Second Circuit Denies Rehearing In U.S.S. Cole Case And Adheres To Decision That Service of Process on Sudanese Embassy in D.C. Is Sufficient For Personal Jurisdiction Under FSIA

This case — Harrison v. Republic of Sudan — arose from the bombing of the U.S.S. Cole in the port of Aden, Yemen, in 2000.  Sailors and spouses of sailors injured in the explosion brought suit against Sudan in the D.C. District Court under the terrorism exception to the Foreign Sovereign Immunities Act, alleging that al Qaeda was responsible for the attack and that Sudan had provided material support to al Qaeda.

The action was commenced in October 2010, and, in November 2010, the summons and complaint were served on the Minister of Foreign Affairs of Sudan via the Sudanese Embassy in Washington, D.C.  No attempt was made to serve Sudan at the Ministry of Foreign Affairs in Khartoum, the capital.

Sudan failed to serve an answer or other responsive pleading within sixty days after plaintiffsʹ service, and a default was entered against Sudan.

On March 30, 2012, after a hearing, the D.C. District Court (Lamberth, J.) entered a default judgment against Sudan in the amount of $314,705,896.   Harrison v. Republic of Sudan, 882 F. Supp. 2d 23, 51 (D.D.C. 2012).  It also determined that service on Sudan had been proper.

On April 20, 2012, the Clerk of the Court mailed a copy of the default judgment to Sudanʹs Minister of Foreign Affairs, again via the Sudanese Embassy in Washington, D.C., and the judgment was thereafter registered in the Southern District of New York.

In December 2013 and January 2014, the Southern District issued three turnover orders, directing certain banks to turnover assets of Sudan to plaintiffs.  It was only after the last of these three turnover orders was entered that Sudan finally filed a notice of appearance, on January 13, 2014.  The same day, Sudan appealed the turnover orders to the Second Circuit.

In affirming the turnover orders, the Second Circuit held that service of process on the Minister of Foreign Affairs via the Sudanese Embassy in Washington, D.C. was sufficient to meet the requirements of the FSIA.  Harrison v. Republic of Sudan, 802 F.3d 399, 406 (2d Cir. 2015).

Thereafter, Sudan filed a petition for rehearing.  In its petition, Sudan argued, among other things, that plaintiffs had not adhered to the requirements under the FSIA for service of the summons and complaint, and therefore that the judgment against it violated the Vienna Convention on Diplomatic Relations.

While Section 1608 of the FSIA provides for four different methods of service, the method set forth in § 1608(a)(3) was the method at issue in this case.

That section provides as follows:

ʺService in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state . . . by sending a copy of the summons and complaint and a notice of suit . . . to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.ʺ

Three days ago, on September 22, 2016, the Second Circuit issued its decision denying rehearing.  Acknowledging that its interpretation of § 1608(a)(3) was a “close call,” the Second Circuit nonetheless adhered to its earlier decision, stating that the plaintiffs’ position was supported by the plain language of the statute, its legislative history, and judicial precedent.

Looking at the plain text of the statute, the Second Circuit held that nothing in the statute required that the mailing be sent to the head of the ministry of foreign affairs in the foreign country, and that “[i]f Congress had wanted to require that the mailing be sent to the minister of foreign affairs at the principal office of the ministry in the foreign country, it could have said so ‐‐ but it did not.”  The Second Circuit stated that

“On its face, the statute does not specify a location where the papers are to be sent; it specifies only that the papers are to be addressed and dispatched to the head of the ministry of foreign affairs.  Nothing in § 1608(a)(3) requires that the papers be mailed to a location in the foreign state, or indeed to any particular address, and nothing in the statute precluded the method chosen by plaintiffs.  A mailing addressed to the minister of foreign affairs via Sudanʹs embassy in Washington, D.C., was consistent with the language of the statute and could reasonably be expected to result in delivery to the intended person.  Plaintiffs literally complied with the statute ‐‐ they sent a copy of the summons and complaint addressed to the head of the ministry of foreign affairs of Sudan.”

