed Carlos in a rage in the presence of I.R.C. and was told that he had not. The district court kept this testimony out.

Stephanie also wanted to put on expert testimony from Dr. Jeffrey L. Edleson, Professor and Director of Research at the School of Social Work at the University of Minnesota and the Director of the Minnesota Center against Violence and Abuse. On September 7, 2010, however, when Stephanie first broached the topic of calling Dr. Edleson with the court, he was unavailable because he was in hospital. When asked, counsel for Stephanie could not say why Dr. Edleson had been hospitalized or when he might be available.

As part of her offer of proof, Stephanie recounted Dr. Edleson’s expertise in the area of domestic violence and referred to a study, funded by the National Institute of Justice, the research arm of the U.S. Department of Justice, that addressed “the risk of harm to children in the context of domestic violence against parents and children in [Hague Convention cases].” At the time, Dr. Edleson had neither published the study nor subjected it to peer review.

[*3] Carlos objected to the proposed testimony, noting [1] that Stephanie had not disclosed the witness previously; [2] nor had he examined I.R.C.; [3] nor had the witness interviewed either of her parents. Carlos argued that the proffer consisted merely of a generalized summary of phenomena typically associated with domestic abuse. and was irrelevant to the specific issues in the proceedings. Admitting it would only extend the proceedings and thereby exacerbate his financial hardship. The district court kept it out, concluding that it was unreliable and irrelevant.

 The Minnesota district court entered an order granting the petition. Stephanie appeals, arguing that the district court erred in denying her motion for a continuance and in excluding the testimony of two witnesses. The U.S. Court of Appeals for the Eighth Circuit affirms.

On September 14, 2010, the district court granted Carlos’s petition. It disagreed with Stephanie’s allegations that there was a grave risk that I.R.C. would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation if she were returned to Mexico.

It cited findings of a pediatric neurologist who had examined I.R.C. at the district court’s request and who opined, based on I.R.C.’s normal, age‑appropriate neurological development, that there was no evidence of any neurologic injury. The district court also noted that Stephanie had never reported any injury and had been willing to leave I.R.C. with Carlos for ten days when she returned to the United States to attend a funeral.

On September 15, the day after the district court entered the order, Stephanie moved for an emergency stay of the judgment. The court granted that motion but not before Carlos had departed for Mexico with I.R.C. On September 17, the district court ultimately denied Stephanie’s motion for a stay, and she timely filed her notice of appeal.

The U. S. Court of Appeals for the Eighth Circuit affirms. Stephanie contends that the district court erred [1] in refusing to grant her a continuance to gather evidence and [2] in excluding proffered testimony from John Gangl and Dr. Edleson. She argues that the Court should vacate the district court’s order and remand the case with instructions to allow her adequate time to collect evidence to contest the petition and to present the previously excluded testimony.

“We review the denial of a motion for a continuance for abuse of discretion. Beard v. Flying J, Inc., 266 F.3d 792, 802 (8th Cir. 2001). Stephanie’s motion for a continuance was based on her claim that she needed to gather evidence that was located in Mexico. According to Stephanie, the evidence consisted of witness statements and videotapes from surveillance cameras of the gated community in which she and Carlos had lived, as well as a copy of a report she had allegedly filed with the U.S. Embassy documenting Carlos’s abuse of herself and of I.R.C.”

“Carlos contends that Stephanie failed to establish that the evidence she sought was material and that the district court appropriately denied the motion in light of the prejudice Carlos suffered from continued delay, expense and the primacy placed on expediency in Convention proceedings. Given the underlying circumstances and the professed goal of expediency in Convention proceedings, we agree that the district court did not abuse its discretion in denying the motion.” [Slip op. 3].

“’A district court enjoys wide discretion in ruling on the admissibility of proffered evidence, and evidentiary rulings should only be overturned if there was a clear and prejudicial abuse of discretion.’ Bady v. Murphy–Kjos, 628 F.3d 1000, 1002–03 (8th Cir.2011). ‘To warrant reversal, an error must affect a substantial right of the objecting party, and the burden of showing prejudice rests on that party.’ Gill v. Maciejewski, 546 F.3d 557, 562 (8th Cir.2008).”

“Stephanie maintains that her stepfather’s testimony would have corroborated her account of Carlos’s rage and anger. The incident at the heart of the proffer occurred in December 2008, when Gangl and Carlos argued on the telephone after Carlos refused to pick up Barbara Jo from the airport when she came to visit and instead asked that she take a cab to the house. After hearing the details of the phone conversation and determining that Gangl was not physically present with I.R.C. when it occurred, the district court concluded that the proffered testimony was not relevant and excluded it.”

“At best, the proffered testimony repeated Stephanie’s account of her husband’s behavior on the night of the telephone call. But I.R.C. was not implicated in the particulars of the phone call, and Gangl’s proffered testimony would have been cumulative of prior testimony from Stephanie and her mother. Accordingly, we cannot say that the district court abused its discretion in excluding this testimony.”

“Stephanie [also] argues that the district court abused its discretion in excluding testimony from Dr. Edleson. Federal Rule of Evidence 702 governs the admission of expert testimony and requires that the district court function as a gatekeeper to ‘ensure that any and all scientific testimony or evidence is not only relevant, but reliable.’ Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).”

“[Rule 702 provides that] ‘If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,’ an expert may testify in the form of an opinion or otherwise so long as ‘(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.’”

“We need not determine whether Dr. Edleson’s testimony was unreliable simply because the report that would have served as its basis had not yet been published or peer‑reviewed, for we conclude that the district court did not abuse its discretion in excluding the testimony as irrelevant after finding that Dr. Edleson had not interviewed either of the parties or I.R.C.”

“Stephanie challenges this finding and contends that Dr. Edleson had conducted an interview of the parties at some point during the course of the proceedings. She nonetheless concedes that her trial counsel failed to inform the district court of this fact at the time of the proffer or thereafter. The district court is not to be faulted for failing to consider information of which it was not made aware.”

“The district court concluded that Dr. Edleson’s testimony would not have directly aided the fact‑finder in sorting out whether abuse had occurred and, if so, what effect it had on I.R.C. It emphasized that there was little physical evidence of abuse or mistreatment and that the veracity of the allegations of abuse turned primarily on the credibility of the parties’ testimony.” [Slip op. 4].

 “Questions of admissibility ‘are not to be measured by what we may have done were we the district court,’ but [by] whether its evidentiary decisions constitute ‘a clear abuse of discretion.’ Dunn v. Nexgrill Indus., Inc., 636 F.3d 1049, 1057 (8th Cir.2011). Stephanie has not demonstrated that excluding the testimony was so prejudicial as to require reversal. She did not contend that Dr. Edleson had concluded that Stephanie or I.R.C. had been abused or that I.R.C. faced a grave risk of harm if she were returned to Mexico. So far as the district court was aware, Stephanie did not contend that Dr. Edleson had formed any opinion as to I.R.C.”

“In light of these circumstances, we do not believe that the proffered testimony was ‘of such a critical nature that there is no reasonable assurance that the [fact‑finder] would have reached the same conclusion had the evidence been admitted.’ Cavataio v. City of Bella Villa, 570 F.3d 1015, 1021 (8th Cir. 2009). Accordingly, we conclude that the exclusion of Dr. Edleson’s testimony does not warrant reversal. The judgment is affirmed.” [Slip op. 5].

Citation: Vasquez v. Colores, 2011 WL 3366380 (8th Cir. August 5, 2011).

ESPIONAGE

In challenge to conviction based on Foreign Intelligence Surveillance Act, Second Circuit rejects challenge to the Act’s constitutionality

Hassan Abu‑Jihaad (translates to “Father of Jihad,” aka Paul R. Hall) was convicted in the U.S. District Court for the District of Connecticut of providing national defense information to unauthorized persons. See 18 U.S.C. Section 793(d). Abu‑Jihaad communicated information about the anticipated movements of a U.S. Navy battle group in the Persian Gulf to individuals associated with the jihad against the U.S.

After his somewhat curious name change, Abu‑Jihaad successfully enlisted in the Navy and gained access to classified information.

Abu‑Jihaad’s activities first came to light when British authorities searched the offices of Azzam Publications in London. There, they found a 3‑page document outlining the 2001 deployment of Navy ships carrying about 15,000 sailors to the Persian Gulf. The letter outlined the vessels’ routes and the specific weaknesses if they were to be attacked with small craft. U.S. authorities subsequently recorded telephone conversations that indicated that he had in fact disclosed military intelligence.

