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Legal news from Wednesday, August 2, 2006

Bush administration defends military commissions plan before senators
Joe Shaulis on August 2, 2006 9:18 PM ET

[JURIST] US Attorney General Alberto Gonzales [official profile] confirmed before a Senate panel Wednesday that the Bush administration is drafting legislation [JURIST report] authorizing military commissions [JURIST news archive] for terror detainees that will allow hearsay evidence and coerced testimony to be admitted against terrorism suspects, limit their rights against pretrial self-incrimination and withhold classified evidence from them. Those provisions would be key departures from the Uniform Code of Military Justice [text], which governs court-martial proceedings and which the administration is using as a basis for the military tribunal legislation. Testifying before the Senate Armed Services Committee [hearing notice], Gonzales said [text]:

... [W]e believe it is important that the military commission process for unlawful terrorist combatants be separate from the court-martial process which is used to try our own service members, both because military necessity would not permit the strict application of all court-martial procedures, and because there are relevant differences between the procedures appropriate for trying our service members and those appropriate for trying the terrorists who seek to destroy us.
Gonzales said the administration will propose adding military commission procedures to Title 10 of the US Code, immediately following the UCMJ. Reuters has more. AP has additional coverage.

Meanwhile the administration's plan encountered resistance in the Senate Judiciary Committee, which on Wednesday heard testimony [text] from Steven G. Bradbury [SourceWatch profile], acting assistant attorney general for the DOJ Office of Legal Counsel [official website]. Committee Chairman Arlen Specter (R-PA) [official website] promised to fight any proposal that allows the Secretary of Defense to determine what offenses could be tried by the tribunals, calling such a delegation of authority "risky at best" because it could be struck down by the Supreme Court. AP has more.

The Bush administration agreed to work with Congress [JURIST report] to authorize military commissions for terror detainees after the US Supreme Court ruled in Hamdan v. Rumsfeld [opinion text] that military commissions as initially constituted lacked proper legal authorization [JURIST report].

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Lebanon may call for special tribunal to try Israeli 'crimes'
Joe Shaulis on August 2, 2006 8:32 PM ET

[JURIST] Lebanese Justice Minister Charles Rizk [Arab Decision profile] told Lebanese media Wednesday that Lebanon plans to send UN Secretary-General Kofi Annan a report outlining alleged war crimes committed by Israel in its conflict with Hezbollah [JURIST news archive] that could be the basis for prosecuting it in a special international court. The first part of the document, prepared by the Lebanese defense and interior ministries, will be forwarded to the UN on Thursday, Rizk was quoted as saying in Beirut's Daily Star. Rizk said Lebanon may ask the UN to create an "international criminal court for Lebanon," similar to those for the former Yugoslavia and Rwanda [JURIST news archives], but he conceded that such a proposal could be vetoed by some members of the UN Security Council [official website].

Rizk said that the International Court of Justice (ICJ) and the International Criminal Court (ICC) [official websites] are not available as forums for the dispute. Neither Israel not Lebanon have submitted to the compulsory jurisdiction of the ICJ, and neither state is a party to the Rome Statute [list of parties], which created the ICC. The Daily Star has more.

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Ninth Circuit directs FERC to consider more claims from California power crunch
Joshua Pantesco on August 2, 2006 3:21 PM ET

[JURIST] A federal appeals court Wednesday ordered the Federal Energy Regulatory Commission (FERC) [official website] to consider refund petitions filed by California state agencies and California businesses that claim refunds arising from the California energy crisis of 2000-2001 [PBS backgrounder] before the October 2, 2000 date set by the FERC. The refunds compensate the state for alleged energy price-fixing schemes, and involve several claims against subsidies of the now-bankrupt Enron [JURIST news archive] as well as other energy companies. October 2, 2000 was the date that the FERC notified energy providers that they could be liable for refunds, but in the opinion [PDF text; summary, PDF], a three-judge panel of the US Court of Appeals for the Ninth Circuit ordered the FERC to consider refund petitions dealing with potentially fraudulent price-fixing that may have occurred before the October 2, 2000 notice.

