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On August 5, 2021, the U.S. Court of Appeals for the Second Circuit ruled that a French banker may seek dismissal of an indictment without having to physically appear in the United States. The decision limits the application of the fugitive disentitlement doctrine which has long prevented foreign nationals from challenging criminal prosecutions without appearing in the United States to do so.

Muriel Bescond, a former Societe General (SocGen) banker, was charged by the U.S. Attorneys Office for the Eastern District of New York with transmitting false, misleading, and knowingly inaccurate commodities reports, and conspiracy, in violation of the U.S. Commodity Exchange Act (CEA). Prosecutors allege that Ms. Bescond participated in the United States Dollar London Interbank Offered Rate (USD LIBOR) benchmark interest rate calculation process from Paris, which ultimately impacted the pricing of futures contracts traded on the Chicago Mercantile Exchange. Ms. Bescond allegedly instructed SocGens LIBOR setters to prepare false USD LIBOR submissions that were lower than SocGens actual borrowing rates. According to the prosecutors, SocGens false submissions artificially lowered the USD LIBOR fix, affecting financial transactions that referenced USD LIBOR.

Ms. Bescond who lives in Paris and was in France at all times during the alleged criminal activity asked, through her U.S. counsel, to dismiss the indictment. Ms. Bescond argued that the indictment violated her Fifth Amendment right to due process because it failed to allege a sufficient nexus with the United States, and that the statute of limitations had run. Ms. Bescond further argued that the government was selectively prosecuting women participants in the alleged scheme, while declining to prosecute men who were similarly situated.

The United States District Court for the Eastern District of New York held that Ms. Bescond was a fugitive. Accordingly, the District Court exercised discretion to apply the fugitive disentitlement doctrine, declining to decide the merits of the motion to dismiss the indictment. This meant that Ms. Bescond could not seek dismissal of the indictment unless she appeared in the United States in person, where she would likely have been detained pending trial or, at the least, subject to stringent bail conditions.

Ms. Bescond appealed the District Courts order, and the U.S. Court of Appeals for the Second Circuit determined to exercise jurisdiction over the District Courts disentitlement ruling under the collateral order doctrine. U.S. v. Bescond, __F.4th __, 2021 WL 3412115 at *8 (2d Cir. 2021). The Second Circuit found that Ms. Bescond was not a fugitive, and that, even if she were, the District Court abused its discretion in concluding that disentitlement was justified. Id. The Second Circuit considered that (i) Ms. Bescond did not flee the United States to conceal herself, (ii) she was not in the United States while allegedly committing the charged conduct, and (iii) she was not avoiding prosecution. Id. Because she was simply remaining home as her home country permits her to do, the Second Circuit did not find her to qualify as a fugitive. Id. The Court went on to hold that if the fugitive disentitlement doctrine were to reach someone such as Ms. Bescond, who stays at home abroad, without concealment or evasion, Congress, not the courts, should weigh the competing issues and values and determine whether such an expansion [of the fugitive disentitlement doctrine] is warranted. Id. at *10.

But even if Ms. Bescond qualified as a fugitive, the Second Circuit found that disentitlement was too blunt an instrument for a foreign defendant in Ms. Besconds circumstances since there was no finding that Ms. Bescond was exhibiting disrespect for U.S. law. Id. at *10. Given Besconds innocent residence as a foreign citizen abroad, given the nature of the charged offense and her remoteness from the alleged harm that it caused, given her line of work, and given her nonfrivolous challenge to the extraterritoriality of the criminal statute, the exercise of discretion to disentitle her was an abuse. Id. at *11. The Second Circuit sent the case back to the District Court with instructions to rule on the merits of Ms. Besconds motion to dismiss.

Chief Judge Debra Livingston of the Second Circuit dissented, arguing that the Second Circuit lacked appellate jurisdiction to consider fugitive disentitlement orders because the District Courts order did not constitute a final order. The dissent agreed with the Sixth and Eleventh Circuit Court of Appeals decisions, which held that the Court of Appeals lacked jurisdiction to hear interlocutory appeals from rulings that disentitled fugitives. See U.S. v. Shalhoub, 855 F.3d 1255 (11th Cir. 2017); see also U.S. v. Martirossian, 917 F.3d 883 (6th Cir. 2019). By providing a new exception to the final judgment rule for fugitive disentitlement orders, the dissent argued that the majoritys holding will cause significant delays in criminal cases involving foreign-based defendants, which was precisely the consequence Congress sought to avert with the final judgment rule.