Rejecting the argument that § 1608(a)(3) does not allow for service upon an “authorized agent” of the defendant, the Second Circuit stated that”[w]e do not hold that an embassy is an agent for service or a proxy for service for a foreign state.”  The court explained that “[t]here is a significant difference between serving process on an embassy, and mailing papers to a countryʹs foreign ministry via the embassy”:

“Here, the summons and complaint were addressed to the Sudanese Minister of Foreign Affairs, by name and title, at the Sudanese Embassy.  The embassy accepted the papers, signing for them and sending back a return receipt to the Clerk of Court.4  The embassy could have rejected the mailing, but instead it accepted the papers and then explicitly acknowledged receipt.  Accordingly, the papers were not served on the embassy as a proxy or agent for Sudan, but they were instead mailed to the Minister of Foreign Affairs, in the most natural way possible ‐‐ addressed to him, by name, via Sudanʹs embassy.”

Accordingly, the Second Circuit, while recognizing that the language of the FSIA is somewhat ambiguous, concluded that the statute “did not require service on the foreign minister at his or her regular place of work or in the stateʹs seat of government,” and therefore that service on the foreign minister via the embassy did not run afoul of the FSIA.

In so doing, the Second Circuit did not credit the argument — raised by the United States, in its amicus brief — that permitting the summons and complaint in FSIA actions to be served via a country’s embassy violates the Vienna Convention and thus “complicate[s] international relations by subjecting [countries, including the United States] to service of process via any of its diplomatic missions throughout the world.”  The Second Circuit held that while the Vienna Convention provides that ʺ[t]he premises of the mission shall be inviolable,ʺ and that ʺ[a] diplomatic agent shall . . . enjoy immunity from [the host stateʹs] civil and administrative jurisdiction,ʺ these provisions merely “preclude service of process on an embassy or diplomat as an agent of a foreign government.” Here, however, “process was served on the Minister of Foreign Affairs at the foreign mission and not on the foreign mission itself or the ambassador.”

Nor did the Second Circuit find merit in the U.S.’s argument that the court’s decision undermines the U.S. policy of ʺconsistently reject[ing] attempted service via direct delivery to a U.S. embassy abroad.”   Indeed, the Second Circuit stated emphatically that “[n]othing about our decision affects the ability of any state to refuse to accept service via its embassies,” but pointed out that “[h]ere, Sudan did not elect to follow any such policy.  It did not reject the service papers, as it could have done easily, but accepted them.”

The court further reasoned that Section 1 of Article 22 of the Vienna Convention provides that a mission may “consent” to entry onto its premises.  By accepting the service papers, instead of rejecting them, and by explicitly acknowledging receiving them, Sudan “consented” to the service of the summons and complaint on its Minister of Foreign Affairs via Sudan’s embassy in Washington, D.C.

Consent aside, the Second Circuit found that the policy concerns that animate the “inviolability of the embassy” provision of the Vienna Convention simply do not exist here:

“An important reason for the inviolability of the embassy premises is that the embassy is, to some degree, an extension of the sovereignty of the sending state …. To send officers into the embassy to serve papers would thus be akin to sending officers into the sovereign territory of the sending state itself.   There is nothing offensive, however, about mailing a letter into the sovereign territory of a foreign state …. We therefore find it difficult to understand how mailing a letter to the Foreign Minister of a country in care of that countryʹs embassy in Washington ‐‐ particularly given that the embassy remains free to refuse delivery if it so chooses ‐‐ can be considered a grave insult to the ʺindependence and sovereigntyʺ of the embassyʹs premises.”

 

 

 

 

NINTH CIRCUIT RULES THAT INNOCENT BEHAVIOR IS SUSPICIOUS

In a recent court decision, the United States Court of Appeals for the Ninth Circuit ruled that a combination of non-suspicious driving characteristics can give rise to the suspicion of criminal activity sufficient to justify pulling over the motorist.

A border patrol agent in a marked border patrol vehicle observed motorist Rufino Ignacio Valdes-Vega driving a red Ford F-150 truck driving north on Interstate 15, about 70 miles north of the Mexican border.  Valdes-Vega was observed changing lanes without signalling and driving about ten miles per hour faster than other traffic that day.  When the border patrol agent pulled next to the red truck, which was clean and had Baja California license plates, Valdes-Vega, who was alone in the vehicle, kept his eyes on the road, something that the border patrol agent found suspicious.