Abu‑Jihaad appeals his conviction, arguing that the inculpatory evidence obtained based on the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. Section 1801) should have been suppressed for a variety of reasons.

The U.S. Court of Appeals for the Second Circuit affirms the conviction.

Abu‑Jihaad challenges the intercepted communications pursuant to FISA because the Act is unconstitutional on its face. The Court disagrees.

“Enacted in 1978, FISA permits the Chief Justice of the United States to designate eleven federal judges as the Foreign Intelligence Surveillance Court (‘FISA Court’) ... § 1803(a)(1), with jurisdiction to entertain ex parte executive applications for electronic surveillance ... ‘for the purpose of obtaining foreign intelligence information,’ id. § 1802(b).“

“To issue a FISA warrant, a judge must find, inter alia, that there is probable cause to believe that the target of the surveillance is a ‘foreign power or an agent of a foreign power’ and that the place or facilities to be surveilled are ‘being used, or... about to be used, by a foreign power or an agent of a foreign power.’ Id. § 1805(a)(2).” [...]

“As originally enacted, FISA required a high‑ranking member of the executive branch to certify that ‘the purpose’ for which a warrant was being sought was to obtain ‘foreign intelligence information.’ 50 U.S.C. § 1804(a)(7)(B) (Supp. V 1981). Referencing this language in United States v. Duggan, 743 F.2d 59 (2d Cir. 1984), we observed that ‘the requirement that foreign intelligence information be the primary objective of the surveillance is plain not only from the language of § 1802(b) but also from the requirements in § 1804 as to what the application must contain.’ Id. at 77 (emphasis added). Duggan rejected a Fourth Amendment challenge to the procedures established by FISA for issuance of foreign intelligence surveillance warrants, see id. at 72‑74, a decision we recently had occasion to reaffirm in United States v. Stewart, 590 F.3d 93 (2d Cir. 2009).”

“In 2001, Congress amended FISA as part of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (‘PATRIOT Act’), Pub. L. No. 107‑56, 115 Stat. 271 (2001). Among other things, Congress indicated that it did not, in fact, require foreign intelligence gathering to be the primary purpose of the requested surveillance to obtain a FISA warrant. Rather, upon satisfaction of all other FISA requirements, Congress authorized FISA Court judges to issue warrants upon executive certification that acquisition of foreign intelligence information is ‘a significant purpose’ of the requested surveillance. See id. § 218, 115 Stat. at 291 (codified as amended at 50 U.S.C. § 1804(a)(6)(B)) ...”

“Because neither Duggan nor Stewart considered FISA’s constitutionality in light of the statute’s amendment by the PATRIOT Act, Abu‑Jihaad submits that we must address the question of constitutionality yet again. Specifically, Abu‑Jihaad submits that the primary purpose requirement is, in fact, essential to the constitutionality of FISA, lest the government misuse the statute to procure warrants for criminal investigations without demonstrating the probable cause essential to that latter purpose, i.e., probable cause to believe ‘that an individual is committing, has committed, or is about to commit a particular offense’ and that ‘particular communications concerning that offense will be obtained through’ the surveillance. See 18 U.S.C. § 2518(3)(a)‑(b) ...”

“In support of his challenge, Abu‑Jihaad cites Mayfield v. United States, 504 F. Supp. 2d 1023 (D. Or. 2007) (holding FISA in violation of Fourth Amendment). That district court decision, however, has now been vacated by the Ninth Circuit on standing grounds. See Mayfield v. United States, 599 F.3d 964, 973 (9th Cir. 2010). Meanwhile, all other courts that have considered the issue, both before and after enactment of the PATRIOT Act, have rejected constitutional challenges to FISA. ... We do the same here.”

“As we discuss more fully in this opinion, the Fourth Amendment warrant requirement demands a showing of probable cause reasonable to the purpose being pursued. Thus, identification of purpose is necessary to assess the reasonableness of the probable cause standards at issue. Where multiple purposes are significant to an investigation, however, the Fourth Amendment does not require the government to identify a primary purpose or limit its ability to secure a warrant to satisfaction of the standards for that purpose. Rather, the government may secure a warrant under the probable cause standards applicable to any purpose that it pursues in good faith. Thus, we identify no constitutional defects in FISA’s certification requirement of ‘a significant’ rather than a primary ‘purpose... to obtain foreign intelligence information.’ 50 U.S.C. § 1804(a)(6)(B).”

“[...] We note simply that there is an important distinction between warrantless surveillances premised exclusively on executive authority, and surveillances pursuant to warrants issued by courts in compliance with standards enacted by Congress. The former require identification of an exception to the Fourth Amendment’s warrant requirement. See United States v. Duggan, 743 F.2d at 72 (collecting cases recognizing such exception) ... By contrast, the latter implement that requirement. ...”

“... As this court has recognized, the Constitution’s warrant requirement is ‘flexible,’ so that ‘different standards may be compatible with the Fourth Amendment in light of the different purposes and practical considerations’ at issue. United States v. Duggan, 743 F.2d at 72. Thus, when a warrant is sought for the purpose of investigating ‘ordinary crime,’ the Fourth Amendment requires a showing of probable cause to believe that the target of the warrant ‘is committing, has committed, or is about to commit a particular offense,’ and that ‘particular communications concerning that offense will be obtained through’ the surveillance. 18 U.S.C. § 2518(3)(a)‑(b) ... But when the government pursues a different purpose, such as obtaining security intelligence, ‘[d]ifferent standards’ of probable cause reasonable to that purpose may support issuance of a warrant. See Keith, 407 U.S. at 322‑23.” [...]

“The benchmark for judicial review of the constitutionality of warrant requirements established by Congress is reasonableness: ‘Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.’ Id. at 322‑23. Consistent with this pronouncement, the Court in Keith observed that Congress might well judge that the application and affidavit showing probable cause for security surveillance ‘need not follow the exact requirements of [18 U.S.C.] § 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court...; and that the time and reporting requirements need not be so strict as those in § 2518.’ Id. at 323.”

“... In concluding that the ‘significant purpose’ certification requirement does not raise constitutional concerns, we note that when, in Duggan, we construed FISA’s original reference to electronic surveillance for ‘the purpose’ of obtaining foreign intelligence information,’ as a ‘requirement that foreign intelligence information be the primary objective of [any court‑ordered] surveillance,’ id. at 77 (emphasis added), we were identifying Congress’s intent in enacting FISA, not a constitutional mandate ... In short, nothing in Duggan erected a constitutional bar to Congress reconsidering and reframing the purpose requirement of FISA as long as it maintained warrant standards that in their totality were ‘reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.’ Keith, 407 U.S. at 323.”

“... In considering Congress’s decision to allow FISA standards to be triggered by a showing of a ‘significant’ rather than ‘primary’ purpose of obtaining foreign intelligence information, we may properly consider the ‘practical considerations’ informing that choice. See Keith, 407 U.S. at 322 (observing that different standards may be compatible with the Fourth Amendment in light of the ‘different policy and practical considerations’ at issue) ... The relevant background is discussed in detail in In re Sealed Case, 310 F.3d at 722‑29. We summarize it here only as necessary to highlight two considerations that emerged from years of Justice Department experience trying to satisfy the ‘primary purpose’ requirement and that informed Congress’s amendment of FISA’s purpose certification provision: (1) if intelligence and law enforcement officials coordinate efforts in pursuing national security inquiries, it can be difficult, if not impossible, to identify whether their ‘primary’ purpose is to obtain foreign intelligence information or evidence of a crime; and (2) the segregation of intelligence and law enforcement officials to ensure the executive’s ability to certify a ‘primary’ foreign‑intelligence‑gathering purpose can compromise national security.” [...]

“To address these practical considerations—i.e., the difficulty in identifying the primary purpose when surveillance is pursued jointly by intelligence and law enforcement officials, and the importance of such joint efforts to protect national security—Congress in the PATRIOT Act amended FISA to provide that, upon satisfaction of all other statutory requirements, FISA warrants could be issued on certification ‘that a significant purpose of the surveillance is to obtain foreign intelligence information.’ See Pub. L. No. 107‑56, § 218, 115 Stat. at 291 (codified as amended at 50 U.S.C. § 1804(a)(6)(B)). In a separate amendment, Congress expressly authorized federal officers conducting surveillance with the aim of obtaining foreign intelligence information to coordinate their activities with law enforcement officers. See Pub. L. No. 107‑56, § 504, 115 Stat. at 364 (codified as amended at 50 U.S.C. § 1806(k)(1)) (‘Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this title may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State... to coordinate efforts to investigate or protect against [, inter alia, actual or potential attack by a foreign power or agent of a foreign power, sabotage, international terrorism, or other clandestine intelligence activities by a foreign power or agent of a foreign power].’). In so doing, Congress made clear that such coordination would preclude neither a finding that FISA’s ‘significant purpose’ certification requirement was met, nor the entry of an order of approval under § 1805. See 50 U.S.C. § 1806(k)(2).”