California is seeking $8 to $10 billion in refunds from energy companies, and as much as $2.8 billion of the total requested refund amount relates to activities occurring before October 2, 2000. The energy crisis resulted in the bankruptcy of California's largest utility company, and the FERC has ordered companies to pay $3 billion back to California to date. AP has more.

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FTC finds Rambus unlawfully controlled computer chip market
Joshua Pantesco on August 2, 2006 2:41 PM ET

[JURIST] PC hardware manufacturer Rambus [corporate website] unlawfully monopolized [press release] four markets for dynamic random access memory (DRAM) computer chips and deliberately withheld information about forthcoming patents on the technology from a technology-standards-setting group, according to an opinion released Wednesday by the Federal Trade Commission (FTC). In the unanimous commission opinion [PDF text], Commissioner Pamela Jones Harbour wrote:

Rambus's conduct was calculated to mislead JEDEC [Joint Electron Device Engineering Council] members by fostering the belief that Rambus neither had, nor was seeking, relevant patents that would be enforced against JEDEC-compliant products...Under the circumstances, JEDEC members acted reasonably when they relied on Rambus's actions and omissions and adopted the SDRAM and DDR SDRAM standards.
The Joint Electron Device Engineering Council [official website] was established to ensure that technology standards do not incorporate patented technologies.

The FTC first brought an administrative complaint [FTC docket] against Rambus in 2002 for infringing antitrust laws. In 2004, an administrative law judge ruled against the FTC claim and the current decision came in an appeal to the full commission. An attorney for Rambus has said that the company will appeal the decision in federal appeals court. In the Order Reversing and Vacating the Initial Decision [PDF text], the FTC requested that the parties file supplemental briefs for the commission's remedy determination, which will include a fine against Rambus. CNET News has more.

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Hamas officials claim abuse by Israel captors during detention
Joshua Pantesco on August 2, 2006 1:52 PM ET

[JURIST] Two Hamas officials - the Palestinian Minister for Prisoners' Affairs and a deputy speaker in the Palestinian Legislative Council [official website] - who were released from Israeli custody [SA report] this week told reporters Wednesday that they had been abused while detained. Wasfi Kabha and Hasan Khurayshah said that they had were interrogated for hours, were not provided with suitable water and food, and were given dirty clothes, towels and blankets. Prison officials said the two detained Palestinian officials were treated humanely, as all detainees are treated while under Israeli custody. Kabha told AP that he was released after a military tribunal cleared him of membership in a terrorist organization. Another Hamas official, Samir Abu Eisheh, was released [JURIST report] in July.

The Hamas officials were seized [JURIST report] by Israeli authorities following the kidnapping of an Israeli soldier [JURIST news archive]. Israeli officials said in June that the captured Palestinian lawmakers would be tried under standard criminal warrants [JURIST report] for membership in or leadership of a terrorist organization. BBC News has more.

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EU rejects Poland call to reinstate death penalty
Jaime Jansen on August 2, 2006 1:44 PM ET

[JURIST] The European Union [official website] has rejected a call by Polish President Lech Kaczynski [official profile] to review the EU ban on capital punishment [JURIST news archive], European Commission [official website] spokesman Steffan de Rynck said Wednesday. Kaczynski urged the EU to reconsider the death penalty [BBC report] last Friday, even though the EU requires abolition of capital punishment for EU membership.

Kaczynski said that the death penalty ban gives an "unimaginable advantage to the perpetrator over the victim." The League of Polish Families [party website; Wikipedia backgrounder], a nationalist minority party, has launched a campaign to reinstate the death penalty [Polskie Radio report] for pedophile murderers. BBC News has more.

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US Marine sues congressman for Haditha war crimes comments
Joshua Pantesco on August 2, 2006 1:09 PM ET

[JURIST] Attorneys for a US soldier under investigation for civilian killings in Iraq filed a defamation and invasion of privacy lawsuit [complaint, PDF] Wednesday against Rep. John Murtha (D-PA) [official website] in a Washington DC federal court. The suit alleges that Murtha falsely accused US Marine Corps sergeant Frank Wuterich of war crimes during press conferences where Murtha discussed [JURIST report] the alleged killing of 24 Iraqi civilians [JURIST report] by Marines in the city of Haditha in November, 2005. Wuterich, whose name was never specifically mentioned by Murtha, is currently a subject of a Naval Criminal Investigation Service (NCIS) probe into his involvement in the deaths, and has not been charged. The suit also repeats Wuterich's version of the incident. Wuterich has previously said that Iraqi civilians were killed during a house-to-house hunt for insurgents who fired at his squad, but that no cold-blooded murders occurred.

