William Barr Has Made the Federal Death Penalty a Weapon in Trump’s Campaign Arsenal

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 Attorney General William Barr’s recent order to resume federal executions and the political implications of that order. Sarat briefly describes the history of the federal death penalty in the United States and explains that, regardless of what state we live in, when the federal government puts someone to death, it does so in all of our names.

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Jander v. International Business Machines Corp.

Docket: 17-3518

Opinion Date: June 22, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, ERISA

The judgment the Second Circuit entered in its initial opinion in this appeal was vacated by the Supreme Court and remanded for reconsideration. The court reinstated the judgment. Plaintiffs, participants in IBM's employee stock option plain filed suit alleging that the plan's fiduciaries breached their duty of prudence under the Employee Retirement Income Security Act (ERISA). The district court granted defendants' motion to dismiss; this court reversed and remanded; and then the Supreme Court granted defendants' petition for certiorari, which presented the question whether a plaintiff can state a duty-of-prudence claim based on generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time. The Supreme Court also granted the government's motion to participate in oral argument as an amicus curiae in support of neither party, so that it could present the views of the Department of Labor and the Securities and Exchange Commission. After oral argument, the Supreme Court vacated the judgment and remanded, explaining that defendants' and the government's post-certiorari arguments primarily addressed matters that fell beyond the question presented to the Supreme Court, and that had not been raised before this court. The court held that the arguments raised in the supplemental briefs either were previously considered by this court or were not properly raised. To the extent that the arguments were previously considered, the court will not revisit them. To the extent that they were not properly raised, they have been forfeited, and the court declined to entertain them. Accordingly, the court reversed the district court's judgment and remanded for further proceedings.

Peterson v. Islamic Republic of Iran

Docket: 15-0690

Opinion Date: June 22, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, International Law

The Second Circuit first addressed this matter by affirming in part, vacating in part, and remanding. Defendants then filed petitions for rehearing, which the court denied, and Defendant Bank Markazi filed a petition for certiorari with the Supreme Court. The Solicitor General ultimately recommended that the petitions for writs of certiorari be denied because both Houses of Congress had passed separate bills that could substantially affect the proper disposition of the case. Congress then enacted the National Defense Authorization Act for Fiscal Year 2020 and the Supreme Court subsequently granted the petitions for certiorari, vacated the prior decision in Peterson II, and remanded to the Second Circuit. The Second Circuit readopted that portion of its now vacated decision in Part B and Part C.1 of the "Discussion" section of Peterson II as the decision of this court. In regard to subpart C.2, the court reinstated only its judgment that the district court prematurely dismissed the amended complaint for lack of subject-matter jurisdiction and remanded for the district court to reconsider that question. However, the court did not reinstate its analysis as to whether the common law and Koehler provide the district court with jurisdiction over the extraterritorial asset, directing the district court to address these issues. Finally, the court respectfully directed the Clerk of this Court to return the matter to this panel for further review and adjudication.

United States v. Napout

Docket: 18-2750

Opinion Date: June 22, 2020

Judge: Robert David Sack

Areas of Law: Criminal Law, White Collar Crime

The Second Circuit affirmed Defendants Napout and Marin's convictions for multiple counts of conspiracy to commit honest services wire fraud. Defendants were former officials of the global soccer organization Fédération Internationale de Football Association (FIFA). The court held that defendants' convictions rest upon permissible domestic applications of the wire fraud statute, 18 U.S.C. 1343. Furthermore, the court cannot conclude in light of binding precedent that the district court committed plain error with respect to the issue of whether the honest services wire fraud statute, 18 U.S.C. 1346, is unconstitutionally vague as applied to defendants. The court also held that the evidence presented at trial was sufficient to affirm the district court's judgment of conviction; and that the challenged evidentiary rulings of the district court were not error. Finally, the court held that defendants' remaining arguments are without merit.

United States v. Peeples

Docket: 18-2309

Opinion Date: June 22, 2020

Judge: Jose A. Cabranes

Areas of Law: Criminal Law

The Second Circuit affirmed defendant's conviction for bank robbery, entering a bank with the intent to commit larceny, and bank larceny. The court held that, in the circumstances presented, dismissal of criminal charges is not the appropriate remedy for a violation of Federal Rule of Criminal Procedure 5(c) and the magistrate judge's failure to sign the affidavit attached to the criminal complaint did not render the complaint invalid. Rather, the appropriate remedy for a violation of Rule 5(c)(2) is suppression of any post-arrest evidence illegally obtained as a result of the violation of the rule's requirement. In this case, defendant failed to show that his transfer for an initial appearance in violation of Rule 5(c)(2) caused him any prejudice. Furthermore, even though the magistrate judge failed to sign the jurat on the last page of the affidavit in support of the criminal complaint, the magistrate judge signed the jurat on the complaint itself, to which the affidavit was attached. Finally, the court held that defendant's remaining evidentiary challenges do not warrant vacatur of his conviction.