“... Abu‑Jihaad ... argues that if FISA’s probable cause standards are applied without a ‘primary’ government purpose to obtain foreign intelligence information, the executive will be able to manipulate FISA to obtain surveillance warrants for criminal investigations without demonstrating the probable cause required by Title III for that purpose. Because we conclude that the required certification of ‘a significant purpose’ to obtain foreign intelligence information adequately protects against this possibility, we reject Abu‑Jihaad’s constitutional challenge to this language.” [...]

“For Fourth Amendment purposes, the critical question is not whether the executive can certify that obtaining foreign intelligence information is its ‘primary’ purpose, but whether it can certify that it is a bona fide purpose of the surveillance. Thus, where the executive in good faith pursues both intelligence and law enforcement purposes, it may apply for surveillance authority under either FISA or Title III, provided it satisfies the particular warrant standards of the statute invoked. A Fourth Amendment concern would arise only if the executive, without a bona fide purpose to obtain foreign intelligence information, tried to secure a warrant under the standards identified in FISA as reasonable for that purpose.” [...]

“... We conclude simply that FISA’s ‘significant purpose’ requirement, so construed, is sufficient to ensure that the executive may only use FISA to obtain a warrant when it is in good faith pursuing foreign intelligence gathering, the purpose for which that statute’s warrant standards apply. The fact that the government may also be pursuing other purposes, including gathering evidence for criminal prosecution, compels no different conclusion.”

“Accordingly, we reject Abu‑Jihaad’s argument that FISA is unconstitutional because it does not require certification of a primary purpose to obtain foreign intelligence information. Rather, we hold that certification of a significant purpose to obtain foreign intelligence information, together with satisfaction of all other FISA requirements, is reasonable and, therefore, sufficient to support the issuance of a warrant under the Fourth Amendment.” [Slip op. 20‑43]

The Court therefore concludes that the evidence obtained based on FISA was proper. The PATRIOT Act amendment permits surveillance warrants based on an executive certification that there is a “significant” rather than “primary” purpose to obtain foreign intelligence information. This strikes a reasonable balance between the government’s interest in obtaining foreign intelligence information and the protection of an individual’s Fourth Amendment rights.

Citation: United States v. Abu‑Jihaad, No. 09‑1375‑cr (L) (2d Cir. December 20, 2010).

EXTRATERRITORIAL JURISDICTION

Eleventh Circuit concludes that domestic statute prohibiting buying of children applies extraterritorially to defendant’s conduct wholly outside the U.S.

In January 2004, Cambodian National Police (“CNP”) detained Kent Frank, a U.S. citizen and resident, in Cambodia based on a tip from the CNP Anti–Human Trafficking and Juvenile Protection Office about unusual activities in his hotel room. Four girls exiting the hotel, suspected of being between 14 and 17 years old, were detained and questioned. The authorities searched Frank’s hotel room, seizing various items, and took him to the Cambodian police station. Upon questioning, Frank admitted that he had engaged in sexual conduct with and had taken sexually explicit photographs of four minor girls on multiple occasions. He also confessed to paying the girls $15 or $25 to either photograph them or have sex with them. After a series of controversial events surrounding various Cambodian officials’ questioning of Frank, he was released and traveled to Vietnam, where he was arrested by U.S. officials.

In 2005, the U.S. District Court for the Southern District of Florida convicted Frank of traveling and engaging in illicit sexual conduct with three minor girls in Cambodia, traveling with intent to engage in illicit sexual conduct, and purchasing the three minor girls in order to produce sexually explicit visual depictions of them. The court sentenced Frank to concurrent terms of 360 and 480 months’ imprisonment on various counts with 15 years’ supervised release. Frank appealed, and the U.S. Court of Appeals for the Eleventh Circuit affirms.

Underpinning much of the Court’s decision is its determination that the lower court properly applied U.S.C. § 2251A, a domestic law, to Frank’s extraterritorial conduct. The Eleventh Circuit notes that while courts presume statutes apply only domestically, they may interpret the statute as having extraterritorial effect where the Congressional intent is clear. However, even where an express intention is absent on the face of the statute, courts may infer such intent from the nature of the offense and from Congress’s other legislative efforts to eliminate the type of crime involved. Appeals courts have made such an inference where the particular type of offense has warranted a “broad sweep of power.” While the Eleventh Circuit cites several drug trafficking or smuggling statutes applied extraterritorially, those cases involved offenses not performed wholly outside the U.S. It is a matter of first impression for this Court whether Congress intended Section 2251A to apply to U.S. citizens engaged in conduct wholly outside of the U.S.

The Court notes that Congress clearly intended that 18 U.S.C. Sec 2251A “sweep broadly and apply extraterritorially,” citing the statute’s requirement that “in the course of the prohibited conduct, the defendant or minor ‘travel[ ] in ... interstate or foreign commerce.’ 18 U.S.C. § 2251A(c)(1) (emphasis added).” [9] Citing several cases in which the statute was held to apply extraterritorially, the Court concedes one could argue the statutory language prohibits only cases where a defendant travels from a foreign country into the U.S. and then purchases a minor for use in child pornography. However, the Court notes that “‘nothing in [§ 2251A] indicates it was designed to punish behavior going only one direction,’ and such a narrow construction would greatly curtail the scope and effectiveness of the statute.’ United States v. Martinez, 599 F. Supp. 2d 784, 798 (W.D. Tex. 2009) (applying 18 U.S.C. § 2423 extraterritorially).” [9] The Court also reasons that the nature of the statute in question supports an extraterritorial application since it “is part of a comprehensive scheme created by Congress to eradicate the sexual exploitation of children and eliminate child pornography.” [9] The Court notes:

“Since 1977, Congress has passed numerous statutes to combat child pornography and the sexual exploitation of children. As part of this effort, § 2251A was included in the Child Protection and Obscenity Enforcement Act of 1988, Pub.L. No. 100–690, Title VII, Subtitle N, § 7512, 102 Stat. 4181 (1988). The statute falls under Chapter 110 of Title 18 of the United States Code, which punishes offenses dealing with the sexual exploitation and other abuse of children” (footnotes omitted). [9] The Court adds that Congress’s efforts to combat child pornography through other child pornography statutes—and Courts’ application of such statutes found in the same chapter—evince the broad sweep of these statutes.

Finally, the Court provides this rationale for applying Section 2251A extraterritorially to Frank’s conduct:

“Congress has also amended its laws to allow for extraterritorial application when it has discovered loopholes in its statutory scheme. See, e.g., Baker, 609 F.2d at 137–38 (finding support in the fact that the Comprehensive Drug Abuse Prevention and Control Act of 1970 contained a variety of provisions explicitly covering extraterritorial acts). For instance, Congress amended 18 U.S.C. § 2423 in 2003 to eliminate the requirement that the government had to prove the intent to engage in sexual activity, and instead allowed prosecution where the defendant traveled in foreign commerce and actually engaged in illicit sexual activity with a minor¼.Additionally, Congress enacted 18 U.S.C. § 2251(c) to clarify that acts covered under 18 U.S.C. § 2251(a) applied extraterritorially. See H.R. Rep. No. 108–66, at 6263 (2003), U.S. Code Cong. & Admin. News 2003, pp. 683, 697 (Conf. Rep.) (implying that the enactment of § 2251(c) was partly in response to Thomas).” [9]

In sum, the Court explains: “The language of § 2251A requiring travel in foreign commerce, the broad sweep warranted by child pornography offenses, and Congress’s repeated efforts to prevent exploiters of children from evading criminal punishment demonstrate that Congress intended § 2251A to apply extraterritorially.” [9]

Citation: United States v. Frank, 599 F.3d 1221 (11th Cir. 2010).