The border patrol put on his lights and Valdes-Vega immediately pulled over.  The border patrol agent had not pulled Valdes-Vega over for any traffic violations (indeed, as Valdes-Vega’s attorney later pointed out to the court, border patrol agents do not enforce traffic laws), but because he wanted to search the truck.  And when he did (Valdes-Vega consented to the search), he found cocaine.  After being arrested and indicted, Valdes-Vega moved to suppress the drugs that were recovered from his vehicle on the basis that the vehicle stop violated his Fourth Amendment right to be free from unreasonable seizures, and therefore was illegal.  The trial court denied Valdes-Vega’s motion, and he entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress the cocaine.

After a three-judge panel of the Ninth Circuit reversed the trial court and suppressed the drugs, the Ninth Circuit decided to hear the case en banc.

A majority of the en banc court held that the vehicle stop was proper and affirmed the trial court’s decision denying suppression.  The majority explained that ”[t]he fact that Valdes-Vega’s truck had Mexican license plates made the possibility that it had recently crossed the border significantly more likely.”  The court majority further found the fact that Valdes-Vega was driving a truck to be “significant” because “trucks are suitable for carrying large amounts of contraband and make it difficult for agents to see into the vehicle.”  According to the majority, these otherwise innocuous factors taken together with the slightly fast driving gave the border patrol “an objective and particularized suspicion that Valdes-Vega was ‘engaged in wrongdoing’” as a smuggler.  The majority declared that

“Valdes-Vega urges us to resist this conclusion because he contends that innocuous factors remain so even when added together.  Zero plus zero equals zero, his argument runs. But … we decline to second-guess the agents’ decision to stop the truck for investigation. Even innocent, noncriminal acts can foster reasonable suspicion in the total context …. A series of innocent acts may be enough for reasonable suspicion justifying an investigatory stop, even though the circumstances amount to far less than probable cause.”

In a tersely worded three-judge dissent, Judge Harry Pregerson wrote that

“Border patrol agents stopped Valdes-Vega because of his Hispanic appearance

*    *    *

“Driving a clean Ford F-150 pickup is not suspicious. Driving with Baja plates is not suspicious. Driving 70 miles north of the U.S.-Mexico border is not suspicious. Driving with eyes kept on the road ahead is not suspicious. Driving faster than the flow of traffic and not signaling before lane changes on a major, busy California interstate highway is not suspicious. Driving while having Hispanic appearance is not suspicious.

“Driving without signaling lane changes and faster than the flow of traffic on a major, busy California interstate highway — not uncommon in California — is referred to by the majority as ‘perhaps one of the most important factors in the total circumstances here.’ Such driving, plus defendant’s Hispanic appearance, plus his eyes on the road, plus his driving a clean Ford F-150, plus the Baja plates, did not create a reasonable suspicion that criminal activity was afoot.”

So the upshot here seems to be that being too non-suspicious can, in itself, give the cops an “objective and particularized suspicion” of wrongdoing sufficient to justify stopping you.  But if you act at all suspicious, game’s over too.  Under this rubric, when, pray tell, will a government seizure ever be unreasonable?

Looks like the erosion of the Fourth Amendment is alive and well in the Ninth Circuit.

 

STATE OF MICHIGAN REJECTS “WAR SUX” LICENSE PLATE ON BASIS THAT VIEWING IT WOULD PHYSICALLY AND EMOTIONALLY HARM CHILDREN

In another awful example of government intrusion upon First Amendment freedoms, the state of Michigan is defending its rejection of an anti-war license plate, saying children riding in cars and playing in their yards need to be protected from seeing the words “WAR SUX.”

Attorneys for the Michigan secretary of state’s office asked a judge this month to dismiss a lawsuit filed by the applicant for the “WAR SUX” vanity plate that accuses officials of violating his First Amendment rights.  Here’s the State of Michigan’s official position on this, as reported by the Houston Chronicle:

“[B]ecause vehicles often travel in residential neighborhoods, youth may be exposed to license plates from their yards or driveways,” said Ann Sherman, an assistant attorney general. “Courts have often upheld legislation aimed at protecting the physical and emotional well-being of youth, even where First Amendment rights are concerned.”