Murtha released a statement [text] Wednesday saying that his public comments regarding the Haditha allegations were intended to "draw attention to the horrendous pressure put on our troops in Iraq and to the cover-up of the incident." Lawyers for Wuterich say that while the lawsuit seeks over $75,000 in compensatory damages, the true purpose of the litigation is to clear Wuterlich's name and to hold Murtha accountable for allegedly false statements, which the lawsuit argues were made outside of Murtha's role as a US congressman. AP has more.

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Federal judge certifies class in lawsuit against Georgia sex-offender law
Jaime Jansen on August 2, 2006 1:06 PM ET

[JURIST] A federal judge in Georgia has certified a class of more than 10,000 registered sex offenders living in Georgia that would be subject to a new state law [legislative materials] barring them from living or working within 1,000 feet of a child care facility, church, school or "area where minors congregate," including school bus stops. US District Judge Clarence Cooper [official profile] of the Northern District of Georgia [official website] certified the class in a case challenging the new law in an effort to prevent a flood of new complaints, motions to add plaintiffs to the case, and requests for temporary restraining orders. In June, Cooper granted a temporary restraining order preventing the state from fully enforcing the new law, which was scheduled to take effect on July 1, against eight plaintiffs, and then later extended the restraining order to all registered sex offenders in the state [JURIST reports].

The Southern Center for Human Rights (SCHR) [advocacy website], which is representing the plaintiffs in the class-action lawsuit [complaint, PDF; SCHR materials], says that the law violates several constitutional provisions and at least one federal statute, and that it would require all but a few of the state's offenders to move out of their current homes. Wednesday's Atlanta Journal-Constitution has more [registration required].

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UK tribunal ruling allows deportations of Zimbabwe asylum seekers to resume
Joshua Pantesco on August 2, 2006 12:26 PM ET

[JURIST] The UK Asylum and Immigration Tribunal (AIT) [official website] on Wednesday cleared the way for the UK to resume deportations of Zimbabwe citizens seeking asylum in Britain, overturning a previous decision [JURIST report] that all Zimbabwe citizens face a "real risk of serious harm" if deported. The AIT determination [DOC text] holds that "[a] failed asylum seeker returned involuntarily to Zimbabwe does not face on return a real risk of being subjected to persecution or serious ill-treatment on that account alone."

The AIT ruled last October that although the Zimbabwe man who appealed his deportation order had been "fraudulent" and "deliberately dishonest" with British authorities in paperwork supporting his asylum claim, the risk that the Zimbabwe government under President Robert Mugabe would treat all deportees as spies or traitors subject to criminal sanctions warranted a halt of all deportations to Zimbabwe. UK officials argued that the tribunal's decision created a large hole [BBC report] in Britain's asylum policy for Zimbabwe [IND backgrounder], and in April, the High Court ordered the AIT to review the determination [JURIST report]. BBC News has more.

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Halliburton subcontractor settles Iraq fraud allegations for $4 million
Jaime Jansen on August 2, 2006 12:21 PM ET

[JURIST] Eagle Global Logistics (EGL), a Houston based company hired by Halliburton subsidiary Kellogg, Brown & Root (KBR) [corporate websites] to ship military cargo to Iraq, has paid the government $4 million [press release] to settle potential claims under the False Claims Act [text] that it inflated invoices for Iraq military cargo shipments, the US Justice Department said Wednesday. EGL was accused of charging a "war risk surcharge" on military shipments from Dubai, United Arab Emirates to Iraq between November 2003 and July 2004. The allegations arose when David Vavra and Jerry Hyatt sued EGL on behalf of the US under the whistleblower provisions of the False Claims Act. Both parties will receive $800,000 from the settlement agreement as a result of their lawsuit.