INTERNATIONAL BILATERAL TAX TREATIES

U.S. citizen who regularly worked in Canada except for one weekend per month when he visited his family in U.S. sought to deduct his U.S. tax payments from any Canadian tax obligations pursuant to U.S. tax treaty with Canada but Ontario Federal Court of Appeal found him habitually resident in Canada and thus owing full Canadian taxes

Beginning in 2000, Ronald S. Lingle (Appellant) was a citizen of the United States who was working daily as a self‑employed consultant in Ontario, Canada. Throughout 2004 and 2005, Appellant maintained both U.S. and Canadian residences. Appellant’s family lived at the U.S. residence to which Appellant returned one weekend per month. (Appellant and his wife separated in 2004 and they sold the U.S. house 2 years later.)

Appellant filed income tax returns for 2004 and 2005 tax years as non‑resident of Canada; they reported his self‑employment business income. Appellant also filed returns in the U.S. for these years. On his Canadian returns, however, he claimed equivalent amounts as treaty deductions pursuant to the Canada‑United States Income Tax Convention (1980) [in force Aug. 16, 1984; T.I.A.S. 11087;1469 U.N.T.S.189; Protocols: 2121 U.N.T.S. 364; 387] (the Treaty).

The appropriate Canadian Minister assessed the Appellant for 2004 and for the period from January 1, 2005, to September 14, 2005. He decided that the Appellant did reside in Canada because it was his “habitual abode” during the relevant period. The Minister required Appellant to pay income tax on business income earned in these taxation years. The agency dismissed Appellant’s administrative appeals.

Article IV(2) of the Treaty sets out several “tie‑breaker rules” to assist in determining the jurisdiction in which persons in Mr. Lingle’s situation were to pay income tax. The Tax Court accordingly found that the Appellant lacked an “habitual abode” in the United States for purposes of the Treaty. Appellant ultimately appealed to the appropriate Federal Court of Appeal. It unanimously upholds the Tax Court, whose general reasoning follows.

1‑2  “The Tax Court of Canada (Tax Court) was called upon to decide pursuant to the Tax Convention whether the Appellant was required to pay in Canada income tax on his business income. The taxation years in issue were 2004 and 2005. ¼”

3  “As the Tax Court judge pointed out [in] her reasons for judgment, the parties agreed that the Appellant had a permanent home in both Canada and the United States during the relevant periods. They also agreed that they could not use the second tie‑breaker as it was not possible to determine in which country the Appellant had his centre of vital interests. So the matter fell to be determined on the concept of ‘habitual abode’ found in the third tie‑breaker. As the judge put it at paragraph 10 of her reasons for judgment, the narrow issue ‘in this appeal is whether the Appellant under the tie‑breaker rules also had an ‘habitual abode’ in the United States as well as in Canada.”

4  “The Tax Court found that the Appellant did not have an ‘habitual abode’ in the United States for the purposes of the Convention [see paragraph 30 of the reasons for judgment]. I am in substantial agreement with the findings and conclusion of the Tax Court.”

5  “The definition and interpretation of  ‘habitual abode’ involves a question of law reviewable on the standard of correctness. [T]he application of the definition to the facts of the case, however, to determine whether the Appellant had an ‘habitual abode’ in both jurisdictions raises a question of mixed fact and law which is immune from review by this Court unless there is an overriding and palpable error: see Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (S.C.C.). I see no such error on the facts of this case.”

6  “It would be unwise to attempt to set out a rule or a series of criteria which could fit all situations. The determination in each case will depend on the facts and circumstances of the case. The concept of ‘habitual abode’, as evidenced by the clearer French version of the text (séjourne de façon habituelle) involves notions of frequency, duration and regularity of stays of a quality which are more than transient. To put it differently, the concept refers to a stay of some substance in the jurisdiction as a matter of habit, so that the conclusion can be drawn that this is where the Appellant normally lives.”

7‑8  “This is consistent with the French definition of ‘habituelle’ found in Le Petit Robert 2006: ‘[1]. Qui tient à l’habitude par sa régularité, sa constance. [2]. Qui est constant, ou très fréquent.’ This is also consistent with the commentary on Article IV(2) of the OECD Model where it is stated that in comparing the stays in two States to determine if and where the individual has an ‘habitual abode’, ‘the comparison must cover a sufficient length of time for it to be possible to determine whether the residence in the two States is habitual and to determine also the intervals at which the stays take place’: see Model Tax Convention on Income and on Capital, OECD Committee on Fiscal Affairs, vol. 1, July 2008, at page C(4)‑6.”

9  “¼[T]he Appellant submitted that the Tax Court judge applied the wrong test in that she went on to examine the social and economic ties which he had in Canada and the United States during the relevant periods. In doing so she confused the second and the third tie‑breaker. He finds evidence of the judge’s error in the following sentence at paragraph 30 of the judge’s reasons for judgment: ‘Considering all the facts before me, his connections with the United States were weak when compared to his settled routine in Canada.’”

10  “This sentence is taken out of context and read in isolation. When the sentence is replaced in its proper context, the Appellant’s argument simply has no merit. What the judge was saying in that sentence is that the Appellant did not have a settled routine in the United States while he [did have] one in Canada which showed that he did regularly, customarily or normally live in Canada.”

11  “The judge’s impugned sentence came at the end of paragraph 30 of her reasons for judgment: ‘[30] It follows that the proper approach to determining whether the Appellant had an habitual abode in the United States is to enquire whether he resided there habitually, in the sense that he regularly, customarily or usually lived in the United States. ¼ It was agreed between the parties that the Appellant ‘consistently and repeatedly returned to his home in Canada for the majority of the days in this period.’ In the settled routine of his life ‘he regularly, normally and customarily lived in Canada.’ He ‘did not have any other contracts clients or business in the USA.’ In addition, he spent only 69 days out of 623 days in the relevant period at his home in the United States.’ ¼

“It is interesting that these agreed statements explicitly state that the Appellant ‘normally ... lived in Canada’ ‑ which answers the definition that the Avery Jones article [cited below] suggested for the expression ‘habitual’. The Appellant’s stays at the Ransom House were in the nature of periodic visits with his ‘normal’ place of residence being in Canada throughout the period. He did not have an habitual abode in the United States for the purposes of the Treaty because he did not regularly, customarily or normally live in the United States. Considering all the facts before me, his connections with the United States were weak when compared to his settled routine in Canada. Accordingly, the Appellant was a resident in Canada during this period and as such he is taxable on his business income earned as a consultant.’”

13  “The Appellant argued that the proper test to be applied for determining where a Appellant has his ‘habitual abode’ is to look at where he or she ‘is habitually present’. He relies upon a tentative conclusion of Dr. J.F. Avery Jones who, the Appellant says, is currently a judge on the United Kingdom First Tier Tax Tribunal. In a paper presented at the Fifth Annual International Taxation Symposium in the United States, Dr. Avery Jones reviewed the elusive concept of ‘habitual abode’ and concluded: ‘Perhaps an habitual abode really means ‘is habitually present’, which would be much clearer.”

14‑15  “The Tax Court found that the Appellant ‘regularly, normally and customarily lived in Canada.’ By the Appellant’s proposed test, the Tax Court found that he was habitually present in Canada, but not in the United States. For these reasons, I would dismiss the appeal with costs.” [All Judges concur]

Citation: Lingle v. Regina, 2010 CarswellNat 1605; 2010 FCA 152; 2010 D.T.C. 5100 (Eng.), [2010]; 5 C.T.C. 162; 403 N.R. 337.

JUDICIAL ASSISTANCE

In case of Russian request for U.S. judicial assistance in criminal prosecution in Russia, Ninth Circuit holds requests for assistance via the US‑Russia MLAT utilize the procedural mechanisms of § 1782 without importing the substantive limitations of § 1782; district courts do not have broad discretion to deny such requests

The Russian Government had sought the assistance of the U.S. Government in the investigation and prosecution of Gontmakher for illegal crabbing. The District Court issued a subpoena for certain documents in the possession of Global Fishing, Inc. In turn, Global Fishing and Gontmakher moved for a protective order to prevent the disclosure of the information, claiming that Russia’s investigation and prosecution was corrupt and illegal.

The District Court denied the motion, and Global Fishing and Gontmakher (Appellants) appealed.

The U.S. Court of Appeals for the Ninth Circuit affirms.

The Court first broadly outlines the law surrounding this kind of judicial assistance.

“Congress long ago authorized parties to request legal assistance from the federal courts in the collection of evidence for use in a foreign proceeding. Originally enacted in the mid‑19th century, the statute now codified at 28 U.S.C. § 1782 permits federal courts to provide such assistance. .... Section 1782, in its current form, states:”

“‘The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.’”

