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Federal Criminal Law

Courthouse Steps: Ziglar v. Abbasi

International & National Security Law Practice Group Teleforum Thursday, January 19, 01:00 PMFederalist Society Teleforum Conference Call

Ziglar v. Abbasi is the result of over a decade of remands and appeals. The case was originally filed by the Center for Constitutional Rights on behalf of incarcerated Muslim, South Asian, and Arab non-citizens who were targeted after 9/11 by law enforcement as “terrorism suspects.” The defendants in the case, high level officials in the Bush administration, such as Attorney General John Ashcroft and FBI director Robert Mueller, and low level detention officials, filed a motion to dismiss which was rejected by the in the District Court.

In 2009, the Supreme Court decided in Ashcroft v. Iqbal that government officials were not liable for discriminatory actions of their subordinates without evidence they directly ordered the actions. Meanwhile, five of the petitioners in Ziglar settled with the government, and the case was remanded to the District Court and amended. In 2010, the District Court granted a new motion of dismissal, but only for the high level officials. This dismissal was reversed by the Second Circuit and then the government petitioned the Supreme Court for review.

Professor Jamil Jaffer will join us to discuss the oral argument of this case, which will be held on January 18.

Featuring:

  • Prof. Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee

Salman v. United States - Post-Decision SCOTUScast

SCOTUScast 12-21-16 featuring Thaya Brook Knight
Thaya Brook Knight December 21, 2016

On December 6, 2016, the Supreme Court decided Salman v. United States. Bassam Yacoub Salman was convicted in a jury trial of conspiracy to commit securities fraud, as well as several counts of actual securities fraud. The government’s theory was that Salman, whose brother-in-law Mounir Kara (along with Mounir’s older brother Maher Kara) worked for Citigroup, had coordinated with Mounir in an insider trading scheme that, over the course of just a few years, grew a $396,000 brokerage account controlled by Salman into one worth more than $2 million.

Salman moved for a new trial, arguing that there was no evidence he knew that the tipper had disclosed confidential information in exchange for a personal benefit. The district court denied the motion. Salman made a similar argument to the U.S. Court of Appeals for the Ninth Circuit on appeal, urging the Court to adopt the then-recently established standard set out by the Second Circuit in United States v. Newman. Under Newman, the government must present sufficient evidence that the accused knew the “inside” information he received had been disclosed in breach of a fiduciary duty. Invoking Supreme Court precedent in Dirks v. SEC, the Ninth Circuit rejected Salman’s challenge, holding that the close familial relationship between Salman and the Karas was sufficient to sustain Salman’s convictions.

The question before the Supreme Court was whether the personal benefit to the insider that is necessary to establish insider trading under Dirks requires proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” as the Second Circuit held in Newman, or whether it is enough that the insider and the tippee shared a close familial relationship, as the Ninth Circuit held here.

By a vote of 8-0, the Supreme Court affirmed the judgment of the Ninth Circuit. In an opinion delivered by Justice Alito, a unanimous Court held that the Ninth Circuit properly applied the court's decision in Dirks v. Securities and Exchange Commission to affirm Bassam Salman's conviction because, under Dirks, the jury could infer that Salman's tipper personally benefited from making a gift of confidential information to a trading relative.

To discuss the case, we have Thaya Brook Knight, who is associate director of financial regulation studies at the Cato Institute.

The Limits of Federal Criminal Law - Event Audio/Video

Criminal Law & Procedure Practice Group
Cristina C. Arguedas, Leslie R. Caldwell, Benjamin L. Hatch, John C. Richter, Joseph F. Savage, Stuart S. Taylor December 09, 2016

In the last year, the Department of Justice lost three major cases against Fed Ex, Vascular Solutions and Warner Chilcott. Critics argue that each case was an example of over-enforcement by DOJ and overcriminalization by Congress. Proponents assert that it is a critical role of government to police and dissuade bad acts by private citizens and corporations. Are there too many federal agencies, giving prosecutors too much power over individuals and corporations? Is it good policy to prosecute individual employees of a corporation, as suggested in the Yates memorandum? Panelists, including lawyers in each of these three cases, will discuss the limits of federal criminal law and prosecutions.

This panel was held on December 8, 2016, at the National Press Club in Washington, DC.

Speakers: 

  • Cristina C. Arguedas, Partner, Arguedas, Cassman & Headley LLP 
  • Leslie R. Caldwell, Assistant Attorney General for the Criminal Division, The United States Department of Justice
  • Ben Hatch, Partner, McGuireWoods
  • John Richter, Partner, King & Spalding 
  • Joseph Savage, Partner, Goodwin Proctor 
  • Moderator: Stuart S. Taylor, Contributing Editor, National Journal

National Press Club
Washington, DC