Christopher Joseph Cahill, former EGL regional vice president for the Middle East and India, pleaded guilty in the US District Court for the Central District of Illinois to inflating the invoices by over $1 million in a bid to cover the surcharges earlier this year. Cahill admitted to ordering a subordinate to change invoices to cover up for the fraudulent surcharges after he became aware of the government investigation. AP has more.

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Anti-evolution advocates lose control of Kansas school board in primaries
Jaime Jansen on August 2, 2006 11:31 AM ET

[JURIST] Hardline Republicans in Kansas lost control of the Kansas Board of Education [official website] during a Tuesday primary vote that brought in more moderate conservatives who support the theory of evolution. The School Board garnered international attention last year when it upheld anti-evolution standards [JURIST report] in schools across the state, using its two-person conservative majority. After Tuesday's election, evolution supporters on the School Board have a two-person majority. The new moderate Republicans on the ballots this fall will face Democratic challengers who also support teaching evolution, paving the way to overturn last year's vote.

Last year, the School Board approved revised science standards [BOE materials] by a vote of 6-4 that require students to understand not only evolution [BBC backgrounder], but also recent religiously-motivated challenges to the theory, such as intelligent design [JURIST news archive], a policy struck down [JURIST report] last December by a federal judge after being embraced in a Pennsylvania school district. In a separate lawsuit challenging a Georgia school board's decision to include stickers in biology books calling "evolution a theory, not a fact," the Eleventh Circuit in May vacated and remanded a district court decision [JURIST report], asking the lower court to determine whether the school district's actions were "religiously neutral." AP has more. The New York Times has additional coverage.

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US Senate votes to seize San Diego cross property
Joshua Pantesco on August 2, 2006 11:21 AM ET

[JURIST] The US Senate on Tuesday approved a measure [PDF text; HR 5683 summary] to seize land on Mount Soledad in San Diego, thus permitting the First Amendment [text], rather than the California constitution, to control the issue of whether a cross [image], erected on the land as a tribute to Vietnam War veterans, is an impermissible government endorsement of religion. The US House of Representatives last month agreed to transfer the land to the Defense Department [JURIST report] before an expected appeal to the US Court of Appeals for the Ninth Circuit this fall because federal law has been more permissive toward religious displays on public property than the California constitution [text].

Last month, US Supreme Court Justice Anthony Kennedy ordered the continuation of a temporary stay [JURIST reports] against the removal of the monument pending the Ninth Circuit appeal. Kennedy issued the original stay after a district court ordered [Union-Tribune report] in May that the cross be removed by Aug. 2 and that the city be fined $5,000 a day if it was not, finding that the cross constitutes a state endorsement of religion. Philip Paulson, an atheist and Vietnam War veteran, has been challenging the cross for more than 16 years [Paulson commentary]. The Los Angeles Times has more.

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Initial probe into Haditha killings supports murder accusations: DOD official
Jaime Jansen on August 2, 2006 10:34 AM ET

[JURIST] The Naval Criminal Investigative Service (NCIS) [official website] has completed its probe into the deaths of 24 Iraqi civilians in Haditha [JURIST report] last November, and a Pentagon official indicated Wednesday that evidence supports accusations that US Marines from the Third Battalion, First Marine Regiment [official website] murdered the unarmed Iraqis. NCIS may be called on again to further investigate the incident if the commanding officer of the First Marine Expeditionary Force decides to press criminal charges against the Marines involved in the incident. A second NCIS probe into the Haditha incident is investigating whether commanders in Iraq deliberately covered up the Iraqi deaths [JURIST report], passing them off as the result of gunfire during conflict ensuing from a roadside bomb. AP has more.

In a related development, the US Marine Corps may be preparing unspecified charges against more four Marines arising out of a US military probe of seven Marines and one Navy corpsman charged [JURIST report] in June with murdering an unarmed man in Hamdania and then placing a rifle and shovel near his body to make him look like an insurgent preparing a roadside bomb. Defense coordinator Lt. Col. Colby Vokey said that he learned of the new charges when the military told him to find attorneys for the men. The military has not said whether the new charges will be connected to the Hamdania death or other incidents uncovered in the investigation. AP has more.