“‘A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.’ 28 U.S.C. § 1782(a).”

“To invoke § 1782 and obtain federal‑court assistance, the requesting entity presents a written request known as a ‘letter rogatory’ (or, if presented by an ‘interested person,’ known as a ‘letter of request’) to the applicable federal district court. ... As it works today, both foreign governments and private parties, including corporations and natural persons, can make requests for use in both underlying civil lawsuits and underlying criminal prosecutions. ...”

“Over the years, the courts have interpreted § 1782 as imposing certain absolute requirements on the request for assistance. For instance, courts interpreted an earlier version of the statute to require that the foreign nation be a party to the proceeding. ... In the 20th century, Congress amended the statute several times, each time removing more of the absolute restrictions on the courts’ ability to provide assistance. ...” [634 F.3d 562‑3]

Courts have broad discretion in considering such a request for assistance. The factors to consider include whether the person from whom discovery is sought is a participant in the foreign proceeding, the nature of the foreign tribunal, the receptivity of the foreign government or court to U.S. judicial assistance, whether it involves a circumvention of foreign evidentiary rules, and whether the request is unduly burdensome. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264‑65 (2004).

In this case, the U.S. has ratified a mutual legal assistance treaty (MLAT) with Russia. See Treaty Between the United States of America and the Russian Federation on Mutual Legal Assistance in Criminal Matters (“US‑Russia MLAT”), June 17, 1999, S. Treaty Doc. No. 106‑22. The MLAT permits comprehensive mutual legal assistance in criminal matters, including providing documents and records.

Pursuant to Russia’s request, the district court appointed two co‑commissioners to collect the requested evidence. The co‑commissioners subpoenaed records from Global Fishing. Appellants argue that the subpoena should be quashed based on the court’s discretionary authority under 28 U.S.C. Section 1782 because the Russian proceeding is corrupt and illegal. The Government countered that the request for judicial assistance was based on the MLAT, not Section 1782, and the court thus lacked discretion to quash the subpoena.

“... In the government’s view, although the US‑Russia MLAT incorporated the procedural mechanism of § 1782 to carry out requests for assistance via the federal courts, the treaty superseded all the substantive aspects of § 1782, including the discretionary factors discussed by the Supreme Court in Intel. The government argues that the only substantive limitations on a request originating under the US‑Russia MLAT are the limitations defined by the treaty itself. Accordingly, the federal courts must execute requests for assistance without consideration of the § 1782 discretionary factors.”

“We therefore must determine whether the treaty superseded the statute’s grant of discretionary authority to the district courts. ... ‘The interpretation of a treaty, like the interpretation of a statute, begins with its text.’ ... ‘If the plain text is ambiguous, we look to other sources to elucidate the treaty’s meaning, including the purposes of the treaty, its drafting history, the postratification understanding of the contracting parties and the decisions of the courts of other signatories.’ ...”

“... We agree that there is no plain meaning here. Although the text of some provisions provides mild support for one interpretation or the other, no provision addresses, or even purports to address, the question disputed here ‑ the scope of federal court review of MLAT requests. The closest provision in this regard is the first sentence of Article 7, paragraph 3, which states: ‘Requests shall be executed in accordance with the laws of the Requested Party except if this Treaty provides otherwise.’ But that sentence is ambiguous. .... We turn, then, to other indicators of the treaty parties’ intent, nearly all of which strongly support the government’s interpretation.”

“1. Deference to the Executive Branch”

“‘It is well settled that the Executive Branch’s interpretation of a treaty ‘is entitled to great weight.’ ‘ ... In addition to being entitled to ‘great weight,’ the government’s reasonable interpretation of this treaty also finds strong support in a common‑sense argument concerning the intent of the treaty parties. The § 1782 process has always been available to the Russian government. If the treaty maintains the same substantive limitations as § 1782, then the Russian government had little to gain by agreeing to the treaty ... In other words, it seems unlikely that the parties to the treaty intended that requests for assistance would be subject, as before, to the same discretionary factors under § 1782.”

“2. Harmony in Results”

“We have adopted the view of the Restatement (Third) of Foreign Relations Law § 325 cmt. d (1987) that ‘[t]reaties that lay down rules to be enforced by the parties through their internal courts or administrative agencies should be construed so as to achieve uniformity of result despite differences between national legal systems.’ ... Here, the parties agree that the Russian government does not have an analog to § 1782; the Russian courts have not been vested with discretionary authority to deny a request for assistance. The government’s view therefore supports ‘harmony in the interpretation’ of the MLAT, whereas Appellants’ view creates discord.”

“3. Technical Analysis”

“The technical analysis of the treaty that the United States Department of Justice and Department of State prepared, which the President submitted to the Senate at the same time that he asked for the Senate’s ratification, supports the government’s view. ... The technical analysis does not address the issue of the procedure/substance distinction directly. But several parts of the technical analysis suggest that the government’s view is correct. ...”

“4. Article 4 of the US‑Russia MLAT”

“Consideration of Article 4 of the treaty strongly supports the government’s view. That article specifies three ‑ and only three ‑ grounds for denying a request: an exception for military crimes, an exception for security or ‘other essential interests,’ and an exception for requests that do not conform to the treaty. The use of three specified reasons for denial in a closed list strongly suggests that those reasons are the only permissible reasons for denying a request under the treaty. ...”

“5. Liberal Construction”

“A treaty ‘should generally be construed liberally to give effect to the purpose which animates it and ... even where a provision of a treaty fairly admits of two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred.’ ... Here, Article 1, paragraph 1, states: ‘The Parties shall provide to each other, in accordance with this Treaty, comprehensive mutual legal assistance in criminal matters.’ The government’s view ‘animates’ the purpose of the treaty comprehensive mutual legal assistance in criminal matters, whereas Appellants’ view ‘restrict[s]’ the ‘rights which may be claimed under it.’”

“6. Our Sister Circuit’s Interpretation”

“The Eleventh Circuit reached the same conclusion, for many of the same reasons, when it interpreted the US‑Canada MLAT. ...”

“Almost every indicator of the treaty‑parties’ intent favors the government’s view. Appellants are correct that the treaty does not expressly specify the procedure/substance distinction. ... But, viewed in the larger context of the treaty, and with due deference to the executive branch, the government offers the more reasonable interpretation. We hold that requests for assistance via the US‑Russia MLAT utilize the procedural mechanisms of § 1782 without importing the substantive limitations of § 1782. In particular, the parties to the treaty intended that the district courts would not possess the normal ‘broad discretion,’ conferred by § 1782, to deny requests for assistance.” [634 F.3d 568‑71]

However, constitutional restraints still apply to such requests for judicial assistance. A district court may not enforce a request that offends a constitutional guarantee, for example, if compliance with the subpoena will lead to human rights violations such as torture. In this case, compliance with the Russian request does not offend the Constitution.

Citation: In re the Matter of the Search of The Premises Located At 840 140th Avenue NE, Bellevue, Washington v. Global Fishing, Inc., No. 09‑35096 (9th Cir. 2011).

JUDICIAL ASSISTANCE

In appeal of proceeding under 28 U.S.C. Section 1782 compelling disclosure of videos for use in lawsuit abroad, Second Circuit affirms because filmmaker failed to show that footage was shot for purpose of “independent” reporting

Over the course of some years, a corporate affiliate of Chevron Corporation conducted petroleum exploration and extraction operations in Ecuador, and in 1993 a group of residents of the Oriente region of that country brought a lawsuit led by attorney Steven Donziger against Chevron, alleging the operations had caused environmental damage through pollution of Ecuadoran rain forests and rivers. The lawsuit took place in Lago Agrio, Ecuador. The same year, Chevron found itself the defendant in a criminal case related to the operations and other legal cases surrounding them.

To aid in conducting the Lago Agrio case, Donziger in 2005 approached the filmmaker Joseph Berlinger to ask if he would produce a film documenting the Lago Agrio litigation from the perspective of his clients. Allegedly retaining “complete editorial control,” Berlinger agreed to make the documentary, ultimately titled Crude. Berlinger asked those who would appear in the film to sign, and he received, release forms in which they agreed that they had no recourse were the videotape footage to be used for other purposes. After production wrapped, at Donziger’s request, Berlinger deleted from the commercial version of the film footage that showed a (purportedly) neutral expert siding with one of the defendants.

