Latest 2 Cases: United States v. Sineneng-Smith (Civil Procedure), Kelly v. United States (Criminal Law)

Department of Justice Once Again Proves Its Loyalty to the President, Not the Rule of Law

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on the recent news that the Justice Department will seek dismissal of charges against Michael Flynn. Sarat suggests that because the decision does not seem to advance the fair administration of justice in this case, the court should take the unusual step of refusing to grant the prosecutor’s motion to dismiss.

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United States v. Sineneng-Smith

Docket: 19-67

Opinion Date: May 7, 2020

Judge: Ruth Bader Ginsburg

Areas of Law: Civil Procedure, Constitutional Law, Immigration Law

Sineneng-Smith operated a California immigration consulting firm, assisting clients to file applications for a labor certification program that once provided a path for aliens to adjust to lawful permanent resident status. Sineneng-Smith knew that her clients could not meet the long-passed statutory application-filing deadline but nonetheless charged each client over $6,000, netting more than $3.3 million. Sineneng-Smith was indicted under 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), which make it a felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” An enhanced penalty applies if the crime is “for the purpose of commercial advantage or private financial gain,” Appealing her convictions to the Ninth Circuit, Sineneng-Smith asserted a First Amendment right to file administrative applications on her clients’ behalf. The court invited amici to brief issues framed by the panel, then held that section 1324(a)(1)(A)(iv) is unconstitutionally overbroad under the First Amendment. A unanimous Supreme Court vacated. “The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.” No extraordinary circumstances justified the court's takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment arguments concerning her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that section 1324(a)(1)(A)(iv) might cover protected speech, including abstract advocacy and legal advice. A court is not "hidebound" by counsel’s precise arguments, but the Ninth Circuit’s "radical transformation of this case" went too far.

Kelly v. United States

Docket: 18-1059

Opinion Date: May 7, 2020

Judge: Elena Kagan

Areas of Law: Criminal Law, Government & Administrative Law, White Collar Crime

During former New Jersey Governor Christie’s 2013 reelection campaign, Fort Lee’s mayor refused to endorse Christie. Kelly, Christie's Deputy Chief of Staff, Port Authority Deputy Executive Director, Baroni, and another official decided to reduce from three to one the number of lanes reserved at the George Washington Bridge’s toll plaza for Fort Lee’s commuters. To disguise the political retribution, the lane realignment was said to be for a traffic study. Port Authority traffic engineers were asked to collect some numbers. An extra toll collector was paid overtime. The lane realignment caused four days of gridlock, ending only when the Port Authority’s Executive Director learned of the scheme. The Third Circuit affirmed the convictions of Baroni and Kelly for wire fraud, fraud on a federally funded program, and conspiracy to commit those crimes. The Supreme Court reversed. The scheme did not aim to obtain money or property. The wire fraud statute refers to “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses,” 18 U.S.C. 1343. The federal-program fraud statute bars “obtain[ing] by fraud” the “property” (including money) of a federally funded program or entity, section 666(a)(1)(A). The statutes are limited to the protection of property rights and do not authorize federal prosecutors to set standards of good government. The Court rejected arguments that the defendants sought to take control of the Bridge’s physical lanes or to deprive the Port Authority of the costs of compensating employees. Their realignment of the access lanes was an exercise of regulatory power; a scheme to alter a regulatory choice is not one to take government property. The time and labor of the employees were an incidental byproduct of that regulatory object. Neither defendant sought to obtain the services that the employees provided.