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9/11 panel weighed asking DOJ to probe false official testimony on plane tracking: report
Joshua Pantesco on August 2, 2006 10:28 AM ET

[JURIST] Members of the 9/11 Commission [official website] considered asking the US Justice Department to investigate suspected deception by government officials intended to hide mistakes in the Pentagon's response to the Sept. 11 attacks [JURIST news archive], the Washington Post reported on Wednesday. The commissioners contemplated possible criminal charges under 18 U.S.C. 1001 [text], which prohibits making false statements before Congress or a body constituted by Congress. Ultimately, however, the Commission referred the matter to the inspectors general for the Defense and Transportation Departments.

9/11 Commission chairman and former New Jersey Governor Thomas H. Kean cited the North American Aerospace Command (NORAD) [official website] as an example of a group that potentially gave false testimony to the Commission. Transcripts of NORAD audio recordings [text], published by Vanity Fair on Wednesday, appear to show that NORAD had not tracked any of the airplanes used during the Sept. 11 attacks before they were crashed, contradicting testimony provided by NORAD officials. NORAD balked at releasing the tapes to the commission, which prompted the commission's concern that NORAD officials gave misleading testimony. The Washington Post has more.

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Mexico interior minister slams 'illegal' election protests
Jaime Jansen on August 2, 2006 9:49 AM ET

[JURIST] Mexican Interior Secretary Carlos Abascal [official profile, in Spanish] criticized presidential candidate Andres Manuel Lopez Obrador [campaign website, in Spanish; Wikipedia profile] and supporters staging protests [JURIST report] in Mexico City, saying Tuesday that the protestors have set up an "illegal blockade" by effectively bringing Reforma Avenue and the nearby Zocalo square to a standstill. The protest are causing traffic jams and business delays at the headquarters of many major corporations located on the street. Abascal urged Mexico City Mayor Alejandro Encinas, a member of Lopez Obrador's party, to bring order to the streets of the capital city, saying it was his responsibility to stop the blockade. Hundreds of thousands of protestors began to camp out on the streets of Mexico City on Sunday, demanding a full manual recount of ballots in the July 2 election [JURIST report], where Lopez Obrador lost to conservative candidate Felipe Calderon [campaign website, in Spanish; Wikipedia profile] by just 0.6 percent of the vote [JURIST report]. Lopez Obrador supporters claim that fraudulent election practices [JURIST report] allowed Calderon to win the election, though officials have not confirmed Calderon as the winner.

Observers from the European Union have said that they witnessed no fraud in their review of the election, but Mexico's Federal Electoral Tribunal [official website, in Spanish] voted unanimously late Monday to consider a recount, after hearing arguments from Lopez Obrador on Saturday [JURIST report]. The seven judges will decide whether to recalculate the ballots by August 31 and many of Lopez Obrador's supporters are expected to continue protesting in the capital until a decision is reached. Mexico City police are unlikely to intervene since Lopez Obrador was mayor of the capital city prior to his presidential bid and the police force is still led by his Democratic Revolution Party [party website, in Spanish]. AP has more.

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White House now backs detainee trial process more like courts-martial: Graham
Joshua Pantesco on August 2, 2006 9:46 AM ET

[JURIST] US Sen. Lindsey Graham (R-SC) [official website] told reporters on Tuesday that the White House has changed its position on military commissions [DOD materials; JURIST news archive], and now favors an approach that would try suspected terrorist detainees under a system modeled more on the Uniform Code of Military Justice (UCMJ) [text]. Graham, the chairman of the Senate Armed Services Committee, called the latest proposal a "hybrid" between the military commissions established under Military Commission Order No. 1 [text] that the US Supreme Court in June ruled lacked proper legal authorization [JURIST report], and the courts-martial system under the UCMJ. The Bush administration has considered asking Congress to authorize the current system [JURIST report], a solution once backed by Graham [press release] and contemplated by the Supreme Court in Hamdan v. Rumsfeld [text]. The White House circulated a draft bill [JURIST report; PDF text] last week that among other things would allow military commissions to proceed against an accused "enemy combatant" without the defendant being present, if necessary to protect national security, a provision inconsistent with the UCMJ.