The Second Circuits decision certainly will be welcomed by foreign nationals facing criminal charges in the United States in white collar criminal cases, since it permits them, under certain circumstances, to challenge an indictment without having to appear in the United States where they often face lengthy, pre-trial detention.

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The Second Circuit Court of Appeals Finds That French Banker Need Not Travel to the United States to Seek Dismissal of Her Indictment - JD Supra

Thomas L. Knapp| Palm Beach Post

As the U.S. Centers for Disease Control and Prevention moves to extend a federal eviction moratorium that (including its original CARES Act version) has now been in place for most of 18 months and that President Joe Biden himself concedes is "not likely to pass constitutional muster," most of the public rhetoric and advocacy boils down to "what about the tenants?"

That's understandable. Nobody -- at least nobody who's ever faced the prospect of homelessness and has any heart at all -- wants to see tenants kicked to the curb with nowhere to go, especially tenants who, through no fault of their own, have been pushed into a financial corner by nearly a year-and-a-half of lockdowns, business closures, and other fallout from the COVID-19 pandemic.

Much less often asked, though, is the question "what about the landlords?" When that question does come up (and it's coming up in the courts again as the National Apartment Association and other landlord groups sue for compensation pursuant to the Fifth Amendment's "takings" clause) one can almost literally hear the world's smallest violin tuning up in the background.

I'm aware of, and reasonably well versed in, the centuries-long arguments over the ethics of rent and of property in land. I don't aim to settle those arguments here.

Given the long history of land ownership and home/apartment rental in the United States, though, it seems to me that the plaintiffs have a good case, and that the American "landlord class" deserves a far more sympathetic ear than it's had lately.

I've been a renter for most of my adult life, including times when I could have swung a down payment and qualified for a mortgage to own instead of rent. Renting made more sense for various reasons, including my somewhat itinerant lifestyle -- following jobs, following love, etc.

Most of my landlords haven't been giant corporations with deep pockets. They've been regular people who worked hard, put their money into real estate down payments, and tried to keep that real estate occupied by paying tenants until the property was paid off and might perhaps turn a profit or be sold. And even the giant corporations with deep pockets are providing a service to willing customers. They're not charities and shouldn't be expected to act like charities.

During the eviction moratoria, landlords haven't shed themselves of responsibility for keeping the water running, keeping the heat and air conditioning in working order, and making mortgage payments. They're still paying, or trying to pay, those costs. But they're not getting the rent that tenants freely agreed to pay before moving in.

Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism.

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Point of View: In defense of landlords, evictions shouldn't all fall on their shoulders - Palm Beach Post

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The Constitution. Heres what happened. The Fifth Amendment says that the government cannot make you admit to things you do not want to admit. The Right to Remain Silent. Its the right to refrain from self-incrimination. The government cannot make you say things that implicate you in crimes.

Thats great, but problems came up in civil lawsuits where one citizen is suing another citizen and then asks the Court (the government) to make people answer questions about the lawsuit. People would get sued for money in civil lawsuits and the person being sued was alleged to have done things that might be crimes. The person being sued would plead the fifth and refuse to answer questions about their actions, which would prevent the other side from proving their case. Example: I run a red light and hit your car. You sue me. Your lawyer asks me about the wreck in court, and I plead the fifth because running a red light is technically a crime, and I do not have to answer questions in court that might implicate me in criminal activity. Your lawyer would ask the Judge to make me answer questions, but the Judge could not force me to answer the questions because the government cannot make me incriminate myself in a crime. The Fifth Amendment was being used in situations where the government was not interested in charging people with crimes.

