International Criminal Court Lacks Authority to Proceed Against Israel

SAMUEL ESTREICHER, GEORGE BOGDEN

NYU law professor Samuel Estreicher and JD candidate George Bogden, PhD, comment on a recent filing by the Prosecutor of the International Criminal Court (ICC) asking the court to exercise jurisdiction and grant permission to pursue an investigation of alleged war crimes in the West Bank and the Gaza Strip. Estreicher and Bogden argue that because Israel is not a state party to the action and Palestine is not a state recognized by international law, the ICC lacks territorial jurisdiction under the Rome Statute.

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Lord v. Beahm

Docket: 19-1346

Opinion Date: March 13, 2020

Judge: Scudder

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Lord, an inmate at Wisconsin’s Waupun Correctional Institution, exposed himself to a female guard. After the guard told him that she would write him up and walked away, Lord began yelling that he had a razor blade and intended to kill himself. A short while later, a male guard went to Lord’s cell, ordered him out, and saw he had minor scratches treatable with a gauze bandage. Lord sued four guards for money damages under 42 U.S.C. 1983, alleging that they acted with deliberate indifference to a material risk to his life by not responding faster to his suicide threat. The Seventh Circuit affirmed summary judgment for the defendants. “Prison suicide is very real and very serious, but any fair reading of this record, even in the light most favorable to Lord, shows that he leveled an insincere threat of suicide to get attention and demonstrated no recoverable injury.”

United States v. Dridi

Docket: 18-3334

Opinion Date: March 13, 2020

Judge: KANNE

Areas of Law: Criminal Law, White Collar Crime

Before acquiring cars for resale, Elite obtained financing; its lenders held the title of each car until it received payment for the car. Lenders dispatched auditors to ensure the dealership was not selling cars without repaying the loan after each sale. From 2012-2015 Elite’s employees obtained copies of car titles from the Indiana Bureau of Motor Vehicles online portal. If a copy could not be acquired, employees could avoid asking lenders to release car titles by continually issuing the customer temporary license plates. Employees would call customers and request that their cars be returned to the lot for a free oil change before an auditor’s inspection or would lie to the auditor, saying that the car was out for a test drive or repairs. Elite’s employees also defrauded consumer lenders by helping customers submit fraudulent applications and defrauded insurance companies by using a chop shop behind the dealership to disassemble their own vehicles before reporting the vehicles as stolen. Elite employee Dridi was convicted of conspiring to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1962(d), and interstate transportation of stolen property, 18 U.S.C. 2314, sentenced to 72 months in prison, and ordered $1,811,679.25 in restitution. The Seventh Circuit affirmed Dridi’s prison sentence but vacated the restitution order, The district court should have made specific factual findings about Dridi’s participation in the conspiracy.

United States v. O'Brien

Docket: 19-1004

Opinion Date: March 13, 2020

Judge: Joel Martin Flaum

Areas of Law: Criminal Law, White Collar Crime

O’Brien was convicted of mail fraud, 18 U.S.C. 1341, and bank fraud, 18 U.S.C. 1344, based on a 2004-to-2007 scheme in which O’Brien misrepresented her income and liabilities to cause lenders to issue and refinance loans related to two Chicago investment properties O’Brien owned., O’Brien was a licensed attorney with a background and experience in the real estate industry, including as a registered loan originator, mortgage consultant, and licensed real estate broker. The Seventh Circuit affirmed, rejecting O’Brien’s arguments that the charges against her were duplicitous and that under a properly pled indictment the statute of limitations would have barred three of the four alleged offenses. She also argued that the district court should not have admitted evidence offered to prove those time-barred offenses and that there was insufficient evidence to support the jury’s guilty verdict. The government appropriately acted within its discretion to allege an overarching scheme to commit both bank fraud and mail fraud affecting a financial institution. Each count included an execution of the fraudulent scheme within the applicable 10-year statute of limitations, and the jury’s guilty verdict rested upon properly admitted and sufficient evidence.

United States v. Geary

Docket: 19-2299

Opinion Date: March 13, 2020

Judge: Barrett

Areas of Law: Criminal Law

David, Sheila’s husband, raped, sexually abused, and took pornographic photos of their daughter (MF) when she was between the ages of five and eight. Sheila viewed those pictures and found other images of child pornography to share with David. Ultimately, Sheila pleaded guilty to possession of child pornography and was sentenced to 57 months’ imprisonment, and ordered to pay $55,600 in restitution jointly and severally with David. The Seventh Circuit affirmed. U.S.S.G. 2G2.2(c)(1), which applies to various forms of the sexual exploitation of children, starts at a higher base level than section 2G2.2 and advises a two-level increase if the defendant was a parent who “permitt[ed]” her minor child to engage in sexually explicit conduct. There was ample evidence that Sheila “permitted” David to use their daughter for the production of child pornography. The district court exercised appropriate caution in taking the word of an abusive husband against that of his wife and, even without David’s statements, there was enough evidence to support the application of section 2G2.2. One need not “participate” or “assist” in an activity to “permit” it. The court granted Sheila a substantial downward departure as an abuse victim and imposed a sentence at the bottom of the advisory range that would have applied under the guideline that Sheila requested. The court employed the restitution calculation made in David’s sentencing-- the estimated cost of providing counseling and therapy to MF. Sheila could have challenged that calculation.

Omorhienrhien v. Barr

Docket: 19-2175

Opinion Date: March 13, 2020

Judge: Scudder

Areas of Law: Immigration Law

Omorhienrhien came to the U.S. as a visitor from Nigeria in 2008 and began a relationship with Harris, a citizen. They married months later. Harris filed Form I-130 to give Omorhienrhien a path to residency based on their marriage. USCIS denied the petition upon discovering that Omorhienrhien had been legally married to another woman in Nigeria when he married Harris, though the Nigerian marriage had since ended. Omorhienrhien and Harris remarried and submitted a new petition. Omorhienrhien received a two-year conditional permanent residency in 2011, 8 U.S.C. 1186a(a)(1). Omorhienrhien and Harris divorced about six months after he obtained that status. Because Harris did not join him in a petition to remove the conditions, Omorhienrhien unsuccessfully sought a hardship waiver. In removal proceedings, an IJ rejected his claim that the marriage was in good faith. The divorce decree stated that the parties were married in December 2008 and had been separated since July 2009; there was a lease indicating that the two lived separately. The IJ noted the lack of any objective evidence that the couple married with the intent to share a life together. The BIA dismissed his appeal. The Seventh Circuit denied a petition for review, finding no legal errors. The IJ applied the correct standard of proof.