The UCMJ mandates a courts-martial system [Globalsecurity.org backgrounder] that provides defendants with fundamental trial rights similar to those enjoyed in US civilian trials. Defendants are guaranteed counsel and the right to a trial by jury, and the defendant is provided an opportunity to cross-examine witnesses and present evidence. Several administration lawyers have warned against a courts-martial system [JURIST report] to try terrorist suspects, arguing that the evidentiary requirements place severe burdens on the prosecution, but other DOJ lawyers said that the Military Rules of Evidence could be altered to admit reliable hearsay, among other things. AP has more.

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Immigrants file lawsuit against US government over delay in citizenship bids
Joshua Pantesco on August 2, 2006 9:09 AM ET

[JURIST] Ten permanent resident immigrants sued the federal government on Tuesday, arguing that their naturalization applications have been unnecessarily delayed by "the bureaucratic failings and callous inaction" of the FBI and US Citizenship and Immigration Services (USCIS) [official website] in delaying "name checks" required before applications can be granted. The lawsuit [PDF complaint], filed by the Council for American-Islamic Relations and the American Civil Liberties Union [press releases] on behalf of the ten plaintiffs, asks the federal court to review their citizenship applications and grant them citizenship. Plaintiffs argue that under 8 U.S.C. 1447(b) [text], the federal courts may grant citizenship requests when USCIS has delayed their response to an application for more than 120 days. All plaintiffs in the suit have been waiting more than two years to hear back from USCIS.

The lawsuit also seeks class action status to represent all those immigrants whose applications have been delayed for longer than six months. A USCIS spokesperson said fewer than one percent of applications are delayed for longer than six months. AP has more.

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Media barred from observing witness testimony in Mahmudiya hearings
Jaime Jansen on August 2, 2006 9:01 AM ET

[JURIST] The US military has banned the media and public from observing witness testimony of Iraqis in upcoming Article 32 hearings [Navy JAG backgrounder] for five US Army soldiers charged [JURIST report] in connection with the rape of an Iraqi teenager and the murder of her and her family in Mahmudiya [JURIST news archive]. The trial counsel moved for the media ban Monday to protect the identity of witnesses, fearing that insurgents will target the witnesses and perceive them as helping US forces. Trial counsel Capt. Alexander Pickands told Col. Todd Ebel, commanding officer of the 502nd Infantry Regiment of the 101st Airborne Division and the defendants' unit, that several witnesses had already received threatening phone calls and letters.

Sgt. Paul Cortez, Spc. James Barker, Pfc. Jesse Spielman and Pfc. Bryan Howard have been accused of rape and murder, while Sgt. Anthony Yribe has been charged with failing to report the incident. Steven Greene, a former soldier discharged from the Army before the allegations arose, has pleaded not guilty to charges [JURIST reports] of rape and murder in the US District Court for the Western District of Kentucky [official website] in connection to the same incident. Greene's arraignment has been delayed [JURIST report] to avoid complications with evidence used in the investigation [JURIST report] into the five soldiers still in Iraq. AP has more.

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Federal appeals court overturns convictions of Merrill Lynch execs in Enron scam
Jaime Jansen on August 2, 2006 8:00 AM ET

[JURIST] The US Court of Appeals for the Fifth Circuit [official website] on Tuesday reversed the convictions [opinion text, PDF] of four former Merrill Lynch [corporate website] executives found guilty in connection with an Enron [corporate website; JURIST news archive] Nigerian barge scam. The Fifth Circuit overturned conspiracy and wire fraud convictions [JURIST report] for James Brown, William Fuhs, Daniel Bayly and Robert Furst [JURIST reports] "on the legal ground that the government's theory of fraud relating to the deprivation of honest services -- one of three theories of fraud charged in the Indictment -- is flawed." The four defendants appealed their convictions, arguing that there were problems with the jury instructions and the government's theory of criminal liability, as well as a deprivation of honest services. The court, however, ruled only on the deprivation of Enron's intangible right to honest services of employees argument, finding that the four executives had acted for the benefit of Enron and not to benefit themselves personally.

The court did, however, uphold a perjury and obstruction of justice conviction against Brown. A fifth executive convicted in the scandal, Daniel Boyle, did not appeal his conviction. AP has more. The Houston Chronicle has additional coverage.

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For more legal news check the Paper Chase Archive...


Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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