To remedy this situation, our law created requirement to be able to plead the fifth when you are being sued for money in a civil lawsuit. In order to remain silent, there must be a reasonable chance that the police are going to charge you with a crime if you admit to criminal activity. If the government says that they have no interest in charging you with a crime and nothing you say is going to get you in any trouble, or if the time limit to charge you with any crime has passed, then you cannot hide behind the fifth amendment when you are being sued by someone for your actions.

Bill Cosby was being sued by a woman he abused. Her lawyer wanted to ask him about the abuse, under oath in a recorded meeting called a deposition. Cosby was pleading the fifth and refusing to answer. The womans lawyer went to the local District Attorney (the lawyer that decides who to bring to court on criminal charges) and asked him if he ever intended to charge Cosby with rape and, if not, tell Cosby that so that Cosby will not be able to plead the fifth and avoid answering questions. The womans lawyer asked the District Attorney to remove the possibility of criminal charges so Cosby would not be able to hide behind the fifth amendment in the lawsuit. The District Attorney agreed, partially because the case was so old and the time limit had expired. He promised Cosby that the government would never prosecute him for this rape. Then Cosby answered the questions and testified about the rape under oath.Years pass and a new District Attorney was elected. That District Attorney promised to prosecute Cosby if he was elected. Also, the law changed and extended the time period to charge people with rape. Once the new DA was elected, he brought charges against Cosby and the testimony Cosby gave in that deposition was used in the prosecution. Cosby was convicted. Cosby appealed the conviction (trying to get it undone) arguing that the State went back on its deal. The recent decision that let Cosby out of jail was about this deal. The Court agreed that Cosbys constitutional right to remain silent was violated. He was promised no prosecution. He relied on that promise. Then he was convicted with statements he would not have made but for that promise.

While it makes any reasonable person sick that Cosby got out of prison when he admitted to the acts, it should also make reasonable people sick that the government broke its promise and violated the constitution in the process.

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The Local Lawyer: Why on Earth Did They Let Bill Cosby Out of Prison - The Local Voice

James W. Pfister| The Daily Telegram

The Fifth Amendment to the Constitution protects private property through due process and compensation: a person will not be …deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. State government is likewise limited by the 14th Amendment, textually for due process and by incorporation of the Fifth Amendment for taking, and by their own constitutions.

This taking is straight-forward when the government physically takes property for, say, a road. Butwhat if it physically takes property in other ways or substantially regulates it affecting its use and value?

In Penn Central Transportation v. New York City (1978), the citys historic preservation law designated the Grand Central Terminal to be a landmark. The owner wanted to build an office tower on the top of this historic structure. The city permit was denied since the project (in its view) would impair the aesthetic quality of the building. The Supreme Court held, 6-3, that the citys regulation did not constitute a taking. Liberal Justice William Brennan Jr., writing for the majority, listed factors to consider in a balancing process, …in balancing public gain against private harm. (Feldman and Sullivan, Constitutional Law, 2019). Brennan wrote: The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but afford opportunities further to enhance not only the Terminal site proper but also other properties.

The conservative Justice William Rehnquist dissented: as opposed to normal zoning, (here)…a multimillion dollar loss has been imposed. (The city has)imposed a substantial cost on less than one-tenth of one percent of the buildings in New York for the general benefit of all its people. It is exactly this imposition of general costs on a few individuals at which the taking protection is directed.

A recent Supreme Court decision, Cedar Point Nursery v. Victoria Hassid, June 23, 2021, took up this important debate in Penn Central between liberals and conservatives. The majority opinion by Chief Justice John Roberts took the Rehnquist approach; Justice Stephen Breyer dissented, taking the Brennan approach, in a 6 (Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) to 3 (Breyer, Sonia Sotomayor, and Elena Kagan) decision the conservatives versus the liberals.

A California regulation had allowed a labor organization to take access to an agricultural employers property for up to four 30-day periods in one calendar year. They could enter one hour before work, one hour during the lunch break, and one hour after work, being free to meet and talk with employees for union organization. Notice would be given.