In April 2010, Chevron sued Berlinger in U.S. District Court under 28 U.S.C. § 1782, which authorizes U.S. courts to order discovery for use in foreign and international proceedings. Chevron sought to compel Berlinger to give it outtakes from the film that the corporation wanted to use in its defense in the criminal proceedings. Berlinger defended, arguing he was protected by the qualified evidentiary privilege for information gathered during a journalistic investigation (a.k.a. the “press privilege” or “journalist’s privilege”) and that this obviated any obligation that he provide the footage.

The court held for Chevron, ordering Berlinger to provide the outtakes. Berlinger appealed, arguing that the lower court abused its discretion. In addition to the privilege ground, Berlinger argued that the footage was irrelevant, otherwise available, and overbroad and that those in the film had expected a level of confidentiality that would have barred provision of the footage to Donziger. Finding neither “clear error” in the district court’s factual findings nor an abuse of discretion in directing Berlinger to give up the footage, the U.S. Court of Appeals for the Second Circuit affirms.

The appellate decision focuses on whether the lower court’s particular application of the “qualified evidentiary privilege” in favor of plaintiff Chevron constituted an abuse of discretion. The Court notes that the burden is on the seeker of the protection to prove the application of the privilege. In this case, the Court reasons that Berlinger failed to carry the burden of showing that he collected information for purposes of independent reporting and commentary.

“For determining the existence, or in any event the strength, of the press privilege, all forms of intention to publish or disseminate information are not on equal footing. While freedom of speech and of the press belongs to virtually anyone who intends to publish anything (with a few narrow exceptions), all those who intend to publish do not share an equal entitlement to the press privilege from compelled disclosure. Those who gather and publish information because they have been commissioned to publish in order to serve the objectives of others who have a stake in the subject of the reporting are not acting as an independent press. Those who do not retain independence as to what they will publish but are subservient to the objectives of others who have a stake in what will be published have either a weaker privilege or none at all.” [14]

  The Court states that the lower court’s “most pertinent conclusions for purposes of this appeal were to the effect that Berlinger failed to establish that in making the film he functioned with journalistic independence. Although the court did not explicitly state a finding that Berlinger lacked independence, it stressed that (1) ‘Donziger in fact solicited Berlinger to create a documentary of the litigation from the perspective of his clients,’ and (2) ‘Berlinger concededly removed at least one scene from the final version of Crude at their direction.’ Id. The clear import of these findings is that Berlinger failed to establish that he did his research and made his film with independence from a subject of the film.” [12‑13] The Court further explains:

“Our ruling likewise does not imply that a journalist who has been solicited to investigate an issue and presents the story supporting the point of view of the entity that solicited her cannot establish the privilege. Without doubt, such a journalist can establish entitlement to the privilege by establishing the independence of her journalistic process, for example, through evidence of editorial and financial independence. But the burden is on the person who claims the privilege to show entitlement, and in this instance, Berlinger failed to persuade the district court that he undertook the task with independence.” [19]

The Court directs Berlinger to give the footage in question to Chevron.

Citation: Chevron Corp. v. Berlinger, No. 10‑1918‑cv (2d Cir. 2011).

JURISDICTION

In Peruvian Spy‑Thriller case, Eleventh Circuit finds that evidence existed to support required nexus to submit foreign state’s commercial activities to U.S. jurisdiction under Foreign Sovereign Immunities Act

While serving as the head of Peru’s National Intelligence Agency in the 1990s, Vladimiro Lenin Montesinos Torres (“Montesinos”) purportedly committed a few crimes: arms trafficking, drug dealing, money laundering, extortion, bribery, and “more than a few murders.” Montesinos fled the country when President Alberto Fujimori announced he would dissolve the agency. A manhunt ensued, and in April 2001, Peru’s interim president posted an “Emergency Decree” on the website of Peru’s official daily publication that offered a $5 million reward for the “person or persons who provide(s) accurate information that will directly enable locating and capturing” Montesinos. [1300] To receive such information and assess its accuracy, the decree established the Special High Level Committee (“SHLC” as part of the Ministry of the Interior. It also authorized the Peruvian government to obtain a loan from a Peruvian bank to pay the reward, the funds to be deposited in a Peruvian account in the interim. The reward would be paid 24 hours after Montesinos’s capture.

Jose Guevara, a former officer in the Venezuelan intelligence agency, gave Montesinos a hiding place and a security detail in Caracas. When a Florida bank declined Montesinos’s request to transfer his funds to another bank, Montesinos threatened Luis Alfredo Percovich, the officer assigned to the account, with violence and sent Guevara to Miami to do his dirty work. Aware of the plot, Percovich tipped off the FBI, which detained Guevara in Miami. Ultimately, Agent Waldo Longa made a phone call to Antonio Ketin Vidal Herrera (“Vidal”), Peru’s Minister of the Interior, and then told Guevara that if he gave the FBI Montesinos’s contact information in Caracas, Guevara would be released, the charges would be dropped, and he would receive the $5 million reward. Guevara cooperated and arranged Montesinos’s delivery to the Peruvian authorities, who arrested Montesinos and promptly refused to pay Guevara, who brought suit.

The district court held that Peru was entitled to sovereign immunity. Guevara appealed to the U.S. Court of Appeals for the Eleventh Circuit (“Guevara I”).

The U.S. Court of Appeals for the Eleventh Circuit reversed, holding that Peru’s actions constituted commercial activity under the Foreign Sovereign Immunities Act (FSIA). Specifically, in Guevara I, the Eleventh Circuit held that by offering reward for information, Peru acted like a private party, entering the market for rewards. Therefore, the Court held that Peru’s “commercial act divests it of sovereign immunity under the so‑called ‘restrictive theory’”. The Court vacated the district court’s ruling and remanded for further proceedings. [1302]

On remand, Peru moved to dismiss again, arguing that based on facts developed on remand, Peru did not fall within any of the enumerated exceptions to the FSIA. The district court held that the FSIA exception issue was already resolved in Guevara I. Peru appealed again. [1304–05]

The Eleventh Circuit overturns the district court’s ruling, explaining that Guevara I dealt with the narrow issue of whether Peru “was entitled to sovereign immunity because its offer of a reward did not constitute ‘a commercial activity’”. The Court explains that even if Peru’s offer of a reward constitutes commercial activity, the district court still had to rule whether it had subject matter jurisdiction under the FSIA. [1305–07]

FSIA Section 1605(a)(2), lists three exclusive bases, or nexuses, for a foreign state’s commercial activities to subject it to the U.S. courts’ jurisdiction: where there exist (1) commercial activities within the U.S., (2) acts performed in the U.S. “in connection with” commercial activity elsewhere, or (3) acts performed in connection with commercial activity elsewhere that cause a “direct effect” in the U.S., citing Samco Global Arms, Inc. v. Arita, 395 F.3d 1212, 1216 & n. 8 (11th Cir. 2005).

The Court finds no nexus based on the first ground, commercial activities in the U.S., reasoning that all of SHLC’s commercial activity occurred or would have occurred in Peru: not only was the emergency decree published in an official Peruvian publication but the decree would have had the SHLC establish both the veracity of the information leading to Montesinos’ arrest and decide whether to pay the reward, which would have been made in Peru from funds the Peruvian government had placed in escrow in a Peruvian bank.

On the second ground, acts performed in the U.S. “in connection with” commercial activity elsewhere, the Court finds no nexus in the “solitary act” of Vidal telling a person in the U.S.—Longa—what Guevara had to do to obtain the reward: “If what Vidal said to Longa constituted an act in connection with Peru’s offer of the reward, then almost any statement he may have made about the reward to anyone else in the United States would have operated to waive Peru’s immunity from suit. We are reluctant to find a waiver based on such de minimis evidence. [1308]

 Regarding the third ground, acts performed in connection with commercial activity elsewhere that cause a “direct effect” in the U.S., the Court finds Peru’s actions had no such impact:

“To be direct, an effect must follow ‘as an immediate consequence of the defendant’s activity.’ Republic of Arg. v. Weltover, Inc., 504 U.S. 607, 618, 112 S.Ct. 2160, 2168, 119 L.Ed.2d 394 (1992).” [1309] Framing the question as, “was the effect sufficiently ‘direct’ and sufficiently ‘in the United States’ that Congress would have wanted an American court to hear the case?’” (citing Harris Corp. v. Nat’l Iranian Radio & Television, 691 F.2d 1344, 1351 (11th Cir. 1982), the Court holds Peru’s promise to pay the reward money failed to reflect “Weltover’s requirement of immediate consequences or Harris Corp.’s focus on significant financial consequences in the United States.” [1310]

Citation: Guevara v. Republic of Peru, 608 F.3d 1297 (11th Cir. 2010).