You’ve gotta be kidding me.  First, do license plates even rank on the list of threats to kids who play in their front yards?  Isn’t the real concern that our kids will be abducted by child predators or shot by an errant bullet?  But license plates (and an anti-war license plate at that)?  Come on.  Really?

Even putting that aside, let’s get this straight – the State of Michigan’s position is that so long as some idiot bureaucrat finds a particular expressive communication to be offensive and potentially visible to “youth”, the State can squash it on the pretense that doing so is necessary to protect the “physical and emotional well-being of youth”?  What’ll they crack down on next? Bumper stickers?  And after that? Jehovah’s Witnesses?  People who go door to door gathering signatures on a political candidate’s ballot petition?  Where does it end?

The Wolverine State might as well break out the gulags, because under for which it advocates, no kind of expression would be safe and the State’s power would be virtually limitless.   But that, of course, might be precisely what the  State wants.

 

FEDERAL JUDGE RULES THAT FIRST AMENDMENT DOES NOT PROTECT MAN ACCUSED OF PLOTTING TO KIDNAP, RAPE AND KILL WOMEN

New Jersey resident Michael Van Hise, Stuyvesant High School librarian Robert Asch, Massachusetts Veterans Affairs police chief Robert Meltz allegedly chatted over the internet about about kidnapping, raping and killing women – including Vanhise’s wife, his stepdaughter, his sister-in-law, and the sister-in-law’s minor children.

According to this article:

Vanhise was [already] tucked away in jail when undercover FBI agents met with Meltz and Asch starting in March, culminating in meetings that led to their arrest. Meltz allegedly instructed the first undercover agent on April 14 how to dispose of the body of his female colleague at “a desolate location in the woods in upstate New York.” Meltz said that wild animals would likely find and destroy her body before law enforcement could find it, prosecutors claim.

The next day, the same agent who spoke to Meltz met with Asch, who brought “two bags of tools intended to be used in the kidnapping, rape, torture, and murder of UC-3, including, but not limited to, a Taser gun, rope, a meat hammer, duct tape, gloves, cleaning supplies, zip ties, a dental retractor, two speculums, 12-inch skewers, pliers, a wireless modem, and a leg spreader,” the indictment states.

The men claimed that they lacked the intent to commit the crimes with which they were charged, and that they were merely taking part in online fantasy role-play.   On this basis, Van Hise argued that the kidnapping charge against him was barred by the First Amendment.  According to Van Hise, the kidnapping statute “is unconstitutional as applied to [him], because it prohibits his conduct[,] which consists of pure speech.”  Van Hise argued that:

“there is no evidence that [he] did anything other than talk about kidnapping. He did not have the ability, the intention, or even the actual desire to commit a kidnapping. He did not agree with anyone else to take these actions. Nor did he attempt to persuade or induce, his co-defendants or any other person to actually commit a kidnapping.”

In a December 31, 2013 decision, Judge Gardephe, who sits in the Southern District of New York, rejected this argument.

Citing U.S. v. Rahman, a Second Circuit case from 1999, Judge Gardephe pointed out that although the Second Circuit has stated that “courts must be vigilant to insure that prosecutions are not improperly based on the mere expression of unpopular ideas,” it has also made clear that where “the evidence shows that . . . speech[ ] crossed the line into criminal solicitation, procurement of criminal activity, or conspiracy to violate the laws, [a] prosecution is permissible.”  Judge Gardephe noted that ”[t]he First Amendment lends no protection to participation in a conspiracy, even if such participation is through speech.”

The court’s decision in this regard is grounded in a 1982 decision by the United States Supreme Court, New York v. Ferber, 458 U.S. 747 (1982).  In that case, the Supreme Court held that ”[i]t rarely has been suggested that the constitutional freedom for speech … extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.”  Id. at 761-62.

Because there was evidence that Van Hise’s “speech” crossed the line into a conspiracy to violate the law, the court determined that Van Hise’s prosecution was permissible.