The employers here filed suit arguing, …an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments by appropriating without compensation an easement for union organizers to enter their property. (Roberts, page 3). Roberts stressed one of the major rights of a property owner is to exclude others from property. (Roberts, pages 7, 13). Also, this constituted a physical taking, not a use restriction. (Roberts, page 12). Roberts held: …the access regulation here gives rise to a per se physical taking. (Roberts, page 20). It…grants labor organizers a right to invade the growers property. (Ibid.).

Breyer, in dissent, would have found no taking. He wrote: It is a regulation that falls within the scope of Penn Central. (Breyer, pages 16-17). He said it was a regulation of the power to exclude. (Breyer, page 5).

Our liberty and freedom are based in large part on our right to own private property, or real estate. It is our most important right, I believe. Since it is so important, government has an interest in regulating it, even physically taking it. James Madison wrote in 1792: That alone is a just government which impartially secures to every man, whatever is his own. (Cited by Justice Sandra Day OConnor in her dissent in Kelo v. New London, 2005). The question of when government regulation goes far enough to become a taking will be debated by conservatives and liberals as long as we shall have a constitutional democracy. As for Justice Breyer, hang in there until at least 2025!

JamesW.Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

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Private property rights and governmental 'taking' - Monroe Evening News

Last Tuesday the Centers for Disease Control and Prevention (CDC) issued a new moratorium on evictions as part of an effort to fight the coronavirus pandemic. This represents a stark reversal from the administrations repeated statements that the CDC lacked the statutory authority to issue such a moratorium. While most of the public controversy over the CDCs action has been around its legality, another important question remains unanswered: What process did the Biden administration use to change its legal position? Although many questions remain unanswered, there is troubling evidence that either the Department of Justice was not consulted on a major legal issue or, in the alternative, the Biden administration has misrepresented its legal position to the public. Both of these possibilities raise questions about the Biden administrations commitment to restoring the norms of executive-branch functioning.

In September 2020, the CDC issued a nationwide moratorium on evictions, justifying its action on the grounds that evictions would spread the coronavirus and that the moratorium was thus a valid exercise of its power to make and enforce such regulations as in [the agencys] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases. The moratorium was challenged on constitutional and statutory grounds by rental-property owners and, in May, a judge in the U.S. District Court for the District of Columbia held that the order exceeded the CDCs statutory authority but stayed the judgment pending appeal. The U.S. Court of Appeals for the District of Columbia Circuit upheld the stay and, in an unsigned, 5-4 decision, the Supreme Court denied a request to lift the stay, allowing the moratorium to continue until its planned expiration at the end of July.

But the Supreme Court decision was not an endorsement of the moratoriums legality. In a one-paragraph statement, Justice Brett Kavanaugh, who voted to preserve the district court stay, wrote that he agree[d] with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium and that, in his view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31. The reason Kavanaugh did not vote to vacate the stay and enjoin the moratorium was that the moratorium was set to expire a month later, and those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds. Kavanaugh thus let the moratorium continue, but it appears that a majority of the courtKavanaugh and the four justices who would have granted the staybelieves that the CDC lacks the statutory authority to issue a nationwide eviction moratorium.

The Biden administration appeared to have initially understood the decision in the same way, stating, as late as July 29, that the Supreme Court has made clear that [the CDC eviction moratorium] option is no longer available. But Congress failed to act to authorize an extension of the moratorium, and progressive Democrats ratcheted up the pressure for the administration to act unilaterally to provide eviction relief. The Biden administration then abruptly changed positions, deciding sometime this past week that the CDC did, in fact, have the legal authority to issue a new, albeit somewhat narrower, moratorium. When asked about the legal basis for his administrations about-face, Biden asserted that [t]he bulk of the constitutional scholarship says that [the new moratorium is] not likely to pass constitutional muster but that, at a minimum, by the time it gets litigated, it will probably give some additional time for renters to get federal rental-relief payments. In other words, there is a possible, albeit not probable, case for the moratoriums legality, and by the time the courts weigh in one way or the other, the moratorium will have protected at least some renters from eviction. Unsurprisingly, the original eviction-moratorium plaintiffs have challenged this new moratorium, arguing that the administrations changing legal position is evidence of bad faith.