JURISDICTION

First Circuit affirms jurisdiction of Maritime Drug Law Enforcement Act over alleged drug trafficker, holding terse certification by Bolivia’s Secretary of State constituted valid consent or waiver of objection to U.S. law enforcement

Cardales‑Luna served with seven other crew members on the Bolivian flag vessel Osiris II when the U.S. Coast Guard boarded the ship in international waters on February 4, 2007. During a six‑day search of the Osiris II, Coast Guard officers discovered 400 kilograms of cocaine, 25 kilograms of heroin, and a machine gun hidden in a compartment near the rear of the vessel.

The U.S. tried Cardales‑Luna, the court ultimately sentencing him on two counts: (1) conspiracy to possess with intent to distribute the drugs found on the Osiris II and (2) aiding and abetting the possession of those drugs with intent to distribute. To prove that the Osiris II was subject to U.S. jurisdiction, the government presented the certification of G. Philip Welzant of the Bureau of International Narcotics and Law Enforcement Affairs, U.S. Department of State, who declared, “On February 5th, 2007, Bolivian authorities notified the United States that the Government of Bolivia waived objection to the enforcement of U.S. laws by the United States with respect to the vessel Osiris II, including its cargo and all persons onboard.” [736] Cardales‑Luna appealed on the grounds the certification was insufficient to confer jurisdiction over the vessel. The U.S. Court of Appeals for the First Circuit affirms.

The Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. § 70503(a)(1), prohibits drug trafficking aboard a vessel subject to the jurisdiction of the United States, which includes vessels registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States. Cardales‑Luna contended that Commander Welzant’s certification failed to state the name of the Bolivian official involved or the exact time and means of the communication between the two governments. In support of his position, he cited United States v. Leuro Rosas, a decision by this Court that quoted from the legislative history of the MDLEA to imply that a certification that failed to substantially comply with the requirements articulated by Congress might be rejected as insufficient to prove the foreign nation’s consent. The Court quotes its decision in Leuro Rosas:

“‘In instances where the United States is required to prove a foreign nation’s consent or waiver of objection to U.S. enforcement, or such a nation’s denial of claim of registry, this section permits proof by certification of the Secretary of State or the Secretary’s designee. Such a certification should spell out the circumstances in which the consent, waiver, or denial was obtained, including the name and title of the foreign official acting on behalf of his government, the precise time of the communication, and the means by which the communication was conveyed’” (citations omitted). [736‑737]

The holding that Welzant’s abbreviated certification was valid, as the Court states, rests on the fact that Congress materially amended the MDLEA subsequent to Leuro Rosas because that decision “left open the possibility that a defendant could look behind the State Department’s certification to challenge its representations and factual underpinnings. United States v. Guerrero, 114 F.3d 332, 341 (1st Cir. 1997) (reserving the issue).” [737] The Court notes:

“Congress effectively foreclosed that possibility in 1996, when it amended the MDLEA¼.Under the current statute, the Secretary of State (or her designee) need only certify that the foreign nation where the vessel is registered has consented or waived objection to the enforcement of United States law by the United States. Such a certification is conclusive [ ], and any further question about its legitimacy is a question of international law that can be raised only by the foreign nation. United States v. Bustos Useche, 273 F.3d 622, 627 & n. 5 (5th Cir. 2001).” [737]

The First Circuit holds that Welzant’s certification—“though not in the preferred form”—sufficiently established the Osiris II’s subjection to U.S jurisdiction. [737]

Citation: United States v. Cardales‑Luna, 632 F.3d 731 (1st Cir. 2011).

SOVEREIGN IMMUNITY

Second Circuit finds that issue of subject matter jurisdiction under commercial activity exception of Foreign Sovereign Immunities Act not defeated by possibility that appellant may fail to state cause of action

After World War I, German enterprises sold a large number of bearer bonds that were underwritten, marketed, and payable in the U.S. Later, and before World War II, the issuers repurchased many of these bonds for eventual retirement and submitted them to meet sinking fund and amortization requirements. After World War II began, it became impossible to present such bonds to the American trustees or paying agents for cancellation. As a result, German bank vaults held large numbers of reacquired, yet un‑cancelled foreign currency bonds, in negotiable form, that no longer represented valid obligations. After Germany surrendered in 1945, Russian occupation forces seized and returned many of those bonds to circulation.

In December 2005, Mortimer Off Shore Services Ltd. (“Mortimer”) brought suit against the Federal Republic of Germany (“FRG”) in the District Court for the Southern District of New York to enforce 351 such bonds valued at over $400,000,000. The complaint alleged FRG had guaranteed, succeeded to, and/or assumed [liability for] the outstanding and unpaid principal interest under the Bonds. The district court denied FRG’s motion to dismiss for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (the “FSIA”), 28 U.S.C. § 1602 et seq., on grounds the Act’s “commercial activity” exemption applied to abrogate FRG’s sovereign immunity and to confer subject matter jurisdiction.

Although it ultimately affirms the district court’s holding against Mortimer on the alternate ground that Mortimer failed to make the threshold showing necessary to invoke the commercial activity exception to the FSIA, the U.S. Court of Appeals for the Second Circuit does consider and affirm the district court’s denial of FRG’s Motion to Dismiss for lack of subject matter jurisdiction.

Before the district court, in its motions, FRG did not contest its liability for properly validated West German bonds. FRG “asserted that this assumption of liability was sovereign in character” and thus it had sovereign immunity under FSIA. The issue before the Appeals Court is whether such assumption of liability falls under the exception to FSIA. At issue was the third clause of the FSIA’s commercial activity exception, i.e., whether FRG’s actions were based on “an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” 28 U.S.C. § 1605(a)(2). The parties agreed that the alleged acts at issue took place outside of the United States and caused direct effects in the U.S. The issue was only whether an alleged act occurred and, if so, whether it occurred “in connection with a commercial activity of the foreign state.”

The Court then reasons that the assumption of liability constituted an “action” because, under Republic of Argentina v. Weltover, Inc., 504 U.S. 607(1992), “when a foreign government acts, not as regulator of a market, but in the manner of a private player within it, the foreign sovereign’s actions are ‘commercial’ within the meaning of the FSIA.” [107]. Indeed, the Court notes, private parties often assume liability for bonds in trade or commerce. Therefore, FRG’s actions were commercial in nature. Moreover, the Court states, the commercial nature of the act of assuming the West German bonds “is confirmed by the fact that [the Bonds] are in almost all respects garden‑variety debt instruments: They may be held by private parties; they are negotiable and may be traded on the international market ...; and they promise a future stream of cash income” [Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992)]. [108]

The FRG also argues that even if it assumed liability for the West German bonds, the commercial activity exception would not apply to the (West German) bonds because Mortimer failed to satisfy settlement conditions by not complying with the validation procedures. The Court is unpersuaded:

“The issue of whether Mortimer complied with the validation procedures does not touch upon any of the requirements of the commercial activity exception, which is concerned with the conduct of the foreign state and not the allegedly aggrieved party.” [108] Further, the Court states, “Jurisdiction is not defeated by the possibility that the averments might fail to state a cause of action. ” [108]

Citation: Mortimer Off Shore Svcs. Ltd. v. Federal Republic of Germany, 615 F.3d 97 (2d Cir. 2010).

SOVEREIGN IMMUNITY

Second Circuit holds management company’s claim against Indonesian state‑owned social security insurer under Foreign Sovereign Immunities Act failed to abrogate insurer’s sovereign immunity where plaintiff could not show its negligent supervision claim based on act done in connection with Defendant’s commercial activity

Anglo‑Iberia Underwriting Management Company and Industrial Re International, Inc. (“Anglo‑Iberia”) sued P.T. Jamsostek (Persero) (“Jamsostek”), an Indonesian state‑owned social security insurer, and the Republic of Indonesia (“Indonesia”) claiming Jamsostek’s negligent supervision of its employees enabled one of them, Prio Adhi Sartono, to commit commercial reinsurance fraud against Anglo‑Iberia while he was in Colorado pursuing a Jamsostek‑sponsored MBA. The U.S. District Court for the Southern District of New York dismissed Anglo‑Iberia’s negligent supervision claim on the ground no subject matter jurisdiction existed under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.A. § 1602 et seq. Anglo‑Iberia appealed to the Second Circuit.