 

SCHOOL BANS FIFTH GRADER FROM PUBLIC SPEECH COMPETITION BECAUSE HIS SPEECH IS ABOUT RELIGION — STUDENT TOLD TO “TAKE THE RELIGION OUT” OR DON’T COMPETE

Apparently, it’s not just institutions of “higher” learning that, although publicly claiming to exalt the robust exchange of ideas, actually seek to quash free expression if it embraces religion or, for that matter, endorses anything that might be considered not ”politically correct.”

According to this article, when the fifth grader’s parents protested, the school postponed the competition “until parents signed permission slips allowing their children to hear the speeches,” because a speech about religion “is not appropriate for fourth- and fifth-graders.”

Yeah, right.  I wonder what part was “inappropriate” in their minds.  Maybe it was the part where the fifth-grader talked about how “religion provides moral guidance for most of the 7 billion people on the Earth”?  Perhaps it was when he said, “Do not do to others what you do not want them to do to you,” and that “[t]his world would be a better place if everybody followed that rule.”

This school’s actions have abased, not venerated, our Constitution.  What message do they think this sends to the children they are supposed to be teaching?   What a disgrace.

 

SCOTUS hears GPS case

Today the Supreme Court heard argument in U.S. v. Antoine Jones, on the issue of whether the 4th Amendment prohibits police officers from attaching a GPS device to a suspect’s vehicle without a warrant in order to track that person’s movements.

I have mixed feelings.  On the one hand, this invasive practice is straight out of a futuristic dystopian, totalitarian nightmare.  On the other hand, CAIR filed an amicus brief for the defendant (GPS has apparently been used effectively in combatting terrorism.  If only we could have one set of rules for criminal law enforcement and another how we conduct ourselves while waging war — maybe we could call it a “war on terrorism” or something like that, I don’t know).

Now go, read more, then see CATO Institute’s amicus brief here, then read thoughtful discussion here and then here.

 

TWO FT. LAUDERDALE POLICE OFFICERS ARRESTED FOR SERIOUS MISCONDUCT

Two Ft. Lauderdale police department detectives have been arrested and charged with nearly twenty counts of racketeering, kidnapping, grand theft, extortion and official misconduct.

A spokesman for the Broward County State Attorney said that Detectives Brian Dodge and Billy Koepke “were involved in an ongoing pattern of criminal conduct that focused on stealing money and pills from patrons of pain clinics.”  Their arrests were the culmination of a long-term investigation by the FBI and the Fort Lauderdale Police Department.

According to the South Florida Sun Sentinel, the detectives “came under scrutiny after a hotel security video was found that contradicted their versions of two arrests they made at a Red Roof Inn.”  The investigation reportedly “turned up evidence that Koepke and Dodge claimed they found crack cocaine on a man who had none and stole several thousand dollars that should have been turned over as evidence.”

The Sun Sentinel also reported that Dodge had been suspended from the police force without pay in 2006 after an allegation was sustained that he used his position on several occasions between October 2004 and March 2006 to “fix” parking citations that had been issued to a friend.

 

NY POLICE OFFICER PLEADS GUILTY TO OFFICIAL MISCONDUCT AFTER HAVING INAPPROPRIATE SEXUAL CONTACT WITH WOMAN DURING TRAFFIC STOP

According to the Wall Street Journal, prosecutors claimed that Police Officer Garrett Mannerz pulled over a car in East Meadow, summoned one of the car’s female passengers to his police car, and “coerced her into touching him sexually.”

As reported by the WSJ, Mannerz let the car’s occupants go, but allegedly called one of them later for a date.  The woman apparently recorded the call and told police.

Mannerz has reportedly resigned from the Nassau County police force.

 

NYPD DETECTIVE IS FOUND GUILTY OF PLANTING DRUGS

Check out the New York Times article HERE.

According to the NYT, New York State Supreme Court Justice Gustin Reichbach, who presided over the criminal trial, “scolded the [NYPD] for what he described as a widespread culture of corruption endemic in its drug units,” and declared that “this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”

 

NJ GOVERNOR SIGNS “SEXTING” LEGISLATION

New Jersey teenagers caught “sexting” – using cell phones to text sexually explicit photos or post them online – can now avoid prosecution on child pornography charges under a new law signed by Gov. Chris Christie this week.

Check out the story here.

 

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