There are many legal issues to unpack around the new moratorium. Most obviously, theres the question of its substantive legality. The main statutory question, around which the litigation over the original moratorium centered, is whether the broadly but vaguely worded 1944 Public Health Service Act gives the CDC the power to block evictions on a mass basis in the service of contagious-disease prevention. There is also a constitutional question: Would the eviction ban constitute a taking under the Fifth Amendment that would require just compensation for landlords?

In addition, what, if any, guidance should the government take from the Supreme Courts actions on the moratorium question so far? On the one hand, the court has not officially held that the CDC lacks the statutory authority to issue a nationwide eviction moratorium, and the administration has emphasized this point in its defense of the new moratorium. On the other hand, there appear to be at least five votes to strike down the moratorium as exceeding the CDCs statutory authority, as Biden himself recognized at his press conference (albeit in somewhat garbled form): But the presentyou could notthe Court has already ruled on the present eviction moratorium. Whether as a matter of constitutional lawthe presidents obligation to take Care that the Laws be faithfully executedor even just prudence, should the president take action that he believes the courts will strike down, even if there is no controlling precedent exactly on point?

These are all important and difficult issues, but there is another question that has not gotten nearly as much attention: Who gave Biden the legal advice that apparently changed his mind about the legality of the moratorium?

In the press conference answering questions about the new eviction moratorium, Biden gave the following explanation:

Ive sought out constitutional scholars to determine what is the best possibility that would come from executive action, or the CDCs judgment, what could they do that was most likely to pass muster, constitutionally. The bulk of the constitutional scholarship says that its not likely to pass constitutional muster. Number one. But there are several key scholars who think that it may and its worth the effort.

According to reporting, these key scholars included well-known law professors at Duke and Harvard law schools, such as Walter Dellinger, Martha Minow and Laurence Tribe; Tribe in particular was recommended to Biden by Nancy Pelosi. Which if any scholars consulted by the White House counseled against the legality of a second eviction moratorium is still unclear.

When White House press secretary Jen Psaki was asked who gave the legal sign-off on the new moratorium, she identified other sources of legal advice:

The CDCs lawyers, as well as our Counsels Officeyes. Im not aware of the Department of Justices engagement, but of course, that might make sense. I would have to check on that.

She also said, in some tension with Bidens earlier admission that the bulk of the constitutional scholarship was skeptical of the legality of the eviction moratorium, that the President would not have supported moving forward if he did not support the legal justification. He is old school in that way.

Thus, the official position of the administration now appears to be this: It originally supported the legality of the first eviction moratorium, which it defended in court; after the Supreme Court signaled that a majority of the justices did not believe the moratorium was legal, it changed its position and concluded that the CDC could not, absent congressional action, issue a new eviction moratorium; and it then changed its position again, based on some combination of advice from outside legal experts, White House counsel, and the CDCs lawyers and decided that the CDC did indeed have the authority to issue an eviction moratorium, albeit a narrower one.

Taking this story at face value, the obvious question is where was the Justice Department in all of this? What was the position of the Office of Legal Counsel (OLC), which would ordinarily be the last word on high-profile, complex legal questions such as this one, or the Office of the Solicitor General and the Civil Division, which have responsibility for defending the new moratorium in court?

There are presumably three options. The first is that the Justice Department told the White House that the CDC did not have the authority to issue a new eviction moratorium and the White House ignored that advice. The second option is that the department wasnt consulted, either because of an oversight from the White House or because the White House, suspecting that the department would return an answer it didnt want, simply didnt ask the Justice Department. The third option is that the department was consulted, told the White House that the CDC did have this authority, and this fact has simply not been disclosed in the White Houses public messaging so far. More reporting is needed on this question, but its notable that, when Politicos Josh Gerstein asked Attorney General Merrick Garland whether the department signed off on the eviction moratorium, Garland did not answer the question.