A foreign state, or an agency or instrumentality of a foreign state, is immune from federal court jurisdiction unless a specific exception to the FSIA applies. 28 U.S.C.A. §§ 1603(b), 1604. The so‑called “commercial activity” exception abrogates immunity in cases where the action is based on

“[1] a commercial activity carried on in the United States by the foreign state; or upon

[2] an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon

[3] an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”

28 U.S.C. § 1605(a)(2).” [175]

On appeal, the parties presumed Jamsostek’s or Indonesia’s entitlement to sovereign immunity; the only issue was whether the exception applied, thus subjecting them to federal court jurisdiction. Under the second clause of the exception, Anglo‑Iberia argued that its negligent supervision claim was based on (1) the acts Jamsostek performed in the U.S. by supervising and administering its job training program with Sartono and other employees in connection with its employment of Sartono and the other alleged wrongdoing employees at its commercial offices in Indonesia conducting insurance business and (2) Anglo‑Iberia’s act of depositing reinsurance premiums in a New York bank and Jamsostek’s commercial activity in supervising its employees in Indonesia.

Under the third clause, Anglo‑Iberia claimed Jamsostek’s negligent supervision of its employees in Indonesia and Monaco in connection with Jamsostek’s commercial activity in Indonesia caused a direct effect in the U.S. to enter the reinsurance transactions with Jamsostek’s employees and incur financial losses in the United States. [176]

The Second Circuit rejects both arguments, affirming the district court’s dismissal of Anglo‑Iberia’s claim. The Court begins its analysis by noting that under both the second and third clauses of the exception, Anglo‑Iberia had the burden of showing that its negligent supervision claim was grounded on an act done “in connection with a commercial activity” of Jamsostek and Indonesia; therefore, should Anglo‑Iberia fail to establish a “commercial activity,” then arguing a “connection” necessarily also would fail.

 In its second‑clause analysis, the Court considers case precedent on construing “commercial activity” under the FSIA:

“In Republic of Argentina v. Weltover, 504 U.S. 607, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992), the Supreme Court explained that a foreign state engages in commercial activity ‘when a foreign government acts, not as a regulator of a market, but in the manner of a private player within it,’” [176] The Court stresses that what matters is the type of action by which a private party engages in commerce, rather than the motive or purpose behind it. In looking to whether Jamsostek’s actions performed in its role as Indonesia’s default health insurer were the type by which a private party engages in commerce, the Court finds that:

“[T]he nature of Jamsostek’s hiring, supervision, and employment of Sartono and other employees is directly concerned with ‘employment in the provision of a governmental program of health benefits through collection of employer contributions and payroll deductions’ and that ‘such employment is by nature non‑commercial.’ [again citing Weltover]. Despite Anglo‑Iberia’s argument to the contrary, to hold otherwise and look only to the fact of employment for purposes of our “commercial activity” analysis would allow the exception to swallow the rule of presumptive sovereign immunity codified in the FSIA.” [178] Here, the Court states, Jamsostek’s actions are sovereign in nature.

The Court then explains Anglo‑Iberia’s third‑clause failure to show a nexus between Jamsostek’s alleged negligent supervision and its alleged commercial activity. The Court notes that the statutory term “in connection” as used in the FSIA “is a term of art” and that as such acts are deemed to be “in connection” with commercial activity only where a “substantive connection” or “causal link” exists between them and the commercial activity. The Court reasons:

“Here, we cannot conclude that Jamsostek’s alleged negligent supervision of Sartono and his colleagues was ‘in connection with’ its provision of basic health insurance in Indonesia. The commercial reinsurance scheme that is said to have injured Anglo‑Iberia was Sartono’s alone and wholly unrelated to any negligent supervision by Jamsostek with respect to its insurance activities in Indonesia.” [179]

Citation: Anglo‑Iberia Underwriting Mgmt. Co. v. P.T. Jamsostek (Persero), 600 F.3d 171 (2d Cir. 2010).

TORTURE

Eleventh Circuit affirms convictions for atrocities committed by Liberian president’s son, holding broader definition of ‘torture’ in Torture Act was rationally related to Convention against Torture, as Convention “created a floor, not a ceiling” for signatories in efforts to combat torture

Soon after Charles Taylor’s election to the Liberian presidency in 1997, he charged his son, Roy M. Belfast, Jr., a/k/a Charles McArthur Emmanuel (“Emmanuel”), with overseeing the creation of an antiterrorism unit to protect Taylor and his family. Emmanuel’s was a reign of terror in which from 1999 to 2003 he visited horrific acts of cruelty on Sierra Leonean refugees and residents of several Liberian towns. Arrested and charged with eight counts of torture and conspiracy to commit torture under the Torture Act, 18 U.S.C. Section 2340A, as well as of firearms possession and use, Emmanuel was the first individual prosecuted under the Act. In 2009 the U.S. District Court for the Southern District of Florida sentenced Emmanuel to 97 years in prison. He appealed arguing, among other things, that Congress impermissibly exceeded its authority to implement the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (the “CAT”), in its definition of torture and its proscription against conspiracies to commit torture as set forth in the Torture Act. The U.S. Court of Appeals for the Eleventh Circuit affirms Emmanuel’s convictions in all respects.

A major issue in the decision was whether the Torture Act is constitutional, especially in that its definition of torture “sweeps more broadly” than that provided by the CAT. The Court upholds the Act’s constitutionality. Article I of the Constitution confers on Congress the “Power ... [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” U.S. Const. art. I, § 8, cl. 18. [804] Collectively, these clauses empower Congress to enact any law that is necessary and proper to effectuate a treaty made pursuant to Article II.

The Court stresses the broad authority granted to Congress by the Necessary and Proper Clause: “As Chief Justice Marshall wrote in McCulloch v. Maryland, ‘[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.’ 17 U.S. (4 Wheat) at 421.” [804]

And nowhere is this power broader and more important than in the realm of foreign relations. The Court quotes the D.C. Circuit:

“[A] determination by the political branches concerning the obligations of the United States is also a determination about the conduct of American foreign policy. Defining and enforcing the United States’ obligations under international law require the making of extremely sensitive policy decisions, decisions which will inevitably color our relationships with other nations. Such decisions are ‘delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility.... Finzer v. Barry, 798 F.2d 1450, 1458–59 (D.C. Cir. 1986)” (citations omitted). [805]

Thus, the Court notes, the judiciary’s role must be appropriately circumscribed. Indeed, there is a particularly strong case for deference to the political branches, over and above the traditional and general requirement of restraint in the area of foreign relations, when a court is “asked to review a statute which both Congress and ... [a] President[ ] have declared to be necessary to fulfill our obligations under both customary international law and a treaty which we have signed.” [Finzer v. Barry, 798 F.2d at 1459 (D.C. Cir. 1986)]. [805] Therefore, it continues, while ordinarily the Court’s task in interpreting a treaty is to give it a “meaning consistent with the shared expectations of the contracting parties,” Air France v. Saks, 470 U.S. 392, 399, 105 S. Ct. 1338, 84 L. Ed. 2d 289 (1985) [806], its role is narrowed considerably “where the President and the Senate [have] express[ed] a shared consensus on the meaning of [the] treaty as part of the ratification process, Auguste v. Ridge, 395 F.3d 123, 143 (3d Cir. 2005).” [806]

Notably, the existence of slight variances between a treaty and its Congressional implementing legislation does not make the enactment unconstitutional: identicality is not required. The Court explains:

“Rather, as the Second Circuit held in Lue, and as we echoed in Ferreira, legislation implementing a treaty bears a ‘rational relationship’ to that treaty where the legislation ‘tracks the language of the [treaty] in all material respects.’ Lue, 134 F.3d at 84 (emphasis added); see also Ferreira, 275 F.3d at 1027–28.” [806]

While not defining materiality, the Court applies the rational relationship test and finds the Act does track the CAT in all material respects. Not only does the CAT expressly state that it is “without prejudice to any international instrument or national legislation which does nor may contain provisions of wider application,” CAT, art. 1(2) [806], but, it says, settled rules of treaty interpretation require a liberal construction of the CAT. “Put simply,” the Court states, “the CAT created a floor, not a ceiling, for its signatories in their efforts to combat torture.” [806]

Interestingly, the Court muses that “if anything, the arguably more expansive definition of torture adopted by the United States is that much more faithful to the CAT’s purpose of enhancing global efforts to combat torture.” [809]

Citation: United States v. Belfast, 611 F.3d 783 (11th Cir. 2010).