All three of these options raise concerns. If the Justice Department was overruled or simply cut out of the process, this represents a serious breakdown in how executive branch legal decision-making is supposed to happen. To be sure, the president has the final word on executive branch legal positions. He has no constitutional or statutory obligation to consult with, let alone abide by, the legal opinions of the Justice Department. But over decades, a powerful norm has developed that the Justice Department, in particular, is the proper source of legal guidance for the executive branch. OLC is designed not only to produce legal analysis of the highest possible quality that is consistent across the executive branch and with prior executive branch precedent, but, through a combination of its culture, reputation, and institutional position within the Justice Department, is designed to be at least partially insulated from politics so as to provide advice based on its best understanding of what the law requiresnot simply an advocates defense of the contemplated action or position proposed by an agency or the Administration provide the president with the best view of the law. (Whether OLC has always lived up to this lofty standard, and whether past presidents have always treated OLC as authoritative, is a separate question.) And the Office of the Solicitor General and the Civil Division, the primary litigators for the executive branch, make sure that the executive branch upholds its credibility with the courts and takes positions that support the executive branchs overall legal interests, not to mention general rule-of-law norms. If Pelosi really did tell Biden to get better lawyers and Biden responded by going outside the Justice Department, that should set off alarms about the confidence that Biden has in the departments traditional role as the main source of legal advice and analysis for the executive branch.

None of this is to say that the sources on which the Biden administration reportedly relied were subpar, or that Biden was wrong to solicit a wide range of legal views in addition to those of the Justice Department, but rather that none of them provide the departments special sauce: the combination of high-level legal expertise and a degree of independence achieved through institutional design, internal culture or reputation. The White House counsels office is, if only by virtue of its proximity to the president, inclined to take a particularly aggressive view as to the legality of the presidents policy goals. The CDCs lawyers, while no doubt expert when it comes to the CDCs statutory authority, may not have sufficient distance from their own agencys equities to always provide the best view as to the scope of the CDCs powers. And outside scholars, no matter how illustrious, are precisely that: outside the government and thus outside the institutional structures that have been developed to provide appropriate legal advice within the executive branch and avoid the risk of cherry-picking, which is a particular concern in this case given the wide variety of sincerely held views across the legal academy. (Besides, the attorney general was, until recently, one of the most respected appellate judges of his generation, and OLC is headed by two widely respected constitutional law professorsthe Justice Department is more than qualified to give the White House all the legal advice it needs.) If the Biden administration decided to make an abrupt change in its legal position, these sources of advice should have been at minimum supplemented by the departments considered views.

If, on the other hand, the Justice Department did in fact sign off on the new order but the Biden administration simply hasnt said so, that would be its own, wholly avoidable error. Part of upholding the procedural norms of executive branch legal interpretation is stating publicly that those procedures were followed. If one follows a norm but acts as if one didnt, that undermines the norm as much as if one had actually flouted it.

There is, of course, another possibility: that the White House never actually believed that the CDC lacked the authority to issue another eviction moratorium, but that it said so to put pressure on Congress to act. This would certainly explain the Justice Departments apparent silence: OLC, the Civil Division, and the Office of the Solicitor General presumably all signed off on an interpretation of CDC authorities as including the power to issue an eviction moratorium, because they were defending the original moratorium all the way up to the Supreme Court. And given that the court hasnt issued a ruling on the merits, and the new CDC moratorium is narrower than the old one, there would be no need for the Justice Department to update its legal view, since the underlying issue had not changed.

This view is thus reassuring from the perspective of internal executive branch legal process, but it raises concerns of its own about the candor of the administrations statements about its view of the law. If the administration believed this entire time that the CDC could issue a moratorium, but publicly misrepresented its view to pressure Congress to act, that would seriously undermine its credibility.

A central message of Bidens campaign was that he would rebuild norms of transparency, procedure, and honesty in the executive branch, norms that had been severely weakened by four years of the Trump administration. Based on the record as it stands now, there is a serious cloud around whether in this case the Biden administration has lived up to that promise. At the very least, the administration should clarify its confusing and seemingly contradictory statements about the internal legal deliberations. Whether one supports or opposes the CDCs eviction moratorium, the question of how its legal basis was developed and whether that process was communicated truthfully and accurately to the public is a serious one, and one for which the Biden administration should be held to account.

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Did the Justice Department Give President Biden Legal Advice on the CDC Eviction Moratorium? - Lawfare